City of Atl. City v. Atl.

• Decision Date: 10 July 1901
• Citation: 62 N.J.E. 139,49 A. 822
• Parties: CITY OF ATLANTIC CITY v. ATLANTIC CITY STEELPIER CO.
• Court: New Jersey Court of Chancery

49 A. 822

62 N.J.E. 139

CITY OF ATLANTIC CITY

v. ATLANTICCITY STEELPIER CO.

Court of Chancery of New Jersey.

July 10, 1901.

Action by the city of Atlantic City against the Atlantic City Steel-Pier Company. Decree for complainant.

Godfrey & Godfrey, for complainant.

Allen B. Endicott, for defendant.

REED, V. C. This suit is brought to restrain the defendant from selling commodities on its pier, and from charging a fee for witnessing musical and other entertainments upon the pier, other than a fee charged for entrance to the pier. The city rests its case upon an easement deed made to it by the predecessor in title of the defendant In 1889 (P. L. 1889, p. 206) an act was passed empowering cities located on or near the ocean, embracing within their limits or jurisdiction any beach or ocean front, to lay out and open streets and driveways, and to construct public walks along and upon the beach or ocean front, and to grade and otherwise improve the same, and to regulate the use thereof. By a supplement to this act (P. L. 1890, p. 159) it was provided that any walk constructed upon any such street so laid out should be elevated above the surface of the ground, and be constructed on piling or other supports placed in the street, and when such elevated walk should be constructed the city could permit purchases to be made from contiguous property on the landward side, or side most remote from the ocean. By this act the city was authorized to accept any dedication of lands or rights which might be made for the purpose of enabling such city to open and lay out such street, or for the purpose of constructing any such walk, or for the purpose of making any improvement in or to the same. By another supplement (P. L. 1896, p. 18) the common council of any such city was authorized to relocate in whole or in part any public walk or walks which may have been or may thereafter be constructed or built. George W. Jackson, by two deeds from John P. Starr,—one made on September 4, 1884, and the other February 5, 1894,—got a title to a strip of land 150 feet in width on the west side of Virginia avenue, running from a point distant 1,250 feet from the center line of Pacific avenue to the high-water line of the Atlantic Ocean. On April 30, 1896, George W. Jackson, with many other beach owners, entered into an agreement, with Atlantic City. By this agreement they dedicated to Atlantic City a right of way over their respective lands 60 feet in width. In the agreement the grantors covenanted as follows: "We will not put or erect, or allow to be placed or erected, on the land hereby granted, or on the ocean side thereof, any building or structure except as by ordinance provided, and covenant that the above covenant shall run with the land: provided, that the grantors shall not be prohibited from building a pier in front of their property, and connecting the same to the new board walk about to be erected; and upon the further condition that the said pier shall be at least one thousand feet in length, extending into the ocean beyond the present sixty-foot strip, and constructed of iron or steel, and shall not permit the sale of any commodities upon the same, and be confined to the charging only an entrance fee." The 60-foot strip so dedicated by Jackson ran over this 150-foot lot conveyed to him by Mr. Starr. It was located above high-water mark. On October 7, 1897, Jackson procured from the state of New Jersey the right to the land under water in front of his riparian property. On October 20, 1897, Jackson conveyed the land which he had bought from Starr to the Atlantic City Steel-Pier Company, and on January 4, 1898, conveyed to the same company his riparian title. The Atlantic City Steel-Pier Company subsequently built a pier upon this property, and attached the same to the board walk. To this pier the company has been accustomed to charge an entrance fee of 10 cents. In addition it has charged for entrance to an inclosed hall upon the oceanward end of the pier, where Innes' Band played, an additional fee of 10, 25, or 50 cents. Additional fees were charged for reserved seats in another building, where cake walks and similar entertainments were held. It is insisted that these charges, other than the entrance fee, were made in violation of the covenants already displayed.

The main question is whether, assuming that the agreement is valid, the defendant has violated its terms by its charge of an entrance fee into the band hall, and by its charge for reserved seats in certain portions of the amusement hall where the cake walks occurred. I am constrained to the conclusion that these charges are in violation of the terms of the agreement Reading the entire clause,—not merely that part directed against the sale of commodities, but including the limitation in respect to what should be charged —the natural construction of the agreement seems to me to be that any additional charge for admission to any part of the pier, after the payment of the entrance fee, conflicts with the restriction which the grantors imposed upon themselves, namely, that they should be confined to charging only an entrance fee. It seems too obvious for discussion that the fees charged after the visitor has entered upon the pier are not entrance fees. If not, then the purpose of the agreement, as well as its literal words, forbid this collection.

It is said on the part of the defendant that the covenant contained in the proviso is an enabling, and not a restrictive, covenant. It is, however, perceived that the agreement itself contains a clear restriction against placing any obstruction upon the ocean side of the board walk. The proviso merely modifies the restriction by relieving the grantor from it so far as to permit the building of a pier of a certain length, upon which certain things shall be done. The restriction is operative except in so far as the proviso relieves it of its operative force. The grantor, therefore, must show that its structure, in form and in use, comes within the exceptive words of the proviso.

It is again insisted by the counsel for defendant that the agreement is unenforceable, because it is ultra vires. This insistence is grounded upon the terms of the supplement of 1890, by which the city is authorized to accept any dedication for the purpose of enabling the city to open and lay out a street and build and improve a board walk. It is argued that, while a dedication of the land upon which a board walk is to be built is within the power so granted to the city, an agreement...