Hammett v. Rosensohn

• Decision Date: 07 October 1957
• Docket Number: No. A--324,A--324
• Citation: 46 N.J.Super. 527,135 A.2d 6
• Parties: John E. HAMMETT, Plaintiff-Respondent and Cross-Appellant, v. James ROSENSOHN and Florentine R. Rosensohn, Defendants-Appellants and Cross-Respondents. . Appellate Division
• Court: New Jersey Superior Court — Appellate Division

Page 527

46 N.J.Super. 527

135 A.2d 6

John E. HAMMETT, Plaintiff-Respondent and Cross-Appellant, v. James ROSENSOHN and Florentine R. Rosensohn,

Defendants-Appellants and Cross-Respondents.

No. A--324.

Superior Court of New Jersey.

Appellate Division.

Argued Sept. 4, 1957.

Decided Oct. 7, 1957.

Francis E. Bright, Newton, for plaintiff-respondent and cross-appellant (Dolan & Dolan, Newton, attorneys. Francis E. Bright, Newton, of counsel).

Sam Weiss, Newark, for defendants-appellants and cross-respondents (Sam Weiss, Newark, attorney and of counsel).

Before Judges GOLDMANN, FREUND and CONFORD.

FREUND, J.A.D.

The defendants appeal and the plaintiff cross-appeals from a judgment of the Chancery Division which determined the respective property rights of the parties and the effect of certain restrictions and easements relating the their properties in Byram Township, Sussex County, New Jersey.

The plaintiff, John Hammett, acquired by deed dated June 27, 1928, from Edward J. Barber and others, several parcels of land, including 71.104 acres still owned by the plaintiff, where he resides, and a 35,368 acre tract consisting of land and one-third of the area of a small lake known as Roseville Pond, the last-mentioned tract being known as the Luebbers tract, now owned by the defendants and where they reside.

The Luebbers property, also known as 'Casa Stradella,' was conveyed, along with another tract, by deed dated May 18, 1935, from Hammett to the General Public Utilities Corporation. The corporate grantee was the nominee for Howard C. Hopson. Hammett and Hopson had agreed to protect their respective properties and to maintain them as country estates, with a country home and wide view of the countryside, together with a lake for fishing, boating and swimming. With these objectives in mind, they mutually agreed to restrict the use of their properties and to establish casements which are contained in the deed to Hopson's nominee, General Public Utilities Corporation.

Hopson also acquired other neighboring properties which, while never in his name, were assembled and conveyed to his corporate nominee, Realty Investors, Inc., by various deeds. One of these properties is known as the Sickels property which by deed dated September 21, 1936, Saran D. Sickels and her husband conveyed to Hopson's nominees, Gerald J. Dean and his wife. This property, comprising some 200 acres, is located east and northeast of the defendants' property, although only a comparatively small portion thereof is contiguous to it and to the easterly portion of Roseville Pond.

The third Hopson acquisition, known as the Rusby tract, was conveyed on January 6, 1937, by Ella M. Rusby and her husband to Property Owners, Inc., another Hopson nominee. This property consists of two tracts, a small portion of one tract being contiguous to Hammett's property and the other tract being contiguous to both Hammett's property and defendants' lake front property. Neither the Sickels nor the Rusby property is described in the Hammett deed of May 18, 1935. The titles to the Sickels and Rusby properties by Mesne conveyances eventually came into the ownership of Realty Investors, Inc., on July 25, 1941, but at no time were these tracts ever vested in Hammett or General Public Utilities Corporation. The chain of title of these tracts does not contain the respective restrictions and easements mentioned in the Hammett deed of May 18, 1935 to the Luebbers tract.

Realty Investors, Inc., by deed of November 28, 1941, conveyed to another Hopson nominee, Talco Realty Company, all the property that had been acquired through the various Hopson nominees. On January 21, 1946 Talco conveyed all this property to Benjamin Cooper of 'Casa Stradella Farm.' Finally, by deed of October 1, 1947 Cooper conveyed to the defendants, James Rosensohn and his wife, the Luebbers, Sickels and Rusby tracts (less some 22 acres not here significant), the deed reciting that the conveyance is subject to the restrictions, easements and agreements mentioned in the Hammett deed of May 18, 1935.

The plaintiff, by his complaint, seeks to restrain the defendants from

'* * * changing the existing shore line of Roseville Pond or relocating the road along that shore line and further restraining them from the creation of any beach for the use of the public at Roseville Pond, permitting the public to use the waters of Roseville Pond or building a boathouse anywhere except along the existing shoreline of Roseville Pond.'

Plaintiff claims the defendants act or contemplate acting in violation of the restrictions and easements.

The answer admits that in order to make better use of their land, defendants desire to move the existing roadway on their property, adjacent to Roseville Pond, closer to the pond; to grade the area adjacent to the pond to remove a precipitous drop; to extend the present shore line about 20 feet into the pond and make a sand beach on their property, and to construct a boathouse on the contemplated filled-in portion of Roseville Pond. They deny the binding effect of the restrictions and easements as to their property and its use, contending that they were personal to Hopson and Hammett. By their counterclaim the defendants seek a declaration of their rights in the property owned by them, if the restrictions and casements are not held to be invalid.

The trial court by its judgment ruled that the restrictions and easements contained in the Hammett deed of May 18, 1935 are definite, reasonable, not against public policy, and capable of enforcement, and have not been abandoned or waived by the plaintiff, nor is plaintiff estopped from enforcing them. It held, however, that these restrictions and easements do not bind the Sickels and Rusby tracts in any way. The court further ruled that as long as the restrictions remain in effect: (a) the defendants have no right to construct additional houses or homes on, or to subdivide, the Luebbers tract; (b) the defendants may not erect any building along the shoreline of the pond west of the icehouse except a 1 1/2-story structure to be used solely as a boathouse; (c) the defendants may grant a right of way over their premises within the limits of the Luebbers tract, subject to the provisions of the judgment; (d) during the lifetime of the plaintiff he is entitled to have the present icehouse remain where it is presently located on the Luebbers tract; (e) the right to the use of the roadway adjacent to the icehouse between the 15th and 17th courses of the Luebbers tract is a permanent easement in favor of the plaintiff, independent of the use of the ice-house; (f) the defendants have the right to change the grade of the existing private roadway between the mentioned 15th and 17th courses, in conformity with the plan presented to the court, provided that steps are taken to prevent erosion from the Hammett property; (g) defendants are not to extend the present shoreline of Roseville Pond or fill in its waters within the limits of the Luebbers tract, nor is the pond within the Luebbers tract to be opened to the public or to be used in conjunction with any business enterprise; (h) the restrictions as to the uses of the Luebbers tract contained in the deed of May 18, 1935, are to remain in full force and effect so long as Hammett, his wife or their present children own the premises now occupied by them.

The trial judge had the advantage of personally inspecting the premises involved during the course of the hearing.

Defendants argue that the judgment under review errs in denying them the right to fill in any portion of Roseville Pond within the Luebbers tract and to extend its shore line, to erect a boathouse as planned, and to subdivide the Luebbers tract. Originally they appealed from other portions of the judgment. However, in their brief they expressed state they abandon their appeal except as to those portions of the judgment which provide, specifically, that the 'defendants have no right to subdivide this tract (Luebbers)'; the defendants are 'restrained from erecting any building along the shore line of Roseville Pond west of the ice-house and within the limits of the Luebbers Tract except a structure not to exceed one and one-half stories in height to be used solely as a boathouse and are specifically * * * restrained from erecting a structure of the design or plan submitted by the defendants for the consideration of the court * * *'; the defendants are restrained from extending the present shore line or from filling in a portion of the waters of Roseville Pond within the limits of the Luebbers tract, pursuant to the plan dated June 1955 prepared by M. Hampton Byram; and lastly, they are restrained from opening the waters of Roseville Pond within the Leubbers tract to the use of the public or from using the pond in conjunction with any business enterprise or development.

Plaintiff cross-appeals, claiming that (1) the restrictions set out in the Hammett deed of May 18, 1935 apply to the Sickels and Rusby tracts after-acquired by Hopson and now held by defendants; (2) defendants, owners of the servient Luebbers tract, may not alter the grade or location of a right of way without the consent of the dominant owner, Hammett; and (3) defendants may not permit third persons to use a right of way over their property, which is restricted to one-family residence use, to reach other property (the Sickels and Rusby tracts) which may be subdivided, or to reach a pond restricted against public use.

We will first consider the cross-appeal of the plaintiff as to whether or not the restrictions in the Hammett deed of May 18, 1935 affect the Sickels and Rusby properties, now owned by the defendants. The pertinent part of the deed reads as follows:

'It is agreed between the parties of the first part and the party of the second part (General Public Utilities Corporation), that the premises above described and hereby conveyed and also those certain...