Diocese of Trenton v. Toman

• Decision Date: 22 June 1908
• Citation: 74 N.J.E. 702,70 A. 606
• Parties: DIOCESE OF TRENTON v. TOMAN et al.
• Court: New Jersey Court of Chancery

70 A. 606

74 N.J.E. 702

DIOCESE OF TRENTON

v. TOMAN et al.^†

Court of Chancery of New Jersey.

June 22, 1908.

(Syllabus by the Court.)

Bill by the diocese of Trenton against John F. Toman and Jeremiah P. Toman. Injunction granted for part of the relief asked.

The controversy in this case relates to the extent of an easement in an alleyway leading from the easterly side of North Warren street, in the city of Trenton, between the property of the complainant on the north, the St. James Day Nursery No. 136 North Warren street, and the Turkish Bath House on the south, No. 132 North Warren street The easement in question was reserved in a deed from Samuel Evans and wife and the executors of Joseph H. Reading to William F. Pitcher, March 30, 1858. The Trenton Turkish & Russian Bath Company has succeeded to the title of Pitcher, as to part of No. 132 North Warren street, but is not a defendant and is not concerned in the present controversy. The defendants the Toman Bros., are now the owners of the rear portion of the Pitcher tract, No. 132 North Warren street, which also abuts on the alleyway. They also own No. 130 North Warren street adjoining No. 132 on the south, which lot, No. 130, runs back to the rear line of the portion of No. 132, which they own, and together the two lots form an L. The defendants, on acquiring the title to the land in the rear of 132 North Warren street, which was part of the Pitcher lot, razed an old barn and fences which existed thereon, and, upon acquiring the premises No. 130 North Warren street, they razed the building in the rear thereof, thus obliterating the division line between the two properties, and erected on both of them a two-story automobile garage, covering the entire rear of No. 132 and a portion of the rear of No. 130, which building is used for the repair and store of automobiles. No. 130 North Warren street, which the defendants own, and upon a portion of which they have erected a portion of their garage building, was never parcel of either of the properties between which the alleyway is situate. When the defendants were about to commence the erection of their garage building, the complainant served written notice upon them that it would dispute their right to use the alleyway as an entrance to their garage.

The bill alleges, and the answer admits, that the garage building is so constructed that persons entering the same may, at pleasure, leave by way of either entrance, and not only that they may, but do, use both entrances for ingress, egress, and regress. The bill further alleges: That the defendants, their customers and patrons, are using the alleyway for the purpose of entering and leaving the garage with their automobile machines at all hours of the day and night; that the machines are propelled by means of I>ower generated from gasoline, and when in operation they emit the odor of gasoline and volumes of smoke, which permeate the atmosphere and enter the doors and windows of the complainant's dwelling, the side of which looks out upon the alleyway through some 30 windows and doors; that the automobiles while passing through the alleyway constantly make a variety of loud, disturbing, and objectionable noises, interspersed with frequent explosions of gases, generated in the machines; and that the constant mechanical noises of machinery while in motion affect and disturb the peace, quiet, and comfort of the complainant's building and create a nuisance. The bill further alleges: That the defendants, by the joining of their two properties, have increased the traffic over the alleyway not only from the lands to which the alleyway is appurtenant, but also from the other lands, 130 North Warren street, whereby they have increased the servitude of the alley, which is not, never was, and cannot be made servient to the premises No. 130 North Warren street, or any part thereof; that the defendants not only have increased the servitude by extending the limits of the land, and by increasing the traffic, but by subjecting the alleyway to the burden of an easement in favor of automobiles when the right reserved was for carriages drawn by horses only. The defendants admit, practically, all of the allegations of the complainant's bill, and such denials as they make are quite immaterial for present purposes, because, coupled with their denials, they claim the right to do all of the things which the complainant alleges they are doing.

The alleyway in question was carved out by the reservation in the deed from Evans and wife and the executors of Reading to Pitcher, above mentioned, in 1858, and reads as follows: "The whole of the vacant lot between the brick house hereby conveyed, and the house on the said lot late of said Philip F. Howell, deceased, which said last mentioned house is now occupied by George G. Roney, is to be appropriated for a carriage way forever, for the benefit of the two properties between which it is situate, and running back to within thirty-five feet of the rear line, which said carriage way or alley is to be kept free at all times from all description of rubbish whatever, not anything to be thrown therein, but clear water, and each of the before mentioned properties, to wit, the house and lot of land hereby conveyed, and the house and lot of land where the said George F. Roney now resides, to have a private side alley, with gates affixed to them, and double gate is to be made to the entrance of the wagon or carriage alley, which said alterations or improvements are to be made as soon in the ensuing spring or summer as the parties to this deed may deem expedient. The work thereof to be done by the said William F. Pitcher, and each party to pay a proportion of keeping the same in repair." The complainant insists and contends that the defendants have no right to use the alleyway as a means of ingress, egress, and regress to their garage, with automobile machines, because: (1) The use which was to be made of the alleyway and which is the subject of the express reservation in the deed was for a carriage way only for the benefit of the two properties between which it is situate; (2) because the defendants are now using it in connection with their other property, which was never a part of either of the two properties between which the alleyway is located; (3) because, the use being restricted to a carriage way, the servitude only extends to carriages or vehicles drawn by horses, the term "carriage" as used by the parties to the conveyance not extending to automobiles; and (4) because the defendants are creating a nuisance by using the alleyway for an automobile passage.

The foregoing statement of the situation of the parties and the premises in question may be better understood by reference to the diagram hereto annexed. The properties of the complainant the Turkish & Russian Bath Company and of the defendants are thereon delineated and given their appropriate numbers on North Warren street. The alleyway in question is labeled with the word "alleyway," and, as will be seen, it lies between the property of the complainant on the north and the Trenton Turkish & Russian Bath Company on the south, with the defendants' rear portion of 132 North Warren street binding upon the alleyway for a short distance in the extreme rear thereof. A is the alley leading from North Warren street to the garage on south side of the defendants' property No. 130 North Warren Street. B is the doorway into the garage from the alley A. C¹ is that part of the defendants' property covered by the garage building which comprises the rear of No. 130, and C² is that part of the defendants' property covered by the garage building which comprises the rear of No. 132, and which (C²), it will be remembered, is the rear portion of the Pitcher lot for the benefit of which and the complainant's lot the alleyway was originally carved out. D is the doorway into the alleyway from that part of the garage building which binds upon the alleyway.

A. —Alley into garage along south side of Tomans' lot No. 130 North Warren St.

B. —Doorway Into garage from the alley a. C¹ & C².—Garage lot or lots.

D.—Doorway into garage at rear of alleywav in which easement exists.

Peter Backes, for complainant.

Richard C. Chamberlain and Hugh H. Hamill, for defendant.

WALKER, V. C. (after stating the facts as above). The complainant's bill prays for an injunction restraining the defendants the Toman Bros, from using the alleyway between the lands of the complainant, No. 136 North Warren street, and the lands of the bath company, No. 132 North Warren street, as a passageway for automobiles entering or leaving their garage building, through which, admittedly, they have the right of Ingress, egress, and regress over the alleyway for horse-drawn vehicles in connection with their lot in the rear of the bath company's premises, and which was formerly a part of the same lot. The first and second grounds upon which the complainant rests its claim to an injunction are really one, and may be succinctly stated as follows: Because the defendants have a right of way only through the alleyway as appurtenant to their lot in the rear of No. 132 North Warren street for carriages drawn by horses. If, as urged, the defendants have no right to use the alleyway for vehicles which enter their garage through the alley on the south side of their property, No. 130 North Warren street, they are, by so using it, subjecting the servient tenement, namely, the alleyway, to an additional and unauthorized burden, which is illegal and should be restrained. That the law is with the complainant on this question seems to me to be perfectly well settled by a long line of decisions both in England and in this country. In Allan v. Gomme, 11 A. & E. 759, it was held that a conveyance to A. of certain premises reserving a right of way and passage over the locus in quo to a stable and loft in the same and a space or opening under the loft, to be used in...