The facts in connection herewith are as follows:
On August 3, 1883, one Charles Ballinger was the owner in fee of a farm located in the Township of Delaware, County of Camden and State of New Jersey, bounded on its easterly side by what was then known as White Horse Road, and on its westerly side by a farm then owned by one Elmer Kay. At that time, the said Elmer Kay had no access to the White Horse Road except over the lands of the said Charles Ballinger.
On August 3, 1883, the said Charles Ballinger and Hannah E. Ballinger, his wife, executed a conveyance to Elmer Kay. The said conveyance reads, in part, as follows:
"* * * have granted, bargained, sold, aliened, enfeoffed, released, conveyed and confirmed, and by these presents doth grant,
bargain, sell, alien, enfeoff, release, convey and confirm, unto the said party of the second part, his heirs and assign, ALL the following described piece of land and premises running through the lands of the said Charles Ballinger for a lane or road which he the said party of the second part Elmer Kay agrees to make and keep in repair all the fence on the north side of the hereinafter described piece or parcel of land on the same forever."
Said conveyance further reads as follows:
"Together with all and singular, the buildings, improvements, woods, ways, rights, liberties, privileges, hereditaments and appurtenances, to the same belonging, or in any wise appertaining, and the reversion and reversions, remainder and remainders, rents, issues, and the profits thereof, and of every part and parcel thereof; AND ALSO, all the estate, right, title, interest, property, possession, claim and demand whatsoever, both in law and equity, of the said party of the first part, of, in and to the said premises, with the appurtenances: TO HAVE AND TO HOLD the said premises, with all and singular the appurtenances, unto the said party of the second part, his heirs and assigns, to the only proper use, benefit and behoof of the said party of the second part, his heirs and assigns forever. AND the said Charles Ballinger and Hannah E. his wife, for themselves, their heirs, executors and administrators, doth by these presents covenant, grant and agree to and with the said party of the second part, his heirs and assigns, that they, the said Charles Ballinger and wife, their heirs, all and singular the hereditaments and premises, herein above described and granted, or mentioned and intended to be so, with the appurtenances unto the said party of the second part, his heirs and assigns, against them the said Charles Ballinger and wife, their heirs, and against all and every other person or persons whomsoever lawfully claiming or to claim the same or any part thereof SHALL and WILL * * * WARRANT and forever DEFEND."
By mesne intervening conveyances, the plaintiffs herein eventually became vested with title in fee simple to the farm of Elmer Kay above referred to and whatever estate became vested by the Ballinger to Kay conveyance to the land therein described, and the defendant with title in fee simple to a portion of the lands owned in 1883 by the above referred to Charles Ballinger by conveyance from the devisees of Charles Ballinger.
Shortly after the above referred to conveyance from Ballinger to Kay, the latter constructed a roadway on what
he conceived to be the lands described in the 1883 conveyance. The lands described in said conveyance are upwards of 780 feet in length and run as above noted from the lands of Elmer ...