Atl. City v. New Auditorium Pier Co.

• Decision Date: 05 August 1904
• Citation: 58 A. 729,67 N.J.E. 284
• Parties: ATLANTIC CITY v. NEW AUDITORIUM PIER CO.
• Court: New Jersey Court of Chancery

58 A. 729

67 N.J.E. 284

ATLANTIC CITY

v. NEW AUDITORIUM PIER CO.

Court of Chancery of New Jersey.

Aug. 5, 1904.

(Syllabus by the Court.)

Bill by Atlantic City against the New Auditorium Pier Company. Decree for complainant.

See 53 Atl. 99.

The bill of complaint in this cause is filed by the city of Atlantic City to restrain the defendant from erecting a lateral wooden addition to its pier, already built oceanward from the Atlantic City Boardwalk. The bill refers to the statute and ordinances authorizing Atlantic City to reconstruct its Boardwalk, and particularly sets forth what it claims was a dedication to public uses of a Boardwalk or promenade at the edge of the ocean, running along the front of the city, of the width of 60 feet, by a deed dated April 30, 1896, made and executed by numerous owners of land which the route of the Boardwalk crosses—among others, by Richard Loper, an antecedent holder of the lands on which the defendant company is about to construct the lateral addition to its pier. A copy of this deed of dedication is annexed to the bill of complaint, and made part thereof. The defendant's answer with respect to this dedicating covenant is as follows: "It admits that an agreement bearing date April 30, 1896, was executed by certain of the owners of said beachfront property, which said agreement was recorded on June 16, 1896, as in the bill of complaint set forth; but as to the contents and dates of the execution and acknowledgment of said agreement, and of its delivery, or whether the agreement annexed to said bill is a true copy thereof, this defendant is not informed, and leaves the complainant to make such proof thereof as it may be advised." The defendant denies that by the agreement of April 30, 1896, the complainant received any dedication of the Boardwalk strip, or that by that agreement the complainant received such a dedication that none of the parties executing it can lawfully erect or place on the Boardwalk strip itself, or on the ocean side thereof, any buildings or structures except said Boardwalk and an iron or steel pier at least 1,000 feet in length, and insists that no portion of the land in possession of the defendant company has ever been dedicated, and that none of that land is subject to any covenant or agreement that no building other than an iron or steel pier 1,000 feet in length shall be placed thereon, and denies that it is the complainant's duty, representing the public, to enforce any of the provisions contained in the agreement of April 30, 1896, against the defendant's land. The defendant's answer admits that the defendant's title and possession came from Loper, one of the signers of the covenant of April 30, 1896, by the chain of title alleged in the complainant's bill, but it denies that the complainant's right in the lands described as the "Boardwalk Strip" had vested at the time when Loper conveyed to the defendant's grantor, and insists that before the covenant of April 30, 1896, made by Loper and others to and with Atlantic City, went into operation, Loper had conveyed the premises in question to the defendant's grantor, and that the said agreement of April 30, 1896, was of no force or effect, because it was not, as to Loper, delivered and accepted until after the deed to the defendant's grantors, under which the defendant now claims, had been made, and for this reason the defendant claims that its grantors "took said lands free and clear of any covenants or restrictions contained or pretended to be contained, in said covenant agreement of April 30, 1896." The answer admits that the Boardwalk mentioned in the agreement of April 30, 1896, has been constructed, and that it is now in constant use by the public. It denies that, at the time of the sale by Loper to its grantors, the complainant was in possession of the 60-foot strip where the same crosses the premises described in said conveyance, or that it had erected thereon the Boardwalk now used. It admits that by named intermediate conveyances the defendant company has come to be the lessee and in possession of the locus in quo. It admits that it has driven wooden pilings on those premises, and that it intends to erect buildings thereon, and claims the right so to do, and that the place in which it is driving said wooden pilings is upon lands conveyed to Loper by the state of New Jersey, through its riparian commissioners, and claims that said lands are not subject to any of the covenants contained in the agreement of April 30, 1896. It contends that it has the right to use the property leased by it as it shall see fit. It admits that its auditorium building on its pier has been connected with the Boardwalk by a platform which has been in existence for some years. It denies that the erection of its wooden pilings, and the construction of a building thereon, on the ocean side of the Boardwalk, are any violation of any of the covenants mentioned in the agreement of April 30, 1896, or a violation of any general scheme of the holders of beach-front land for the improvement of the ocean front, and denies the right of the public to interfere with the use of its premises in any manner it sees fit. The answer further insists that it was the intention that the agreement of April 30, 1896, should be considered as incomplete and of no force until the signatures of all the owners of the beach-front property had been obtained, and charges that a large number of the beach-front owners have refused to execute it, and that for that reason it cannot be enforced as a general scheme of the owners; and it further insists that under the terms of that agreement, and the clause therein contained regarding the construction of piers, the complainant, Atlantic City, has no right to determine the size or proportions of any pier, or whether or not, when a pier is once constructed, the same may be widened by lateral additions to the sides thereof; and the defendant insists that it has the right to determine, at its discretion, the size and proportions of such pier as it may choose to erect on its lands lying oceanward of the Boardwalk. Issue was Joined on this answer, and the cause came to final hearing.

Harry Wootton and Burrows C. Godfrey, for complainant.

C. D. Thompson, for defendant.

GREY, V. C. (after stating the facts). The defendant company claims that the grant of covenant of Loper, the defendant's remote grantor, to Atlantic City, dated April 30, 1896, called the "Boardwalk Deed," did not convey any interest in lands to Atlantic City, first because the operative words of that covenant will not pass an estate, and, at the most grant a mere revocable license, which was revoked by Loper's deed to the defendant's grantor; that the original instrument is not produced in evidence; that the record thereof is not admissible; and that no sufficient secondary proof of its contents has been offered. The defendant also insists that, if the Boardwalk deed did pass any estate or right of possession from Loper, such estate or right is ineffective, as against the defendant company, for the following reasons: (1) That the Boardwalk deed did not go into operation until it was accepted by the city's ordinance, which was not passed until June 8, 1896, a date subsequent to the making of the two deeds from Loper to the Riddle Company, etc., which were made on June 6, 1896; (2) that if the Boardwalk deed operated on the day of its date, April 30, 1896, or on the day of its execution by Loper, on or before May 9, 1896, it was still subsequent and subject to Loper's equitable agreement to convey, made with William Riddle on May 4, 1896; (3) that the Boardwalk deed was not actually executed and delivered by Loper, and certainly not recorded, until after his two conveyances of June 6, 1896, to the Riddle Company, etc., under whom the defendant claims; (4) that the Boardwalk deed is no part of a general scheme, at least as to Loper, because it is not shown that he attended at and participated in any meeting of the beach-front owners to form and perfect such a general plan; (5) that, if that deed is the result of a general scheme of improvement it became operative only when every owner from one end of the Boardwalk to the other had signed it, and that the refusal of any owner to sign postponed or defeated the scheme. The defendant also claims that, if it should be determined that the locus in quo is subject to the restrictions of the Boardwalk deed, the defendant still has the right to construct a steel pier; that the restrictions in that deed cannot limit the size or proportion of such a pier, or prohibit the widening of a pier when once constructed, by making lateral additions to the same.

Almost every point which is raised at this final hearing was presented and elaborately argued on the motion in this cause for a preliminary injunction. An opinion disposing of many of these questions will be found reported in 63 N. J. Eq. 644, 53 Atl. 99. The whole case at this final hearing turns, in great part, upon the same documentary proofs which were submitted and passed upon on the former hearing. The defendant on this hearing called but one witness, Mr. Loper. The opinion given on the first hearing is illustrated by a diagram showing the locus in quo, which may be found in the report of the case. I do not deem it necessary to repeat in extenso the views then expressed, and will refer to that opinion as my comment when the same claims are here again set up by the defendant company, shortly discussing now the new points raised at this final hearing.

First, as to the objection that the Boardwalk deed passed no estate, and, at most, is but a revocable license. That deed certainly amounts to a covenant with the grantee, and impliedly with all of the co-grantors and makers of similar deeds to Atlantic City, that the city should have the possession and use of an easement of way at the ocean edge, running continuously and successively across the...