Weiland v. Turkelson

• Decision Date: 09 November 1955
• Docket Number: No. A--682,A--682
• Citation: 38 N.J.Super. 239,118 A.2d 689
• Parties: Frank WEILAND, Plaintiff-Appellant, v. James P. TURKELSON and Lillian E. Turkelson, his wife, Defendants-Respondents. . Appellate Division
• Court: New Jersey Superior Court — Appellate Division

Page 239

38 N.J.Super. 239

118 A.2d 689

Frank WEILAND, Plaintiff-Appellant, v. James P. TURKELSON and Lillian E. Turkelson, his wife,

Defendants-Respondents.

No. A--682.

Superior Court of New Jersey.

Appellate Division.

Argued Oct. 31, 1955.

Decided Nov. 9, 1955.

On appeal from a judgment of the Superior Court, Chancery Division, where Judge Sidney Goldmann filed the following opinion:

'Plaintiff and defendants are the respective owners of 629 and 625 White Horse Pike, Oaklyn, Haddon Township, N.J. Plaintiff seeks an injunction restraining defendants from closing or obstructing an alleged 20 alley or driveway running along the rear of their premises, and a judgment establishing an easement in the strip for the use and benefit of plaintiff and the adjacent property owners at 631--633--635--637 White Horse Pike.

'Defendants' property (No. 625) is at the corner of White Horse Pike and Collingswood Avenue; plaintiff's (No. 629) is immediately to the southeast. Nos. 625 to 639 White Horse Pike run from Collingswood Avenue to Greenwood Avenue; all have a 125 depth and consist of first-floor stores with living quarters above. The 20 strip which plaintiff claims is a driveway runs from Collingswood Avenue across the rear of these properties as far as No. 639, but does not extend through to Greenwood Avenue.

'Late in 1943 Arthur's Storage, Inc. purchased No. 629 White Horse Pike; it conveyed to 629, Inc. in 1945, and later that year, on August 17, 1945, that corporation conveyed to plaintiff. The corner property at No. 625 was owned by Penn Mutual Life Ins. Co. which in 1941 conveyed to Harry J. Hunter who, on June 11, 1947, conveyed to defendants. Plaintiff's deed refers to a '20 wide private alley running parallel with White Horse Pike for the use of premises numbers 629, 631, 633, 635 and 637 White Horse Pike, only.' Defendants' deed does not refer to the alley; however, the survey made at the time of their purchase shows, as to the 20 strip, 'This Area Used as Driveway by Adjoiners to the Southeast.'

'On April 12, 1954 defendants' present attorneys wrote plaintiff calling attention to the improper use of the 20 rear strip as a driveway and giving notice that such use would be prohibited and considered a trespass on and after April 26. Plaintiff at once instituted this action, claiming a prescriptive right to use the strip as an alley or driveway by reason of 20 years' continuous, open and notorious user by the owners of Nos. 629--631--633--635--637 White Horse Pike, their predecessors in title, invitees, etc., without interruption or protest. An order to show cause with ad interim restraint against closing or obstructing the alley issued on the basis of the complaint and annexed affidavits. On the return date the restraint was continued to final hearing.

'Defendants' answer denies and disputes the right of plaintiff or anyone to use the rear of their property as a means of ingress or egress from Collingswood Avenue. By way of counterclaim they claim plaintiff is encroaching on their property in the following respects: (1) his building walls extend onto defendants' lands by .35 in front and .62 in back; (2) his windows also encroach; (3) the rainpipe in the rear of his property is wrongfully connected to defendants' underground drain; (4) the capstone atop his wall extends over their property; (5) his television antenna likewise extends over their property. Defendants seek a mandatory injunction requiring plaintiff to remove these offending features. Plaintiff's answer denies the encroachments and, by way of separate defense, claims they have existed for more than 20 years.

'Defendants next moved for summary judgment. Affidavits and counter-affidavits were filed. The court then permitted plaintiff to amend his complaint by setting up a second count based on the theory of an easement by estoppel, discussed below. On September 17, 1954 the court granted the pending motion for summary judgment, with prejudice, but as to the first count only (prescriptive right), permitting plaintiff to proceed on the second.

'Shortly after defendants again moved for summary judgment; it was denied after the filing of an opinion in which, oddly enough, the court speaks of plaintiff seeking to establish a right-of-way over defendants' lands on the theory of either prescription (a ground already disposed of) or estoppel. However, the case was tried and briefed on the latter theory only, and properly so, for neither the pleadings nor the proofs are of a quality that would establish the 20 years' continuous, open and notorious user necessary to raise up a right-of-way by prescription.

'The factual background for the claimed easement by estoppel are these:

'In 1943 Harry J. Hunter owned the corner property, 625 White Horse Pike, and Arthur's Storage, Inc., a used furniture and moving concern, owned No. 629. The company decided to build a one-story cinder block addition at the rear of the store. Work began in 1943, was discontinued after a week, and completed in March 1944, at a cost of $1600 or $1700. The structure opened out on the 20 strip in question, an overhead garage-type door serving as the entrance. Furniture had formerly been carried in through the front of the store; thereafter the new structure was used to store furniture and household goods, and Robert L. Arthur periodically parked his car in the rear. There is testimony as to Arthur's trucks using the rear strip. Arthur did not ask Hunter's permission to use the strip, nor did he talk to him about his plans to build the addition; he testified that Hunter never objected to the construction or to its use thereafter. It is contended that the intended use and purpose of the addition must have been obvious to Hunter from its construction. Hunter admits he saw the building going up and knew that Arthur's trucks used the rear to drop things off and parked there. There is evidence of the use of the rear strip by Arthur's Storage, Inc. and plaintiff during Hunter's occupancy (up to 1947) and defendants' thereafter.

'Plaintiff conducts a small bicycle, toy and hobby shop at No. 629. He uses the cinder block addition for storage purposes. Deliveries can readily be made, and have been made, through the front of his store. Use of the rear strip is a convenience, not a necessity.

'This litigation naturally reflects the opposing claims of the parties. Neighboring owners at Nos. 631 to 637 White Horse Pike have shown no interest in the action--in fact, affidavits in support of the motion for summary judgment show that the owners of Nos. 635 and 637 do not use the alleged driveway and have no objection to its closing by defendants; No. 631 has been vacant for long periods. In any event, plaintiff can only sue in his own right; no neighbor has joined him in his quest for an injunction.

'Plaintiff claims that by reason of Hunter's permitting the construction of the addition in the rear of No. 629 in 1943 without interposing any objection thereto, defendants, as Hunter's immediate successor in title, are now estopped to deny plaintiff the right to use the rear 20 of their property as a means of ingress and egress to and from his property by way of Collingswood Avenue. It is not alleged or contended that at the time Arthur's built the rear building there existed a right-of-way by grant or easement in plaintiff's predecessor in title to use the rear 20 of defendants' property as an alley or driveway. Rather, plaintiffs contention is that Hunter had a duty to speak at a time when Arthur's had no legal right to use the 20 strip.

The facts here are quite analogous to those in Sanders v. Reid, 131 N.J.Eq. 407 (25 A.2d 541) (Ch.1942). We consider the reasoning and principles of that case dispositive of the issue before us. In Sanders, one Collins, complainant's predecessor in title, and defendant used a strip of land running on each side of their common boundary as a driveway for the delivery of coal and wood to the cellar windows in the side and near the rear of their respective homes. Neither party questioned that use. In 1923 Collins built a garage in back of his dwelling and thereafter extended the use of the driveway to reach the garage. There was no proof that he asked permission of defendant to locate the garage where he did, nor that he asked or was given permission to drive over the right-of-way to the garage. Nor was there any evidence to show that he used the strip over which his automobile passed under claim of adverse right. Apparently he simply used it without anything being said about it, both neighbors being entirely friendly. When complainant bought the property he saw the garage and observed that part of the disputed driveway was over defendant's adjoining property. He did not testify to any investigation or inquiry as to the nature of the right of user, but simply that he used the right-of-way from the date of purchase. He tore down the old garage in 1926 and built a double garage on about the same location. He continued using the right-of-way until stopped by dependant in 1940 (she had made no objection until then), when she placed four posts along her property line. There, as here, the asserted estoppel was that defendant in 1926 saw complainant go to the expense of erecting a new garage but stood silently by and made no complaint; further, she had continued in her silence from 1926 to December 1940 while he used the driveway. After finding there was no way by necessity--and such is the case here--and noting there was no testimony that defendant expressly consented to or dissented from the erection of the...