For the plaintiff-appellant, Lindabury, Depue & Faulks (Walter D. Barker and Scott M. Long, Jr., of counsel).
For the defendant-respondent, William J. O'Hagan.
The opinion of the court was delivered by
CASE, J. This is an appeal from a judgment of the Supreme Court entered in favor of the defendant in an action of ejectment following a trial in the Monmouth Circuit.
Plaintiff owns an ocean front residence property, purchased by her in 1926, which lies in the borough of Allenhurst and on its southerly boundary abuts Elberon avenue, a public highway fifty feet in width. The boundary line between the borough of Allenhurst and the township of Ocean runs lengthwise through the middle of Elberon avenue. Up to 1929 the borough of Allenhurst had maintained a sewer pipe under the surface of its portion of Elberon avenue and had flushed its sewage through that pipe into an outfall pipe which extended approximately one thousand feet into the ocean and there discharged. In 1929 the borough, to obtain a more sanitary system of disposal, removed a section of the sewer pipe at or near the connection with the outfall pipe
and in its place constructed a tank twenty-eight feet six inches in length, twelve feet in width and nine feet six inches in depth. That tank was in the line of the defendant's portion of Elberon avenue and at the easterly end was sixteen feet westerly of the ocean bulkhead line. The tank constituted an underground contact chamber which temporarily held back the sewage to permit sterilization by the admixture of a chlorine solution. To shelter the tanks of chlorine gas, the mixing machinery and other equipment, a structure, designated a chlorinator house, was built above the surface of the ground at the east end of and overlapping a portion of the tank. The building is of stucco, is approximately twelve feet square, measures seven feet from ground to eaves and has a peaked roof. The tank and the chlorinator house constitute a unit -- so designed, so constructed and so used. The solution is prepared in the house and passed down into the lower chamber or tank, where it is mixed with the sewage. House and tank must be near each other as it is not feasible to conduct the solution more than one hundred and fifty feet and the one would not function without the other. The delivery of sewage to the contact tank is by the former sewer pipe. The effluent is ultimately discharged into the sea by the theretofore existing outfall pipe.
Plaintiff's contention was that as an abutting owner she owned, subject to the public easement, to the middle of the street wherein the tank and the house were located, that these objects were not within the easements to which land dedicated to street purposes is subject and that the borough, in building and maintaining them, was depriving plaintiff of her lawful possession. The trial judge took the view that the maintenance of the contact tank was a severable use and was within the category of legitimate public street uses. He nonsuited the plaintiff as to it and put the matter of the chlorinator house to the jury. At the close of the case he refused the plaintiff's motion for a directed verdict. The nonsuit and the refusal to direct are the main grounds argued for reversal.
We find no substantial reason for dividing the construction into parts. The chlorinator house and the contact tank are
essential to each other. They were built as a unit and in fact form a unit for the treatment of sewage. They are an integrated construction. The engineer's drawings under which they were built show this conclusively. Their primary function is not to afford passage for sewage. On the contrary it is to retard passage and to utilize that retardation as one of the necessary steps in sterilization. Either, alone, accomplishes no purpose. Proximity of one to the other is necessary. Immediately to the south is Ocean township and to the north is private property, in either of which the defendant has no rights. A more easterly location for the chlorinator house is not practicable because of the waters of the ocean. Plaintiff's property abuts the highway northerly for more than the maximum distance, and precisely the questions now presented would follow the removal of the building to any point in the highway within that distance. Therefore, upon the issues as presented, we conclude that the tank is one with the house. For reasons that will presently appear we think that the whole case could not properly have been nonsuited. Therefore the nonsuit as to the tank was error.
The lands owned by the plaintiff, those where the street now is and where the litigated structures are located and for long distances east, west and north were originally owned by Abner Allen. In 1848 Allen acquired, by deed, a tract of two hundred and forty-seven acres of land bounded on the east by the high water mark of the Atlantic ocean, comprising all of the present borough of Allenhurst and the portion of Ocean township adjacent thereto. His title and his various acts with respect to his title, ownership and possession are not disputed; and the absence of any disproof of that title, ownership and possession forms, as we believe, an important link in the chain of events by which the law is controlled. On October 4th, 1866, Allen conveyed to Mary Boyle -- and Boyle presently devised to Emma Knapp -- the southern portion of the tract, creating a boundary line between the two divisions that later became and still is the center line of Elberon avenue. There was then no highway, but between 1876 and 1881 Allen and Knapp laid out and opened up a road with the division line between the properties as the center [115 NJL Page 460] line of the new road, which ran from the highway now known as Norwood avenue easterly to the high water mark of the Atlantic ocean. Knapp's grantees made further dedication. The new road, originally called First avenue, is the present Elberon avenue. On June 11th, 1880, Allen filed in the Monmouth county clerk's office a map made by James McCrea, a civil engineer, drawn on a scale of fifty feet to the inch, which shows so much of his then remaining lands as lay between present Norwood avenue and the Atlantic ocean, and shows the location of the then "high water mark" of the ocean. The map also shows a strip of land twenty-five feet in width from the "public road" (Norwood avenue) to high water mark of the Atlantic ocean set off, for street purposes, from Allen's land adjoining the division line between him and Boyle and marked "First avenue." A like strip of land dedicated by Knapp and her successors made up the fifty-foot width. The Allen map also shows at the southeast corner of the tract a lot numbered "1," the north, south and west lines of which are, by compass description, accurately related to established monuments. The south line is made to bound upon "First" (Elberon) avenue, the north and south lines run to high water mark and the easterly boundary is the high water mark of the ocean. Plaintiff by an unbroken chain in title is now seized of the southerly half of Lot No. 1. The conveyance out of Allen was to Harriet Hall and others, dated March 11th, 1881, recorded March 24th, 1881. It identifies the land as lot No. 1 on the said map, gives a fixed starting point by reference to ...