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Niestat v. Equitable Security Co.

Decided: January 11, 1950.

HARRY NIESTAT, PLAINTIFF-RESPONDENT,
v.
EQUITABLE SECURITY COMPANY, A NEW JERSEY CORPORATION, MEYER LOBSENZ, SIDNEY LOBSENZ, NATHAN P. LOBSENZ, TRUSTEE, R. LOMAURS & SONS, INC., AND THE CITY OF PASSAIC, DEFENDANTS-APPELLANTS



Jacobs, Donges and Bigelow. The opinion of the court was delivered by Jacobs, S.j.a.d.

Jacobs

This is an appeal from a judgment entered in the Chancery Division which determined that plaintiff had a valid right of way, restrained defendants from interfering therewith, and dismissed their counterclaim.

In 1862 Edo Kip, the owner of a tract of land in Passaic, caused a map thereof to be made upon which streets and lots were plotted. Lot No. 1 was approximately 114' x 50' and was located at the corner of Railway Avenue and Jefferson Street, Lot No. 2, approximately 109' x 50' and fronting on Railway Avenue was immediately in the rear thereof, and Lot No. 3, approximately 105' x 50' was immediately in the rear of Lot No. 2. Lot No. 4 was a long plot 150' x 50' fronting on Jefferson Street. The right of way claimed by the plaintiff, and disputed by the defendants, appears on the map in the form of an unnumbered plot eight feet wide and sixty-five feet long fronting on Jefferson Street, adjacent to Lot No. 4, and extending along Lot No. 1 for fifty feet and into Lot No. 2 for the additional fifteen feet. In January, 1868, Kip conveyed Lot No. 2 to Post by deed which contained the following, after a metes and bounds description and a reference to the map:

"Together with the right of way over a strip of ground 8 feet wide from Jefferson St. across the rear of lot No. 1 and adjoining Lot No. 4 on said map. The parties of the first part reserving the right of way over the rear of the lot hereby conveyed over a strip

of ground 8 feet wide for a distance of 15 feet along the southwest line of Lot No. 4, for the use and benefit of the future owners or occupants of Lot No. 4, said strip or right of way to connect with the strip or right of way before mentioned."

In July, 1869, Kip conveyed Lot No. 4 to Conkling, a predecessor to plaintiff's title. This conveyance did not mention the right of way but referred to the map after a metes and bounds description. Kip also conveyed Lot No. 1, now owned by defendants-appellants, by a metes and bounds description and a reference to the map. This conveyance did not include title to the eight-foot strip; in fact, this strip was never conveyed by Kip and the defendants-appellants acquired title thereto through a tax foreclosure sale.

The plaintiff filed a bill of complaint in the Court of Chancery alleging that he was the owner of part of Lot No. 4 fronting on Jefferson Street, that he had an easement of right of way over the adjacent eight-foot strip and that the defendants were unlawfully interfering therewith and should be enjoined. The defendants moved to dismiss the bill on the ground that the plaintiff's easement had been extinguished by the tax foreclosure sale, but this motion was denied by Vice-Chancellor Lewis whose opinion is reported in Niestat v. Equitable Security Company , 138 N.J. Eq. 480 (Ch. 1946). No appeal was ever taken from this ruling, nor is any error now alleged with respect thereto.

On September 29, 1948, a pretrial order was entered which set forth that the parties had stipulated that the "easement which is the subject of this controversy has been enjoyed by the plaintiff and his predecessors in title for a period of upwards of 60 years except as it may have been affected by the claim of adverse possession or user interposed by the defendant." Thereafter the trial was held and testimony was introduced. The lower court found that this testimony failed to establish the adverse user alleged by the defendants and indicated that the right of way had been openly used in common by the defendants and the plaintiff, and their predecessors, for over thirty years. After the hearing was concluded the defendants sought and were granted leave to introduce

the prior deeds, particularly those from Kip to Post and Conkling, in support of the contention, which they then advanced for the first time, that no enforceable easement over the eight-foot strip had ever been created by Kip and that, consequently, the plaintiff should not prevail. The plaintiff contends, however, that Kip did create an enforceable easement to which he has succeeded; he does not rely additionally, as perhaps he might, on rights acquired solely by prescription.

We are satisfied that Kip intended to and did create a right of way in favor of the purchaser of Lot No. 4 and there are no bona fide purchasers involved who might be in a position to assert that they purchased their property without knowledge of the right of way. The map itself, to which all the pertinent conveyances referred, clearly disclosed the long narrow strip surrounded by Lots Nos. 1, 2 and 4, and was sufficient to indicate the grantor's valid establishment of an alleyway, even though not specifically named as such, for the use of the purchasers of the surrounding property. See Lenning v. Ocean City Ass'n. , 41 N.J. Eq. 606, 608 (E. & A. 1886). Furthermore, the conveyance from Kip to Post might well be construed as a covenant between them that future grantees of Lot No. 4 would have a right of way along the eight-foot strip appearing on the map. The fact that express words of covenant were not used is not significant where the intent to covenant satisfactorily appears. See Coudert v. Sayre , 46 N.J. Eq. 386, 395 (Ch. 1890). Viewed as a covenant for the benefit of a third party, it may be enforced notwithstanding that the third party was a future grantee. See Lister v. Vogel , 110 N.J. Eq. 35, 40 (E. & A. 1932); Magna Manufacturing Co., Inc., v. Aetna Casualty and Surety Company , 129 N.J. Eq. 142, 147 (Ch. 1941). Finally, the pertinent circumstances disclosed that Kip at all times ...


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