Ingling v. Public Service Elec. & Gas Co.

• Citation: 10 N.J.Super. 1,76 A.2d 76
• Decision Date: 25 October 1950
• Docket Number: A--304,No. A--259,A--259
• Parties: INGLING v. PUBLIC SERVICE ELECTRIC & GAS CO. et al.
• Court: New Jersey Superior Court – Appellate Division

Page 1

10 N.J.Super. 1

76 A.2d 76

INGLING v. PUBLIC SERVICE ELECTRIC & GAS CO. et al.

No. A--259, A--304.

Superior Court of New Jersey, Appellate Division.

Argued Oct. 9, 1950.

Decided Oct. 25, 1950.

Herman H. Wille, Jr., Newark, argued the cause for appellant Public Service Electric & Gas Co. (Mr. Carl T. Freggens, Newark, attorney).

Sidney P. McCord, Jr., Camden, argued the cause for appellant New Jersey Bell Tel. Co. (Starr, Summerill & Davis, Camden, attorneys).

William C. Gotshalk, Camden, argued the cause for respondent (Mr. Raymond Saltzman, Camden, attorney).

Before Judges McGEEHAN, HAYNE and WM. J. BRENNAN, Jr.

The opinion of the court was delivered by

WM. J. BRENNAN, J.A.D.

Plaintiff was injured in the side yard of his Brooklawn, Camden County, home when preparing on a July day in 1946 to water his lawn and his right heel struck a metal shield, called a Bierce protector, on a guy wire anchored on his lot within a foot from the side of his house.

His back was to the house as he stood on a concrete walk running along its side; he stooped over to pick up a garden hose and his foot raised backward toward the house away from the walk and came into contact 'with the edge of that shield over the guy wire.'

The shield ran up the guy were a distance of 7 feet from its anchor point. It resembled and was about the width of a half section of rain pipe, with its rounded surface toward the concrete walk and its two edges facing the house. The guy wire was one of two such wires supporting a pole which bore equipment of both defendants and was located within plaintiff's fence but just off the rear of his lot; the fence encroached on an alleyway, not part of plaintiff's property. The guy wire and Bierce cover were installed around 1930 by The Delaware and Atlantic Telegraph and Telephone Company, predecessor of defendant Telephone Company. The other guy wire was installed in 1919 by Public Service Electric Company, predecessor of defendant Electric and Gas Company; it paralleled the Telephone Company guy wire and was fastened near the ground in the side foundation of plaintiff's house within a foot of the anchor point of the Telephone Company guy wire.

Plaintiff sued both defendants in the Superior Court, Law Division, Camden County, alleging their joint and several liability for his injury, contending that the installation was a trespass, that the guy wires and Bierce protector had been negligently located, and that the guy wires and protector had been negligently maintained. At the close of plaintiff's case, the suit was dismissed on defendants' motions as to the allegations of trespass and negligent maintenance, but motions for dismissal and for judgment at the close of the case were denied as to the allegations of negligent location and there was submitted to the jury 'the question of whether or not the defendant companies or either of them, in the exercise of its right to go upon the plaintiff's land so constructed its equipment that a reasonably prudent person would have foreseen an injury resulting to the land owner in the legitimate and reasonable use of the property and its appurtenances.' Plaintiff had a jury verdict against both defendants and they appeal from the judgment entered thereon; plaintiff cross-appeals that if the judgment is reversed his complaint as to trespass and negligent maintenance was improperly dismissed.

Plaintiff's home was one of 488 houses built as part of a housing project developed after the first World War by Noreg Realty Company. That company contracted with Public Service Electric Company by agreement dated February 19, 1919, for the servicing of the houses with electric power, and agreed to 'afford full entry to Electric upon the portions of land designed for streets and alleys in said development for the erection of poles, and afford Electric full opportunity and privilege to erect and maintain the same and electric service thereon'; Electric, on its part, agreed to 'erect all poles and run all wires, * * *' required to do the work and 'at its own cost and expense, to maintain, keep in repair, replace and restore any and all poles, wires * * * installed under this agreement.' The agreement was not recorded, but when Noreg Realty Company conveyed the entire tract to the United States of America, the deed, recorded July 10, 1923, included a provision 'together with the benefits granted and subject to the terms, covenants and conditions imposed by the following agreements, viz., * * * (c) Agreement made the 19th day of February, 1919, between said Noreg Realty Company and Public Service Electric Company * * *'.

The pole was erected by Public Service Electric Company April 29, 1919, and a guy wire was placed thereon by that company and fastened to the house at that time.

Noreg Realty Company made an agreement dated July 20, 1920 with Delaware and Atlantic Telegraph and Telephone Company to obtain telephone service for the houses. This agreement was recorded and provided for the use by the Telphone Company of the poles previously erected by the Electric Company and granted the Telephone Company rights 'to construct additional guys and anchors for the support of some of the said poles,' as shown on a plan attached to and recorded with the agreement; arrow-shaped symbols on the plan showed the location of the several poles on the tract upon which the Telephone Company was to place its equipment, the pole here being one such, and as to which, and to two other poles, there was also a legend 'Tel. Co. anchor guys to be located in front of and in line with present Elec. Co. guys.' Plaintiff argues that the symbol identified with the legend points to the house next door and not to his house. The fact is there was no guy wire of Public Service Electric Company from the pole here involved to the house next door; the only guy wire on the pole was that fastened in 1919 to plaintiff's house. In these circumstances the symbol and legend are plainly to be construed as referring to the guy wire on plaintiff's house. See Man v. Vockroth, 94 N.J.Eq. 511, 121 A. 599 (E. & A.1923). The location in which the Telephone Company's guy wire was to be anchored in plaintiff's lot was thus fixed by the agreement; it is conceded the wire was located in or before the year 1930 at the spot where it was when plaintiff was injured.

The United States of America conveyed the tract to Brooklawn Housing Corporation and plaintiff derived his title from the latter by deed recorded July 2, 1937.

In 1940, three years after plaintiff took possession, his wife requested defendant Electric and Gas Company 'to remove the guy wires from the house because they were in a dangerous place where they were, where the children were concerned in playing.' She refused to sign a paper which she admitted 'had something to do with a pole'; she said this was 'because they were going to move the pole from one corner of the yard to the other but had no reference to removing the guy wires from the foundation of the home.' A company witness identified the paper as 'a pole consent form for her signature, which would allow a change of the location of the pole and the guy wire,' and said no change was made because the pole consent was not signed.

Defendants urge that they were entitled to judgment at the end of the case because the anchoring of the guy wires where they were and had been for 27 and 16 years respectively at the time the plaintiff was injured was as of right under easements granted them by Noreg Realty Company, plaintiff's predecessor in title, that the plaintiff's lot was the servient tenement and the selection of the places where the guy wires rested was consented to and acquiesced in by Noreg Realty Company when the installations were made, that the same were fixed, open and visible to plaintiff when he purchased the property in 1937, and remained so during the nine years thereafter up to the time of the accident; thus, that plaintiff as owner of the servient tenement was concluded by the selection or fixing of locations consented to and acquiesced in by his predecessor in title, and by his own acquiescence in the locations, and had and has no standing to maintain an action against defendants founded on alleged negligent choice of the locations.

We think it was error to deny defendants' motions for judgment. The agreements of 1919 and 1920 between Noreg Realty Company and the respective predecessors of defendants granted easements; the words used in both instruments were appropriate to such purpose. Jaqui v. Johnson, 27 N.J.Eq. 526 (E. & A.1875); McLaren v. American Telephone & Telegraph Co., 1 N.J.Super. 600, 63 A.2d 922 (Law Div.1948). The real controversy is as to the manner of resting or fixing the easements upon the servient tenement. The choice of the house as the fastening point for the guy wire placed by Public Service Electric Company in 1919 is not explained in the proofs; however, the location was clearly approved and acquiesced in by Noreg Realty Company in its later 1920 agreement with the Delaware and Atlantic Telegraph and Telephone Company, in which that location was adopted as the guide post fixing the location of the Telephone Company's guy wire; this was done by the legend requiring the added guy wire 'to be located in front of and in line with present Elec. Co. guys'; with the Electric and Gas Company guy wire fixed and open to their observation, and therefore existing as a practical measure of determining the location for the Telephone Company guy wire, the parties expressed their intention by the legend on the plan and chose and fixed its location. Winslow v. City of Vallejo, 148 Cal. 723, 84 P. 191 (Sup.Cal.1906). The location for both wires having been once established, plaintiff, as successor in title to the servient tenement, had no power, against the objection and without the consent of the defendants, to make any...