Rosenson v. Bochenek
| Decision Date | 14 May 1928 |
| Docket Number | No. 53.,53. |
| Parties | ROSENSON v. BOCHENEK. |
| Court | New Jersey Supreme Court |
(Syllabus by the Court.)
Appeal from Court of Chancery.
Suit by Frank Rosenson against Jacob Bochenek for specific performance. From a decree for defendant (138 A. 533), complainant appeals. Reversed, with directions.
Michael S. Precker, of Newark, for appellant.
Michael H. Feldman, of Elizabeth, for respondent.
The points at issue are stated in the opinion of the Vice Chancellor, and are repeated here only so far as incidental to the discussion.
A decree for specific performance was refused the vendor, because the Vice Chancellor considered that the facts disclosed by the testimony showed a doubt as to the title to a "strip," which in his opinion would affect its marketability.
The "strip" in question is obviously the meandering one marked on the map "Reserved," and through which runs a small stream, which in time of flood would be enlarged.
We are not concerned with the whole strip, but only with some two inches of it adjoining on the southwest the lands described in the contract. The title to those lands is admittedly good, but the additional two inches were needed because of a slight mislocation of the building standing on them, which brought it over the line into the strip marked "Reserved." The "doubt" in the Vice Chancellor's mind was whether, because of the word "Reserved" on the map, or because of the physical existence of the brook, there might be some public or private easement in the "Reserved" strip, including the two inches, which would make trouble in the future for the vendee and his heirs and assigns; relying chiefly on Doutney v. Lambie, 78 N. J. Eq. 277, 78 A. 746, a decision of this court.
We do not think that any such doubt exists in this cause as was present in the case cited. The question there was as to the encroachment of the main front line of an apartment house over the street line of Park avenue in New York city. As to such encroachment, asubstantial question of fact was presented in that case.
As to the effect of the word "Reserved," we think no reasonable doubt exists. It appears only on the map; the evidence of title examiners shows that no mention of it has ever been made in any deed prior to complainant's title. As to indicating any dedication, its natural meaning is precisely the opposite, and this was so held by the late Vice Chancellor Pitney in Cleveland v. Bergen Building & Imp. Co. (N. J. Ch.) 55 A. 117, 119, not officially reported. If it be taken to mean "reserved from sale," such reservation confers no rights on purchasers to object to such sale if the owner of the tract subsequently changes his mind.
Taking the brook as a physical fact, it is undisputed that it flows through the reserved strip, and that flowage should normally continue, unless lawfully diverted. But it is likewise undisputed that the brook requires only part of the strip; that at the point in question it runs between retaining walls which have been in place for a number of years; and that the nearer retaining wall is seven feet away from the two-inch strip whose title is challenged. So that beyond a reasonable doubt, as we view the matter, the two-inch strip is free from any claim of servitude to an easement of drainage through the brook in favor of the public or neighboring owners.
This disposes of the principal questions raised in the case. The point that the complainant had not a good title at the time stipulated for delivery of deed is fully met by what was said in Larkin v. Koether (N. J. Ch.) 137 A. 849 affirmed in this court in 140 A. 920. In that case, as in this, time was not of the essence; and in that case, as in this, vendee received more land than he bargained for.
The point that the proof of adeed by asubscribing witness should state that the contents were made known to the grantor and that he thereupon acknowledged, etc., is without substance. In Griffith's Law Register (1821) at page 1210, proof by a subscribing witness is set out in this form:
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