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Weber v. Dockray

Decided: March 18, 1949.

ALICE WEBER, PLAINTIFF,
v.
LANCELOT W. DOCKRAY AND ETHEL H. DOCKRAY, HIS WIFE, DEFENDANTS



Civil action.

Grimshaw, J.s.c.

Grimshaw

This is a motion by the plaintiff for judgment on the pleadings under the provisions of Rule 3:12-3.

From the pleadings the facts appear as follows:

On December 7, 1939, William O. Robinson, Wilhelmina O. Mauck and Leland Rex Robinson were the owners of Lot 29 on map entitled "Woodcliffe Park, Raccoon Island, in Lake Hopatcong, Morris County, N.J., property of Bower & Abbey Company, East Orange, N.J." On that date, Nordyke Metzger, owner of Lots 30 and 31 on the said map, entered into a

written agreement with William O. Robinson, which was duly recorded in the Morris County Clerk's office on December 16, 1939, in Book Z-35, page 333. By the agreement, Metzger granted to Robinson, his heirs and assigns forever "the right to store one automobile in the northwesterly half of the garage now situate on Lot 31 on map entitled 'Woodcliffe Park, Raccoon Island, in Lake Hopatcong, Morris County, N.J., property of Bower and Abbey Company, East Orange, N.J.' together with the right of access and egress to said garage from the highway as the same now exists or as the said garage may hereafter be repaired or appointed, which premises are situate in the County of Morris, in the State of New Jersey, to have and to hold the same with the appurtenances, unto the said party of the second part, his heirs and assigns to the only proper use, benefit and behoof of the said party of the second part, his heirs and assigns forever."

In 1944, the Robinsons and Wilhelmina Mauck conveyed Lot 29 to the present defendants. At the same time, William O. Robinson transferred to the defendants the right granted by Metzger to store one automobile in the northwesterly half of the garage on Lot 31. William O. Robinson died in February, 1946.

In 1945, Nordyke Metzger conveyed Lots 30 and 31 to Minnie Wright. The deed recited that it was made subject to the terms of the agreement between Metzger and William O. Robinson.

On December 26, 1945, Minnie Wright conveyed Lots 30 and 31 to the plaintiff. The deed recited that the conveyance was made "subject to the terms of a certain agreement between the party of the first part and William O. Robinson dated December 7, 1939, recorded in the Morris County Clerk's office December 16, 1939, in Book Z-35, page 333."

The question raised by this motion is whether or not, by the grant from Metzger, Robinson received an interest in Metzger's property which was capable of transfer or assignment. The plaintiff argued that Robinson received an easement in gross which expired with his death. Defendant, on the other hand, insists that the instrument resulted in the

creation of an easement appurtenant, which was capable of transfer by Robinson. The distinction between the two, of course, is that an easement appurtenant requires a dominant tenement to which it is appurtenant, whereas an easement in gross belongs to its owner independently of his ownership or possession of any specific land. It might very well be argued that the right here under consideration is an easement appurtenant granted to Robinson in connection with his ownership of Lot 29. In the construction of grants of this character the presumption is always in favor of their being easements appurtenant. 1 Thompson on Real Property, par. 348; Weigold v. Bates , 258 N.Y.S. 696. In construing a particular grant the court will consider the language used; the facts and circumstances existing at the time of the execution of the ...


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