Opinion
08-05-1904
ATLANTIC CITY v. NEW AUDITORIUM PIER CO.
Harry Wootton and Burrows C. Godfrey, for complainant. C. D. Thompson, for defendant.
(Syllabus by the Court.)
Bill by Atlantic City against the New Auditorium Pier Company. Decree for complainant.
See 53 Atl. 99.
The bill of complaint in this cause is filed by the city of Atlantic City to restrain the defendant from erecting a lateral wooden addition to its pier, already built oceanward from the Atlantic City Boardwalk. The bill refers to the statute and ordinances authorizing Atlantic City to reconstruct its Boardwalk, and particularly sets forth what it claims was a dedication to public uses of a Boardwalk or promenade at the edge of the ocean, running along the front of the city, of the width of 60 feet, by a deed dated April 30, 1896, made and executed by numerous owners of land which the route of the Boardwalk crosses—among others, by Richard Loper, an antecedent holder of the lands on which the defendant company is about to construct the lateral addition to its pier. A copy of this deed of dedication is annexed to the bill of complaint, and made part thereof. The defendant's answer with respect to this dedicating covenant is as follows: "It admits that an agreement bearing date April 30, 1896, was executed by certain of the owners of said beachfront property, which said agreement was recorded on June 16, 1896, as in the bill of complaint set forth; but as to the contents and dates of the execution and acknowledgment of said agreement, and of its delivery, or whether the agreement annexed to said bill is a true copy thereof, this defendant is not informed, and leaves the complainant to make such proof thereof as it may be advised." The defendant denies that by the agreement of April 30, 1896, the complainant received any dedication of the Boardwalk strip, or that by that agreement the complainant received such a dedication that none of the parties executing it can lawfully erect or place on the Boardwalk strip itself, or on the ocean side thereof, any buildings or structures except said Boardwalk and an iron or steel pier at least 1,000 feet in length, and insists that no portion of the land in possession of the defendant company has ever been dedicated, and that none of that land is subject to any covenant or agreement that no building other than an iron or steel pier 1,000 feet in length shall be placed thereon, and denies that it is the complainant's duty, representing the public, to enforce any of the provisions contained in the agreement of April 30, 1896, against the defendant's land. The defendant's answer admits that the defendant's title and possession came from Loper, one of the signers of the covenant of April 30, 1896, by the chain of title alleged in the complainant's bill, but it denies that the complainant's right in the lands described as the "Boardwalk Strip" had vested at the time when Loper conveyed to the defendant's grantor, and insists that before the covenant of April 30, 1896, made by Loper and others to and with Atlantic City, went into operation, Loper had conveyed the premises in question to the defendant's grantor, and that the said agreement of April 30, 1896, was ofno force or effect, because it was not, as to Loper, delivered and accepted until after the deed to the defendant's grantors, under which the defendant now claims, had been made, and for this reason the defendant claims that its grantors "took said lands free and clear of any covenants or restrictions contained or pretended to be contained, in said covenant agreement of April 30, 1896." The answer admits that the Boardwalk mentioned in the agreement of April 30, 1896, has been constructed, and that it is now in constant use by the public. It denies that, at the time of the sale by Loper to its grantors, the complainant was in possession of the 60-foot strip where the same crosses the premises described in said conveyance, or that it had erected thereon the Boardwalk now used. It admits that by named intermediate conveyances the defendant company has come to be the lessee and in possession of the locus in quo. It admits that it has driven wooden pilings on those premises, and that it intends to erect buildings thereon, and claims the right so to do, and that the place in which it is driving said wooden pilings is upon lands conveyed to Loper by the state of New Jersey, through its riparian commissioners, and claims that said lands are not subject to any of the covenants contained in the agreement of April 30, 1896. It contends that it has the right to use the property leased by it as it shall see fit. It admits that its auditorium building on its pier has been connected with the Boardwalk by a platform which has been in existence for some years. It denies that the erection of its wooden pilings, and the construction of a building thereon, on the ocean side of the Boardwalk, are any violation of any of the covenants mentioned in the agreement of April 30, 1896, or a violation of any general scheme of the holders of beach-front land for the improvement of the ocean front, and denies the right of the public to interfere with the use of its premises in any manner it sees fit. The answer further insists that it was the intention that the agreement of April 30, 1896, should be considered as incomplete and of no force until the signatures of all the owners of the beach-front property had been obtained, and charges that a large number of the beach-front owners have refused to execute it, and that for that reason it cannot be enforced as a general scheme of the owners; and it further insists that under the terms of that agreement, and the clause therein contained regarding the construction of piers, the complainant, Atlantic City, has no right to determine the size or proportions of any pier, or whether or not, when a pier is once constructed, the same may be widened by lateral additions to the sides thereof; and the defendant insists that it has the right to determine, at its discretion, the size and proportions of such pier as it may choose to erect on its lands lying oceanward of the Boardwalk. Issue was Joined on this answer, and the cause came to final hearing.
Harry Wootton and Burrows C. Godfrey, for complainant.
C. D. Thompson, for defendant.
GREY, V. C. (after stating the facts). The defendant company claims that the grant of covenant of Loper, the defendant's remote grantor, to Atlantic City, dated April 30, 1896, called the "Boardwalk Deed," did not convey any interest in lands to Atlantic City, first because the operative words of that covenant will not pass an estate, and, at the most grant a mere revocable license, which was revoked by Loper's deed to the defendant's grantor; that the original instrument is not produced in evidence; that the record thereof is not admissible; and that no sufficient secondary proof of its contents has been offered. The defendant also insists that, if the Boardwalk deed did pass any estate or right of possession from Loper, such estate or right is ineffective, as against the defendant company, for the following reasons: (1) That the Boardwalk deed did not go into operation until it was accepted by the city's ordinance, which was not passed until June 8, 1896, a date subsequent to the making of the two deeds from Loper to the Riddle Company, etc., which were made on June 6, 1896; (2) that if the Boardwalk deed operated on the day of its date, April 30, 1896, or on the day of its execution by Loper, on or before May 9, 1896, it was still subsequent and subject to Loper's equitable agreement to convey, made with William Riddle on May 4, 1896; (3) that the Boardwalk deed was not actually executed and delivered by Loper, and certainly not recorded, until after his two conveyances of June 6, 1896, to the Riddle Company, etc., under whom the defendant claims; (4) that the Boardwalk deed is no part of a general scheme, at least as to Loper, because it is not shown that he attended at and participated in any meeting of the beach-front owners to form and perfect such a general plan; (5) that, if that deed is the result of a general scheme of improvement it became operative only when every owner from one end of the Boardwalk to the other had signed it, and that the refusal of any owner to sign postponed or defeated the scheme. The defendant also claims that, if it should be determined that the locus in quo is subject to the restrictions of the Boardwalk deed, the defendant still has the right to construct a steel pier; that the restrictions in that deed cannot limit the size or proportion of such a pier, or prohibit the widening of a pier when once constructed, by making lateral additions to the same.
Almost every point which is raised at this final hearing was presented and elaborately argued on the motion in this cause for a preliminary injunction. An opinion disposing of many of these questions will be found reported in 63 N. J. Eq. 644, 53 Atl. 99. Thewhole case at this final hearing turns, in great part, upon the same documentary proofs which were submitted and passed upon on the former hearing. The defendant on this hearing called but one witness, Mr. Loper. The opinion given on the first hearing is illustrated by a diagram showing the locus in quo, which may be found in the report of the case. I do not deem it necessary to repeat in extenso the views then expressed, and will refer to that opinion as my comment when the same claims are here again set up by the defendant company, shortly discussing now the new points raised at this final hearing.
First, as to the objection that the Boardwalk deed passed no estate, and, at most, is but a revocable license. That deed certainly amounts to a covenant with the grantee, and impliedly with all of the co-grantors and makers of similar deeds to Atlantic City, that the city should have the possession and use of an easement of way at the ocean edge, running continuously and successively across the lands of each grantor, for the purpose of erecting thereon a new steel Boardwalk to be used as a promenade by the public and the co-grantors in such deeds, which easement of way had attending thereon the aiding covenant that no buildings, save as specified in that deed, should be erected to the oceanward of the granted right of way, in order that the users of the Boardwalk might have an uninterrupted ocean view, and the enjoyment of the unimpeded breezes from the sea. If the Boardwalk covenant should be held to be a mere license, the overwhelming evidence is that it was fully executed before the making of the deeds of June 6, 1896, to the defendant grantor. The steel Boardwalk, a most expensive improvement, of great magnitude, and of the most visible and notorious character, was in process of construction in the early part of May, 1896. The defendant and its antecedent grantors have for years accepted the benefit of these improvements, and are now enjoying them. Other co-grantors in great number have done likewise. The status quo cannot be restored, and the defendants do not offer to restore it.
An inspection of the Boardwalk covenant itself, and the aiding proof given in the cause touching the subject-matter with which it dealt, shows that the privilege granted is much more than a mere license, even if judged by the most severe standard. The grantors were many in number, each granted for himself that portion of his lot which the Boardwalk strip crossed at the ocean front Each grantor who surrendered his portion received as his consideration the benefit to his lot which came from the coincident surrenders of the other grantors, and the assurance, appearing on the deed itself, that the city could and would condemn the necessary lands of those who might refuse to grant, and that it would build the necessary Boardwalk for the benefit of all the grantors and the public on the strip granted. This much more nearly resembles a covenant that an easement shall be enjoyed, for which a valuable consideration has passed, than it resembles a mere license. When accompanied, as in this case, by delivery of actual possession, and the making of great improvements in accordance with the scheme, it is irrevocable. This deed though passing a right to a continuous way, contained no agreement that its operations should be postponed until all of the owners of beach fronts should join in it. There is no evidence that there was any agreement that its operation should be postponed. There was no occasion for such a postponement, for the deed itself shows that each owner knew that the city might by condemnation enforce the right of way against all owners who did not join in giving it The proven fact is that the new Boardwalk, as fast as built, took the place of the old one. The owners, including Loper, permitted the new structure to be continuously erected across their lands, some before and some after their making of the Boardwalk deed to the city. A few only have never as yet signed that deed, but the new Boardwalk has been continuously constructed for several miles, of which the Loper property, now possessed by the defendant company, is about the center.
The position of the city, thus put into actual possession of the easement of way by the grantors named in the covenant, even if it received no estate in the lands of the Boardwalk deed, was, when Loper signed the deed, on May 9, 1896, that of a covenantee for an easement of way, who has been put in actual possession of the land over which the way passed, and has made important, substantial, and permanent improvements upon it according to the terms of the covenant. This was the situation which existed for several weeks before Mr. Loper made the two deeds, on June 6, 1896, to Riddle & Co., etc., the defendant company's grantor. A short resume of the evidence on this point may throw some light on the situation of the locus in quo at and before the time of the making of the deed by Loper to the defendant's grantor. The work on the new steel Boardwalk began on April 20, 1896, and continued until it was completed, in July of that year. The character of the structure was so prominent, from its first beginning, in steel columns and girders to carry a plank walk 40 feet wide, that any one who approached it was necessarily notified that the parties erecting it were asserting a permanent right of occupation. The structure was also built at the ocean's edge, and was plainly a continuous Boardwalk, intended for promenaders, who might, in passing to and fro upon it, enjoy the ocean view and breezes. This was erected across the property of Loper between the 20th of April and the 6th day of May, 1896. At that time Loper, the defendant's grantor, owned not only the title to the land across which thesteel Boardwalk was being constructed at the ocean end of Pennsylvania avenue, but also the state of New Jersey's riparian title to the lands below high-water mark, which had been conveyed to him by deed of August 29, 1895, and which included the exact locus in quo on which the defendant company is about to erect its lateral addition to its pier. The Loper deed, which passed the riparian title, including the locus, to the defendant's grantor, is the second deed made by Loper to the Riddle Company of the date of June 6, 1896, and is marked "Exhibit D3" in this cause. It is recorded June 10, 1896, in Book 203 of Deeds, p. 383. Mr. Loper's testimony in this cause, I think, clearly shows that he knew, when he made the Boardwalk deed to the city, that the new steel Boardwalk was then being gradually substituted for the old Boardwalk across his lands at the ocean end of Pennsylvania avenue. Both structures were in full view at the same time from his property. He was at this time the owner of the land at the ocean edge, across which the new Boardwalk was being constructed, and he was also the owner of the land which the state had conveyed to him, lying below high-water mark, which has since, by intermediate conveyances, come into the possession of the defendant, and on which it is presently erecting the structure to which the complainant, Atlantic City, objects. Mr. Loper's deed to the city, even if considered to be solely a covenant for a right of way, with the aiding covenant against building to the oceanward of the way, affected not only the Boardwalk strip, with the easement of way, but also those lands of Mr. Loper lying oceanward of the Boardwalk strip, below high-water mark. These lands became bound by the aiding covenants against building to the oceanward of the Boardwalk right of way.
Any grantee from Loper, between the dates of April 20, 1896, and June of that year, of either the lands lying at the ocean end of Pennsylvania avenue, across which the Boardwalk ran, or the lands in front of them below high-water mark, took his title with actual notice of the Boardwalk easement along the ocean front, and certainly was put upon warning of its attendant and protective covenants against buildings to be erected on the oceanward side of the Boardwalk. The Boardwalk itself was then in full view. It was plainly a continuous way along the ocean, not only on Loper's property, but also on the property of all of the beach front owners; and just as plainly the main purpose and object of that way was manifest to every onlooker, namely, the enjoyment from the Boardwalk of a view of the sea, uninterrupted by buildings or other structures on the oceanward side of the Boardwalk. The landward side of the Boardwalk was closely built up along its entire length. The oceanward side of it had at that time (1896) no buildings except Young's Pier and the Iron Pier. Those two were the only buildings standing oceanward of the Boardwalk in 1896. This fact would of itself put any one interested upon inquiry, to ascertain why so remarkable a situation should exist. During the whole period from April 20th to June, 1896, the construction of the steel Boardwalk was openly going on, under the direction of Atlantic City workmen and superintendence. The slightest inquiry of any one in charge of that work would at once have disclosed the grant or covenant, as it may be, of the Boardwalk continuous right of way at the ocean edge, and its aiding covenants for sea view and sea breeze, unobstructed by building on the oceanward side. While the new steel Boardwalk was in process of construction, the old Boardwalk was permitted to stand until the new work supplanted it; the old walk being removed in parcels as the new walk took its place. This was another notorious and remarkable fact, which would at once draw attention to the whole scheme, and indicate to an onlooker the purpose of the improvement. As Loper's deed to the Riddle Company, etc., under which the defendant claims, was not made until June 6, 1896, his grantees under that deed, and those claiming under them, were unquestionably warned of the city's possession, and put upon inquiry as to the extent and character of its claim.
The contention that the original Boardwalk agreement is not produced, that the record is not admissible, and that accurate secondary proof of the contents of that deed has not been made, is met by the admission of the third paragraph of the defendant's answer, that "an agreement bearing date April 30, 1896, was executed by certain beach-front owners, and recorded, as in the bill of complaint set forth"; leaving the complainant to prove the date, contents, and delivery of that agreement. The complainant has, in my judgment, sufficiently proved the loss of the original Loper Boardwalk deed, and by secondary evidence has shown its date, contents, and delivery. Loper himself, though brought into court to throw doubt on his Boardwalk deed to the city, by questioning the date of its acknowledgment by him, practically admits that he did make that deed. "I have a distinct recollection," he says, "of Judge Endicott, and I think—I believe it was Judge Thompson—calling at my office, in Philadelphia, 713 Chestnut street, for me to sign that which turned out to be the easement deed, and I so understood it." He admitted that the instrument he signed was a printed form of deed. This corresponds with the complainant's proofs.
There were so many owners of beachfront lands, and so many covenants to be prepared, that the Boardwalk deed was printed on a special form, with blanks for the names of the owners. Dozens of them were executed. In some deeds, many owners joined in executing the printed form. Others wereexecuted by a single owner. A copy of Mr. Richard F. Loper's deed is annexed to the bill of complaint. It will be seen, on examination, that many other owners joined with him. The description is of the right of way. Each grantor covenants that the city may have the whole easement, and the effect is that each gives the portion of his lot which it covers. The original deed which Mr. Loper signed having been lost, the defendant's counsel insists that the record of it is not admissible in evidence, because he contends the deed is not such a conveyance as the statute enables to be recorded. Mr. Loper, when the copy was exhibited to him, attempted to throw doubt upon it; but his testimony, when properly considered, shows that he did, in fact, execute the covenant on one of the printed forms, which are all alike. The defendant's counsel, in the effort to exclude proof of Mr. Loper's deed to the city, has also called attention to slight variance in some of the Boardwalk deeds, none of which affect those portions of it which are here under consideration, nor do they throw serious doubt upon the correctness of that copy of Mr. Loper's deed which is here produced. Mr. Loper's testimony was not impressive in either its matter, or in the manner of its delivery. Nothing in it led me to doubt that Mr. Loper had actually signed and acknowledged the Boardwalk easement deed on or before May 9, 1896, as Judge Endicott, who took his acknowledgment, testified Mr. Loper had done, or that the copy produced is in fact a copy of that deed. In my judgment, even if it be conceded that the Boardwalk deeds did not convey a legal estate, and that for this reason they were not recordable under the statute, or provable by the record, yet it has been proven in this case that Mr. Loper did in fact execute the deed, a copy whereof is annexed to the bill of complaint. Its loss has been shown, and secondary proof of its contents has been made. The right which passed by such a covenant, when accompanied by the giving of possession of the premises affected by it, and the expenditure of money upon it in permanent and extensive improvements in accordance with the covenant, is not revocable by the operation of a deed subsequently made to a grantee who takes it with full notice, before he took his deed, of the possession and improvements of the covenantee. That, in my view, was the status of the Riddle Company and Brady, under their deeds of June 6, 1896, in view of the actual condition of the locus in quo at that time. I am of opinion, therefore, that Mr. Loper's Boardwalk deed to the city has been sufficiently proved; that the defendant company's grantors had notice and warning of it, and took their deeds subject to the city's right of way in the Boardwalk, and the attending protecting covenants against building to the oceanward thereof. As to the other contention of the defendant, that the deed did not go into operation until it was accepted by the city's ordinance, no additional proofs have been offered on final hearing, and the matter is fully disposed of by the eighth syllabus in 63 N. J. Eq. 645, 53 Atl. 99, to which I respectfully refer.
The defendant's claim that the city is bound by the preliminary equitable agreement for conveyance made between Loper and Riddle on May 4, 1896, is not supported by any proof whatever that either the city, or any one acting for it, had any notice of this private agreement. The claim is therefore without force.
The contention that the Boardwalk deed was not actually executed and delivered by Loper until after the conveyances of June 6, 1896, to the Riddle Company, etc., is also fully met in the previous opinion, and decided therein. The city's deed was, it is true, not recorded until after Loper's two deeds to the Riddle Company, etc., were recorded. This accident is probably the temptation which led the defendant company to claim that it and the Riddle Company and Brady, the grantees from Loper, who recorded their deeds precedently to that of the city, are free from the restrictive operation of the city's Boardwalk covenants. If they are, they may build to the oceanward of the Boardwalk, at their choice, as by their answer in this cause they assert they have a right to do; they can thus, to their own great profit, practically destroy the essential character of the Boardwalk, which absolutely requires, as an incident to its enjoyment, a free view of the sea. I hold, as above stated, that, although the city's deed was recorded after the recording of the Riddle Company and Brady's deeds, yet the Riddle Company and Brady had full notice and warning of the city's rights when they accepted their two deeds from Loper.
The contention that the Boardwalk has not been shown to be part of a general scheme, or that it is not binding upon Mr. Loper and his grantees, for want of proof of a general conference and agreement between the grantors, in which Mr. Loper participated, is also of no avail in this case. The expressed terms of the Boardwalk deeds, and the many signers thereof, show that there was a common purpose, to which all the grantors contributed their portions for the benefit of the public in general, and of themselves, as owners at the ocean's edge, in particular. These documentary proofs sufficiently show a general scheme, and, with Mr. Loper's own testimony in this case, they indicate that he was a participant in and sharer of its benefits, whether he actually attended the conference or meeting for that purpose or not.
So, also, the claim that the general scheme became operative only when every owner from one end to the other of the Boardwalk had signed the Boardwalk deed, and that the failure of any one owner to sign defeated theoperation of the scheme, is unsupported by any proof that there was any such agreement. The action of Mr. Loper and the other beach-front owners, in delivering their deeds, and in permitting actual possession to be taken under them, without waiting to see whether every other beach-front owner also signed, is a clear indication that there never was any purpose or agreement that these Boardwalk deeds, and the easements thereby given, should become operative only when every beach-front owner had signed. There was no need of any agreement that the Boardwalk covenant should not go into operation until all beach-front owners had signed it. The covenant contained recitals showing that the right of way over the lands of all who did sign it might be obtained by condemnation.
These rulings leave as the only question to be considered the defendant's claim that, notwithstanding the restrictions in the deed, it still has the right to construct a steel pier, and that those restrictions cannot limit the size or proportions of the pier, or prohibit the widening of it by making lateral additions thereto after it has once been completely constructed. The defendant's Auditorium Pier was built about a year after the then owners of the land on which it is located had joined with the other beach-front owners in making the Boardwalk easement deed or covenant. They had completed their pier before they began the improvement which is now challenged. The answer admits that it is a "lateral addition" to an existing pier, and does not claim that it is work about to be done to complete an unfinished one. The Boardwalk covenant limits the right of each owner to the erection of one pier, of certain length and character of material. The natural situation requires that such a pier should run out into the ocean. If it does not, and should be located parallel with the Boardwalk, it would not be a pier. When the one pier is finished, the owner cannot be held to have the right to make unlimited lateral additions to it, first, because the restrictions prohibit the erection of all buildings oceanward of the Boardwalk, except the one pier, and, when that one pier has been erected by any owner, he has exhausted his reserved right; secondly, the whole scheme is based upon the preservation of sea view and access of ocean breezes from the Boardwalk. If each owner may make, at his choice, lateral additions to his one pier, the Boardwalk will soon be entirely cut off from both ocean view and breezes by sidewise extensions of the piers parallel to the Boardwalk, and it will be nothing but an inclosed promenade. Again, it is admitted that the proposed lateral addition to the defendant's pier is being constructed of wooden piling. This is directly in breach of the express requirement of the Boardwalk covenant that the pier to be built by an owner shall be made of steel or iron. This is a matter of substance, in view of the dangers from fire at the ocean front, where the wind has so clear a sweep that the use here of noncombustible materials is the only safe plan of construction. A discussion of the effect of the restrictions touching the piers may be found in the former opinion in this case. 63 N. J. Eq. 672, 673, 53 Atl. 99.
The complainant bases its claim of right to restrain the defendant's further construction of the lateral addition to its pier, in part, on the effect of the deed of Charles Evans to Atlantic City, dated January 22, 1890, granting to the city a right of way for a Boardwalk, and attempting to restrain the erection of building oceanward of the Boardwalk. At the time Evans made that deed, he did not own the lands lying below high-water mark, where the defendant is proceeding to build. Evans' attempted restriction was inoperative upon the lands lying below high-water mark. This phase of the case is more fully discussed, and cases cited, on page 662 of the former opinion, 63 N. J. Eq., and page 106, 53 Atl., to which I refer. The Boardwalk easement is not dependent for its integrity upon Evans' deed of 1890, though Evans did not own the lands below high-water mark when he made it, in 1890. Loper did own those lands when he joined in the Boardwalk covenant in 1896; having, as above stated, acquired them by grant from the state by deed of August 29, 1895.
In my view, the defendant should be restrained from the erection of the lateral addition to the pier which it proposes to build.