Spottiswoode v. The Morris and Essex Railroad Co.

• Citation: Spottiswoode v. The Morris and Essex Railroad Co., 40 A. 505, 61 N.J.L. 322 (N.J. 1898)
• Decision Date: 15 February 1898
• Court: New Jersey Supreme Court
• Parties: GEORGE SPOTTISWOODE v. THE MORRIS AND ESSEX RAILROAD COMPANY

40 A. 505

61 N.J.L. 322

SPOTTISWOODE

v. MORRIS & E. R. CO.

Supreme Court of New Jersey.

May 16, 1898.

Case certified from circuit court, Essex county, for advisory opinion.

Ejectment by George Spottiswoode against the Morris & Essex Railroad Company.Verdict for plaintiff.On a rule to show cause why a new trial should not be granted, a case was made and certified to the supreme court for its advisory opinion.Certificate ordered in compliance with an opinion in plaintiff's favor.

Argued November term, 1897, before the CHIEF JUSTICE, and DEPUE, LUDLOW, and GUMMERE, JJ.

Hayes & Lambert, for plaintiff.

McGee, Bedle & Bedle, for defendant.

DEPUE, J.This was an action of ejectment, brought by George Spottiswoode against the Morris & Essex Railroad Company to recover possession of two parcels of land situate in the city of Orange.Both parties claim title under Ezra Gildersleeve.The Morris & Essex Railroad Company was incorporated January 29, 1835.By the sixth section of the act of incorporation the company was authorized and invested with all the rights and powers necessary to lay out and construct a railroad from Morristown to the city of Newark, not exceeding 66 feet wide, with as many sets of tracks and rails as the company might deem necessary, with the power to purchase or take lands by condemnation.P. L. 1835, p. 25.The company located the route of its railroad over lands of Gildersleeve, situate in the townships of Clinton and Orange, now the city of Orange.Gildersleeve, by a deed executed December 24, 1835, granted and conveyed to the railroad company as follows: "To all to whom these presents may come, I, Ezra Gildersleeve, of the township of Orange, New Jersey, sends greeting: Whereas, 'The Morris & Essex Railroad Company,' in pursuance of the provisions of an act of the legislature of the state of New Jersey entitled 'An act to incorporate the Morris & Essex Railroad Company,' have surveyed a route for a railroad from the village of Morristown to intersect 'The New Jersey Railroad & Transportation Company' at Newark, in the county of Essex, which route has been laid over the following described tract of land of the said Ezra Gildersleeve, situate in the township of Clinton and Orange, in the county of Essex and state of New Jersey: Beginning in the line of lands of Abner Crowell, in the township of Clinton, in line with the center stake of the track of the Morris & Essex Railroad Track, and running from thence in range with the said stakes on a course north, thirty-six degrees east, about five chains, so as to include a strip of land one rod and a half wide on both sides of said center stakes, containing about thirty-seven hundredths of an acre of land, more or less; and then beginning, second, in line of land of Cyrus Freeman, the same being in the township of Orange, in line of the center stakes of the railroad as aforesaid, and from thence running parallel with the center stakes of said road on a course of north, thirty-six degrees east, about twenty chains, across all the lands of the said Ezra Gildersleeve in the township of Orange, so as to include a strip of land not to exceed two rods wide on each side of the said center stakes through any of the lands of the said Ezra Gildersleeve in the township of Orange: Now, be it known that the said Ezra Gildersleeve, in consideration of the sum of one hundred dollars, to him in hand well and truly paid by the said 'The Morris & Essex Railroad Company,' the receipt whereof is hereby acknowledged, hath, and by these presents doth, grant, bargain, sell, convey, and confirm unto the said 'The Morris & Essex Railroad Company' and to their successors forever, the right, liberty, and privilege of entering upon the tract of land above described by its officers, agents, engineers, superintendents, contractors, workmen, and other persons in their employ, and to take possession of, hold, have, use, occupy, and excavate the same, and to erect embankments, bridges, and all other works necessary to lay rails, and to do all other things which shall be suitable or necessary for the completion or repair of said road or roads; to have and to hold the said tract of land and premises unto the said 'The Morris & Essex Railroad Company,' and to its successors forever, for the purposes above mentioned, and for all the other purposes mentioned in the said act of incorporation."This deed was recorded in the county clerk's office on the 20th of December, 1836.Upon the execution and delivery of this deed the company constructed a single-track railroad on the property described.This single track remained in use until 1886 or 1887, when the company laid a second track, making a double-track railroad.The controversy in this case relates to the title of the railroad company through the tract secondly above described.Shortly after the execution and delivery of this deed, fences were erected on each side of the center line of the railroad, distant from the center line one rod and a half.By whom these fences were erected does not distinctly appear.By these fences the land apparently set apart for the use of the railroad company was delineated on the ground as one rod and a half wide on each side of the center line of the railroad.The railroad company claims title to land two rods in width on each side of the center line.The controversy between these parties is with respect to the strips of land on both sides of the railroad, lying between the fences and a line ascertained by a measurement of two rods from the center line.

The evidence shows that Gildersleeve was in possession of the land on each side of this strip up to the fence, and used the same for cultivation and pasturage.By his will, dated March 3, 1846, and proved May 4, 1846, he devised all of his real estate to his son Cyrus, who, by a deed dated December 15, 1852, and recorded March 23, 1853, conveyed to Edwin G. Smith.The description in the deed from Cyrus to Smith for the premises conveyed embraced within its metes and bounds the entire premises occupied by the railroad company, with an exception in these words: "Not including the Morris & Essex Railroad."By deeds of conveyance from successive grantees the premises conveyed by Cyrus Gildersleeve to Edwin G. Smith became vested in George Spottiswoode, the plaintiff in this case.There was evidence that before the first track of railroad was constructed fences were put up on each side of the strip occupied by the railroad, that these fences were built before the ground was graded,—at least before the railroad was used,—and that they were post and rail fences.These fences were so located as that they inclosed for the railroad a strip of land on each side of the center stakes one rod and a half wide, making a strip of land for railroad purposes three rods in width.There was evidence also that the Gildersleeves used the land outside of these fences on the west side mostly for pasture and on the east side mostly for cultivation.Lighthipe, who acquired title under Smith in 1855, testified that when he got his deed the fences were there on both sides of the railroad, and were there all the while he was the owner.He also testified that he used part of the premises for pasture and part of them for cutting grass.A surveyor, who made a survey in 1809, testified that he found post and rail fences, and that they were one and a half rods from the center line of the railroad, and that the fences as found by him in 1869 were delineated in black lines on the map a distance of one and a half rods from the center line of the railroad.There was also evidence tending to prove that from the time these fences were erected along the line of the railroad until 1891 fences were maintained one rod and a half from the center line.In 1891 the railroad company erected fences on each side of their railroad two rods from the original center line, and in 1892 a third track was laid, occupying in part the strips of land now in controversy.This action was brought in 1895.At the time this suit was brought the railroad company was in possession of the premises in question, and had been in possession since 1891.The evidence of possession from 1835 to 1891 by Ezra Gildersleeve and those who succeeded to his title was such—at least from 1852, the date of the deed from Cyrus Gildersleeve to Smith— as was competent to establish an adverse possession by parties who were in possession under deeds of conveyance conferring color of title.The trial judge left the questions of fact to the jury, with instructions which expressed accurately the legal rules by which title may be acquired by adverse possession, and the verdict of the jury determined that issue.The propriety of the verdict under the judge's instruction is not by the certificate submitted to this court.

The contention of the counsel of the defendant is that the doctrine of adverse possession is inapplicable to premises in the situation in which these premises were held.On the other hand, the contention is that by a practical location immediately after the execution and delivery of the deed by Ezra Gildersleeve to the company, and a possession in a legal sense adverse, the title became vested in the plaintiff.Under this head the first position assumed by the defendant's counsel is that a possession which is adverse in a legal sense for a period of 20 years will not give title, and that, the company being actually in possession of the premises when this suit was begun, the action cannot be maintained.The theory of this defense is that no man can acquire title to the lands of another without a continuous adverse possession for 60 years, or an original fair and bona fide purchase from a supposed owner, accompanied by such possession for 30 years.This contention is based upon sections 1and2 of the act of Tune 5. 1787(2 Gen. St.p. 1972).The first section of this act enacts: "That sixty years' actual possession of...