Bridgewater v. Ocean City R. Co.

Decision Date18 July 1901
Citation49 A. 801,62 N.J.E. 276
CourtNew Jersey Court of Chancery

(Syllabus by the Court.)

Bill by William Bridgewater against the Ocean City Railroad Company and the Atlantic City Railroad Company. Decree for complainant.

The complainant is the owner of two lots of land in Ocean City, Nos. 474 and 475, on the northwesterly side of Asbury avenue, between Ninth and Tenth streets, by purchase through an intermediate grantee from the Ocean City Association. There is a dwelling house on the lots, in which the complainant resides with his family. He filed his bill of complaint against the Ocean City Railroad Company and the Atlantic City Railroad Company, who are subsequent grantees of the Ocean City Association of a strip of land lying at the southeast side of Haven avenue, between Fifth and Sixth streets, alleging that the strip so conveyed to the defendants is a part of a certain tract of land which, by an implied covenant of the Ocean City Association with the complainant and other purchasers of its lots, has been devoted to be used as a camp ground and park, and that the defendant companies are erecting a passenger station thereon, in violation of that covenant, to the injury of the complainant and other purchasers of lots under the said covenant, destroying the attractiveness of the camp-meeting ground, and making it less desirable as a place of recreation and place of religious instruction, interfering with the circulation of air and with the view over the park and camp ground. The complainant also refers to the decree of the court of appeals in the case of Lennig v. Association (the opinion is reported in 41 N. J. Eq. 606, 7 Atl. 491) declaring the validity of the covenant now in question, in favor of Lennig as a lot holder, and restraining the association from leasing the camp ground for a term of years, with the privilege of erecting cottages thereon. The complainant prays that it may be declared that the tract of land between Fifth and Sixth streets has been dedicated as a park and camp meeting ground, to be kept open and free from all buildings and other obstructions except the auditorium, and that the complainant is entitled to have them kept open and free from such buildings, and that the defendants may be restrained from further prosecuting the work of building the passenger depot and other buildings, and may be decreed to remove the obstructions thereon erected by them. Annexed to the complainant's bill are copies of the association's maps as filed in Cape May county clerk's office.

The defendant railroad companies file their joint answer, denying knowledge or notice of any devotion of the land between Fifth and Sixth streets to camp-ground and park purposes, by either publication, filing of maps, public declaration, or by recitals in conveyances. They admit that they have been advised of the Lennig decree since this suit was begun, raising a covenant in favor of the complainant Lennig, "who was the owner of a lot or tract of land immediately abutting the said tract between Fifth and Sixth streets," but they deny that the opinion in that case affects their rights, or is res adjudicate as to them. They deny that the Ocean City Railroad Company took title under the deed of May 20, 1899, set out in the bill of complaint, conveying a 20-foot strip at Haven avenue and Fifth and Sixth streets, and say that the railroad company received its title on December 29, 1896, by deed from the association, conveying a strip 115 feet wide at the same location to be used for railroad purposes only, and not for freight purposes; and they deny that their conveyance was subject to the uses of the camp-ground tract set out in the bill. They allege that they had nearly completed their station when the bill in this cause was filed, restraining their occupation of their lot because it is part of the camp ground, and that the complainant had notice of that fact, and made no suggestion that he objected. They deny that the erection of their passenger station is a violation of the covenant of the association set out in the bill, and aver that it is a benefit to the community that the defendants should use such a passenger station to receive and discharge passengers to and from Ocean City. They allege that the rights under the covenant, if any there be, are subject to the rights of the defendant railroad companies under the general railroad act of April 2, 1873, and its supplements, under which the defendant companies were incorporated, to take and condemn lands, etc. They allege that map Section A was first filed, and they insist that this map, if any binding plan was adopted, was exclusive of any other, and that Section A extends only to West avenue, and does not include Haven avenue, where their station is located. They insist that, if any one can set up a covenant, it is only those purchasers whose lots abut on the camp ground. And they charge bad faith on the complainant, and that he is a mere instrument of the West Jersey & Sea Shore, a competing railroad company, to prevent the defendants from giving the public a more efficient service.

An injunction was allowed on the filing of the bill. After the answer was filed, a motion was made to dissolve it, which was refused, and the cause has come to final hearing on the bill, answer, and proofs.

The testimony, oral and documentary, exhibits the following circumstances: The lots of the complainant and defendants and the camp ground and park, above mentioned, together with a larger tract of other land now constituting Ocean City, in Cape May county, N. J., were owned in one tract by the Ocean City Association, a corporation of this state, organized October 20, 1879, by the Rev. W. B. Wood and others, the declared object of which was "the establishment of a summer seaside resort founded on Christian principles, and affording religious privileges as well as healthful recreations." Its certificate was filed in the secretary of state's office on February 25, 1880, and it began its conduct of business very shortly thereafter. The Ocean City Association, in pursuance of this declared object, offered its lots for sale, and published maps, on which were exhibited plans of the lots and streets, dividing the property into parcels for private purchase. On May 25, 1880, the association made its first public sale of lots. It had previously advertised this sale by a publication called the "Ocean City Journal," a copy of which is produced in evidence. It sets forth the names of the officers of the association. The whole first page is devoted to the advertisement of the proposed sale, and a description of the property, its advantages and attractions. It refers to the camp ground in the following language: "The space allotted to the encampment is 500 feet wide from the thoroughfare to the ocean, with plenty of tenting ground. It is contemplated to have all the appointments desirable to render the camp meeting a real feast to the thousands who may congregate there for Christian worship. Those coming to tent with them will have every possible facility that will contribute to their comfort. Besides the regular services of the encampment, there will be temperance conventions, anniversaries, and other Christian and philanthrophic convocations, fully occupying the season, and making it memorable in interest and profit. No pains will be spared to give to Ocean City a series of religions privileges equal to other resorts of kindred character." Maps and plotting were exhibited to purchasers at the sale, showing the camp ground open from the bay to the ocean. At the sale, attention was called to these advantages of the open space for camp ground, etc., as an inducement to buyers, and lots were purchased upon these assurances then given. On June 9, 1880, the association recorded the map called "Section A, Ocean City," in Cape May clerk's office. The map is dated May 22, 1880, and shows an open space between Fifth and Sixth streets, marked "Camp Ground," In the center block, with the other sides of Fifth and Sixth streets plotted for sale as town lots. In 1881 the association issued a pamphlet called the "Ocean City Annual," which contained the first annual report of its president. It thus refers to the camp ground, under the heading "Work Done": "The camp-ground blocks, extending from the meadow to the ocean, and from Fifth to Sixth streets, have been cleared of underbrush, drained, and some of the hills leveled." It also refers to the map of Section A, comprising 995 lots, "besides the camp ground, tenting ground, and parks"; to the laying out of streets, and the construction of board walks; to the building of a wharf on the bay front. This annual repeated the publication of the above-quoted exploitation of the camp ground, beginning, "The space allotted to the encampment is 500 feet wide from the thoroughfare to the ocean." This publication was scattered broadcast in the most public manner, as an invitation to the purchase of lots. In the succeeding year, 1882, the association again published its "Ocean City Annual," referring to its previous publication above quoted, and stating the additional attractions and advantages which had been provided by the association since the former publication. It contained a special paragraph as to the campground park, under these words: "The camp-ground park, extending from Fifth to Sixth streets, and from Asbury to Wesley avenues, has been fully graded. It has also been laid out into plots formed by a system of converging walks, suitable to the formation of the park and the location of the auditorium. The walks are fifteen feet wide, and have all been nicely graveled. Over 400 trees have been planted in and around the camp tract, and they are all doing well. It has been decided to beautify and ornament the park, and make it the center of attraction. When our plans for ornamentation have been complied with, it...

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