Opinion
12-20-1901
OPPENHEIM v. LOFTUS et al.
Wilbur A. Heisley and George, T. Werts, for complainant. Nathan C. Horton, for defendant Loftus.
Bill by Myron H. Oppenheim against Thomas J. Loftus and others. Injunction pendente lite denied, and cause retained, pending decision at law as to title.
Wilbur A. Heisley and George, T. Werts, for complainant.
Nathan C. Horton, for defendant Loftus.
EMERY, V. C The bill in this case is filed to compel the removal of a building erected by the defendants within the lines of what is claimed to be a roadway in the rear of complainant's lands. Complainant is the owner of property at Elberon, Monmouth county, fronting about 140 feet on Elberon avenue, 395 feet deep, and about 292 feet in width at the rear. He claims that along the whole line of the rear of his lot is a road called "Eaton Road," 50 feet in width, running north to an avenue running at right angles to Elberon avenue, and called "Park Avenue," and that he is entitled to ingress and egress to and from Park avenue along the whole rear line of his property, and over the entire width of 50 feet. The defendant, Mrs. Loftus has obstructed the entire road opposite a portion of complainant's property, by building a stable, which extends over the westerly half of the road as well as the easterly half, and prevents direct access to the road from that portion of complainant's property where his barn is located. Complainant's title to relief against the obstruction, as presented in his bill, is presented in a twofold aspect—First he claims that the road was laid out by deeds of the original owner of the property on both sides of the road, under whom both parties claim, and that by virtue of these original conveyances a private easement or right of way over Eaton road to Park avenue was created by grant in favor of complainant's lots, and all other lots on the westerly side of the road; and, second, that he has a legal title to the westerly half of the roadway, and to the center of Eaton road, subject to this easement. The answer of the defendant Mrs. Loftus admits the erection by her of the building complained of, but denies complainant's title, either to the easement or to the roadway itself, or that complainant has any interest in the roadway, and submits that the matters complained of are relievable at law, and that this court can grant no relief. Defendant does not, in her answer, set up any claim of title to the roadway, but at the hearing deeds were offered by the complainant under which defendant Mrs. Loftus claims title to the whole roadway itself, as well as title to the lands opposite complainant on the easterly side of the road. The preliminary question to be decided in the case is whether, upon the pleadings and proofs as they stand, with reference to the legal title, complainant must first establish legal title by suit at law. In a previous case (Oppenheim v. Brand) the question of the existence of the easement in favor of complainant's property, as based on the deeds now relied on, was considered by me, and I reached the conclusion that the complainant was entitled to the easement claimed, and by final decree I directed the removal by the defendant Brand of a building erected by him on the westerly half of the road, and which obstructed complainant's access to Park avenue, but which building at the time of the decree was located, not opposite complainant's property, but north of his line and at a point on the road nearer Park avenue. The question principally argued in that case was whether this relief could be given before the establishment of the complainant's title at law, and the decision of the question involved the application of the rule recently laid down In Todd v. Staats (Err. & App. 1900) 46 Atl. 645. That case decided that when the fundamental right on which complainant prays equitable relief is the legal title to an easement in lands of the defendant, and the legal right is in substantial dispute, the establishment of the right at law is necessary before equity can interfere, and that if the relief prayed is based on the existence of such right, and the right is denied by the answer, the cause in equity should be held for the establishment of the right at law. For reasons stated more at length in the conclusions filed in the Brand Case, I held that where the facts upon which the existence of the easement depended were not in dispute, e. g. where it depended upon.deeds not disputed, and where the legal right of the complainant upon these admitted facts had been already settled by the direct decision of courts of law applicable to the admitted facts, the legal right could not be said to be in substantial dispute, and I further held that, in such cases, under the previous decisions of the court of errors and appeals, equitable relief upon settled legal rights could be granted without first sending the parties to law for the purpose of having an additional adjudication inter partes, based on rules already settled. Hart v. Leonard (Err. & App. 1886) 42 N. J. Eq. 416, 419, 7 Atl. 865, citing, under head 3, cases previous to that date; also the following cases, subsequently decided, and in which equitable relief, which was the ultimate remedy necessary, was granted without sending to law. Bailey v. Schnitzius (Err. & App. 1895) 53 N. J. Eq. 235, 32 Atl. 219; Newhoff v. Mayo (Err. & App. 1891) 48 N. J. Eq. 619, 23 Atl. 265, 27 Am. St. Rep. 455. In Todd v. Staats, the legal title on the admitted facts had not been already settled by decisions at law, and there was therefore a substantial dispute as to the legal right, and in Oppenheim v. Brand I did not consider the decision in Todd v. Staats as overruling, or intending to modify, the effect of the previous decisions. The decision in Todd v. Staats had been announced or promulgated after the filing of the bill in Oppenheim v. Brand, and the conclusions were filed shortly after the hearing, in order that they might be reviewed without delay on appeal. No appeal, however, was taken, and the present cause has been submitted by other counsel for defendant, upon the briefs and arguments submitted for defendant in the Brand Case, and without appearing before me, or in any way calling my attention to any distinction to be drawn between this case and the Brand Case. There are two obvious points of difference: First. The present bill presents for adjudication a claim of legal title to the westerly half of the road subject to the easement. In the Brand Case, this question of title to the soil of the roadway was not involved at the final hearing, and the decision was expressly based on the right to an easement. In the second place, the building here complained of has been erected by defendant partly upon the westerly half of the road, to which half complainant claims title, and partly upon the easterly half, to which complainant claims only an easement, and the bill seeks a removal of the entire building. In the Brand Case, the building was located entirely on the westerly half of the road. Under the evidence in the case, both these points of difference between the Brand Case and the present case are so vital that, in my judgment, so long as the complainant stands on his claim of title, as stated in the bill, his title cannot be considered as so settled in his favor by decisions at law that he is relieved from the usual rule of requiring that title to be first established at law. Complainant acquired the property in question by two deeds, one conveying a lot 100 feet in width on Elberon avenue, and 100 feet wide in the rear and the other conveying 30 feet front on Elberon avenue and 292 feet in width in the rear. These deeds both convey by metes and bounds, which in fact reach to the westerly side of the road, and run along the westerly side of the road. But in neither of the deeds does the description in terms bound the rear line on the westerly side of the road, or in terms run along the road. The deed for the 100 feet strip runs "from the center of Elberon avenue 395 feet to the westerly line of a road leading to Park avenue, and located between the property hereby conveyed and a tract of land formerly known as 'Blythebeach Park.'" The second and third courses are as follows: "Thence (2) south 20 degrees and 9 minutes, west 100 feet, to lands belonging to Theodore Runyon; thence (3) along Runyon's north line north 69 degrees 51 minutes, west 395 feet, to the center line of Elberon avenue." This description, it will be observed, does not bound the rear line of the property on the road, or refer to it at all, and, so far as the mere description in the deed is concerned, non constat that it bounds on the road at all. In complainant's deed for the second portion of his tract, which includes the 292 feet in the rear, opposite part or which the obstruction now complained of is erected, there is also a description by metes and bounds, which in fact locates the rear line at the westerly side of the road, but in the description of the deed itself there is no reference whatever to the road, or to its westerly line. The description, commencing in the center of Elberon avenue, at the southwest corner of complainant's first lot, runs "(1) south 69 degrees 51 minutes, east 395 feet" (without reference, it will be observed, to the line of the road as a monument); "thence (2) south 20 degrees 9 minutes, west 192 feet 6 inches to a stone in the southeast corner of Mrs. Runyon's lot"; and then follow the courses to the west and away from the road. It is not settled by our decisions at law that descriptions of this character, which do not purport to bound on the roads, convey to the center of the road, even if the roads are public highways, and certainly the rule cannot be considered as settled in reference to roads not admitted to be public highways, and in which the easement relied on is a private easement. The cases at law hitherto decided are all cases where not only were the lands in fact located on a public highway, but the lands were described as bounded by, or running along, the highway. Salter v. Jonas (Err. & App. 1877) 39 N. J. Law, 409, 23 Am. Rep. 229; Freeman v. Sayre (Sup. 1880) 48 N. J. Law, 37, 39, 2 Atl. 650; Ayres v. Railroad Co. (Err. & App. 1890) 52 N. J. Law, 405, 407, 20 Atl. 54; Association v. Shriver (Err. & App. 1900) 64 N. J. Law, 550, 554, 46 Atl. 690, 51 L. R. A. 425. In the deeds to some of complainant's earlier predecessors in title, thelands conveyed are expressly bounded on the westerly side of the road, but the description in the deeds, to both of complainant's grantors, Mrs. Runyon and Mr. Strong, is similar to that of complainant's, in the particulars now under inquiry. In the deed from Hendricks to Mrs. Runyon no reference is made to the deeds from which Hendricks received title, and in the deed from Hendricks to Strong, the other grantor of complainant, the premises conveyed are said to be part of the premises previously conveyed to Hendricks. Complainant's claim of title in fee to the roadway is not therefore extended by the reference to prior deeds made in his own deed, and stands upon the terms of the description in his own deeds. As, therefore, complainant, by his bill and on the hearing, asks a decree based on a title in fee to the soil of the westerly half of the roadway, this title must be settled at law. If complainant desires to amend his bill by withdrawing this claim of title, and to stand only on the right of private easement over the westerly half of the road, attached to the lot within the described boundaries, and to obtain a decree based on this right alone, as in the Brand Case, I will consider the application to amend. In reference to the easement over the easterly half of the road, the bill claims that for more than 20 years the owners of the lands on both sides of Eaton road have placed fences along either side of the roadway, which has since been used by the several owners and their successors in title, for access to their properties, openly, notoriously, and continuously. This use is denied by the answer, and it appears by the evidence that for some time prior to complainant's purchase of the Runyon lot, and to the filing of the bill, the entire easterly half of the road from Park avenue up to or nearly up to complainant's line had been fenced in and inclosed by the owners of the lands on that side of the road, and the road has not been used for ordinary access to these properties lying east of the road. Opposite complainant's property, a hedge occupied the center line of the roadway, until a portion of it was removed by the erection of defendant's building. The easterly half of the roadway being at present wholly inclosed, except opposite complainant's property, and the defendant claiming the right to inclose it and build on it, no injunction should be granted as to this portion of the roadway before the establishment of the title at law.
No opinion filed.
Upon the claims of title now made, the case must be retained for the establishment of the title at law.