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Hofer v. Carino

Decided: March 27, 1950.

WILLIAM R. HOFER, PLAINTIFF-APPELLANT,
v.
JOHN J. CARINO AND ANITA R. CARINO, DEFENDANTS-RESPONDENTS



On appeal from the Superior Court, Law Division, Gloucester County. Certified from the Appellate Division on motion of the Supreme Court.

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

Case

This action in ejectment concerns a disputed boundary line. Plaintiff appeals from the judgment entered on the granting of defendants' motion for a direction of verdict. He alleges as error the granting of that motion and the denial of a like motion in his own behalf.

The land is in the village of Williamstown, Gloucester County, near the intersection of a highway formerly known as Williamstown and Coles Mill Road, now Main Street, with another highway called Blue Bell Road. On April 17, 1920, the Hammonton Trust Company executed three conveyances, one to the predecessor in title of the plaintiff, another to the predecessors in title of the defendants and the third to the predecessor in title of Kathryn O. Miller, not a party to these proceedings. The Hofer land lay at the immediate intersection of the two highways; the Carino land, on the Blue Bell Road. The two tracts adjoined except for a short distance near the street where they were separated by the Miller tract, a wedge-shaped plot fronting on Blue Bell Road. The judgment extends the Carino line thirteen and one-half feet at the road frontage into what has heretofore been regarded as the Miller property and from there on back causes his line

to overlap both Miller and Hofer, as contended by those owners, by a varying distance approximately two feet in width at the narrowest point.

The deeds, although executed on the same day, were not given simultaneous recording. The deed for the Carino property was recorded May 13, 1920, that for the Miller tract May 15, 1920, and the one for the Hofer tract June 8, 1920. All three descriptions start with beginning points related to a single monument, described as a stone at the intersection of the center lines of the Blue Bell Road and of the Williamstown and Cloes Mill Roads. The Hofer description starts: "Beginning at a stone in the Williamstown and Coles Mill Road, now called Main Street, and running thence (1) south 41 degrees 20 minutes east 50.82 feet to a stone in the center of the aforesaid street where the Blue Bell Road intersects the same; thence (2) south 1 degree 30 minutes east 19.5 feet to a point in the center of Blue Bell Road * * *." The description of the Miller tract is: "Beginning at a point in the center of Blue Bell Road at a distance of 19.50 feet from a stone in the center of Williamstown and Coles Mill Roads marking the intersection of said roads and extending thence (1) south 49 degrees west 98.5 feet, thence (2) south 86 degrees east 80.90 feet to the center of Blue Bell Road, thence (3) north along said road 63 feet to the place of beginning." The Carino description starts thus: "Beginning at a point in the center of Blue Bell Road at the distance of 82.5 feet from a stone in the center of the Williamstown and Coles Mill Roads, marking the intersection of said roads * * *;" and the last two courses read: "(8) east 33 7/12 feet to the center of Blue Bell Road, thence (9) north along the center of said road 63.2 feet to the place of beginning." The deed by which the Hammonton Trust Company acquired title is likewise monumented: "Beginning at a stone in the Williamstown Coles Mill Road, running thence (1) south 41 degrees 20 minutes east 77 links to a stone in the center of the aforesaid road and where Blue Bell Road intersects same, thence (2) south 1 degree 30 minutes east 1 chain and 50 links to a stone in the middle of the last mentioned road * * *."

It will be observed that the sum of the road distances in the deeds out of the Hammonton Trust Company checks fairly accurately with the sum of the road distances in the deed by which it acquired title.

The stone called for at the intersection of the center lines of the two roads is not now there, but the point of intersection is definitely located, and is identified by surveyor's marks on the street pavement. It is suggested on behalf of defendants that perhaps the Williamstown and Coles Mill Road, or Main Street, has been widened and that the location of the center line has therefore changed; but there is no proof that such is the fact. Aside from the roads and their center lines and a tract of land called the Suter tract, adjoining Carino on the east, there are no monumented points or lines in any of the deeds. In the description of the Carino tract the sixth course, which is the rear line of that property and slightly more than 300 feet from the road frontage, is "south 55 degrees east 42.46 feet to a point, being corner of lands of one Suter," and the next course is "thence (7) north 44 degrees 30 minutes east along said Suter's land 300 feet to a point." While this reference to the Suter lands would, if they were accurately located, give a degree of definiteness, there is proof that the tract and the lots taken from it vary approximately fourteen feet, as they appear on the ground, from their deed descriptions and encroach upon Carino to that extent. And that is about the amount of disputed frontage which the latter claims on the opposite side.

The intersection between the center lines of Main Street and Blue Bell Road is a monument; not so controlling as if the original stone had been found rather than surveyor's marks in the pavement, but, nevertheless, a monument. The Suter line, although placed in some doubt by the evidence that the ground erections do not correspond with the deed descriptions and the calls contained therein, is nevertheless conceded, indeed contended, by counsel for both sides to be a monument. There is conflict between those two monuments.

Further doubt is thrown upon the superiority of the Carino description by this ...


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