Oberon Land Co. v. Dunn

• Decision Date: 27 April 1898
• Citation: 40 A. 121,56 N.J.E. 749
• Parties: OBERON LAND CO. v. DUNN et al.
• Court: New Jersey Court of Chancery

40 A. 121

56 N.J.E. 749

OBERON LAND CO.

v. DUNN et al.

Court of Chancery of New Jersey.

April 27, 1898.

(Syllabus by the Court.)

Bill by the Oberon Land Company against Mary Dunn and others to quiet title. Decree for complainant.

This bill is filed under the statute authorizing suits to quiet titles. 3 Gen. St. p. 3486. The complainant sets up a chain of title starting from a partition sale of the lands in question (they being parcel No. 31) in 1854, by commissioners, under the order of the orphans' court of Atlantic county, and claims to own the entirety of the property, which consists of a tract of beach lands, adjoining the seaside town of Longport, containing about 77 acres. The complainant acquired the property, in 1881, by deed from one Charles Barton, and alleges that, after getting that deed, it mapped the tract into town lots, constructed streets since used as public highways, erected a wharf for the use of the public, sold lots to purchasers, who have constructed buildings thereon, and that great improvements have been made upon the premises. The complainant further avers that it has been in actual and peaceable possession of the whole plot (excepting the lots sold) ever since its purchase from Barton, in 1881, and that the defendants have lately claimed to be the owners of the undivided interests in the premises, and by their assertions of title are injuring the complainant's enjoyment of its property and hindering the sale of lots. The complainant asks that its title may be established by a decree, and the claims of the defendants declared to be void.

The defendants file answers to the bill, and admit the partition sale, but state that, at the time of that sale, the heirs of one Adam Somers, under whom they claim, were tenants in common of the premises described in the bill with other parties, and allege that the Somers heirs were not made parties in that suit. They deny the title of the complainant, save as tenants in common with them; deny that it made the improvements named, and that the complainant, or those under whom it claims, have occupied the premises described in the bill. They admit that no suit is pending to test the validity of their claims. They claim that they "severally own and control and claim interest In" a tract of land, which they describe in their answer, and which is stated in defendants' brief to contain 37 acres. They set out the claim of title thereto, and the quantity of each individual defendant's interest; the total of their claims amounting to less than an undivided 1/45 part of the triangular plot described in the answer. Before the hearing the defendants applied for an issue at law to try the validity of the claims of the parties, but still insisting that the complainant had no such possession of the premises as entitled it, under the statute, to file its bill in this cause. The hearing proceeded to ascertain whether the complainant had in fact such a possession of the tract in question that it could invoke the aid of this court under the statute to quiet titles.

D. J. Pancoast, for complainant.

G. A. Bourgeois, for defendants.

GREY, V. C. (after stating the facts). The statute under which the complainant is proceeding in this court directs that upon the application of either party an issue at law shall be directed to try the validity of the claims set up by the litigants. 3 Gen. St p. 3487. Such an application has been made in behalf of the defendants, who insist that they also have a right to try in this court, as a preliminary issue, the question whether the complainant has such a peaceable possession of the premises in question as gives it standing to file its bill under the statute. The established practice of the court is to try this issue in this court, before awarding an issue at law, because, if it be found that the complainant has no such possession as is necessary to meet the statutory requirements, then it has no right to cast upon the defendants the burden of making primary proof of their title in a court of law. Powell v. Mayo, 24 N. J. Eq. 178; Beale v. Blake, 45 N. J. Eq. 068, 18 Atl. 300.

The possession required by the statute is a peaceable possession. It is not disputed that the acts done by the grantors of the complainant, and by it, in the nature of assertions of possession, were peaceable. No claim is made of any violence, nor of any resistance, nor of any disputation of the action of the complainant company. This peaceable possession must exist at the time of the filing of the bill, but the evidence of such a possession may be the action of the complainant, and of those under whom it claims, at any reasonable time preceding the beginning of the action of this court. Any acts regarding the premises which would naturally convey to an onlooker the sense that the party doing or directing them was the owner are evidential of such a possession as the statute contemplates. These acts must necessarily vary greatly, according to the character of the property in question. A house would not be dealt with as would a tract of woodland, nor a sand beach property as would a farm.

The tract in question, as claimed by the complainant, is a piece of beach land containing 77 acres, and was No. 31 in a partition sale of lands of Daniel Collins and others made in 1854. It lies immediately next the village or town of Eongport, on the southwestern end of Absecon beach, and runs in a general easterly and westerly direction across that beach from the Atlantic Ocean to Beach Thoroughfare; the north and south boundary lines being nearly parallel, and those on the east and west following the irregular high-water mark of the ocean and the thoroughfare, respectively. It was used by the complainant for division into town lots, with proper streets, as the location of a town or village.

The claim of the defendants, so far as it is defined by their testimony, applies to a triangular piece lying nearly in the middle of the tract claimed to be in possession of the complainant, its base being on the southwesterly end, and its apex near the northeasterly end, of that tract. In this triangle the defendants claim to hold 58 undivided 27/100 parts. The complainant's grantor, and also the complainant, treated the whole 77 acres as one tract, and did the acts which are claimed to show possession, indiscriminately, over the whole property, making no distinction between the triangle claimed by defendants and the rest of the property. In all their acts they dealt with the tract as sole owners of the entirety, and no proof indicates any recognition of the claimed undivided interest of the defendants in the triangle. On the ground there was nothing in the nature of a monument, or any natural or artificial boundary defining the extent or location of the inner triangular plot claimed by defendants. Nor was any evidence offered that the defendants had ever entered on the premises they claim, or in any way taken possession or done any act on the triangular plot having the color of possessory right. Their whole assertion of interest seems to exist solely in the statements of surveys, resurveys, and deeds. No one going upon the land would find there anything to indicate the existence of the triangular plot as a separate ownership.

The complainant's proofs of acts of possession are substantially undisputed, and the only question to be determined is the sufficiency of those acts to meet the requirements of the statute, and amount to a peaceable possession. These acts began under the previous ownership of the complainant's grantor, one Charles Barton. Mr. Barton always dealt with the whole property described in the bill conveyed by him to the complainant as an entire tract. He caused it to be surveyed and streets to be mapped and named on a plan, and staked out on the ground. These stakes were three or four feet high above the ground, and were four or five Inch es wide at the tops, which were painted white for a foot down from the top. They were driven into the land, so that they marked out the whole of the tract designated as No. 31. and necessarily included the triangle claimed by the defendants. They were visible to any one going on the tract. Mr. Barton also published a booklet showing his map of the property and inviting purchases of lots. These were generally and widely circulated. He also built a wharf at the northern corner of the tract on the thoroughfare, and made a path or road across that part of the tract to this wharf, and for a time repaired the wharf. Mr. Barton also "brushed" the ocean front of the tract; that is, set brush along the edge of the ocean to prevent washing away of the land and to catch and accumulate the sand. This brush was four feet high and three or four feet wide, and extended along the ocean front. Mr. Barton sank a well for the use of the property. He built on the property...