Opinion
09-13-1895
WHITE v. TIDE WATER OIL CO. SAME v. TIDE WATER PIPE CO.
Van Busklrk & Parker, for complainant. Alvah A. Clark, for defendant.
Suits by Thomas White against the Tide Water Oil Company and against the Tide Water Pipe Company for mandatory injunctions to compel the removal of a wall and a fence from a street. Heard on bill, answer, and proofs on final hearing. Injunction made perpetual.
For prior opinion, see 50 N. J. Eq. 1, 25 Atl. 199.
Van Busklrk & Parker, for complainant.
Alvah A. Clark, for defendant.
REED, V. C. These two cases involve the same questions, and were by consent tried together. The facts which underlie the questions involved are set out in the opinion of the chancellor upon a demurrer to the bill filed in the first named of the two causes. His opinion is reported in 50 N. J. Eq. 1, 25 Atl. 199. The facts set out in the bill are these: Thomas White, the present complainant in both bills, together with his brother, Samuel C. White, were owners as tenants in common of a tract of land in Bayonne. The Central Railroad Company owned an adjoining tract. The line which divided these respective tracts ran diagonally across Twenty-First street. The Whites and the railroad company interchanged deeds so as to make Twenty-First street the dividing line between their respective properties. The Whites conveyed to the railroad company that portion of their tract which lay south of Twenty-First street; and the railroad company conveyed to the Whites that portion of its tract which lay north of Twenty-First street. In the description in the Whites' deed the north line of the tract conveyed ran along the southerly side of Twenty-First street, and conveyed the land south of that line. In the description in the railroad company's deed the southerly line of the land conveyed ran along the center line of Twenty-First street, and conveyed that portion of their land which lay north of said line. Twenty-First street became the dividing line of the two properties. These deeds were interchanged in December, 1878. Samuel C. White died November 26, A. D. 1886. On February 18, 1887, Thomas White, the present complainant, bought from the executors of his brother, Samuel C. White, all of the latter's former interest in the premises. Subsequently the defendant the Tide Water Oil Company erected in the middle of Twenty-First street, opposite to the said property of complainant, a fence, and the defendant the Tide Water Pipe Company a wall and fence. The bills in these cases were filed to obtain a mandatory injunction to compel the removal of the fence and wall from the said street.
The questions already settled by the decision of the chancellor are the following: (1) That the recognition of Twenty-First street in the respective deeds interchanged between the Whites and the railroad company, amounted to a dedication of such street by the respective grantors. (2) Although such dedication is still unaccepted by the city of Bayonne, and so the public right in said street is still Inchoate, yet, that the grantees under the said deeds acquired a right to the use of the said street as a means of passing to and from their premises as appurtenant thereto. (3) That the grantees were entitled to the unobstructed use of the whole way. (4) That this court has jurisdiction to order the removal of these permanent obstructions to the use of the street, to its entire width.
Upon the trial the defense interposed was that the Whites, by their acts, had abandoned their right to the easement within the lines of Twenty-First street, or that by their acts they had estopped themselves from Invoking the power of this court to compel the removal of the present obstruction. It was, indeed, suggested, rather than argued, in addition to these points, that the facts shown upon the trial negatived any intention on the part of the Whites and the railroad company to originally dedicate the street. But it is perceived that, so long as the deeds stand unreformed, the implication of dedication is conclusive, and no previous or concurrent acts or words of the parties to those deeds can in any way affect the dedicatory force of those conveyances. So the defense stands upon the idea of an estoppel against or an abandonment by the complainant. Both of these defenses rest upon two circumstances, which the defendants insist are established by the testimony in the cause. The first of these is that, some time previous to 1885, Mr. Samuel C. White, in a conversation with a Mr. Parker, who was the agent of the Kalbfleisch estate, having charge of some property owned by that estate adjoining Twenty-First street on its south side, complained to Mr. Parker about the wagons of the Tide Water Pipe Company's employes passing along Twenty-First street. The second is that in 1885 all travel over Twenty-First street by the wagons of the Tide Water Pipe Company was arrested by a fence erected across said street by the direction of Mr. White. Now, in respect to the estoppel, there is nothing to show that either of these facts Induced any course of conduct by the defendant. This conversation with Mr. Parker, so far as appears, never came to the attention of the defendants or their agents till long after the fence and walls were commenced, so it could not have induced them to make such erections. Nor could the fact of the closure of Twenty-First street by the complainant in the least degree have changed the policy of the defendants in dealing with their property. Although the fence was erected in 1885, and the wall was built in 1890, yet it is entirely clear that the wall would have been erected without regard to the circumstance that the street had been so obstructed by the erection of the fence; for it appears conclusively that the erection of the wall was a sequence of the erection of a series of tanks for the reception ofoil, built upon the property of the defendants. These tanks, to accomplish their purpose, had to be built each apart from any other, at least a certain number of feet, so that in case one becomes ignited, as sometimes happens, from lightning attracted by its ascending vapors, it will not endanger its neighboring tank. Each tank is also protected from overflowing oil from a burning tank by an embankment, and around the entire plant either an earth embankment or a wall is constructed for the purpose of protecting adjoining property from the dangers of overflowing burning oil. The wall in the middle of Twenty-First street was constructed for that purpose, and it is claimed by the defendant that it is constructed as close to the nearest tier of tanks as is possible, if it is to be of efficient service as a shield against the danger mentioned. Now, it appears that the tanks upon the property of the defendants were constructed at different times running over a period of five years. The first was built in 1879 and the last in 1884. The first was constructed upon that portion of defendants' property the most remote from Twenty-First street, and the last three were those nearest to Twenty-First street, and within 40 feet of the wall. They were, however, all built in accordance with a plan adopted before the commencement of the work in 1879. At that early date the location of each tank was fixed, and the work was afterwards carried on, up to the time of its completion, without deviation from the plan then adopted. There is not the slightest evidence that any act or word of the complainant, or any one representing him, induced the defendants to adopt the plan, or to continue the work in accordance with its requirements. Nor is there any evidence of such acquiescence by the Whites in the appropriation by the defendants of the southerly half of the streets as will raise an estoppel. The fence was erected by the latter in 1881, near the line where the wall was erected in 1890. But at that time Twenty-First street was not physically marked upon the ground. Its boundaries were not apparent. No houses fronted upon it. The Whites had no occasion to use the right of way created by the deeds. Mr. Thomas White says that he did not know that the fence encroached upon the street. The defendants had the same source of information in respect to the location of the street as had the complainant, and much more interest in accurately ascertaining its limits. The fact of the previous existence of this fence did not, under the circumstances, estop complainant from objecting to the permanent structure erected in 1890.
Nor do I find any substance in the point that the Whites had abandoned this right of way. Mere nonuser, while an element from which an intention to abandon may be ascertained, is not in itself evidence of the abandonment of an easement. Water-Power Co. v. Veghte, 21 N. J. Eq. 463. The fact that a fence was erected in 1889 across Twenty-First street, which fence prevented the teams that were carting material for the building of the tanks from turning from the Old Hook road on the east, and from passing along a track which is claimed to have been within the limits of Twenty-First street, is insufficient to prove such intention. The fence was built by Mr. Bradford, who had the use of a building upon the Whites' property, and the privilege of cultivating the adjoining land. His only power to act for the Whites was confined to an authority to collect rent for their houses. He was not sworn as a witness, and it does not appear from any other source that he had authority to obstruct the street. Nor does the remark which Mr. Parker attributes to the deceased former owner of the undivided interest in the Whites' property prove such authority. If Mr. Parker's testimony is accurate, Mr. White complained that the teams of the defendants were passing over lands of White and the Kalbfleisch estate. Now, the evidence is conflicting in respect to the location of the line of the passage of these teams. It is quite as persuasive that the teams passed from the Old Hook road at a point on the Whites' land north of the line of Twenty-First street as it is that they passed directly along Twenty-First street But, if Mr. White had directed the erection of the fence across the street, I do not think that that act would prove an intention to abandon his right of way. It is to be kept in mind that we are now considering the effect of such act, not in the light of an estoppel, but we are regarding it as an act which proved an intention to relinquish all rights in the street as a way. Now, it seems entirely clear that the object of the cross conveyances between the Whites and the railroad company, was solely for the purpose of securing for the Whites' lands a frontage on Twenty-First street, which would result in making the land available for building lots in the future. Now, it is incredible that the Whites, after the trouble of this arrangement, and with no change in the condition of affairs to induce a change of intention, should form a design to forego all the advantages arising from this arrangement. It is quite probable that they did not intend to presently make use of the street, for in the condition of their abutting lands, there was no occasion for such use. It may also be that they misconceived the legal rights of the abutting landowners to a passage over the said street before it was accepted by the public authorities. It is not unlikely that they thought that until the occurrence of that event they had still a right to use that part of their lands which was Included in such street Such an understanding might have led to the inclosure of the street; but that they intended to abridge any right which accrued to them from the deeds of dedication by such act is not credible. My conclusion is that in no aspect of the testimony can either an estoppel or an Intention to abandon the easement which they had acquired be imputed to the complainant The injunctions will be made perpetual.