Moore v. Bridgewater Tp.

• Decision Date: 08 June 1961
• Docket Number: No. A--90,A--90
• Citation: 69 N.J.Super. 1,173 A.2d 430
• Parties: Charles L. MOORE, Jr., et al., Plaintiffs-Appellants and Cross-Respondents, v. BRIDGEWATER TOWNSHIP, a municipal corporation of New Jersey and Warren Township, a municipal corporation of New Jersey, et al., Defendants-Respondents, and Dock Watch Pit & Quarry, Inc., a corporation of New Jersey, Dock Watch Quarry Pit, Inc., a corporation of New Jersey, Harry E. Von Osten, et al., Defendants-Respondents and Cross-Appellants.
• Court: New Jersey Superior Court — Appellate Division

Page 1

69 N.J.Super. 1

173 A.2d 430

Charles L. MOORE, Jr., et al., Plaintiffs-Appellants and Cross-Respondents, v. BRIDGEWATER TOWNSHIP, a municipal corporation of New Jersey and Warren Township, a municipal corporation of

New Jersey, et al., Defendants-Respondents,

and

Dock Watch Pit & Quarry, Inc., a corporation of New Jersey,

Dock Watch Quarry Pit, Inc., a corporation of New

Jersey, Harry E. Von Osten, et al.,

Defendants-Respondents and

Cross-Appellants.

No. A--90.

Superior Court of New Jersey

Appellate Division.

Argued Feb. 27, 1961.

Decided June 8, 1961.

Alfred C. Clapp, Newark, for plaintiffs-appellants and cross-respondents (Hetfield & Hetfield, Plaintiff, attorneys; George F. Hetfield, Joseph I. Bedell, Plainfield, and Clapp & Eisenberg, Newark, of counsel).

Charles A. Reid, Jr., Plainfield, for defendant-respondent, Bridgewater tp.

James W. Hurley, Plainfield, for defendant-respondent, Warren Tp.

Jacques S. Lederman, New Brunswick, for all defendants-respondents and cross-appellants.

Before Judges GOLDMANN, FOLEY and HALPERN.

The opinion of the court was delivered by

HALPERN, J.S.C. (temporarily assigned).

This action in lieu of prerogative writ was instituted by plaintiffs, as residents and taxpayers of Warren and Bridgewater Townships, in Somerset County, seeking to restrain the quarry defendants, Dock Watch Quarry Pit, Inc., Harry E. Von Osten, Edward Mundock and John W. Mondak, from operating a stone quarry on the theory that it was a nuisance; and to compel Warren and Bridgewater to enforce their zoning ordinances against the use of the quarry defendants' premises as a stone quarry. After a full hearing on the merits, including an inspection of the premises by the trial judge, he rendered an opinion, upon which a judgment was entered, wherein he determined that the quarry defendants had a prior nonconforming use to operate the quarry in Warren and Bridgewater; that the quarry operation, as conducted, was not a nuisance, and could be continued; that Mandamus would not lie against the townships because there was no violation of their ordinances; but he limited the hours of the quarry operations from 8 a.m. to 4:30 p.m. on weekdays, and prohibited work on Saturdays, Sundays and legal holidays.

The plaintiffs appeal from this judgment (except so much thereof as orders the quarry defendants to discontinue the use of their lands lying to the east of Dock Watch Hollow Road). The quarry defendants cross-appeal from so much of the judgment limiting their hours and periods of operation.

The issues presented for decision by this appeal and cross-appeal are:

(1) How much of the quarry's 20.47 acres of land are in Warren and how much in Bridgewater?

(2) May the quarry defendants operate the quarry in Warren and Bridgewater as a nonconforming use, and, if so, have they unlawfully extended and intensified the permitted use?

(3) Have the quarry defendants violated the townships' building and structure ordinances by utilizing larger and modern equipment and structures?

(4) Are the plaintiffs guilty of laches?

(5) Do the quarry operations amount to a nuisance and did the trial judge properly limit the hours and days for quarry operations?

Before deciding these issues, a summary of the facts which the trial judge could properly find from the testimony, exhibits and his inspection of the quarry property, follows:

In 1926 the defendant, Von Osten, came into possession of a tract of mountain land consisting of 20.47 acres; 6.06 acres thereof is located in Warren and 14.41 acres in Bridgewater. On December 31, 1946 he acquired title thereto. The tract is located on the second mountain of the Watchung chain and lies north of Washington Valley Road and mostly west of Dock Watch Hollow Road. Its lowest point at the brook is 300 feet above sea level, and it rises to a point about 600 feet above sea level. Washington Valley Road runs along a valley, for about nine miles, between the first and second Watchung Mountains, and extends from Pluckemin, in Bedminster Township, to the Borough of Watchung. Dock Watch Hollow Road extends northerly from Washington Valley Road and cuts across a small portion of the easterly end of the Von Osten tract. Von Osten lived in an old house situated on the west side of Dock Watch Hollow Road. A small area of the property near the house has been cleared and leveled, and practically all of it comprises a sheer cliff of rock, with tree growth thereon, which rises almost perpendicuarly from the leveled portion. The topography of the property makes it impractical, if not impossible, for residential or agricultural use, and its highest use is that of a quarry. The tract contained a unique deposit of commercially usable rock from which an estimated six million tons were obtainable without blasting. In the early 1930's there were few, if any, residences near the property. In fact, even today, there are no residences for miles on the same level with the Von Osten tract on the second mountain. In recent years homes have been built along Washington Valley Road and some home development south and east of the quarry property toward Washington Valley Road has taken place. The locale however is still essentially a rural mountain area. During 1930 Van Osten had a geological survey made and, realizing he had a valuable natural resource, commenced to exploit it despite his limited finances. In 1931 and 1932 he started to 'break the mountain down' and to quarry stone, in a small way, at a point in Warren near his house. He sold the stone so obtained and tried to get financial support from others to develop this business. He marked off the boundaries of the entire tract by erecting a fence which enclosed three sides of the property; the fourth side had a brook for a natural boundary. He continued his digging and quarrying, using a stone crusher and other equipment for that purpose, from 1931 to about 1949, continuing into the mountain from his starting point in Warren near his house. While he did some digging and stone removing on a portion of his Bridgewater land, such was abandoned prior to 1950, but the operation from the Warren side was continuous. During these years he slowly, but steadily, increased his quarrying operations. In the early 1940's he had surveys made to more accurately determine the quality and quantity of the stone on the entire tract. He had test holes made 'all over the acreage on top of the hill.' He hired others to help him clear trees in the area being quarried. He continually sold stone to masons, friends, neighbors and construction contractors. In 1947 he entered into a written contract with one Roger Dealaman giving Dealaman the exclusive right to remove dirt from any part of the entire tract.

On November 2, 1937 Bridgewater adopted its building and structure ordinance, and on August 28, 1950 it adopted its land use ordinance. On February 2, 1948 Warren adopted its building and structure ordinance, and on May 5, 1952 adopted its land use ordinance. Warren's land use ordinance classified Von Osten's property as rural; and Bridgewater's land use ordinance classified it as residential. Quarrying on Von Osten's land was forbidden under both ordinances.

Despite the passage of these ordinances Von Osten continued his operations without objection or hindrance from either township until sometime in 1952. In May 1950 Von Osten entered into a written contract with Roger Dealaman and Edward Mundock for the digging and removal of all dirt, stone and rock, from the entire tract for a 20-year period, and gave them first refusal to purchase the entire tract. The lessees commercially operated the quarry under this lease. In February 1951 Von Osten entered into a written contract with Joseph Mondak, John W. Mondak and Edward Mundock for the digging and removal of all dirt, stone and rock from practically all of his land for a 20-year period; the operations to begin and continue at the site near the 'Homestead area.' These lessees continued to commercially operate the quarry. In July 1954 the lessees assigned their rights to Dock Watch Pit & Quarry, Inc., which corporation thereafter continued the quarry operation. In September 1956 Von Osten, Edward Mundock and John W. Mondak formed a corporation known as Dock Watch Quarry Pit, Inc. to dig, quarry and sell stone, etc. This corporation is presently operating the quarry business.

Sometime in 1952, residents in the area began complaining of the quarrying operations to the officials of Warren and Bridgewater. This resulted in the development of a strange and unusual situation. Both townships refused or delayed taking any affirmative action, each contending that the Von Osten property was not located in its township. The answer filed by each township in this suit denied that the Von Osten property was within its respective boundaries. The townships took this position despite the fact that for years prior to the institution of this suit they each levied and collected taxes on portions of the property. The manner in which the taxes were levied only confuses the picture but it is briefly mentioned to show the inconsistency of the positions taken by the townships. It is obvious that both townships, for reasons best known to themselves, wanted no part of the quarry. Each township assessed two acres of the land for about 20 years. From 1949 to 1958 Warren assessed nine acres of the quarry land. In 1954 Bridgewater adopted a new tax map in which it placed 14.41 acres of the quarry land in Bridgewater and the balance of 6.06 acres in Warren. Despite this fact, Bridgewater has also been assessing the quarry defendants' realty, personal property and equipment, although such personalty was located in Warren. Warren's new proposed tax map places all of the Von Osten property in Bridgewater Township. This attitude, on the part of both townships, has only served to muddle the situation and to create uncertainty and confusion in the minds...