Opinion
Submitted May 26, 1933 —
Decided September 27, 1933.
1. When lands are conveyed as bounding upon a street as delineated on a filed map such conveyance is presumed to pass title to the center of the street, subject to such easements as may have been legitimately obtained.
2. The grant of an easement by the owner of lands, to a municipality, to erect poles and wires in a street for certain street lighting purposes is not to be construed to extend to the stringing of wires to supply private light and power, nor to the use of high voltage cables, by a private corporation, to carry electric current from distant power stations to other municipalities.
On appeal from the Supreme Court.
This case was referred to Circuit Court Judge Lawrence and was submitted to him without a jury, by consent. Judge Lawrence filed the following opinion:
"This is a suit in ejectment. When reached for trial at the Monmouth Circuit, it was submitted to the court, without a jury, by consent, for determination on the law and the facts. At the close of plaintiff's case, defendant moved a nonsuit and requested a ruling of a trial judge. I concluded that plaintiff had made out a prima facie case sufficient to require defendant to put in its defense.
"Briefly stated, plaintiff seeks to eject defendant from a narrow strip of land, which it admittedly occupies with its poles and wires, between the curb line of certain streets and the sidewalk of the three sides of a block of twenty-one lots owned by him, and on which he has a summer residence, in what is now known as West Allenhurst, formerly Edgemere, in the township of Ocean, Monmouth county. The poles and wires in question are used by defendant for the transmission and distribution of electric light and power, public and private, and, as claimed by plaintiff, are upon the locus in quo without lawful authority and in violation of his rights as the owner of the fee.
"Plaintiff's title deeds described the lots conveyed as abutting and bounded by the streets (but not extending to the center line thereof), as the same appear upon a map of Edgemere, at Deal Beach, Monmouth county, New Jersey, dated September 22d 1891, and filed in the office of the clerk of the county, on March 24th, 1892, by R. Ten Broeck Stout, the owner of the tract delineated thereon. On this map the following notation appears: `In filing the map the owner and proprietor of the lands and premises mapped reserves all the estate and title therein and the right, use and control of and all rights, privileges and franchises in, over and appurtenant to all the streets, avenues, drives and places; and he also reserves the exclusive right and privilege to lay any track or tracks of street railways of any and all description and the right to operate the same; also the privilege of piping the streets for water, sewer, gas and wires, or either and all of them; also the right and privilege of erecting poles at any point or place therein and the running of wires for electric lights, telephone, telegraph and street railways, or any or all of them, on, over or in the streets, avenues, drives and places, and all the lands, lake and premises herein reserved * * *. Each and every of the above reservations to be by him and his heirs and assigns, used, controlled, conveyed and disposed of at such time, in such manner and in such portions as he may desire * * *.'
"Beyond referring to this map, plaintiff's deeds contain no express words specifically excepting and reserving the adjacent street area, and it is therefore claimed by him that he acquired by implication title to the center line thereof, and consequently to the locus in quo, under the recognized presumption of law which requires such deeds to be construed as passing the title to the center of the street, subject to such easements as may have been legitimately obtained. Salter v. Jonas, 39 N.J.L. 469; Freeman v. Sayre, 48 Id. 37; Ayres v. Pennsylvania Railroad Co., Ibid. 44, and Wiedmer v. West Jersey and Seashore Railroad Co., 98 Id. 316.
"It is argued in behalf of defendant that plaintiff acquired no interest in the streets adjacent to his property, for the reason that the notation on the filed map not only prevented a public dedication of such streets but reserved the fee therein to Stout, the original owner, and no evidence was produced that he had ever conveyed it to anyone. This appears, however, to be a misconception of the reservation, a careful reading of which will indicate a limited dedication to public use, qualified in the particulars stated, which were reserved not only for the benefit of the original owner, but his heirs and assigns. But even if the streets remained private ways because of the reservation in question, the legal implication that grantees of abutting lots obtained title to the middle thereof would apply. Freeman v. Sayre, supra. It follows, therefore, that when the original proprietor conveyed the lots on the tract by reference to the field map and described them as bounded by and abutting on the streets shown thereon, his grantees and their successors in title became vested with the fee to the middle thereof, subject to such valid easements as may have been granted from time to time.
"Plaintiff, consequently, has shown that he is entitled to the benefit of the legal rule and was not obligated to prove mesne conveyances from such proprietor to him actually covering the fee to the middle lines of the streets in question. That his title, in the circumstances, includes the locus in quo seems apparent. Whether he has, however, a legal right to eject defendant from its occupation depends upon the proof comprehended in its defense, involving its acquirement of an easement for the maintenance of its poles and wires and the question whether it is now lawfully exercising it. Burnet v. Crane, 56 N.J.L. 285. The motion for a nonsuit was accordingly denied and exception allowed to the court's ruling.
"The evidence submitted by defendant disclosed no franchise right or any easement acquired by it or from its predecessor by succession for the erection and maintenance on the locus in quo of poles and wires without regard to their nature. The only right to maintain any poles and wires thereon involved a contract with the township of Ocean, within which the property in question is situate, for certain street lighting. The testimony, however, did indicate that seven poles were maintained between the sidewalk and the curb on Corlies avenue; five in similar location on Myrtle avenue, and one on Staffa street, on which avenues and street lots of plaintiffs abut.
"The line of poles on Corlies avenue, it appeared, had been in continuous use for over twenty years, although there was no proof that the present poles had stood on the locus in quo for that period with the wires now thereon. It was also disclosed that the poles as a whole not only carried wires for local municipal street lighting, under the contract referred to, but also others used to supply private light and power and certain high voltage cables designed and utilized for the carrying of current from one or more distant power stations, through the township, to a number of other municipalities, in which service the former had and has no actual interest or concern, contractual or otherwise.
"It was urged, nevertheless, that plaintiff had not proven title to the locus in quo, which, however, was disposed of by the court on the motion for a nonsuit; and that, in any event, as to that part thereof on Corlies avenue, the line of poles thereon had been maintained for over twenty years, and the suit was therefore barred in that respect at least. Section 16, statute of limitations, 3 Comp. Stat., p. 3169. As heretofore indicated this contention was not sustained by the proofs, in that it did not appear that the present poles and wires, to the number shown, had been continuously on the locus in quo for the statutory period.
"That the owner of the soil in a street may maintain ejectment against any person wrongfully taking or claiming exclusive possession of the same is stated in French v. Robb, 67 N.J.L. 260. Applying the rule there laid down, it seems clear under the proofs in the present suit, that the defendant company is occupying the locus in quo without lawful authority, through the medium of poles and wires beyond the size and number required to provide local street lighting, under its contract with the township, and so, without legal justification, burdening the fee found to be in plaintiff. Starr v. Camden and Atlantic Railroad Co., 24 Id. 592; Andreas v. Gas and Electric Co., 61 N.J. Eq. 69; Taylor v. Public Service Corporation of New Jersey, 75 Id. 371; Thropp v. Public Service Electric Co., 83 Id. 564, and French v. Robb, supra.
"Plaintiff is entitled to judgment for possession of the locus in quo, subject to the public easement, and to defendant's right to maintain thereon poles and wires of a size and number sufficient, adequate and necessary to enable it to perform its contract with the township of Ocean for the street lighting for which provision is therein made."
For the appellant, Applegate, Stevens, Foster Reussille ( Lester C. Leonard, of counsel).
For the respondent, Bilder, Bilder Kaufman ( Walter J. Bilder, of counsel).
The judgment under review herein should be affirmed, for the reasons expressed in the opinion delivered in the Supreme Court by Circuit Court Judge Lawrence, to whom this case was referred.
For affirmance — THE CHANCELLOR, CHIEF JUSTICE, TRENCHARD, PARKER, CASE, BODINE, DONGES, HEHER, PERSKIE, VAN BUSKIRK, KAYS, HETFIELD, DEAR, WELLS, DILL, JJ. 15.
For reversal — None.