Jordan v. Teaneck Tp. in Bergen County
| Decision Date | 21 May 1927 |
| Docket Number | No. 123.,123. |
| Parties | JORDAN v. TEANECK TP. IN BERGEN COUNTY. |
| Court | New Jersey Supreme Court |
Action by Sidney S. Jordan, trustee under the last will and testament of Conrad N. Jordan against the Township of Teaneck, in the County of Bergen, in which there was a verdict for the defendant. On rule to show cause why a new trial should not be granted. Rule discharged.
Argued October term, 1926, before KALISCH, KATZENBACH, and LLOYD, JJ.
William B. Gourley, of Paterson (Albert Comstock, of Paterson, of counsel), for the rule.
Benjamin R. Buffett, of New York City, opposed.
This was an action of trespass in the Supreme Court tried at the Bergen circuit. There was a verdict for the defendant, and the case is here on a rule allowed to the plaintiff to show cause why a new trial should not be granted.
The plaintiff below claims title as trustee, of the premises upon which the alleged trespass was committed subject to the grant contained in a deed from one George W. Smith to the New York West Shore & Buffalo Railroad Company. The alleged trespass consisted in the construction of a sewer on the land of the plaintiff and against his protest. The defendant attempted to justify its right to construct the sewer on the grant to the railway company, and also on the ground that the locus in quo had become a public highway. It also denied the plaintiff's interest and right to sue.
The learned trial judge submitted the case to the jury as to whether the predecessors in the plaintiffs title "did not give the right to the railroad company to use the land for all necessary purposes," and, if they did, he instructed the jury that there was a right in the municipality with the railroad company's permission to lay the sewer. The propriety of these instructions is before us on this rule.
The deed from Smith, the former owner, to the railroad company, "grants and conveys to the railroad company, its successors and assigns, the right to use and occupy for the uses and purposes of a railroad station including side tracks, switches, approaches, buildings, and all the accommodations necessary for a station," and in the habendum clause "to have and to hold the same to the railroad company and its successors and assigns for said uses and purposes." The deed contains this further provision:
"It is mutually understood, covenanted, and agreed by and between the parties hereto that, if the party of the second part, its successors, and assigns shall fail...
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