Wilomay Holding Co. v. Peninsula Land Co., A--428

• Decision Date: 01 August 1955
• Docket Number: No. A--428,A--428
• Parties: WILOMAY HOLDING COMPANY, a corporation of the State of New Jersey, Plaintiff-Appellant, v. PENINSULA LAND CO., a corporation of the State of New Jersey, Defendant-Respondent. . Appellate Division
• Court: New Jersey Superior Court — Appellate Division

Page 440

36 N.J.Super. 440

116 A.2d 484

WILOMAY HOLDING COMPANY, a corporation of the State of New

Jersey, Plaintiff-Appellant, v. PENINSULA LAND CO., a corporation of the State of New

Jersey, Defendant-Respondent.

No. A--428.

Superior Court of New Jersey.

Appellate Division.

Argued July 18, 1955.

Decided Aug. 1, 1955.

Isadore Glauberman, Jersey City, argued the cause for plaintiff-appellant (Edward A. Smarak, Union City, attorney).

Robert H. Schenck, Morristown, argued the cause for defendant-respondent (Matthews & James, Denville, attorneys).

Before Judges CLAPP, WAESCHE and ARTASERSE.

The opinion of the court was delivered by

CLAPP, S.J.A.D.

The question presented in this action to quiet title is whether the plaintiff acquired title, through adverse possession, to a certain strip of land on a peninsula in Lake Hopatcong, lying north of a line marked X-Y on a map in evidence. The trial court found against the plaintiff on this question, and plaintiff appeals. It was conceded on the oral argument before us that plaintiff does not have good record title to the land in question. On the other hand there was proof below, to which no objection was taken, that defendant's record title is good.

The strip in question, referred to in the case as the 'gore,' runs over 1,000 feet along the northern part of the peninsula, broken at one point by a cove. It is not marked off in any way by a fence. Except at the cove, it lies just south of a certain ten-foot strip which skirts the shore allegedly (in another litigation, plaintiff claims this ten-foot strip has disappeared through erosion) and which is owned by a corporation not a party to this action. The gore comprises about an acre, about 1/22nd of the whole peninsula, and its width--i.e. the distance from the X-Y line to the ten-foot strip--varies from 120 to 2 feet.

Plaintiff purported to buy the peninsula in 1951 from persons who have been referred to as the heirs of Daniel Callaghan. It apparently was admitted below for the purposes of the action that through Daniel Callaghan--his title goes back to 1884--plaintiff 'has record title to the whole of the peninsula, with the exception of the' gore and the ten-foot strip.

To sustain a title through adverse possession, the claimant must establish possession of a certain character:

'actual and exclusive--adverse and hostile--visible or notorious--continued and uninterrupted.' Foulke v. Bond, 41 N.J.L. 527, 545 (E. & A.1879).

Moreover--in any event when he makes a claim (as plaintiff does here) as against the record owner--he has the burden of proving his case Clearly and Positively. Redmond v. New Jersey Historical Society, 132 N.J.Eq. 464, 474, 28 A.2d 189 (E. & A.1942); Northern R. Co. v. Demarest, 94 N.J.L. 68, 72, 108 A. 376 (Sup.Ct.1919); Mason v. Home Real Estate Co., 90 N.J.Eq. 455, 108 A. 4 (Ch.1919); Shields v. Ivey, 52 N.J.L. 280, 282, 19 A. 261 (Sup.Ct.1890); Baldwin v. Shannon, 43 N.J.L. 596, 603 (Sup.Ct.1881); Rowland v. Updike, 28 N.J.L. 101 (Sup.Ct.1859); Cornelius v. Giberson, 25 N.J.L. 1, 31 (Sup.Ct.1855).

These principles being settled, the case, in this aspect of it, is largely a factual one, depending on whether the acts of Daniel Callaghan and those who claim under him can be said to demonstrate an actual, continuous and visible or notorious possession for the statutory period. We need not consider the matter of hostility dealt with in Predham v. Holfester, 32 N.J.Super. 419, 108 A.2d 458 (App.Div.1954).

There is some testimony that the Whole peninsula was 'always' farmed by Daniel Callaghan and his successors in interest, that 'it was all plowed up at one time or another'; but the testimony was so vague and general in its tenor as not to meet the requisite standard of clarity and positiveness with respect to the gore itself. The evidence we have reference to, does not show precisely in what years--or for how many years--the land was cultivated or the extent or nature of the cultivation, or whether the gore itself was planted. Indeed the gore seems to have been (until apparently in recent years when it was somewhat filled in) in considerable part a swamp. Also located thereon are some brush and a hedge row of large trees.

There was however one witness who was somewhat more specific as to the farming of the gore. He said that farming was 'always' carried on on a patch of ground with dark soil on the north of the peninsula, which 'in some places * * * comes right up to the lake.' The witness, so far as his personal knowledge went, must have been referring to a period extending from sometime after 1909 until 1923--and possibly subsequently, but until what year we do not know. We can assume that if there was this farming on the gore as the witness said, then there may have been farming there for years before 1909. But this is all an assumption, and not Clear and Positive proof.

Nor does this witness leave us with a Clear impression as to what portion of the gore was farmed. He may well have meant that the farming was carried on right up to the above-mentioned cove--that is, on land admittedly belonging to plaintiff lying outside of the gore. Moreover he did not explain how plowing could have been carried on right up to the lake through the 'large trees along the shore line' which he testified to.

Witnesses testified to cows roaming over the gore, but during what years we do not know. Again we have no clear and positive proof.

Reliance is put by plaintiff also on the testimony as to certain bungalow and tent sites which have been located on or near the gore in recent years. But the findings of the lower court with respect thereto are hardly controverted by the plaintiff, and we need not repeat them here. Suffice it to say that such testimony as there is with respect to these sites is not favorable to plaintiff's position.

The only other proof of adverse possession relates to docks built on the lake north of the ten-foot strip. To gain access to them from the bungalows on plaintiff's property, one had to traverse the gore. We however need not stop to consider the various aspects of this matter. For one thing we do not know how many, if any, of these docks were built more than 20 years before this action was started.

The acts, relied upon by plaintiff, all quite palpably fail to meet the standard of clear and positive proof.

Plaintiff puts much reliance on Yard v. Ocean Beach Association, 49 N.J.Eq. 306, 24 A. 729 (E. & A.1892). In that case, the claimant showed color of title. As to the effect of color of title, see Foulke v. Bond, 41 N.J.L. 527, 543--551 (E. & A.1879); Den ex dem. Saxton v. Hunt, 20 N.J.L. 487, 490 (Sup.Ct.1845); Cobb v. Davenport, 32 N.J.L. 369, 385 (Sup.Ct.1867); 3 Amer. Law of Property 819 (1952). As to what constitutes color of title, see Den ex dem. Saxton v. Hunt, supra; 3 Amer. Law of Property 785. But any principle of law operating in favor of one in possession under color of title or a defective paper title is of no aid to plaintiff here. So far as the proofs go here, the deed into Daniel Callaghan is so uninformative that it could not be said that he or his so-called heirs had paper title to the gore.

Besides in the Yard case (49 N.J.Eq. at page 310, 24 A. 729), it appeared 'clearly'...