Opinion
No. 51/84.
10-30-1922
ATLANTIC CHEMICAL WORKS v. FINKEL.
Leo Stein, of Newark, for complainant. Merritt Lane, of Newark, for defendant.
Suit for injunction by the Atlantic Chemical Company against Nathan Finkel. Decree advised.
Leo Stein, of Newark, for complainant.
Merritt Lane, of Newark, for defendant.
CHURCH, V. C. Prior to May, 1910, Ervine D. York owned a tract of land on Bay-way and Woodbridge avenues, Elizabeth, N. J., divided on the map used in these proceedings into plots A, B, C, and D. Its easterly side abuts on the right of way of the Perth Amboy & Elizabeth Railroad. York and others established a chemical business, and a deed was given by York to the Bay-way Chemical Company for plot A in 1910. In order to secure access to a street, a right of way, D 1, was developed by the company over tract D, also owned by York, which paralleled the railroad right of way and cut off all access to the railroad right of way from the rest of D. This right of way gave an exit from tract A to Bay-way avenue. There was no monetary consideration given to York for this right of way. In 1913 York conveyed tract B to the company, thus giving it a frontage on Woodbridge avenue. The deeds for A and B were recorded in 1914, but the Bay-way Chemical Company had been in possession of A since 1910 and had erected structures thereon, and of B since 1913. Plot D was conveyed by York to Nathan Finkel in 1920. Plots A and B became the property of the complainant, which was incorporated in 1920, in 1921 by conveyance from the Ralph L. Fuller Company, which had secured them from the Bay-way Chemical Company in 1920.
Prior to the sale of the property, plot B to Nathan Finkel, Ervine D. York notified the Bay-way Chemical Company, which was then the owner of plots A and B, that he intended to sell plot D and that, under the circumstances, the Bay-way Chemical Company could no longer use the right of way or maintain the water pipes. This communication was received by Arthur F. Reed, who was the treasurer of the Bay-way Chemical Company and the executive officer, and who was likewise the president of the Ralph L. Fuller Company, Inc., which, subsequent to the receipt of the letter from York, took title to the property on June 3, 1920. Reed swears that he had familiarized himself with the circumstances surrounding this right of way and the maintenance of these water pipes, and realized that the use was but temporary, and he acquiesced, on behalf of his company, in the position taken by York that by reason of the sale it would be necessary to terminate the use. He says that when the Fuller Company took title from the Bay-way Chemical Company he acted for the Fuller Company, and that the matter of providing for another exit, etc., was discussed with the officers of the Fuller Company. He also swears that, after the Atlantic Chemical Company took title to this property in January, 1921, at the suggestion of Mr. Weiner or Mr. Donovan of the Atlantic Chemical Company, he attempted to make an arrangement with Finkel whereby they would be permitted to use the right of way on payment of a consideration, and says that as a result of that he got permission from, Finkel to use the right of way temporarily.
Prior to Reed's attempting to make arraugemeritson behalf of the Atlantic Chemical Company he had made arrangements on behalf of the Bay-way Chemical Company with Finkel as to the temporary use of the right of way.
Complainant contends that the right of way, D 1, was meant to be permanent, and it was an implied easement or an irrevocable license; that York received a valuable consideration for granting the right of way in that it increased the value of his interest in the company. York and his son both swear the easement was intended to be temporary and are supported by the testimony of Reed. Complainant's contention is based on the claim of manifest user. There is no direct testimony denying the statements of the Yorks and Reed.
The leading case on this subject is Lawrence v. Springer, 49 N. J. Eq. 289, 24 Atl. 933, 31 Am. St. Rep. 702. The headnote says, "It would seem that an easement cannot be in this state, imposed on land by the force of parole evidence." The body of the opinion (by Chief Justice Beasley) says: "Nothing is clearer or more settled than that in all cases in which any court has validated an incumbrance imposed on land by force of a parole contract, that such contract has been required to be proved to the point of demonstration, and that the repudiation of it would work irreparable injury." I do not think the permanent easement has been proved to the point of demonstration. The preponderance of the evidence on the contrary goes to show that all parties concerned considered the easement temporary until such time as an exit could be secured via Woodbridge avenue, and that such exit was in fact later secured; and that the authorities of Elizabeth have improved that street at the request of the complainant. Nor do I think that the abandonment of the easement will work irreparable injury. It is true that it is more convenient to have two exits than one, and it is also true, I presume, that complainants may have to go to considerable expense to alter their buildings, or some of them, so as to provide for ingress and egress from Woodbridge avenue only. But this is not sufficient, as I understand the opinion of the learned chief justice, to constitute the irreparable injury which is required by the cases. On the other hand, to permit D 1 to stand as a permanent easement over D, would cause irreparable injury to D, because it would cut off all access to the railroad from D, and, as this property is conceded to be most valuable for business purposes, it would greatly and permanently depreciate it.
There are other decisions in this state on this subject, but in view of Lawrence v. Springer, supra, I have thought it unnecessary to refer to them. Neither do I think it important to determine whether the separation of the two estates actually occurred in 1910 when possession was taken, or in 1914 when the deeds were actually recorded. In either event my opinion would be the same. The evidence shows that complainant took title with the knowledge that the easement was considered temporary and negotiated with Mr. Finkel for a continuance of the temporary use.
I will advise a decree dismissing the bill of complaint, and granting the injunction prayed for in the suit consolidated with this one, restraining the Atlantic Chemical Company from interfering with Finkel in taking complete possession of the right of way D 1.