Clapp, Smalley and Schettino. The opinion of the court was delivered by Clapp, S.j.a.d.
The issues brought up by this appeal and cross-appeal are twofold: whether, as defendants contend, the right of way here has been lost through estoppel or abandonment; and if not, whether, as plaintiffs contend, a mandatory injunctive order should issue to compel the defendants to remove a four-car garage erected by defendants in 1950, obstructing the right of way. The court below sustained the easement, but denied the injunction. 28 N.J. Super. 351 (Ch. Div. 1953).
This right of way had been created by grant over 30 years ago; and defendants, taking title to the servient tenement in 1944, took expressly subject to it. By deed in 1945 plaintiff, Mr. Rossi, acquired the dominant tenement, the rear
abutting the rear of defendants' property; and in the deed, by express grant, there was conveyed to him this right of way
"for ingress and egress of motor vehicles to and from premises hereby conveyed."
On plaintiffs' property there is erected what had once been a large public garage, with an exit in the front to the street and another in the rear to the above-mentioned right of way across defendants' property. Mr. Rossi has made this garage a factory building.
The right to an easement may be lost either through estoppel, Johnston v. Hyde , 33 N.J. Eq. 632, 643 (E. & A. 1881); Andrews v. Cohen , 221 N.Y. 148, 116 N.E. 862 (Ct. App. 1917); Restatement of Property , § 505; 2 American Law Property , § 8.100; or through abandonment, even though there has been no estoppel or adverse user for 20 years. Raritan Water Power Co. v. Veghte , 21 N.J. Eq. 463, 480 (E. & A. 1869); Arlington Realty Co. v. Keller , 105 N.J. Eq. 196, 198 (E. & A. 1929); Nuzzi v. Corcione , 139 N.J. Eq. 339 345 (Ch. 1947); Bergen Turnpike Co. v. North Bergen , 95 N.J.L. 369 (Sup. Ct. 1920); Restatement of Property , § 504; cf. Fairclough v. Baumgartner , 8 N.J. 187, 189 (1951); Horner v. Stillwell , 35 N.J.L. 307, 314 (Sup. Ct. 1871); 25 A.L.R. 2 d 1265, 1279.
To make out both an estoppel and an abandonment, defendants rely upon three circumstances. The first of these -- that in 1946 a wall was constructed by plaintiffs within their factory, preventing vehicles from passing over the right of way through the factory and across plaintiffs' land -- is a quite immaterial matter. Plaintiffs do not purport to have (assuming they could have -- Niestat v. Equitable Security Co. , 6 N.J. Super. 148, 152 (App. Div. 1950); Gayetty v. Bethune , 14 Mass. 49, 53 (Sup. Jud. Ct. 1817)) a right of way over their own land. Nor is there any sufficient proof indicating that the easement on defendants' property was used by plaintiffs as part of a throughway over both
properties, so that it might be said that the building of the wall either signified an intention to abandon the easement itself or would have led a reasonable man to believe it had been abandoned.
The second circumstance played up by defendants are words of the plaintiff, Mr. Rossi. Twice at conferences in 1947 he refused to release the easement when offered a nominal sum on defendants' behalf. An intermediary claims then to have said that in view of the breakdown of the conferences he himself -- if he were in defendants' place -- would build garages on the right of way. To which Mr. Rossi is supposed to have responded -- and his words taken back to defendants -- "Let him build, who cares?" This most casual response by Mr. Rossi, doubtless spoken in irritation and uttered three years before defendants built the garages, is of trifling consequence here. It seems to be relied upon, not as making out a parol abandonment (as to the inefficacy of mere words, see Riehle v. Heulings , 38 N.J. Eq. 20, 23 (Ch. 1884), affirmed at p. 652 (E. & A. 1884); Restatement of Property § 504 c), but rather as adding significance to the third circumstance stated below, or as giving rise to an estoppel. To amount to an estoppel, the words should have been of such force as to lead a reasonable man to believe that Mr. Rossi had abandoned his right to the easement. Restatement of Property § 505 d. But no reasonable man would suppose he had done that; his very refusal, at about the same time, to sell the easement makes this entirely clear.
The third circumstance relied upon is the failure of plaintiffs to complain strenuously while the garages were being built. Mr. Rossi did make complaints, the court below found; but in what words made, and with what force, the testimony is unrealistically vague. His words do not bear the imprint of truth. He asked -- we have no doubt, though he denies the matter -- that a doorway be left in the rear of defendants' garage, to provide him with a rear exit. And, accordingly, defendants tore down two rows of cement ...