On complaint to quiet title.
Drewen, J.c.c. (temporarily assigned).
This suit is brought to quiet title to a parcel of land comprising a small portion of an approximately 22-acre peninsula that juts into the waters of Lake Hopatcong. The peninsula is commonly referred to as an island, "Callaghan's Island." The defendant is an aggregation of persons owning bungalows and camp sites within or near the disputed area. It is admitted for present purposes that the plaintiff corporation has record title to the whole of the peninsula, with the exception of the portion now in question. Plaintiff acquired its title by a deed of October 30, 1951, which purports to be a conveyance to plaintiff by persons known and referred to as the Callaghan heirs, of all the lands comprising the peninsula, "excepting therefrom, however, all of the lands, rights and privileges described in and granted by a certain deed from Daniel Callaghan and Rose A. Callaghan, his wife, to the Consumers Coal & Ice Company, dated and recorded September 3, 1915 in the office of the Clerk of Morris County in Book H-23 of Deeds, at page 1." The land thus excepted is what is known in this case as "the ten foot strip," the same being a perimeter of the stated width running along much of the peninsula, and having been acquired by Consumers Coal & Ice Company to provide space for the heaping of snow removed in the harvesting of lake ice. Daniel Callaghan, whose 1915 deed to Consumers constitutes the exception stated, derived his title from one Aaron Peck, by deed to the said Daniel Callaghan made and recorded in 1884. While the Aaron Peck deed is in evidence, proof of the metes and bounds of what it conveys is not, for the reason that there is nothing in the case to carry out the deed's description by explaining the effect of its numerous references to other deeds.
In the pretrial order the disputed area is set down as that portion of the peninsula "which lies north of the record title of its (plaintiff's) predecessors in title and south of the southerly line of exception contained in its deed of conveyance from the Callaghans, namely the land described in the deed" of the Callaghans to Consumers of September 3, 1915, aforementioned.
This exception, plaintiff admits, consists of the ten-foot strip already mentioned and running the entire length of the northerly perimeter of the island and along its northwest side. Immediately south of the ten-foot strip is the area in dispute, the southerly boundary of which is the title line known as the X-Y or Snyder line, this being a straight line running southwesterly from a point near the northwest corner of the peninsula to its intersection with the west shore thereof at a northerly part. Roughly, therefore, the disputed area is triangular; it is referred to as the "gore." Its total content is about an acre. It is to be taken from the testimony of defendant's witness Scherzer, a land surveyor, that the distances from the X-Y line to the ten-foot strip are "to the best" of the witness' scaling, at the widest point, 120 feet; the closest point about two feet or three feet; and that in the northeast corner there is a strip of approximately 35 feet in width.
It is important to note first that while plaintiff's 1951 deed from the Callaghan heirs purports to include the gore in what it conveys, it is in that deed that the gore makes its first and only appearance in plaintiff's title, which means that the purported vesting in plaintiff of title to the gore is unsupported by any anterior muniment or record. It is equally important to note, on the other hand, that defendant's record title to the gore is clear and definite. Defendant relies on the deed of Consumers Coal & Ice Company made in April, 1953, to one Jennie Kuiken and the deed of May, 1953, of said Kuiken to defendant, Consumers' title to the piece being supported by deed of Bernard Brady and wife to the Consumers Coal & Ice Company, dated July 29, 1910 and recorded September 2, 1914, in book S-22 of deeds for Morris County. The Bernard Brady title to both the gore and the strip derives directly from a deed conveying both tracts, made by Phillip G. Callaghan to the said Brady and dated January 12, 1909, these tracts having been purchased by the said Phillip G. Callaghan from the sheriff of Morris County in 1906. As already noted, on July 29, 1910 Bernard Brady and wife conveyed the gore to Consumers Coal & Ice Company,
whose deed defendant holds. (Originally the defendant in the present case was the said Consumers Coal & Ice Company, the instant defendant being later substituted.)
Thus confronted by the record, plaintiff does not rely on documentary title in itself but on title by adverse possession, claiming that it has had unmolested possession of the lands within the gore, by itself and through its predecessors in title, continuously since the Aaron Peck deed of 1884. It is my judgment that title by adverse possession is manifestly not established by the proofs, whether they be considered in relation to the 20, the 30 or the 60 year provision of the statute. (N.J.S. 2 A:14-30; N.J.S. 2 A:14-6 and/or 7).
As noted, the content of the whole peninsula is approximately 22 acres. Until about 1920 some simple farming had been done there, during the summer months. From then on, however, it appears that very little farming was done and that there followed about that time the development and increase of bungalows and similar installations for summer use. It appears also that most of the persons erecting and maintaining the bungalows secured permission therefor from one Tierney, paying an annual rental to him for the land occupied. Tierney (now deceased) appears to have acted in these matters as agent for the Callaghan family, but that is matter of conjecture really, for it is not shown with any certainty whether Tierney was acting on behalf of Daniel Callaghan, then life-tenant, or as executor of the estate, or manager of the property, or opportunely for himself, or otherwise. So far as this decision is concerned, however, the point is of no consequence, as will appear.
A number of witnesses testified for defendant to having rented bungalows on the "island." Some had rented from Tierney, who at the time apparently represented the Callaghan interests; some had rented from the Callaghans, but all of these rentals were outside the gore. Plaintiff failed to prove a single instance of a rental within the gore concerning which rent had been paid ...