Hyland v. Kirkman

• Citation: 498 A.2d 1278,204 N.J.Super. 345
• Parties: William F. HYLAND, Attorney General of New Jersey, et als., Plaintiffs, v. Elwood KIRKMAN, et als., Defendants.
• Decision Date: 04 April 1985
• Court: Superior Court of New Jersey

Page 345

204 N.J.Super. 345

498 A.2d 1278

William F. HYLAND, Attorney General of New Jersey, et als., Plaintiffs, v. Elwood KIRKMAN, et als., Defendants.

Superior Court of New Jersey, Chancery Division Burlington County.

April 4, 1985.

[498 A.2d 1281] Robert Grabowski, Trenton, for plaintiffs (Irwin I. Kimmelman, Atty. Gen. of N.J., attorney).

Jerald D. Baranoff, Newark, for defendant Elwood F. Kirkman (Sills, Beck, Cummis, Zuckerman, Radin & Tischman, Newark, attorneys).

Armen Shahinian, Roseland, for defendant Great Notch Development Corp. (Wolff & Samson, Roseland, attorneys).

Charles L. Harp, Jr., Haddonfield, for defendants Robert Kaufman, Mark DeMarco, Victoria Dreschler, Judith Kaplan, Saratoga Land Trust, K & D Land Trust and Cambridge Abstract and Research Corp., Inc. (Archer & Greiner, Haddonfield, attorneys).

Stewart F. Kay, Wildwood, for defendant Chelsea Title (Kay & Kay, Wildwood, attorneys).

Henry Gorelick, Wildwood, for defendant David Fitzsimons (Gorelick & Groon, Wildwood, attorneys).

WELLS, J.S.C.

The general nature of this action, the allegations of the complaint, the demands for relief and disposition of certain issues are described in a published opinion of my late colleague, Judge Wood. Hyland v. Kirkman, 157 N.J.Super. 565, 385 A.2d 284 (Ch.Div.1978). The reader is advised to consult that opinion before launching into this one, being mindful that this court does not find as fact all of the allegations described therein.

The trial of the case proceeded before Judge Wood on 14 trial days between May 23, 1983 and June 14, 1983. On June 29, 1983, closing arguments were heard and Judge Wood took the matter under advisement. Judge Wood died in 1984 before rendering a decision.

Upon transfer of the matter to me, R. 1:12-3(a), I tentatively decided that R. 1:12-3(b) applied and a new trial would not be required. An opportunity was afforded the parties to be heard, a request for a partial recall of witnesses was received and the matter argued. I determined I was able to familiarize myself with the proceedings and all of the testimony through a complete transcript, pleadings and exhibits, R. 1:12-3(b), and have Plaintiffs' case rests on deeds and judgments of record in the Burlington County Clerk's office. In addition, there is no dispute that three corporations, Pinelands Development Corporation (PDC), West New Jersey Society (WNJ) and Tanners Brook, Inc. (TB) were owned and controlled by defendant Elwood Kirkman and the late Paul Burgess, Sr., whose estate is a named defendant. A further chronological history of the facts between 1961 and 1970 is, however, unnecessary. Rather the court chooses to state only the facts necessary to pose and determine the issues. A description, based on the record, of the principal parties and the lands involved known as the Isaiah Adams tract is, however, necessary.

now done so. I am able to [498 A.2d 1282] discharge my duty to dispose of the matter fairly without the recall of any witnesses. R. 1:12-3(c).

Isaiah Adams was the returnee of a large tract of land surveyed by the Proprietors of West Jersey in 1859 situate in Bass River. His return encompassed 8,525.80 acres in a 23-course description which expressly excluded 26 surveyed exceptions returned to others leaving a net acreage of 4,662.89. Through subsequent conveyances the property became titled in Henry Shaw in August 1893. Shaw conveyed the westerly 2011 acres to Albert K. McMurray in February 1895, the south 1750 acres to George E. Godward in August 1895, the north 2000 acres to William Crawford Hawk and the east 2,797.7 acres to Meyer Beyer. Shaw's conveyances ignored the 26 exceptions, and although reasonably workable protractions of the descriptions give some idea as to where the parcels are in relation to one another and to the outbound description of the return to Isaiah Adams it is impossible to locate, with any accuracy, where the tracts are on the ground or the exact extent to which each is affected by one or more of the 26 exceptions.

After the basic four-part division of the lands by Shaw, his grantees and their successors failed to pay taxes and the resultant tax sales began to create liens. Furthermore while the record title to the McMurray, Godward and Hawk parcels The central figure in the case is Paul Burgess, Sr. Burgess went to work for Chelsea Title Company in 1922 and over the next forty years became one of the most renowned "title men" in South Jersey. Even though he was not a lawyer, few lawyers could match his knowledge and experience in the title field and several consulted him from time to time on title problems. By the early sixties, when the facts of this case began to unfold, Burgess had risen to President of Chelsea Title, and Chelsea itself had become one of the largest title insurers in South Jersey.

remained essentially stable subject to tax liens and the exceptions, Meyer Beyer's grantees multiplied like rabbits creating a title nightmare. Nonetheless it is with McMurray, Godward, Hawk and Beyer that the trial of title to the Isaiah Adams tract ends at the end of the 19th Century. McMurray, Godward and Hawk vanished without a trace and left no successors who have emerged even after the highly publicized start of this case. Beyer does, however, have living descendents as does one of the holders of an exception and their interests are discussed and determined herein. But it is not until 1960 that interest again focused on Isaiah Adams' lands.

To Burgess, however, titles were more than a career. He, apparently, had a consuming interest in local history and archeology. He was a lifetime resident of Brigantine, served as its mayor and wrote a historical pamphlet about it. He particularly loved the Pine Barrens, the vast tract of wild and uncultivated woodland that stretches across the central part of Atlantic, Burlington and Ocean Counties encompassing Bass River and the Isaiah Adams tract.

Burgess was not a surveyor but with a surveyor's wheel, a fencing foil and a jeep, often accompanied by his daughter-in-law, Kathleen Keeney Burgess, he tracked for years through the Pine Barrens on weekends taking measurements, looking for monuments or other physical indicia of where properties described in deeds might be located. He sought out old cemeteries He spoke to people whom he, on rare occasion, found in the Barrens questioning them as to who owned the land. He often carried "Private Property" or "No Trespassing" signs with him and posted them. Many of the signs gave his phone number and name but no one ever called. Burgess also cut wood for his fireplace and holly trees at Christmas from these tractless barrens as did other Chelsea people.

for names and dates, old road beds and the foundations and remains of old buildings.

Burgess died in 1975 after plaintiffs' investigation began but before he was questioned. Among the documents in evidence, however, are letters to and from him, memoranda and notes of his which give substantial insight into his ideas for acquiring title to what he conceived to be "abandoned" land in the Pine Barrens and particularly to the Isaiah Adams tract in Bass River. A great deal of this opinion is devoted to an analysis of Burgess' conduct in the matter.

Elwood Kirkman is a prominent attorney whose principal office is in Atlantic City. He is, and was throughout the sixties and seventies, the senior partner in a law firm which represented numerous business, banking and individual clients in that city, Atlantic County and South Jersey. Kirkman's knowledge and experience in title matters is beyond question. Much of his practice was devoted to real estate and real estate financing. He owned or controlled at least a third of the stock in Chelsea Title Company, and was its president for years before assuming the chairmanship of its board of directors, a position he held during all or most of the era in which the facts herein take place.

Kirkman and Burgess were friends and, of course, associated in business. It was to Kirkman that Burgess looked as a partner in the venture to acquire the Isaiah Adams tract. Kirkman authorized and controlled the deposit and expenditure of monies in and through WNJ and TB which he and Burgess owned and controlled.

David Fitzsimmons, an attorney about five years out of law school in 1961, had been employed by Kirkman's firm ever since his admission to the bar. It was he who Kirkman assigned to work with Burgess on various real estate projects beginning in 1961 and thereafter, including the acquisition of the Adams tract. Because of his role as an implementor of Burgess' plan, Fitzsimmons is named as a defendant herein.

Robert Kaufman was an experienced real estate broker and developer primarily in New York City but with interests all over the country. In 1960, or thereabouts, Kaufman agreed to finance the attempt to acquire certain pinelands subject to seven tax sale certificates describing portions of the Isaiah Adams tract in which a Trenton attorney, Bernard Campbell, had an interest or could obtain an interest. Kaufman is not a lawyer, but was advised throughout either by Campbell, who died in 1965, or by New York counsel. In much of what he did, Kaufman proceeded in the name of an aunt of his, Judith Kaplan, as a straw-party. Kaufman knew none of the other parties prior to 1960 but eventually met all of them and, in fact, did in proceedings, not attacked herein, foreclose on a large part of the Isaiah Adams tract. His interest in other parts of the tract is, however, determined herein.

Defendant Mark DeMarco, an attorney, is named herein because of his dual role as solicitor of Bass River from 1961 through 1967 and as Kaufman's attorney from May 1966 to date. DeMarco also has an interest in a part of the Isaiah Adams tract which is affected by this decision.

Kathleen Keeney Burgess is Paul Burgess' daughter-in-law. At some point herein, Burgess interested Mrs. Burgess in searching and...