McAllister v. H. J. Heinz Company

• Decision Date: 17 October 1927
• Citation: McAllister v. H. J. Heinz Co., 139 A. 6 (N.J. 1927)
• Court: New Jersey Supreme Court
• Parties: RICHARD MCALLISTER v. H. J. HEINZ COMPANY et al

139 A. 6

McALLISTER

v. H. J. HEINZ CO. et al.

Court of Errors and Appeals of New Jersey.

Oct. 17, 1927.

Appeal from Court of Chancery.

Injunction bill by Richard McAllister against the H. J. Heinz Company and others.From a decree dismissing the bill(98 N. J. Eq. 559, 131 A. 108), complainant appeals.Affirmed.

Babcock & Champion, of Atlantic City, for appellant.

Robert H. McCarter, of Newark, and Joseph B. Perskie, of Atlantic City, for respondents.

GUMMERE, C. J.The defendant corporation is the owner of a pier in the city of Atlantic City, extending from the oceanward edge of the boardwalk some 600 feet into the ocean.In August, 1924, a portion thereof was destroyed by a vessel's being driven against it during a storm.The Heinz Company thereupon started to restore the destroyed portion of its pier, and the present bill was then filed by McAllister, seeking an injunction against it restraining it from continuing the work of reparation, or restoration, and prohibiting it from using the pier to any extent for commercial purposes.The complainant also asks an injunction against Atlantic City restraining it from permitting the reparation of the pier.Upon final hearing the bill was dismissed; and the present appeal challenges the propriety of that dismissal.

The material facts disclosed at the hearing were as follows: The pier in question was built by the Heinz Company in 1886.At that time two pavilions and other structures were erected upon it, and from that day to the time of the filing of the bill no change of any kind was made in its character, the buildings' then constructed remaining in their original condition, and no other buildings having since been erected upon it.From the time of its construction until the present the public have had free access to it.They are furnished with seats, chairs, and benches and reading matter, and are practically permitted to do whatever they choose while on the pier.The company exhibits and advertises the 57 varieties of its products, and has done so since the pier was originally completed.In December, 1902, the complainant, McAllister, became the owner as tenant in common of an undivided one-half interest in a tract of land bordering upon the Atlantic Ocean.The land acquired by McAllister and his cotenant included not only the upland, but the land under water extending to the exterior line as then established by the riparian commission.A part of this land under water so acquired by McAllister was occupied by the Heinz pier, and, upon this fact being established in 1904, the Heinz Company rented that portion of the land occupied by it from McAllister and his cotenant, and continued to, use and enjoy the same as such tenant until some time in the year 1907, when McAllister and his cotenant conveyed a strip of the upland bounding on the Atlantic Ocean,...