The issue in this case involves a right of way granted in a deed from Eliza Johnes Sanders to John S. Guerin, dated June 28, 1892, and recorded in Deed Book Y 26 at page 595 of Deeds for Essex County. The interior premises to which the right of way is appurtenant are now owned by the defendant Berger and leased to the defendant Roth-Schlenger, Inc. The servient tenement is owned by the plaintiff, who claims that the easement is being put to excessive use and is being used for the benefit of premises other than the dominant tenement.
The grant of the right of way is in the following language: "This conveyance is made granting unto the said John S. Guerin his heirs and assigns a right of way over the alley way leading from William Street and described in deed (G. 15-64)."
The deed referred to in this grant (G 15-64) conveyed the
tract adjoining the alley on the west, and contains the only recorded description of the alley as an alley or right of way, as follows: "This conveyance is made subject to the right of way of James H. Lent his heirs and assigns over a portion of the above described premises 8 feet 9 inches in width and next adjoining said Lent's property, as by reference to deed (P 14-269) will more fully appear." This description did not give the length of the alley and failed to indicate that the alley is, in fact, wider than 8 feet 9 inches at its inner end. The earlier deed referred to (P 14-269) also lacked any description but granted an easement in the following words: "With the right and privilege of ingress and egress * * * in and over an alley or passageway situate and adjoining on the east, the premises hereby conveyed * * *."
However, at the hearing the location and description of the right of way was not in dispute, and the alley is described by metes and bounds, although not as an alley or right of way, but as the second tract in the deed into the plaintiff's grantors (N 113-547), as follows: "SECOND TRACT: All the right title and interest of the parties of the first part hereto in and to and expressly subject to the rights of others therein the following described property: Beginning in the Northerly line of William Street at a point therein distant 58.10 feet Easterly from the Northeasterly corner of William Street and Halsey Street, thence (1) along the said Northerly line of William Street South 60 degrees East 8.83 feet; thence (2) North 31 degrees 27 minutes East 78.02 feet; thence (3) North 62 degrees 46 minutes West 14.17 feet; thence (4) South 23 degrees West 35.08 feet to the Northeasterly corner of the house standing on the land now or formerly of James H. Lent; thence (5) South 31 degrees 15 minutes West along the Easterly side of said house 42.50 feet to the Northerly side of William Street and the place of Beginning."
So it appears that the alley is 8.83 feet wide at its entrance on William Street, 78.02 feet in length, and 14.17 feet in width at the back, as is shown on the diagram submitted in evidence and annexed to this opinion as a part thereof.
In 1870 one Mackin conveyed to one Bell a tract (Deed Book G 15, page 64), including in the description the alleyway in question, as shown on the attached diagram, and reciting that "this conveyance is made subject to the right of way of James H. Lent, his heirs and assigns over a portion of the above described premises 8 feet 9 inches in width and next adjoining said Lent's property, as by reference to deed (P 14-269) will more fully appear." No deed other than this contains any description of the alley or right of way, as such, by metes and bounds, but the subsequent conveyance by Bell
to Sanders in 1884 (Deed Book M 22, page 143) was expressly "made subject to the right of way of James H. Lent his heirs and assigns over a portion of the above described premises as described in the ...