The opinion of the court was delivered by: FORMAN
The defendant, William Sandlass, now deceased, denies the government's title to a forty foot right of way, and asserts that such right of way could not exceed a width of twenty-four feet, that being the practical extent at the time of the government's acquisition of title. It is also claimed that the government's right of way is presently ineffective and vitiated, because its southern end joins an abandoned roadway, title thereto having reverted to defendant. Defenses of unclean hands, laches, adverse possession in the defendant, lack of notice of the government's right of way, and the existence of an adequate remedy at law are asserted. As a counterclaim defendant alleges that the government has claimed exclusive dominion over part of its alleged right of way and unwarranted dominion over other parts, and against these acts an injunction is sought.
The right of way involved herein has its inception with a map filed with the Clerk of Monmouth County in August, 1880, by the Highland Beach Association pursuant to its plan of developing a tract of land lying between the Atlantic Ocean on the east and the Shrewsbury River on the west, being located in the Borough of Seabright, County of Monmouth, State of New Jersey. This map divides this tract of land into lots numbered from 1 to 74, inclusive, running north to south. These lots are bisected by a forty foot right of way. Abutting on the east, and parallel thereto, is a sixty foot right of way of the New Jersey Southern Railroad. The forty foot right of way is designated on the map as Ocean Avenue. On the north of this property, as delineated on the map, the United States Government owned extensive property for military purposes (Fort Hancock, etc.).
The government acquired title on July 27, 1892, to lots 2 to 22, inclusive, "Together with a right of way over the road now laid out on lots Twenty-three (23), Twenty-four (24), Twenty-five (25), Twenty six (26), Twenty-seven (27), Twentyeight (28), and Twenty-nine (29) from said premises to the turnpike road leading to and over the bridge across the Shrewsbury River and called Ocean Avenue on said map, said right of way or road being forty feet wide through said lots Twenty-three to Twenty-nine both inclusive. Excepting, however, out of said premises the property of the New Jersey Southern Railway Company, being sixty feet in width throughout, and running through said premises as shown on said map. Also conveying hereby the strip of land being forty feet in width throughout and running through lot Number One (1) as shown on said map; said strip having been reserved by the party of the first part hereto in its conveyance of said Lot Number One (1) heretofore made to The Atlantic Highlands Association." (Italics supplied)
The purpose of this acquisition was to give the government access by land to its military reservation, and there is now a roadway opening from the reservation into the right of way. The gate to the reservation is ten feet wide, and neither now nor at any time has the roadway leading out of the reservation covered a width of more than approximately twenty-five feet.
The defendant's chain of title may be traced as follows: On November 1, 1887, the Highland Beach Association leased to the Highland Beach Improvement Company, hereinafter designated "Improvement Company", for a term of ten years from November 1, 1887 to November 1, 1897, lots 23, 24, 25, 26, 27, 28, 30, 31, 32 and 33, "excepting and reserving thereout the property of the New Jersey Southern Railway Company sixty feet wide and extending through said premises as shown on said map [map of 1880] and also excepting and reserving thereout a right of way forty feet wide and running through said premises as shown on said map with the appurtenances * * *."
The "Improvement Company" on November 1, 1887, sublet to the defendant, William Sandlass, portions of the above lots numbered 23 to 33 for a period of five years from March 1, 1888, to March 1, 1893.
On January 5, 1893, the "Improvement Company" sublet to the defendant, William Sandlass, for a term of five years from March 1, 1893, parts of lots "Nos. 23, 24, 25 and 26 * * * being substantially the same premises described in a certain lease [to the same party] * * * dated the Fourteenth day of June, 1892, and now occupied by the said parties for the operation of a gravity railroad". This property was described as lying between the eastern line of the present roadway and the right of way of the New Jersey Southern Railway.
On March 18, 1920, the Highland Beach Association granted William Sandlass title by its deed to the property lying between the northern line of the Central Railroad Company and the southern line of the United States (lots 23 to 29, inclusive), together with certain reversionary interests. The same exception contained in the lease of November 8, 1897, is noted.
At the outset this court is presented with jurisdictional objections. It is contended that a court of equity may not grant the extraordinary relief claimed where title is in issue, without first there being a determination of title in a court of law. Cases in New Jersey uphold this general proposition. But there does not exist herein that degree of dubiety as to the creation and extent of the right of way that would require a determination by a court of law. The problem depends entirely upon the construction of the instruments of title which would not lend itself to submission to a jury. Therefore, defendant's objection to a disposition of the case as being beyond the jurisdiction of this court must be overruled.
The crux of the defendant's case is based upon a construction of the language contained in the deed granting the right of way to the government, supra. The pertinent parts of the grant of right of way provide as follows: "together with a right of way over the road now laid out * * * said right of way or road being forty feet wide".
The defendant has established the fact that the physical use of the right of way to the extent of forty feet has never existed. Indeed, it was shown that prior to the government's deed of July 27, 1892, and during the term of one of the early leases set forth above, the defendant, William Sandlass, participated in the construction of a so-called switchback railroad which was located upon a portion of the right of way. This was replaced by the present structure which was erected soon after the lease to William Sandlass of January 5, 1893. Others testified that the roadway prior to the time the government acquired title was of the same dimensions as the roadway today, and that the encroachment at that time was to the same extent as it is ...