Lindel Realty Co. v. Miller

• Decision Date: 02 June 1949
• Docket Number: No. A-269.,A-269.
• Citation: 66 A.2d 539
• Parties: LINDEL REALTY CO. v. MILLER et al.
• Court: New Jersey Superior Court

66 A.2d 539

LINDEL REALTY CO.

v.MILLER et al.

No. A-269.

Superior Court of New JerseyAppellate Division, Part A.

Argued May 23, 1949.

Decided June 2, 1949.

Appeal from Superior Court, Chancery Division.

Action by Lindel Realty Company against Louise Miller and another to enjoin maintenance of driveway in front of plaintiff's land and thereby hampering plaintiff's access to it. From a judgment for plaintiff, 62 A.2d 817, the defendants appeal.

Judgment affirmed.

Before JACOBS, Senior Judge, and EASTWOOD and BIGELOW, JJ.

Henry F. Stockwell, Camden, argued the cause for plaintiff-respondent (Bleakly, Stockwell & Zink, Camden, attorneys).

David F. Greenberg, Camden, argued the cause for defendants-appellants.

The opinion of the court was delivered by

BIGELOW, Judge.

This is a conflict between adjacent land owners over access to a State Highway. The paved part of the highway is separated from the properties in question by a strip of land 16 feet wide which, although not presently used either as a roadway or as a sidewalk, is a part of the highway and owned by the State in fee. The defendants, who operate a gasolene filling station on their property, constructed a concrete exit drive across the unpaved portion of the highway to the roadway. But instead of building their exit at right angles to the line of the highway, they laid it out at an oblique angle so that it runs in front of the plaintiff's property and hampers access to its land.

The plaintiff has the same right of access to the highway in front of its property as have the defendants. Barnett v. Johnson, 15 N.J.Eq. 481 (E. & A. 1863). In defense of their interference with plaintiff's access, the defendants offered, in the Chancery Division, to prove that the State Highway Commissioner had authorized them to build their drive in the position where they placed it. They point out as the source of the Commissioner's authority, R.S. 27:7-44.1, N.J.S.A., which forbids any person from constructing any work in a state highway ‘except under such conditions and regulations as the commissioner may prescribe.’ This provision is clearly intended only to safeguard the rights of the State and the general public. The Commissioner's permit is not a justification for interference with another land owner's right.

The defendants also rely on the circumstance that the side lines of their property do not run at right angles with the State highway but obliquely, and that the driveway in question lies...