Atl. City v. New Auditorium Pier Co.

• Decision Date: 01 August 1902
• Citation: 53 A. 99,63 N.J.E. 644
• Parties: ATLANTIC CITY v. NEW AUDITORIUM PIER CO.
• Court: New Jersey Court of Chancery

53 A. 99

63 N.J.E. 644

ATLANTIC CITY

v. NEW AUDITORIUM PIER CO.

Court of Chancery of New Jersey.

Aug. 1, 1902.

(Syllabus by the Court.)

Bill by Atlantic City against the New Auditorium Pier Company. Order to show cause why an injunction should not be granted, and motion for a preliminary injunction granted.

The bill of complaint in this case was originally filed against George C. Tilyou as sole defendant. Subsequently, on the coming in of an order to show cause, it was by consent amended by substituting the New Auditorium Pier Company, a corporation of this state, as sole defendant; Mr. Tilyou being president of that company, and the parties appearing by the same counsel. The bill is filed by Atlantic City to enforce certain covenants contained in two deeds, whereby it is claimed certain lands lying to the ocean-ward of the present Atlantic City board walk were to remain without being built upon, unless by the erection of an iron or steel pier having certain characteristics, hereinafter mentioned. For a number of years previous to the making of either of these deeds, Atlantic City had maintained a public board walk at the edge of the ocean, as an attractive public promenade. The power to lay out and construct board walks along the ocean front was given to such cities by an act of the legislature (P. L. 1889, p. 200), with authority to condemn lands for that purpose. By a supplement to this act (P. L. 1890, p. 159) authority was given to construct elevated board walks, and to accept dedications of lands or rights for making improvements of like character. In 1896 a further supplement (P. L. 1896, p. 18) authorized the relocation of such walks, and the issue of bonds for the purpose of renewing, repairing, and maintaining such public walks. This legislation was followed, so far as it applied to Atlantic City, by several ordinances passed by that city, arranging for the building and relocation of the board walk along the ocean front of the city. The latest of these ordinances, approved May 6, 1896, providing for the relocation and building of the present board walk, may be found annexed to the bill of complaint in this cause. As the number of visitors to the seaside increased, it became desirable to afford greater accommodations for their entertainment. The owners of the ocean front were in sympathy with this object, and some of them, in disposing of their lots, inserted in their deeds covenants protecting the use of the board walk by the public, and prohibiting the erection of buildings to the ocean-ward of it, for the purpose of preserving a continuous ocean view from the board walk. The first deed of this character exhibited in this cause was that made by Charles Evans and others to Atlantic City, dated January 2, 1890. In consideration that the city would erect a board walk, it conveyed an easement or right of way for that purpose over a 60 feet wide strip of land at the ocean edge, describing the territory in which the right of way was, by exact metes and bounds. The deed contained this clause: "And the said parties of the first part, for themselves, their heirs, executors, administrators, and assigns, do hereby covenant, promise, and agree to and with the said party of the second part, its successors and assigns, that they and each of them, the Bald parties of the first part, their heirs, executors, administrators, and assigns, shall not and will not put or erect or allow to be placed or erected on the lands hereby granted, or on the ocean side thereof, any building or structure, except as above provided." The only provision in the deed which dealt with the erection of any structure on the oceanward side of the board-walk strip was the one declaring that nothing in the agreement should be construed to prevent any of the grantors from sinking such piling or placing such sea walls on the ocean front as might be necessary to protect his property from the encroachment of the sea, and another clause which excepted such open pavilions as city council might, upon application, allow. After the deed of Evans and others of January 2, 1890, had been made and recorded, Evans, on July 22, 1895, conveyed to Richard F. Loper a lot fronting on the westerly side of Pennsylvania avenue for GOO feet, and having a depth westwardly from that avenue of 150 feet. This lot bounded on the "ordinary high-water line of the Atlantic Ocean." The territory conveyed included the lands on which both the old board walk, existing antecedent to 1896, and the new steel board walk, built in the latter year, were located. The deed conveyed to Mr. Loper, the grantee, the riparian right to purchase the state's lands to the oceanward of the ordinary high-water line. It contained the following recital: "Subject, nevertheless, and this conveyance is granted and accepted accordingly, to the following covenant and conditions, viz.: The said grantee, for himself, his heirs, executors, and administrators and assigns, covenants and agrees to and with the said grantors, their heirs and assigns, that he, the said grantee, his heirs and assigns, shall never erect upon the said premises any house or other building nearer the line of the abovementioned Pennsylvania avenue than twenty-seven feet of the property line. Subject also to the easement or right of way over sixty feet of the above-described land granted by the said Charles Evans and wife to the city of Atlantic City by indenture dated January 2nd, 1890, and recorded in the clerk's office of said Atlantic county in Book #2 of Assignments, page 237," etc., "& in Book #173 of Deeds, page 11," etc. After receiving the above conveyance from Evans, which carried the riparian right, Loper on the 29th day of August, 1895, received from the riparian commissioners of this state a grant of the state's right in the lands lying to the oceanward of the high-water line. The lot of land thus granted was 150 feet in width at the high-water line, and extended of that width from that line, 428 feet, in a southeasterly direction, to the commissioners' exterior wharf line. Its first course runs "southerly along the westerly line of Pennsylvania avenue, extended in a straight line, 428 feet, more or less, to the exterior line," etc. By reason of the greatly increased use of the board walk, it appears to have been found necessary to further enlarge its width and length. The act of the legislature passed in 1890 (see P. L. 1896, p. 71), above referred to, enabled cities located on the Atlantic Ocean to lay out, construct, and enlarge street board walks, etc., and to condemn lands for that purpose. Under this statute the ordinance of the 6th day of May, 1896, a copy of which is annexed to the bill of complaint, was passed. This ordinance, by describing an inland line, laid out a 60 feet wide street along the ocean front of Atlantic City, and provided for the erection in said street of an elevated board walk, which should be of the width of 40 feet between certain avenues, and 20 feet between certain other avenues. At the place where the present dispute has arisen the board walk is of the width of 40 feet. The other 20 feet of the width of the street lies along the ocean-ward front of the constructed board walk. While the ordinance providing for the new board walk was under consideration, the owners of the beach front, desiring to avoid a condemnation of their lauds, agreed to dedicate to the public use the strip 60 feet wide lying along the ocean front. This was manifested by a covenant in the form of a deed (a copy of which is annexed to the bill), which is dated the 30th day of April, 1896. The description of the premises affected by this covenant is of the entire length and width of the proposed street in which the board walk has been placed. The particular portions owned by each grantor are not separately described. This covenant was executed by Richard F. Loper, as owner of lands lying on the ocean front, his wife joining in the deed. The certificate of acknowledgment annexed to the covenant certifies that Richard F. Loper and Mary, his wife, executed and acknowledged it on the 9th day of May, 1896. On the 30th day of April, 1890, when the above covenant is dated, and on the 9th day of May, 1896, when it is certified to have been made, delivered, and acknowledged by Richard F. Loper, he was the owner of the lot of land 150 feet wide, or deep, lying on the westerly side of Pennsylvania avenue, which was conveyed to him by Evans. The new board walk constructed under the ordinance of 1896 crosses this lot. Loper was also on April 30, 1890, and on May 9, 1890, the owner of the lot lying to the ocean-ward of the Evans lot, beyond high-water mark, which had been conveyed to him by the riparian commissioners in August, 1895. It is on a portion of this latter described lot, to the oceanward of the board walk, that Loper's ultimate grantee, the defendant, the New Auditorium Pier Company, is in the act of erecting the structure, the right to build which is challenged by this suit. The following diagram exhibited on the argument will show the lay of the land:

The covenant dated April 30, 1806, which was executed by Loper and wife, and other beach-front owners, contained several clauses which affect the present controversy. Among others, the covenantors, Loper and others, promised and agreed, for themselves, their heirs, and assigns, that they "shall not and will not erect or allow to be placed or erected on the lands hereby granted, or on the ocean side thereof, any building or structure, except as provided by ordinance," etc. Also the following clause: "(3) It is further hereby covenanted and agreed that the present elevated board walk may remain until the new steel walk is built by the said city on the line of the new street as hereby located and described, and, until such new walk is built, that no structure or improvements will be made between the said walk, as now located, and the westerly and northerly line of...