Schmidt v. Spaeth

• Decision Date: 19 April 1912
• Citation: 82 N.J.L. 575,83 A. 242
• Parties: SCHMIDT et ux. v. SPAETH
• Court: New Jersey Supreme Court

83 A. 242

82 N.J.L. 575

SCHMIDT et ux.

v. SPAETH

Court of Errors and Appeals of New Jersey.

April 19, 1912.

Error to Supreme Court.

Trespass by John Schmidt and wife against Godfrey F. Spaeth. There was a judgment for defendant, and plaintiffs bring error. Reversed and remanded.

Stackhouse & Kramer, of Camden, for plaintiffs in error.

Bleakly & Stockwell, of Camden, for defendant in error.

GUMMERE, C. J. This is an action of trespass quare clausum fregit. The averment in the declaration is that the defendant with force and arms entered upon the plaintiffs' close, being a parcel of land in the city of Camden 20 feet in width and 40 feet in length, and broke down and destroyed a certain fence then and there being upon the land. The defendant pleaded the general issue, and also, specially, that the locus in quo was a part of a public highway in the city of Camden, and had been such for more than 20 years preceding the alleged trespass.

The land involved in this controversy is located at the inner end of an alley which opens out of Sycamore street in the city of Camden and runs north on a line parallel with Broadway. The alley had been in existence for more than 20 years next preceding the institution of the suit; but whether it had ever been in actual use as a public way during any part of that period, and whether it included the locus in quo prior to the year 1901, were matters concerning which the testimony was contradictory.

On the 19th of July in the year mentioned, the sheriff of Camden county conveyed to one Benjamin T. Archer, trustee, a tract of land located at the northwest corner of Sycamore street and Broadway, having a frontage of 200 feet on the former, and 100 feet on the latter, street. The alley referred to was included within the boundaries of this tract, which also embraced the locus in quo. After the purchase of the tract, Archer had it surveyed and laid out in lots having a frontage of 20 feet on Broadway, a depth of 180 feet, and running back to a 20-foot wide street extending across the rear of all the lots. The old alley, and also the strip of land involved in the controversy between the parties, each lie within the lines of this street. Afterward, and in compliance with instructions from Archer, this 20-foot wide street was placed upon the "City Plan Book" at the city hall. Later, and on January 8, 1902, Archer conveyed one of these lots to Elizabeth Smith, a description which called for a lot with a frontage of 20 feet on Broadway, a depth of 180 feet, and bounding in the rear upon "a 20-foot street opening into Sycamore street." On the 16th of the same month he conveyed two more of these lots (adjoining one another) to the plaintiffs. The conveyance described these lots as having together a frontage of 40 feet on Broadway and running back 180 feet to "the east side of a 20-foot wide street opening into Sycamore street." The locus in quo lies immediately in the rear of these two lots, and the fee thereof was, some years later, conveyed to the plaintiffs by the heirs of Archer; he then being dead.

The alleged tortious act charged against the defendant in the declaration was not denied by him, but was attempted to be justified upon the ground that the fence which he tore down was an unlawful obstruction in a public highway, and that he had a legal right to remove it.

The case having been closed with the proofs in the condition which has been...