Mason v. Ross

• Decision Date: 27 October 1908
• Citation: 75 N.J.E. 136,71 A. 141
• Parties: MASON v. ROSS.
• Court: New Jersey Court of Chancery

71 A. 141

75 N.J.E. 136

MASON

v. ROSS.

Court of Chancery of New Jersey.

Oct. 27, 1908.

(Syllabus by the Court.)

Bill by Mary L. Mason against James Ross for an injunction. Bill dismissed.

The accompanying diagram contains a sufficient number of the lines on the page of the City Atlas of Trenton, which was offered in evidence, to illustrate the references to boundary lines and dimensions set forth in the opinion.

John H. Backes, for complainant.

William J. Walsh and Barton B. Hutchinson, for defendant.

WALKER, V. C. The defendant commenced the erection of a dwelling house upon a lot of land 25 feet in width and 204 feet in depth, fronting on the easterly side of Southard street, in the city of Trenton, and the progress of the work was arrested by an injunction of this court. The complainant claims that she has an easement over the lands on which the building stands, either as a way appurtenant to other lands of hers, binding upon the premises in question, or as one of the public by reason of a dedication of the way as a public way or street. It is conceded that Benjamin Albertson owned the locus in quo, including the lands of the complainant and other adjacent land in 1868, and in October, 1870, conveyed to John Taylor part of those lands, beginning on the easterly side of Southard street and running by the northwesterly line of a proposed street 25 feet in width, 204 feet deep. This course is the southerly line of part of the complainant's land, which land came to her mediately from Benjamin Albertson, through sundry mesne conveyances. At a later period, the time not being fixed, a row of houses was erected on the southerly side of this street, called and known as "murderers' row." Conveyances were made of houses in this row as being a certain distance easterly from Southard street, and on the southerly side of Carroll street, namely, the street in question. In the year 1895 Albertson, having disposed of all of the rest of the tract, conveyed his estate in that part of it sometimes called "Carroll street," and sometimes "East Carroll street," being the lot 25 by 204 feet, on which the defendant has commenced the erection of his building, to the Mechanics' Mutual Loan Association, describing the same by metes and bounds, but not calling it a street. In December, 1895, the loan association conveyed to the defendant and John G. Hess its lands at the site in question, and the defendant claims title by virtue of the conveyance from the loan association to himself and Hess, and says that by virtue thereof they entered into the full and absolute possession of the tract and held the same, and subsequently, in the same year, erected on the lands, about 100 feet easterly from Southard street, a garbage crematory, covering about 16 feet of the width of the land called a street, and used and operated the same for a number of years, without any objection or complaint on the part of the abutting owners, one of whom was a predecessor in title of the complainant; that the defendant and Hess filled up the lot with earth, and used it in connection with the crematory. It was necessary for them to fill the lot with earth to get access to it, because of the abutment wail of the Southard street bridge, which will be referred to subsequently. Hereafter the defendant will be referred to alone as the owner of the servient tenement. The complainant, as already said, was not an abutting owner at that time. Her title was derived by devise from her husband, whose will was proved August 19, 1898. His title was derived by conveyance dated December 10, 1897. In 1889 the county of Mercer built an elevated bridge across the railroad and canal on Southard street, north of the locus in quo, and raised the grade of Southard street, by way of approach to the bridge, to a height of about 17 feet across the tract or street in question, thus shutting off access to Southard street from East Carroll street, so called. Some time since, the houses known as "murderers' row" were demolished, whereupon all apparent traces of the street became obliterated. During the time the "row" was in existence there appears to have been a few trees set out, and some sort of path by way of sidewalk seems to have existed from the "row" to Southard street. There apparently never was any clearly defined street at the point in question; the houses being built on what had the appearance of a small common. The intention of Albertson was undoubtedly to lay out and dedicate a street, to be called East Carroll street, leading from Southard street easterly. Not only did he and his successors in title make conveyances with reference to the locus in quo as a street, but the title to part at least of the land on the Albertson tract which has come to the defendant makes express mention of the street, and put him upon notice as to its locality, if in fact he did not know of its lines. Upon this score there is no difficulty.

It is conceded that the municipal authorities of Trenton, within whose corporate limits are the premises in question, never accepted the proposed street, or repaired or worked it, assuming the public to have gained an easement therein by dedication or user. Counsel for complainant relies largely upon Booream v. North Hudson County R. R. Co., 40 N. J. Eq. 557, 5 Atl. 106, in which the Court of Errors and Appeals said: "When the language of a deed is sufficient to create an easement of a right of way over the premises conveyed as an appurtenant to the grantor's premises lying adjacent thereto, and words are added indicating a purpose to dedicate the way as a public street, held, that the creation of a public right, to be enjoyed in futuro whenever the public authorities might see fit to accept the dedication, was not inconsistent with the private easement, which inured to the grantor immediately from the grant, and that the latter was entitled to the use of the way, although the public had not accepted the dedication." No map or plat of the tract showing the street in question was ever filed, and the defendant lays great stress upon that fact, and claims that there is no evidence of a dedication. But I do not understand that a map or plat is necessary; for, as was said by Vice Chancellor Reed, in Seibert v. Graff (N. J. Ch.) 38 Atl. 970: "Although there may be no reference to a map, yet the fact that land is described in a deed as bounding upon a street, and there are marked, upon the grounds adjacent to the land sold, traces of the existence of a street, this condition of affairs will produce the same result." The complainant succeeds and the defendant fails on the question of dedication. The dedication was made by Albertson in præsenti, to be accepted and used in futuro. See Mayor of Jersey City v. Morris Canal Co., 12 N. J. Eq. 547, 563. Nevertheless, in my opinion, the decision of this case does not depend upon the question of dedication or no dedication, but upon the question of equitable estoppel. In other words, has there been such an abandonment and cesser of the use of this strip of land called a street as to disentitle the complainant to the relief she seeks, namely, an injunction restraining the defendant from in any manner interfering with her use of the street, and compelling the defendant to remove so much of the building as he has erected upon its site? That there can be an abandonment of both public and private ways is supported by abundant authority. On the hearing an offer was made, on behalf of the defendant, to show that the Mechanics' Mutual Loan Association, while the owner of "murderers' row," sued the county of Mercer for closing up the street or way in question, and that Peter Dehe, while the owner of the tract now owngd by the complainant, made a deed of release to the county for the damages which he had sustained by the building of the approach to the Southard street bridge, which shuts off access from the alleged street to Southard street. Undoubtedly it was these proceedings, and the obstruction of the street or way, which led Albertson in 1895 to make a conveyance of the street to the loan association. He and the association certainly believed that all rights in the way were extinguished, and the association unquestionably conveyed to Hess and Ross, upon the understanding of all parties, that the easement, public or private, had been extinguished. The offer of the testimony adverted to was excluded, and I think properly so, as to the suit for damages, but not so as to the release from Dehe, as will hereafter appear. Surely, if the grade of Southard street had not been raised and an embankment thereby erected across the entrance to East Carroll street, so called, the complainant's rights would not have been lost by the conveyance of the fee of the street by Albertson to the loan association, and by it to Hess and Ross, and by their obstruction of it with their crematory, and the defendant's present obstruction with his building. If the way were a public one, its being obstructed for over 20 years would not extinguish the public's right. If a private one, the right has not been lost by nonuser, because 20 years of nonuse has not continued, coupled with an adverse enjoyment. The easement of way, whether public or private, over the locus in quo has been lost to the complainant, if lost at all, by reason of the changed conditions of and concerning the whole tract originally owned by Albertson, and of which her lands are a part, and by reason of the operations of the defendant upon the tract in question, without protest from the complainant and her predecessors in title, whereby an equitable estoppel, precluding the complainant from asserting the right to use the locus in quo as a way or street, has arisen.

True it is, that when only the foundations of the house, now partly erected upon the tract, were built, the defendant was warned to desist, and in the face of warning he proceeded with his building operation until stopped by...