Barbour v. Lyddy

• Decision Date: 25 March 1892
• Citation: 49 F. 896
• Parties: BARBOUR v. LYDDY.
• Court: U.S. District Court — District of New Jersey

49 F. 896

BARBOUR v. LYDDY.

United States Circuit Court, D. New Jersey.

March 25, 1892

Applegate & Hope, for complainant.

Babbitt & Lawrence and J. D. Bodle, for defendant.

GREEN J.

In 1864, Benjamin Wooley was seised in fee of a certain farm lying immediately south of Long Branch, in Monmouth county in this state, which on the easterly side bounded upon the Atlantic ocean, and was intersected longitudinally by a public road or street running parallel with, and about six or seven hundred feet westerly from, the shore-line. Wisely foreseeing that this farm was so situated that it would be in demand for villa and cottage sites, Mr. Wooley had the whole of it laid into lots 100 feet in width, extending upon the easterly side of Ocean avenue (then generally called 'Seabrook Avenue') from the avenue to high-water mark at the ocean, and upon the westerly side extending from the avenue to lands belonging to J. W. Wallack. These lots were duly numbered and plotted upon a map, which, however, was not made a matter of record. Upon this map lot No. 18 was laid out as a street 50 feet in width, extending from Seabrook (Ocean) avenue to the sea. It was called 'Adams Avenue.' In October, 1864, Wooley and wife, by their indenture, duly executed and acknowledged, granted bargained, sold, aliened, released, conveyed, and confirmed to Edward Adams, in fee-simple, a parcel of land, so plotted as stated, and described as follows: 'All that lot or parcel of land situate, lying, and being in Deal, near Long Branch, on the east side of Seabrook avenue, leading from Benjamin Wooley's house to Green pond, and begins in the south-west corner of the lot hereby conveyed, in corner of a street fifty feet wide, to be kept open and used only as a street for the benefit of those purchasing lots, and is called 'Adams Avenue;' which said south-west corner is fifth feet distant, on the east side of Seabrook avenue northerly from the north-west corner of a lot now belonging to Annie D. Wallack, formerly the Wadsworth lot;' and thence description proceeds, by metes and bounds and courses to describe the lot conveyed, which was 100 feet in width, and extended from Ocean avenue easterly to high-water mark at the sea, by and between the street named 'Adams Avenue' on the south, and other lands of the said Wooley on the north. By various mesne conveyances, the easterly half of this lot has been conveyed to, and is now owned by and in the possession of, the complainant.

Soon after the conveyance made by Wooley to Adams, Wooley died, having first made, in due form of law, his last will and testament, wherein, among other things, he directed his executors to make sale of certain of his real estate of which he died seised; and the said executors did thereafter, after probate of said will and in execution of this power, make sale and conveyance of certain real estate, which belonged to their testator, to one L. B. Brown. In the lands so sold and conveyed was included the lot known as 'Lot No. 18,' 50 feet in width, extending from Seabrook avenue to the ocean, and which was, in fact, the street or passage-way or road referred to in the deed from Wooley to Adams, and called in that deed 'Adams Avenue.' The deed of the executors was in the usual form, without covenants, and conveyed simply to L. B. Brown the right, title, interest, and estate which Wooley had in the lands, which was the subject of the conveyance, at the time of his death. Immediately after the making of this conveyance, Brown caused to be prepared and to be filed in the office of the clerk of Monmouth county a map showing the lands so conveyed to him by the executors of Wooley, deceased, on which said map the lot called 'Adams Street' is marked 'Lot No. 18.' The defendant claims title to her lots, which are designated on the Brown map as lots 9 and 12, through various mesne conveyances from Brown. In the deeds by which the several conveyances were respectively made from Brown to his immediate grantee, and from these grantees to their grantees, and so on until the deeds of conveyance to the defendant, are these words, following immediately after the description of the premises conveyed:

'Together with the right of way to the Atlantic ocean from said Seabrook avenue over and upon a lot fifty feet wide, laid down on said (Brown) map as No. 18, and also the right to erect a bath-house not exceeding eight feet by six feet upon the shore of said ocean, in front of said fifty feet, but not upon the bluff or bank, and the right to bathe in said ocean in front of said lot No. 18; said right of way, right of building, and right of bathing to be appurtenant to the lot of land hereby conveyed, and to be conveyed herewith, by the party of the second part, his heirs and assigns, and not otherwise.'

By virtue of this grant, the defendant has erected above high-water mark at the ocean, and within the limits of Adams avenue, a building used as a bath and summer-house combined, which rises some distance above the top of the bluff, and is somewhat larger than the dimensions specified for bath-houses in the deed. This erection the complainant insist is an unauthorized and unlawful structure, which the defendant has placed within the limits of Adams avenue, in derogation of her rights, and which injuriously affects her property, and the easements appurtenant thereto, and the object of her bill of complaint is to effect the removal of such building from its present location, and enjoin its further maintenance or its re-erection within any part of Adams avenue.

The sole question,...