Clapp, Jayne and Francis. The opinion of the court was delivered by Jayne, J.A.D. Francis, J.A.D. (concurring).
The present appeal encourages a consideration, perhaps, more accurately stated, a reconsideration, of one of the constituent elements of the proof of the adverse possession of land in the law of our State.
Although the question addressed to us is solely one of law, a succinct statement of the factual setting from which it arises is appropriate.
On March 14, 1946 the plaintiff acquired by deed lots Nos. 5 and 6 on Sylvania Avenue in block No. 39 as delineated on the tax map of the Borough of Neptune City, Monmouth County. The defendant Pearl Gravatt, now Pearl
Holfester, wife of the defendant Charles Holfester, had theretofore purchased by deed the adjacent lots Nos. 7 and 8 on June 24, 1940.
In 1922 one Ernest Stauch became the owner of lots Nos. 7 and 8 now owned by the defendants, and from the evidence it seems probable that in 1923 it was the father of Ernest Stauch, the then occupant of the premises, who initially provided a vehicular driveway along the west side of lot No. 7 adjacent to lot No. 6, but its exact location in relation to the easterly boundary line of lot No. 6 has not been definitely established by proof. In 1925 Ernest Stauch erected a garage with a second story apartment above on the rear of lot No. 7 and coincidentally constructed the concrete driveway at its present location. On June 6, 1953 the plaintiff caused a survey to be made by which the east line of lot No. 6 was ascertained and it was then discovered that a portion of the concrete driveway at its northwesterly point was .30 of a foot and at its southwesterly extremity .58 of a foot upon the plaintiff's lot No. 6.
The plaintiff prosecuted the present action in the Chancery Division judicially to establish his lawful ownership of the strip of land upon which the driveway encroached, to enjoin the defendants from its continued use and to require the defendants to remove the overlap. The defendants resisted the plaintiff's alleged cause of action by the averment of adverse possession.
Preliminarily we may observe that the common law did not recognize the loss of corporeal hereditaments by one and their transmission to another by the lapse of a period of adverse holding. Such seemed to be oppugnant to one of the most fundamental axioms of the law. It was said in Altham's Case , 8 Coke Rep. 153; 77 Eng. Reprint 707:
"For true it is, that neither fraud nor might
Can make a title where there wanteth right."
Title by adverse possession, it was thought, resembled the tortious acquisition of land without paying for it. The procurement
of tangible realty by adverse possession was therefore the creature of legislation.
Before 1237 claimants had been required to prove seisin on the day in 1135 when King Henry I died; then they were restricted to the day in 1154 when Henry II was crowned; in 1275 the boundary was moved forward to the coronation of Richard I in 1189 and there it remained for many years. Indeed, the length of the period progressively enlarged until in 1541 a claimant might be obliged to establish an adverse holding for over 300 years in order conclusively to sustain his title.
It appears to have been the statute (32 Hen. VIII, ch. 2) which inaugurated the policy of designating a definite period of years counting backward from the time of the litigation. It fixed 60 years as the period in real actions, but the statute did not apply to the increasing number of ejectment actions, and that circumstance, inter alia , doubtless motivated the enactment of the statute of limitations, 21 Jas. I, ch. 16 (1623), which forbade entry on land by one against whom it had been adversely held for 20 years or more.
The foregoing historical comments, not especially unfamiliar, have taken a range much wider than is warranted by the specific subject with which we are here concerned, but they are in general indicative of the consanguinity of our legislation on the subject. Sections 1 and 2 of the act of June 5, 1787 (2 Gen. Stat. 1972) fixed the 60- and 30-year periods. Section 9 of the act of February 7, 1799 (2 Gen. Stat. 1977, § 23) established the 20-year limitation. Their statutory descendants may now be found in N.J.S. 2 A:14-30 and 2 A:14-6. The decisions in Den ex dem. Johnson v. Morris , 7 N.J.L. 6 (Sup. Ct. 1822); Lehigh Valley R.R. Co. v. McFarlan , 43 N.J.L. 605 (E. & A. 1881); Spottiswoode v. Morris & Essex R.R. Co. , 61 N.J.L. 322 (Sup. Ct. 1898), affirmed 63 N.J.L. 667 (E. & A. 1899), are exceedingly informative.
We may also interrupt to remark that there is a distinction in the legal catalogue between title by adverse possession and title by ...