On appeal from Superior Court, Chancery Division.
For affirmance in toto -- Justices Case, Wachenfeld, Burling and Ackerson. For affirmance as to counterclaim and for reversal as to the alleyway -- Chief Justice Vanderbilt, and Justices Heher and Oliphant. The opinion of the court was delivered by Burling, J.
[7 NJ Page 217] This is a civil action involving the conflicting claims of the plaintiff, Joseph Plaza, and the defendants, Anthony Flak and Frances Flak, his wife, to rights in lands mutually adjacent to their respective dwellings in the City of Passaic, and there is brought here for review a judgment of the Chancery Division of the Superior Court adverse to the
defendants. Defendants' appeal was addressed to the Appellate Division of the Superior Court and while pending there was certified to us upon our own motion.
The parties to this litigation are the owners of adjoining improved lots situate on Van Buren Street in the City of Passaic. The improvement on each lot consists primarily of a two-family house. Between these two structures there exists an areaway 4.75 feet in width, approximately bisected by the joint property line of the premises. It was stipulated at the trial that common owners of the two properties caused both the houses to be erected at the same time, some 38 or 40 years before the trial of this matter. The common owners conveyed out the property now owned by plaintiff to his predecessor in title on April 27, 1914, and that now owned by defendants to their predecessor in title on May 7, 1915. The area between the two houses was used in common as an alleyway by the owners and tenants of both properties until 1948 when the defendants erected a fence on the boundary line in the approximate center of the area. The plaintiff instituted this action to obtain a judgment compelling defendants to remove this fence, and defendants counterclaimed, seeking by that means to require plaintiff to remove another fence which extends for ten feet along the rear portion of the joint boundary line, which latter fence encroaches upon the defendants' property. Counsel for both parties signed the pretrial order waiving any rights which either of them may have had to a trial by jury. A trial to the court concluded in a judgment of the Chancery Division of the Superior Court filed on February 2, 1951, granting the relief sought by the plaintiff and denying the relief sought by the defendants in their counterclaim. Defendants appealed from the whole of the judgment to the Appellate Division of the Superior Court and while awaiting consideration there the matter was certified to this court upon our own motion.
Three questions are presented by this appeal. Of these two are similar substantive matters: the first relates to plaintiff's alleged prescriptive right to an easement over that
portion of defendants' premises contained within the areaway between the houses, the second concerns plaintiff's right by adverse possession to retain that portion of defendants' premises contained within the ten feet of fence on the rear of the boundary line between the premises. The third question is whether the defendants were deprived of due process of law in that they were denied a jury trial by the pretrial waiver thereof signed by their counsel. We deem the problem presented by the question of easement by prescription to be the crux of this case, so accord it first consideration here.
The gist of plaintiff's claim is that he has acquired an easement by prescription over that portion of defendants' premises contained within the area or alleyway between the parties' houses. It is well understood that "prescription" is the term usually applied to the acquisition of incorporeal hereditaments by adverse user, while "adverse possession" is the term applied in matters concerning title to lands. Black's Law Dict. (3 rd ed., 1933), p. 1405. Compare Clement v. Bettle, 65 N.J.L. 675, 678 (E. & A. 1901); 1 Thompson on Real Property (Perm. Ed., 1939), sec. 414, pp. 675, 677. Prescription has been a subject of discussion in our courts with some degree of regularity, hence it is necessary only to refer here to the principles laid down in the decisions, and not to repeat the history and development of this phase of our law. The American and English authorities are analyzed in Lehigh Valley R.R. Co. v. McFarlan, 43 N.J.L. 605, 617-630 (E. & A. 1881).
At an early date, it was laid down that the doctrine of prescription is based upon an analogy to the statutes of limitation which are concerned with adverse possession of land, although originally stemming from a theory or legal fiction of lost grant, which latter theory is more or less in disrepute today, and is dependent upon the same principles as adverse possession. Cobb v. Davenport, 32 N.J.L. 369, 385, 387 (Sup. Ct. 1867). This is likewise the general view. 17 Am. Jur., Easements, sec. 55; 1 Thompson on Real Property, (Perm. Ed., 1939), sec. 415, pp. 677-680; Minor on Real
Property (2 d ed. Ribble, 1928), Vol. II, sec. 984; Commentaries on Law of Real Property (Walsh, 1947), Vol. II, sec. 238; Burby on Real Property (1943), sec. 68; 16 Harv. L. Rev. 438, 439.
Therefore, there must exist a user that is adverse, hostile, continuous, uninterrupted, visible and notorious. Cobb v. Davenport, supra, p. 385; DeLuca v. Melin, 103 N.J.L. 140, 144 (E. & A. 1926). This must be a continuing, open, visible and exclusive user, hostile, showing intent to claim as against the true owner, and must be under a claim of right with such circumstances of notoriety as that the person against whom it is exercised may be so aware of the fact as to enable him to resist the acquisition of the right before the period of ...