Chidester v. City of Newark, L-5568.

• Decision Date: 15 March 1940
• Docket Number: No. L-5568.,L-5568.
• Citation: 31 F. Supp. 892
• Parties: CHIDESTER et al. v. CITY OF NEWARK et al.
• Court: U.S. District Court — District of New Jersey

31 F. Supp. 892

CHIDESTER et al. v. CITY OF NEWARK et al.

No. L-5568.

District Court, D. New Jersey.

March 15, 1940.

George T. Vickers, of Jersey City, N. J. (William E. Clark, of Newark, N. J., of counsel), for plaintiffs.

James F. X. O'Brien, of Newark, N. J., for defendant City of Newark.

William H. Speer, of Newark, N. J. (Thomas M. Kane, of Newark, N. J., of counsel), for defendant Public Service Coordinated Transport, Inc.

FAKE, District Judge.

This is an ejectment suit. Pursuant to written stipulation the issues involved are to be tried before the Court without a jury. Counsel have further stipulated that pending the taking of testimony and for the purpose of clarifying the issues which may be raised at the trial, a question bearing upon the construction of the deeds which lie at the base of the suit be first disposed of.

One James Searing made three certain deeds to the Morris Canal and Banking Company. The first is dated January 11, 1830, the second, March 28, 1833, and the third, March 1, 1856. The immediate question is whether the lands described in said deeds have reverted to the heirs and assigns of the grantor Searing by virtue of the abandonment of their use for canal purposes.

The issue raised is a nice one and in passing upon it, it becomes necessary to follow closely the language of the deeds. The deed of 1830 recites that: "Whereas, by virtue of an Act of the Legislature of the State of New Jersey, entitled, `An Act to Incorporate a Company to form and artificial navigation between the Passaic and Delaware Rivers' The Morris Canal and Banking Company are authorized to construct and make a Canal, or artificial navigation, to connect the waters of the Delaware River near Easton, with the tide waters of the Passaic, and to take, occupy, possess and enjoy all such lands as may be necessary and proper to be taken and occupied by them for the said Canal, and its necessary locks, towing paths, toll houses, offices, works and devices; and whereas, the said Canal is laid across certain lands, lying in the township of Newark in the County of Essex now belonging to James Searing of the township Newark aforesaid. Now, be it known that I the said James Searing in consideration of the sum of One dollar lawful money of the United States to me in hand paid at and before the sealing and delivery of these presents, the receipt whereof is hereby acknowledged, and for other considerations me thereunto moving, do hereby give grant, bargain and sell, assign and convey to the said, The Morris Canal and Banking Company, their successors and assigns, all the said lands necessary and proper to be taken and occupied by them for the purposes aforesaid, Provided the lands so taken and occupied shall not exceed one and an half acres, for the said Canal Lock and other works and devices. To have and to hold the said lands and premises to the said The Morris Canal and Banking Company, their successors and assigns, so long as the same shall be used for the purposes for which the Morris Canal and Banking Company have power to use the same by the true intent and meaning of the said Act."

By the granting clause of the above deed it would appear that the Canal Company took a fee simple absolute by which is meant an estate not subject to a special limitation or a condition subsequent or an executory limitation. See Restatement of the Law of Property, sec. 15, page 42. It should be noted, however, that the recital is referred to and read into the description of the property by the words "for the purposes aforesaid." This phrase leads to the following "aforesaid" purposes: "such lands as may be necessary and proper to be taken and occupied by them for the said Canal" etc. This does not in my opinion limit or place a condition on the estate granted but refers only to the statutory restriction placed upon the Canal Company prohibiting it from taking land not necessary for canal purposes. In other words, it refers to the quantum of the estate and not to the tenure. This point is not specifically raised by the briefs on either side. It is mentioned only to the end that nothing may be overlooked which may have a bearing on the granting clause of the deed.

Passing now to the habendum clause and...