Opinion
01-12-1906
FORRESTER et al. v. ISLAND HEIGHTS ASS'N et al.
Norman Grey, for complainants. E. B. Learning, for defendants.
Suit by James Forrester and others against the Island Heights Association and others. Demurrer to bill sustained.
Norman Grey, for complainants. E. B. Learning, for defendants.
STEVENSON, V. C. I shall advise an order sustaining the demurrer.
1. Conceding all claims on behalf of the complainants which have any basis whatever, the defendant the Island Heights Association, after the dedication of the "camp ground," retained the fee of all the land so dedicated. The property so retained by this land company appears to have been valuable. At any rate it is not alleged in the bill that the defendant's title, even when subjected to all possible public and private easements and restrictions set up or suggested in the bill, had not a substantial money value. These restrictions all appear to have been and to be now susceptible of extinguishment. A speculative purchaser might pay even a large price for 20 acres of land on the seashore, embracing a lofty bluff and a grove, even though subject to all the public and private rights set forth in the bill.
2. The Island Heights Association in July, 1893, conveyed a part of the "camp ground"—apparently a small part—to one Angeline D. Brinley, who in 1896 conveyed the same parcel to the defendant James Bryant. In March, 1901, the association conveyed the remainder of the "camp ground" to one Ralph B. Gowdey for the sum of $5,000, and took back a mortgage to secure that sum. In November, 1903, Gowdey, together with one Louis F. Bodine, to whom Gowdey had conveyed an undivided half of the land which he had purchased, conveyed the property to a corporation named the Island Heights Hotel & Improvement Company, one of the numerous objects of which was to acquire, own, improve, and sell real estate. The bill insists that all the conveyances by which the legal title to the "camp ground" passed from the Island Heights Association to the Island Heights Hotel & Improvement Company and James Bryant should be declared void, and prays that the land may be conveyed back to the association, and that the mortgage for $5,000 may be surrendered and canceled, and that the defendants may be perpetually enjoined from making any further transfers. The only parties brought in as defendants are the two corporations and James Bryant. It is not necessary, however, to notice the questions which have been raised, or the questions which might have been raised, as to the misjoinder or the nonjoinder of parties.
3. The fatal defect in the case presented by the bill consists in the failure to allege that the defendant the Island Heights Hotel & Improvement Company or the defendant James Bryant has threatened to put the land to any use which will be violative of any of the alleged public or private easements or other rights in which the complainants or any of them are interested. The sole suggestion of any such purpose is found in the draft of resolution submitted to the borough council in August, 1904, by the said Louis F. Bodine, who appears in October, 1903, to have been one of the incorporators and original stockholders of the Island Heights Hotel & Improvement Company when that corporation was created. This act of Bodine is not alleged to have been the act of the corporation, and, if it was, it is not alleged that the corporation is proposing to proceed with the use of the "camp ground" for hotel purposes until all private interests have been adjusted and harmonized. If the present owners of the "camp ground" desire to free it from all public or private claims arising from the dedication and other transactions set forth in the bill, it is manifest that they must begin at some point with some party, public or private, who claims to hold an adverse interest in regard to the small portion held by the defendant Bryant, for all that appears the title to this small part of the "camp ground" had been reposing in Bryant or his grantor for 12 years without any effort being made on the part of either of them to use the land in violation of the restrictive covenant.
4. The interests, and especially the private interests, existing in a "camp ground" laid out, mapped, and dedicated in the manner set forth in the complainant's bill, have been the subject of judicial investigation in this state in several recent cases. Lennig v. Ocean City Association, 41 N. J. Eq. 606, 7 Atl. 491, 56 Am. Rep. 16 (1886); Bridgewater v. Ocean City R. R. Co., 62 N. J. Eq. 276, 49 Atl. 801 (1901). It is altogether unnecessary to define the nature and extent of the interest which the complainants have in the "camp ground" described in their bill. My present conclusion merely is that, whatever rights may be held adversely to the defendants as owners of the fee, the complainants must wait until the defendants threaten to Interfere with those rights before they ran ask the aid of this court. A mere transfer of the fee is not an invasion of any of these rights. In the case of Lennig v. Ocean City Association, supra, which is cited on behalf of the complainants to sustain their bill, the land company which laid out the "camp ground" formed a scheme for dividing it up into lots and leasing the lots for the erection of permanent cottages. The court found, not that the land company was merely transferringits fee, but that it was promoting a scheme for the occupation of the land by permanent structures in direct violation of the rights of the prior grantees. The complainants have no right to compel the original dedicator to continue to hold the fee. No authority is cited to sustain the contradictory of this proposition, which seems to be a fundamental premise of the bill of complaint. There is certainly strong ground for claiming that, admitting the widest possible definition of the public and private rights set up by the complainants, the owners of the fee in this land nevertheless can occupy it or use it for many purposes with substantial pecuniary advantage to themselves, without in the slightest degree affecting these outstanding public or private rights. But, however this may be, the fee at all times presumably is of some value because of the possibility that it may be discharged from some or all of these outstanding rights.
It may also be observed that there is nothing in the bill to raise the implication that the conveyance of the fee should be restrained in order to prevent the creation of new rights vested in bona fide purchasers. The maps upon which the "camp ground" is laid out have been recorded, and all the facts connected with the dedication of the "camp ground" and the creation of all public and private rights therein appear to be matters of public notoriety and largely matters of record. The bill does not allege that there is any danger that rights may be created in bona fide purchasers unless the transfer of the fee shall be restrained, nor are there any facts alleged from which such a result could be inferred.