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Toth v. Bigelow

Decided: February 21, 1949.

FRANK A. TOTH, COMPLAINANT-RESPONDENT,
v.
FREDERICK BIGELOW, DEFENDANT, AND NEW JERSEY ZINC COMPANY, DEFENDANT-APPELLANT



On appeal from the former Court of Chancery.

For affirmance: Chief Justice Vanderbilt and Justices Heher, Wachenfeld, Burling, and Ackerson. For reversal: None. The opinion of the court was delivered by Burling, J.

Burling

[1 NJ Page 401] This is an appeal by the New Jersey Zinc Company from an order of the former Court of Chancery denying a motion by the appellant to dismiss a bill to quiet title. The bill, filed under the statute, R.S. 2:76-2 et seq., to quiet title to approximately 10.71 acres of land in Sussex County, named appellant and one Frederick Bigelow as defendants. As the result of an interchange of pleadings the jurisdiction of the Court of Chancery was placed in issue and the matter came on for preliminary hearing limited to the jurisdictional issue conformably to the practice of that court. At the conclusion of

respondent's case the appellant moved to dismiss the bill. From a denial of this motion this appeal was taken. Frederick Bigelow, the other defendant, filed an answer setting up title to a portion of the land in question in himself and neither questioned the jurisdiction of the Court of Chancery nor joined in the appeal.

When the jurisdiction of Chancery is disputed in an action to quiet title under the statute, R.S. 2:76-2 et seq., it is the practice to bring the matter on for preliminary hearing upon that question alone. Sheppard v. Nixon, 43 N.J.E. 627, 632 (E. & A. 1887); Fittichauer v. Metropolitan Fire Proofing Co., 70 N.J.E. 429, 433 (Ch. 1905); Kocher & Trier, New Jersey Practice and Precedents, Sec. 316, p. 941 (1924). At such hearing the statutory requirement is satisfied if the complainant proves peaceable possession of the land in question, a claim of ownership thereof by himself, a denial or disputation of his title or any part thereof or interest therein by any other person claiming to own the same and that no suit is pending to enforce or test the validity of such adverse title or claim. A proof of the above factors would appear to satisfy the statutory requirements, but to them the Court of Errors and Appeals in Jersey City v. Lembeck, 31 N.J.E. 255 (E. & A. 1879) added the requirement that the complainant must also prove that he is unable to obtain an adequate remedy at law through an action in ejectment. Upon proof of these elements the bill will be retained for disposition upon the merits.

An examination of the record in the instant case and of the statement of questions involved discloses that the appellant has challenged the jurisdiction of Chancery upon two grounds, the resolution of either of which in its favor would necessitate a dismissal of the bill.

The first of these is the allegation that the respondent is not in possession of the land in question within the meaning of the statute. The factual background of this allegation is as follows: Both parties claim title to the premises through mesne conveyances from a certain Dr. Samuel Fowler who, prior to September 1, 1836, was seised of the premises together with other lands. On that date he conveyed unto Nathaniel Wetheral,

Jr. and William L. Ames in fee certain land not now in question, together with "all the iron, zinc and other ores on or within any of the lands of the said Samuel Fowler in the said County of Sussex." The respondent, after alleging his title to the surface of the land to come, via mesne conveyances, from the said Dr. Samuel Fowler, alleges that the title to the mineral rights is also in him through an entirely different chain of title. The appellant while conceding respondent's title to the surface, contends that complainant's chain of title to the minerals is based upon a fallacious interpretation of certain deeds in that chain of title and that a correct reading thereof results in a break in respondent's chain of title. Further, it is appellant's contention that ownership of the minerals is in itself through a third chain of title, likewise derived from Dr. Samuel Fowler. Although the appellant has never taken steps to reduce the minerals in question to possession it advances the proposition that whether it has done so or not is immaterial; that since there was a severance between ownership of the surface and of the minerals possession of the surface does not import possession of the minerals and, since possession is a statutory predicate of this action, the respondent has failed to prove the necessary factors to warrant a retention of the bill with the resultant conclusion that it should have been dismissed.

We are met at the outset by the preliminary question of whether it is necessary at this time to enter into an examination and interpretation of the instruments in the respective chains of title of all the parties concerned. Appellant urges us that it is necessary to do so, his premise being based upon the argument that, a severance having occurred, a proper interpretation of the chains of title would show that such severance has never been reunited. While this could conceivably be true we do not deem it necessary to consider the matter for we are of the opinion that this is a matter for decision at the time when the case is heard on the merits. At that time the appellant may present evidence and argument that it deems fit in opposition to respondent's case, including the arguments based upon an interpretation of the chains of title. We are of the

opinion, however, that at this stage in the suit it is neither necessary nor proper for the court to consider this argument.

In its essential elements the question is whether possession of the surface carries with it possession of the minerals underneath it in the face of an allegation of severance by a prior common owner, neither party having attempted to reduce the ...


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