On appeal from the Superior Court, Chancery Division, Essex County.
For reversal -- Chief Justice Vanderbilt, and Justices Case, Oliphant, Burling and Ackerson. For affirmance -- Justices Heher and Wachenfeld. The opinion of the court was delivered by Oliphant, J.
[5 NJ Page 583] This is an appeal from a judgment of the Superior Court, Chancery Division, which determined that a public right of way or public roadway was established by an open, notorious and adverse user over the lands of the defendants,
describing the same, but reserved a determination as to certain portions of the claimed right of way over open lands until the width and areas of this part of the way had been determined by a surveyor appointed by the court, and denying damages to the plaintiff for the obstruction of the alleged public right of way. This appeal is here on our own motion.
The controversy arose in 1942 when the appellants, Dover Boiler and Plate Fabricators and L. O. Koven & Brother, Inc., at the insistence of the United States Government, erected a fence around the entire property occupied by their plant, including lands leased from the appellants, Hudson Realty Company, Inc., and The Delaware, Lackawanna & Western Railroad Company, Inc., thus obstructing and interfering with the use of the alleged right of way. In 1947 the appellants closed the fence gates of their own volition. This proceeding was then brought by the respondent to enjoin the appellants from closing the alleged roadway and interfering with the use thereof, on the ground that an easement or a right of way exists over the lands owned by the appellants.
The Attorney General of the State of New Jersey and the Town of Dover were made parties defendant because of the alleged public interest in the so-called right of way. The Attorney General neither entered an appearance nor filed an answer on behalf of the State. The Town of Dover filed an answer in which it reserved the right to move to strike the bill of complaint on the ground it did not set forth a cause of action against the Town of Dover. In the final judgment the complaint was dismissed without costs as to the defendant, Town of Dover.
Dover Boiler and Plate Fabricators is a wholly owned subsidiary of L. O. Koven & Brother, Inc., and title to the lands in question has been in it or its predecessors in title since September 23, 1916. The Hudson Realty Company, Inc., is a wholly owned subsidiary of The Delaware, Lackawanna & Western Railroad Company, Inc., and lands in question owned by them were acquired by their predecessors in title respectively
on November 3, 1902, and October 14, 1910, and have been leased to the Dover Boiler and Plate Fabricators, or their predecessors in title, since 1916 and 1941 respectively.
The lands are adjacent to the right of way of The Delaware, Lackawanna & Western Railroad and are separated therefrom by a fence. The roadway between the manufacturing plant and the tracks is well defined and used by the Dover Boiler and Plate Fabricators in the operation of its plant and to reach the lands leased from the realty company and railroad company east of the plant used as a storage area. Park Avenue, on which the property of plaintiff is located, lies on the south of the lands of the realty company and the railroad company and runs in a southwesterly and northeasterly direction from the said lands to Morris Street. The grade of Park Avenue is rather steep and the plaintiff's property is about 500 feet from the foot of Park Avenue. The land of the realty company and railroad company over which the right of way is alleged to run is vacant, unimproved and unenclosed land which at one time was used as a rye field and baseball diamond.
Various witnesses, including people who had lived there upwards of forty years, testified that the residents of upper Park Avenue had used a shortcut across these fields to go to town and that children had gone to school that way and that coal dealers, milkmen, delivery boys and others making deliveries to the houses in Upper Park Avenue used the way whenever passage over it was possible, and at times the various departments of the City of Dover used it, such as fire companies, water department and others. The testimony indicated that this user had extended for a period of thirty to forty years. Plaintiff also testified that Park Avenue was so steep as to be practically impassable, leaving the route across the defendants' lands as the only means of ingress to and egress from this particular Park Avenue area available to the residents thereof and those who had business with them.
There is not the slightest bit of testimony in the case that any of the persons going through the ...