I am in accord with the majority view except in so far as it holds the admission into evidence, over the objections of plaintiff, of four maps, dated *Page 109 1931, 1932, 1935 and 1937 of Troy Hills, Inc., a real estate development; two maps of the New Jersey State Highway Commission, made in 1937; an assessment map made by the plaintiff municipality in 1930 and the testimony of the tax assessor of the plaintiff township that assessments made by him on properties abutting the road in controversy were based on the aforementioned assessment map were, while admittedly immaterial, not prejudicial to the plaintiff. In my opinion all this evidence was both immaterial and incompetent, highly prejudicial to the plaintiff, and its admission constituted error.
True, under the case of Ward v. Folly, 5 N.J.L. 566 [[*]482] (Sup. Ct. 1819), the trial court limited the question to be determined by the jury to whether or not North Beverwyck Road was in existence as a highway prior to 1760 and if it was,a fortiori, it would be four rods or sixty-six feet in width, but it is apparent that throughout the trial there was a studied effort on the part of the defendant to show the road, in all the years of its existence, had never been over fifty feet in width no matter how it had been established whether before 1760 or thereafter. This was a circuitous attempt, through improper evidence, to convince the jury the road was not established prior to 1760 by showing the State and municipal authorities had always considered the road as of a fifty foot width.
For any purpose the evidence was incompetent as well as immaterial. It cannot be seriously questioned that such testimony cannot be offered to prove the width of a road as it existed one hundred and seventy years or more prior to the making of the proffered maps and assessments, with no effort made to show the basis of those maps. They were not competent proof of the matter for which they were offered; namely "to offset any presumption, that this road has never extended over fifty feet in width." SeeScatuorchio v. New York, S. W.R.R. Co., 10 N.J. Misc. 528, 159 A. 704 (Sup. Ct. 1932).
The jury could not but have been swayed and influenced in its determination of the issue submitted to it by the introduction of the evidence complained of to the detriment of the *Page 110 appellant. I am to reverse the judgment and grant a venire denovo on this ground alone.
I am authorized by Chief Justice Vanderbilt to state he concurs in the views expressed herein.
For affirmance — Justices CASE, HEHER, WACHENFELD, BURLING and ACKERSON — 5.
For reversal — Chief Justice VANDERBILT and Justice OLIPHANT — 2.