Camden, Atl. & Ventnor Land Co. v. W. Jersey & S. R. Co.

• Decision Date: 18 November 1918
• Citation: 92 N.J.Law 385,105 A. 229
• Parties: CAMDEN, ATLANTIC & VENTNOR LAND CO. v. WEST JERSEY & S. R. CO. et al.
• Court: New Jersey Supreme Court

105 A. 229

92 N.J.Law 385

CAMDEN, ATLANTIC & VENTNOR LAND CO.

v. WEST JERSEY & S. R. CO. et al.

Court of Errors and Appeals of New Jersey.

Nov. 18, 1918.

Appeal from Supreme Court.

Suit by the Camden, Atlantic & Ventnor Land Company against the West Jersey & Seashore Railroad Company and others. From judgment for plaintiff, defendants appeal. Reversed.

Bourgeois & Coulomb, of Atlantic City, for appellants.

John S. Westcott, of Atlantic City, and Lewis Starr, of Camden, for appellee.

GUMMERE, C. J. This is an appeal from a judgment of the Supreme Court, entered in an ejectment suit based upon a verdict directed for the plaintiff. The facts in the case were stipulated, and, of course, are not in dispute.

The locus in quo was conveyed by the Camden & Atlantic Land Company to the Camden & Atlantic Railroad Company by a deed of conveyance dated May 1, 1871, and duly recorded. The West Jersey & Seashore Railroad Company is the successor in title to the Camden & Atlantic Railroad Company. The Camden, Atlantic & Ventnor Land Company, the plaintiff below, has succeeded to all the rights of the Camden & Atlantic Land Company (if any) in the lands embraced in the present controversy.

In April, 1916, the West Jersey 6: Seashore Railroad Company conveyed a certain portion of the premises to one Frank Ruffo, who entered into possession thereof. About the same time the company conveyed another portion of the land to one Armand Nichols, who entered into the possession of his moiety. Both of these parties were in possession of the respective parcels so conveyed at the time this suit was brought; the railroad company being then in possession of the remaining portion of the land.

The rights of the parties herein concededly depend upon the true construction of the deed of May 1, 1871. The consideration for the conveyance was $450. The granting clause therein is as follows:

"The party of the first part for and by these presents do grant, bargain, sell and convey unto the said party of the second part, their successors and assigns, all the following described lot or strip of land situate in Atlantic City," etc., "together with all the rights, members, privileges and appurtenances to the same belonging, or in any wise appertaining, and all the estate of the said party of the first part of, in and to the same."

Then follows the habendum clause in these words:

"To have and to hold the same unto the said parties of the second part, their successors and assigns, for the purposes of the said railroad for and during the continuance of the said railroad, to their only use, benefit and behoof forever."

The theory of the trial judge, and the contention before us of counsel for the respondents, is that the effect of the habendum clause in the deed is to create a base or qualified fee, determinable by the abandonment by the grantee or its successors of the use for railroad purposes of the lands conveyed. This theory is rested largely upon the opinion delivered by this court in the case of Pipe Line Co. v. D., L. & W. R. R. Co., 62 N.J.Law 254. 41 Atl. 759, 42 L. R. A. 572. The question there presented for determination was whether the Pipe Line Company had a legal right to enter upon lands conveyed by one Stewart to the Morris & Essex Railroad Company (the predecessor in title of the Delaware, Lackawanna & Western Railroad Company), and construct thereon a part of its pipe line system. The Stewart deed contained a covenant on the part of the grantee to construct and maintain a way under its tracks for the purpose of affording the grantor access from the portion of his farm which lay on one side thereof to the portion lying on the other side. The pipe line was laid under the surface of this way. In considering this question the court took occasion to discuss the effect of the habendum clause contained...