94 N. J. L. Maginnis v. Wildwood. notice thereof, or those who are chargeable with knowledge of their existence; and whether or not this was the situation with relation to the decedent was, viewed in the most favorable light for the defendant, at least, a question of fact to be determined by the jury. Finding no legal merit in the causes of reversal which have been argued, we conclude that the judgment under review should be affirmed. For affirmance-THE CHIEF JUSTICE, SWAYZE, TRENCHARD, PARKER, BERGEN, KALISCH, BLACK, WHITE, JJ. 8. For reversal-MINTURN, WILLIAMS, GARDNER, JJ. 3. FRED MAGINNIS ET AL., APPELLANTS, v. CITY OF WILDWOOD, RESPONDENT. Argued March 4, 1920-Decided June 14, 1920. Where the governing body of a municipality has resolved to let a contract to the lowest bidder the terms thereof, as determined upon, must be advertised; and when the terms appearing in the advertisement vary materially from those contained in the resolution, a valid contract cannot be entered into between the municipality and a bidder. On appeal from the Supreme Court, whose opinion is reported in 94 N. J. L. 90. For the appellant, Clarence L. Cole. For the respondent, Harris & Harris. The opinion of the court was delivered by GUMMERE, CHIEF JUSTICE. The board of commissioners of the city of Wildwood, by a resolution adopted October Maginnis v. Wildwood. 94 N. J. L. 16th, 1919, awarded a contract for the removal of garbage to one Koeneke for a period of three years. The question presented for determination is the validity of this award. The material factors are as follows: On the 11th of September, 1919, the board of commissioners at a regular meeting adopted a motion "that the clerk be instructed to advertise for bids for the collection and removal of garbage in this city for a term of five years, beginning January 1st, 1920." The city clerk, instead of following this instruction, caused to be published an advertisement calling for bids for the removal of such garbage "for a term of years not to exceed five years." Pursuant to this advertisement bids were received from a number of competitors submitting proposals for one, two, three, four and five years. Koeneke's bid for the three years was the lowest of those received. The bid of Maginnis, one of the prosecutors in the cause, for the five-year period, was lower than any of the others. The Supreme Court held that, as the proposals received were made in strict compliance with the terms of the advertisement, the award of the contract should follow the advertisement, and that, as Koeneke was the lowest bidder for the term of three years, the commissioners had power to make the award for that period, if it was for the best interest of the city; and, concluding that the action of the commissioners was in good faith, and taken in the belief that it was for the "advantage of Wildwood," the award was affirmed. We cannot concur in this view. When the commissioners had before them the question of entering into a contract for the removal of the city garbage for a term of years, and reached the conclusion that bids should be invited for a fiveyear term, they determined, by necessary implication, that a contract for that period would be for the best interests of the city. The instruction to the clerk to advertise for bids was specific in its declaration that the proposed contract was to cover a five-year period, and that instruction was in exact compliance with the statutory mandate that the very contract the municipality contemplated entering into should not be made until bids therefor should have been advertised for in 94 N. J. L. Morey v. Essex County. the manner provided by the act. Pamph. L. 1902, p. 201. The clerk, in absolute disregard of the instructions of the board, published the advertisement above recited. Not only was the advertisement unauthorized by the board, but it failed. altogether to comply with the statutory requirement, for the request for bids was not limited to "such a contract" as the board had resolved to make. While it is true that a contract which does not comply with the terms of the advertisement for bids will be held to be invalid, it is equally true that the advertisement itself must comply with the terms of the contract which the municipality has resolved to enter into. The action of the city clerk in formulating and publishing an advertisement which is in direct violation of the instructions received by him from the governing body cannot be accepted by that body as a substitute for its own act, or form à legal basis for the award of a contract by the board. We conclude, therefore, that the judgment under review must be reversed and the award of the contract set aside. For affirmance-None. For reversal-THE CHIEF JUSTICE, SWAYZE, TRENCHLARD, PARKER, BERGEN, MINTURN, KALISCH, WHITE, HEPPENHEIMER, WILLIAMS, TAYLOR, GARDNER, ACKERSON, JJ. 13. WILLIAM C. MOREY ET AL., RESPONDENTS, v. COUNTY OF ESSEX, APPELLANT. Submitted March 22, 1920-Decided June 14, 1920. 1. The owner of land who has voluntarily parted with the possession thereof, and has vested in a third person not only the right of possession, but the possession itself, either for a fixed or indefinite period of time which has not yet expired, cannot maintain an action of trespass quare clausum fregit against the trespasser; but where the present right of possession is vested in Morey v. Essex County. 94 N. J. L. him the fact that he is wrongfully kept out of possession by the trespasser himself constitutes no bar to the maintenance of the action. 2. An action of trespass quare clausum fregit is not barred by the statute of limitations where the primary tortious act was committed over six years prior to the beginning of action but the trespass has been continued during the six-year period. On appeal from the Supreme Court. For the appellant, Charles C. Pilgrim. For the respondents, Charles Jones. The opinion of the court was delivered by GUMMERE, CHIEF JUSTICE. This is an action of trespass quare clausum fregit. The case of the plaintiffs as set out in their complaint and proved at the trial is as follows: They are the owners of a tract of land, with a building thereon, located in the borough of Verona, in Essex county, and fronting on a public road known as Lakeside avenue. This property is their homestead. Some time in the summer of 1912 the county of Essex conceived the idea of straightening this public road, and, subsequently (the date is uncertain), entered upon and took possession of a strip of the plaintiffs' land, filled it in to make it correspond to the grade of the highway, and turned it over to public use. All this was done without any attempt on the part of the county to acquire the title to or any rights in this strip; its action was entirely without warrant of law and in direct violation of the property rights of the plaintiffs. The defendant pleaded a general denial, and also the statute of limitations that is, that the alleged trespass did not occur within six years of the bringing of the present suit. No attempt was made by the county at the trial to justify its act, its sole contention being that plaintiffs' action was outlawed. In dealing with this phase of the case the trial judge charged the jury that the statute of limitations was no bar, because the trespass was a continuous one. The jury thereupon ren 94 N. J. L. Morey v. Essex County. dered a verdict awarding damages to the plaintiffs for the defendant's trespass and judgment was entered thereon. Only two questions are presented on this appeal. The first is whether an action of trespass quare clausum fregit can be maintained by a plaintiff who is not in possession of the land upon which the trespass was committed. That this is the situation which the case presents appears on the record itself. There is a good deal of difference of opinion upon this subject as exhibited in the reports of the courts of our sister states, but we consider that the matter is entirely at rest so far as our own decisions are concerned; and the rule to be gathered from those decisions is that the owner of land who has voluntarily parted with the possession thereof, and has vested in a third person not only the right of possession, but the possession itself, either for a fixed or indefinite period of time which has not yet expired, cannot maintain this action against a trespasser (New Jersey Midland Railroad Co. v. Van Syckle, 37 N. J. L. 496, 508), but that where the title to the land, together with the present right of possession thereof is vested in the plaintiff, the fact that he is wrongfully kept out of possession by the trespasser himself, constitutes no bar to the maintenance of the action. The latter part of the rule is declared in general terms by this court in the case of Rollins v. Atlantic City Railroad Co., 70 Id. 664. It was applied by the Supreme Court in the case of Starr v. Camden and Atlantic Railroad Co., 24 Id. 592, and by this court in the case of Hetfield v. Central Railroad Co., 29 Id. 571, and again in Pipe Line Co. v. Delaware, Lackawanna and Western Railroad Co., 62 Id. 254. That the rule as our courts have declared it rests upon common sense and justice we cannot doubt. To hold that the right of the landowner to maintain the action rests entirely within the control of the wrong-doer; that is, that the latter, by leaving the premises after committing the trespass, subjects himself to immediate liability to be sued for his wrongful act, but that he may indefinitely postpone the landowner's right to recover damages by tortiously taking possession of the land itself, and keeping |