Opinion
03-26-1909
FREEMAN v. ISLAND HEIGHTS HOTEL & IMPROVEMENT CO.
Grey & Archer, for complainant. Wilfred B. Wolcott and I. W. Carmichael, for defendant.
Bill by Erasmus Freeman against the Island Heights Hotel & Improvement Company. On final hearing, on bill, answer, replication, and proofs. Decree for complainant.
Grey & Archer, for complainant. Wilfred B. Wolcott and I. W. Carmichael, for defendant.
WALKER, V. C. The bill prays that it may be decreed that the portion of the lands at Island Heights in this state, called "Camp Ground," the title to which is in the defendant company, shall remain open and devoted to the purposes for which it was originally dedicated, and, incidentally, that the defendant may be forever enjoined from erecting any fence or other structure upon the premises inconsistent with the user of the same as a camp ground. On Jure 1, 1878, sundry persons associated themselves into a corporation under the name of "Island Heights Association" under the provisions of an act entitled "An act to encourage the improvement of real property in this state," approved March 27, 1874 (Rev. St. 1874, p. 434). On July 1, 1878, the association purchased about 168 acres atIsland Heights, N. J., and obtained conveyances therefor. Afterwards it purchased another tract, and the whole was laid out, and a map made of it, labeled: "Property of the Island Heights Association, on the North Bank of Toms River, in Ocean County, New Jersey, scale 100 feet to an inch. A. P. Irons, Surveyor, Toms River, New Jersey, 1878." Copies of this map were spread broadcast, and sales were made of lots with reference to that map. The operation was one of at least a semireligious character, and was projected by the denomination known as Methodists, and was intended as a Methodist camp meeting resort. The map appears not to have been filed. In 1881 another map was made by the association and labeled: "Map of Island Heights, Ocean County, New Jersey." On both these maps a portion of the land of the association was marked "Auditorium," and an auditorium building was erected there some time during the early 80's, and was removed in 1904 or 1905. On Sunday, August 13, 1878, the first "camp meeting" was held upon the grounds, and it was" announced in the sermon that the place would always be devoted to camp meeting services. This announcement was frequently repeated at services and on other occasions.
The complainant is the owner of two lots on the tract in question, and derives his title mediately from the association; one lot having been conveyed by the association to Alexander C. Graw September 30, 1886, who conveyed the same to Jacob Graw October 7, 1886, who conveyed the same to the complainant May 19, 1890, and the other having been conveyed by the association to James L. Hayes July 31, 1886, who conveyed the same to the complainant September 17, 1887. Before complainant made his first purchase in 1887 he spent the summer at Island Heights and heard announcement made from the pulpit in the auditorium that the open space there (at the auditorium) was to be a camp ground. The ground remained open, and no attempt was ever made to inclose it until the summer of 1907. In 1886 a revised map was made which was filed in 1888. Its lines were in many particulars a considerable departure from those in the map of 1881, but this last map also showed the camp meeting or auditorium space, though contracted somewhat from its former dimensions. The complainant saw the revised map before making his purchases, and heard statements made by members of the association to the effect that the camp ground was to be kept open. The conveyances from the association to the complainant's predecessors in title contained covenants by the parties of the second part for themselves and their heirs and assigns that the grants were made and received subject to the rules, by-laws, and regulations which might from time to time be adopted by the association for the protection, government, and control of the camp meetings and other assemblies to be holden within their premises from year to year. The properties came to the complainant subject to these conditions. There was abundant testimony to show that the camp ground in its original, and afterwards in its more restricted, area, had remained open, uninclosed, and unobstructed, except by the auditorium building and a summer house and well which was made upon the premises, and it was free to the use of all persons for outing purposes when not being devoted to religious meetings. Religious services appear to have been discontinued on the camp ground in or about the year 1900, and on March 25, 1901, the land comprising the camp ground was conveyed to Ralph B. Gowdy, and on the same day Mr. Gowdy and his wife conveyed a one-half interest in the premises to Louis F. Bodine, and on November 4, 1903, Messrs. Gowdy and Bodine, together with their wives, conveyed the same premises to the defendant, the Island Heights Hotel & Improvement Company.
The complainant, who has built a cottage upon his lands, relies upon an implied covenant that the camp ground or premises, the fee of which is now in the defendant, shall be used only for camp meeting purposes, and that it cannot be closed to him as a lot owner upon the association's tract, or his view through and across the same obstructed. The nature and character of this covenant was under consideration by Vice Chancellor Stevens in Forrester and Others (among whom was the complainant in this cause) v. Island Heights Association and Others (among whom was the defendant in this cause) 62 Atl. 775, and it was held on demurrer that whatever private interests existed in the camp ground laid out, mapped, and dedicated in the manner set forth in the complainant's bill in that cause it was unnecessary to define; for, whatever rights might be held adversely to the defendants as owners of the fee, the complainant would not be entitled to relief until the defendant threatened to interfere with those rights, a mere transfer of the fee not being an invasion of any of the complainant's rights. Such interference is now alleged, and is made the basis of the present suit.
The Vice Chancellor took occasion to remark in the Forrester Case, at page 777: "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." In Lennig v. Ocean City Ass'n, 41 N. J. Eq. 606, 7 Atl. 491, 56 Am. Rep. 16, the defendant, a religious camp meeting association, laid out and mapped its seaside property into lots, reserving a tier of blocks between Fifth and Sixth streets, and extending from the ocean westward, as a camp ground for religious services and tenting purposes, and sold to the complainant lots by that mapfronting on the blocks so reserved, whereon he erected a summer residence. It was observed by Mr. Justice Dixon, speaking for the Court of Errors and Appeals, at page 608 of 41 N. J. Eq., page 493 of 7 Atl., and page 16 of 56 Am. Rep.: "Whenever the owner of a tract of land lays it out into blocks and lots upon a map, and on that map designates certain portions of the land to be used as streets, parks, squares, or in other modes of a general nature calculated to give additional value to the lots delineated thereon, and then conveys those lots by reference to the map, he becomes bound to the grantees not to use the portions so devoted to the common advantage otherwise than in the manner indicated." And again at page 609 of 41 N. J. Eq., page 493 of 7 Atl., and page 16 of 56 Am. Rep.: "The inquiry now presented therefore must be, not whether the association has dedicated the blocks between Fifth and Sixth streets to public use, but whether it has entered into an implied covenant with the complainant not to use those blocks in the mode now proposed, and has granted to him, as appurtenant to his lots, the benefits to be derived from such restriction. The circumstances lead us to answer this inquiry in the affirmative." Bridgewater v. Ocean City R. R. Co., 62 N. J. Eq. 276, 49 Atl. 801, is a case like the one under consideration. In the Bridgewater Case the complainant was the owner of two lots by purchase through an intermediate grantee of the Ocean City Association. There was a dwelling house on the lots in which he resided with his family. The bill was filed against the railroad company, a subsequent grantee of the association of a strip of land which was part of a certain tract which by an implied covenant with the complainant and other purchasers of lots had been devoted to use as a camp ground and park. The defendant was erecting a passenger station thereon in violation of the covenant to the injury of the complainant by destroying the attractiveness of the camp meeting ground, and making it less desirable as a place of recreation and religious instruction, interfering with the circulation of air and with the view of the park and camp ground. Said Vice Chancellor Van Fleet, at page 289 of 62 N. J. Eq., and page 805 of 49 Atl.: "The space between Fifth and Sixth streets was to be kept open for use as a camp ground and park for religious services, affording a place where large congregations could be assembled in the open air, and protected in tents or temporary structures, with abundant access of light, air, and view. Lots, whether near to or remote from the camp ground, were purchased in the expectation that this space should be devoted to the declared use. All purchasers thus acquired a right to have that space used as they had been assured it would be used for no other than the named purposes. The implied covenant arises for the benefit of all the lots, without regard to their particular locality, in relation to the tract impliedly agreed to be specially kept as an open space."
The defendant contends that, even if the facts warrant the conclusion that an implied covenant to keep the camp ground open and to be used only for purposes of recreation and religious exercises exists, nevertheless the complainant cannot have the advantage of it because his lots lie partly within the territory which was designated as a boulevard on the original map. In 1886 a considerable departure was made in the original plan of lots, and what is called a dividend sale of lots remaining in the association was made to stockholders. As already remarked, a map was made in 1886, but not filed until 1888. This map showed lots platted on the boulevard. This is the map which the complainant saw, and is the map with reference to which his predecessors in title, who were stockholders, bought at the dividend sale. If the original owner changed the scheme of avenues upon the premises in question, and sold lots upon a portion of the premises formerly laid out and dedicated as an avenue, still reserving the camp ground as such, and sold to purchasers lots upon the abandoned avenue, with an implied covenant that the camp ground should remain open and devoted to no other than its original purpose, I fail to see how that fact would give the association or its subsequent grantee, mediate or immediate, the right to violate that implied covenant as against the owner or owners of such lots. Defendant's counsel has cited no authority for his contention in this regard. He relies upon De Gray v. Monmouth Beach Clubhouse, 50 N. J. 329, 351, 24 Atl. 388; Roberts v. Scull, 58 N. J. Eq. 405, 43 Atl. 583; Ocean City v. Headley, 62 N. J. Eq. 338, 50 Atl. 78. These are cases in which it is held that one who himself violates a covenant is without standing to enforce that covenant. They have no application to the case at bar. If the complainant in this case were violating the covenant for keeping the camp ground open, he probably would have no standing to object to the defendant's closing it, but he is doing nothing of the kind. In my judgment the defendant may not be heard to say that because it sold to the complainant land upon an avenue which had been laid out and dedicated to the public, and because the complainant purchased it, the defendant has a right to close against the complainant the camp ground which was forever dedicated as an open space for purposes of recreation and religious exercises.
Upon the whole case, I am of opinion that the complainant is entitled to the relief he seeks, and it will be decreed accordingly, with costs.