Opinion
02-05-1904
HUNGER v. CURLEY.
D. J. Pancoast, for complainant Thos. P. Curley, for defendant.
Bill by George A. Munger against Annie Curley, to which defendant filed a cross-bill. Heard on bill, answer, and proofs. Decree for complainant, and dismissing cross-bill.
D. J. Pancoast, for complainant Thos. P. Curley, for defendant.
GREY, V. C. (orally). This bill is filed by George A. Munger, who is presently engaged in finishing the erection of a large store building at the southwest corner of Federal street and Broadway, in the city of Camden. The dimensions and location of the lot owned by the complainant, as described in his bill of complaint, and in the deeds which are there recited and here produced, are not denied. He is the owner of a lot having 70 feet of front on Federal street, beginning at the southwest corner of Federal and Broadway, running westerly along the south side of Federal street, and continuing southerly of the uniform width of 70 feet, parallel toBroadway, for a distance of 140 feet Mr. Munger alleges that when constructing his building on the lot described in his deeds he attempted to build the westerly end of his front wall where it adjoins the lot of Mrs. Annie Curley; that he found that the facing of the front of Mrs. Curley's wall had intruded upon his lot of land for a distance of four inches, and as his plan of structure of his proposed building as well as his paper title included that four inches, he sought to extend the front of his building over the four inches; that Mrs. Curley violently interfered with his workmen in their attempt to finish the westerly wall on his lot, claiming that they were intruding upon her property as to this four inches, and caused their arrest. The criminal proceeding appears to have stopped there. This bill was filed September 16, 1903, by Mr. Munger, to restrain Mrs. Curley from further interference with his attempt to utilize the four inches of wall standing on his lot and running along the westerly side thereof from the front on Federal street in a southerly direction for a distance of somewhat more than forty feet. The complainant asks that a decree may be made declaring that four inches of the wall on the westerly side of complainant's lot to be the property of the complainant, and restraining Mrs. Curley from interfering with that wall, or with the complainant's use of it in the construction of his building.
It will be noticed that the bill asks a declaration of the complainant's right, and protection in his enjoyment of it. Mrs. Curley flies an answer to that bill. She does not deny either the paper title of the complainant in the whole of the 70 feet front of his lot, and of that width in a southerly direction parallel to Broadway for a distance of 140 feet, or that the 4 inches of wall stands within the bounds of that lot. Her sole defense is that she has enjoyed the peaceable and undisputed possession of the 4 inches of wall in question for a period exceeding 20 years. She also files a cross-bill, in which she alleges that the complainant, in the erection of his building, has constructed his westerly wall for a considerable length upon and over the four inches of wall which she claims is by adverse possession a portion of the easterly wall of her house, and she asks with respect to that erection that the complainant may be required to remove it, because it is, as she alleges, an intrusion upon the four inches which she has acquired by adverse possession, and that he may be restrained and enjoined from interfering with or molesting her in the enjoyment and possession of that four inches of wall. Her counsel in the argument insists that she is entitled to a mandatory injunction commanding Mr. Munger to remove that portion of his westerly wall which covers the four inches of what the defendant claims is the easterly part of her wall.
The dispute upon both the main case and cross-bill, it will be observed, necessarily turns upon the ownership of the strip of watt four inches wide, which stands along the easterly side of Mrs. Curley's house. There are several elements in the case which are absolutely indisputable, and I find them as established and undisputed facts. The first is that the whole four inches of wall referred to in both the complainant's bill and the defendant's cross-bill stand upon land the paper title to which is in the complainant, George A. Munger, because these four inches are necessarily included in the admittedly correct measurement of the 70 feet width of his lot. If the defendant, Mrs. Curley, has any right to those four inches, it must necessarily have come to her in the manner claimed by her in her answer and cross-bill, namely, that she has acquired in those four inches of wall standing on the complainant's lot a title by what is called "adverse possession"; that is, she has for 20 years held the four inches of wall by a possession which was an open and notorious assertion of her right of property therein to the exclusion of the complainant's title. As the proofs and the admissions of both parties show that the paper title of Munger covers that four inches of land on which the wall stands, it becomes an interesting question to ascertain how it happened that this four inches of wall on the easterly side of Mrs. Curley's house came to be located on Mr. Munger's land. It is to be observed that this disputed wall does not extend along the whole length of Mrs. Curley's easterly wall, but only for a portion thereof. This diagram illustrates the situation. It is offered in evidence as Exhibit C 6:
The dotted lines indicate the four inches of wall which are in dispute. That the residue of the easterly wall of Mrs. Curley's house stands on her own property, while this four-inch wall along the east of her housestands on Mr. Munger's property, is of itself an indication that this four-inch wall was erected for some other purpose than to be the easterly wall of Mrs. Curley's house, for, naturally, if that had been the object for which it was built, it would have been placed on Mrs. Curley's lot, in line with the wall of her back building, and not on Mr. Munger's lot. How and why this four-inch wall came to be erected on Mr. Munger's lot along a part of the easterly wall of Mrs. Curley's house is explained by the undisputed testimony of two old ladies, one of whom—Mrs. Carman—lived in what was known as the "Carman house," which formerly stood on the lot now owned by Mr. Munger, and the other—a Mrs. Hamill—built and occupied the house now owned by Mrs. Curley. The Carman house (on the property now Mr. Munger's) had been built and occupied for some time before the house (now Mrs. Curley's) was erected. Mrs. Hamill then owned the Curley lot, which had a width of 20 feet. She was building on that lot a dwelling house (the present Curley house), which at its front on Federal street and along the Carman line would occupy the whole width of 20 feet. When Mrs. Hamill had progressed with her building far enough to indicate the nature and character of its easterly wall, it appeared that the side of that wall (which stood along the line between the two properties, and in full view from the Carman house) was being so built as to show rough joints of the mortar, and present an unfinished and ugly appearance. This was offensive to the view of the occupants of the Carman house (on the Munger property) and Mrs. Carman remonstrated with the Hamills for finishing this easterly wall with such an uncouth appearance. The Hamills appear to have considered that it was good enough for their purposes. Those parties then came to a friendly conference, and an arrangement was made whereby the Hamills, who had their workmen there, should build a second wall covering the rough finish of the first. This second wall was located and built not on the Hamill property (now Curley), but on the Carman property (now Munger), to the extent of the four inches, and was neatly finished on the Carman (or Munger) side, in such a manner as not to be unsightly, as was the wall which the Hamills had erected on their own lot. The four-inch additional wall, thus finished to the satisfaction of the Carmans, was located wholly on their lot, and was paid for by them. I think that it may fairly be said that this testimony is corroborated by the physical condition of things on the property. It explains why this four-inch wall alone of all the structure apparently belonging to Mrs. Curley stands not on her lot, but on the Munger property; and also why this wall jutting out upon the Carman property extends not along the whole easterly side of Mrs. Curley's house, but only to cover that portion of the easterly side of her wall which was presented to the view of the occupants of the Carman (Munger) mansion.
The evidence on this transaction shows that upon a friendly conference between the parties, at the invitation of Mrs. Carman, the Hamills superintended the building of a wall on the Carman property at the Carmans' expense. It seems to be entirely clear that it cannot be maintained for a moment that such an erection by the Hamills, built by express agreement with the Carmans, located on their lot, and paid for by them, could become the property of the Hamills by the acceptance of that situation. There was no element of hostile or adverse claim whatever. It was a matter of mutual agreement. It is contended, however, in argument by the defendant, that that four-inch, wall is per se, because it is built as an adjunct to the easterly wall of the Curley property, a part of the Curley building, and that this carries with it the title to the soil. There might be force in this suggestion if it were supported by a showing that this four-inch wall had, without agreement between the parties, been built by the Curleys or their precedent owners as part and parcel of the original structure of their dwelling house. There is no proof that it is structurally a part of the Curley house, and it is proven without contradiction that it was not put on the Carman (Munger) lot adversely to the Carman (Munger) title, or in assertion of any claim of title by the Hamills (Curley), but, on the contrary, that it was built and located by virtue of a friendly arrangement between the parties. Mrs. Curley, it is true, did not know anything about this incident, because it happened before she came to be the owner of her lot, and she naturally supposed that the title to this wall really belonged to her property, and that it was part of her dwelling house; but that does not alter the fact that it was not. It only shows that Mrs. Curley was not acquainted with the facts. Her paper title does not include these four inches of wall. Her own deed was in law notice to her that she had no title to it.
Another act of alleged hostile possession is that the roof of the Curley property is finished over to and upon the four-inch wall. It is not proven with certainty that there is in fact such an overlapping of the Curley roof. Nor is there any proof of the time when any such overlap was placed on the Munger wall. If it was built there at the time when the wall was put up under the circumstances above narrated, it could not be held to be a hostile or adverse act in any view, it could not give to the owners of the Curley property a right of ownership in the whole of the four-inch wall, but at the utmost only the privilege exercised, the finishing of the Curley roof against the Munger wall The defendant, Mrs. Curley, by her cross-bill, claims far more than this, for she insists that she owns the four inches of wall, and may compel Mr. Munger to remove his westerlywall, which he has built upon it. The evidence as to the existence of such an overlapping roof and of the time when it was made, if there is an overlap, is too uncertain to make it the basis of a claim of title by possession; and, even if the overlapping roof be assumed to exist, and to have been put there as part of the original structure, there is positive proof that the whole wall was built not in a hostile title-claiming spirit, but by friendly agreement between neighboring owners, adjusting differences in the enjoyment of their properties.
Another element which the defendant asserts as an act of adverse possession is that one which is referred to in the complainant's bill, on which he asks relief. The defendant contends that by finishing and facing the front of the Curley house across that thickness of the four inch wall which comes to the Federal street front, the title of the Curleys was extended across the four inches, which is part of the 70 feet of the Carman-Munger title. Mrs. Curley also contends that, if she did not acquire title to the whole four inches of wall, she did secure at least the right to have that facing across the four inches stay in the place where it now is, although it does extend across Mr. Munger's line, and over his lot. I can not find from the proofs any definition of the time when that front wall was so finished. It is entirely clear that, if it was finished by the Hamills across the Federal street end of the four-inch wall when it was built under the agreement above referred to, such a construction by those then owning the Curley property was not an assertion of any claim of title in the four inches of wall which the Carmans owned, nor even of an easement to have the front facing of the house remain as built across the line. That transaction was by mutual consent, and not adverse. Neither party claimed anything against the other. Acts of adverse possession to lands must not only be of such a character as to be notoriously observable, or actually brought to the notice of the person who owns the paper title, but must also have been done in the assertion of a claim which is hostile to the ownership of the holder of the paper title. There is no proof here to show that this front facing across the four-inch wall, if it was constructed when the Curley house was first built, was in any way an assertion of a hostile claim.
The last possibility of right in the defendant is the contention that Mrs. Curley, in refronting this building, which it is proved she did, may have then extended her front wall across the Federal street end of this thickness of four-inch wall, and may thereby have acquired at least an easement in the property of Mr. Munger. It is not denied that Mrs. Curley did rebuild that front. But it is not proven whether she rebuilt the whole front, including the facing of this four-inch wall, from the pavement to eave, or whether she built only a bulk window on the ground floor. There is no sufficient proof on the point, but assuming the most favorable attitude for the defendant that she rebuilt the whole front, and then for the first time extended the facing across the four-inch wall from pavement to eave as it now is, and that her rebuilding was a hostile step, there is yet a lack of any evidence showing the time when Mrs. Curley rebuilt that front. There is no proof that it was 20 years or more ago, and that she has held and maintained a 20-years possession. The party setting up a claim of title by adverse possession must satisfy the court that he has had an actual and hostile possession for 20 years. In the case of Rowland v. Updike, 28 N. J. Law, 101, Chief Justice Green declared that the claimant must establish the fact of adverse possession beyond a reasonable doubt. The Court of Errors, in the case of Baldwin v. Shannon, 43 N. J. Law, 603, declared that "a possession which is permitted to prevail against a clear title by record should be clearly proven to be accompanied by all the requisites of an adverse occupation, including positive evidence of the continuity and territorial extent of the possession." Applying that declaration of the rule to this case, there is no sufficient evidence to show that either Mrs. Curley or the precedent holders of the title to her lot have for 20 years had possession of the four inches of wall which stand on Mr. Monger's lot, or of any part thereof, in any manner which was hostile and adverse to his ownership of those four inches. Under these circumstances the defendant must fail in both aspects of this cause on the original bill and also on the cross-bill.
I will advise a decree that the complainant is entitled to the relief asked in the bill of complaint, and that the cross-bill of the defendant must be dismissed.