On appeal from the Superior Court.
For affirmance -- Chief Justice Vanderbilt, and Justices Oliphant, Wachenfeld, Burling, Jacobs and Brennan. The opinion of the court was delivered by Wachenfeld, J.
The appellant, Hydrocarbon Chemicals, Inc., appeals from (1) an order refusing to vacate or modify a final judgment entered January 20, 1954, restraining it from (a) closing or obstructing a right-of-way extending from the plaintiff Turco's property to Lister Avenue, more particularly described in a certain written agreement dated June 30, 1930; (b) from interfering with the free and unrestricted use of said right-of-way; (c) ordering the defendant to remove the post, gates and poles erected by it upon or across said right-of-way; and (2) an order finding it guilty of civil contempt for failure to comply with said judgment.
Both appeals are included in one record pursuant to an order of the court made below and were certified here on our own motion prior to argument in the Appellate Division.
By agreement dated June 30, 1930 three corporations, M.A.C. Corporation, Swan Finch Oil Corporation and
American Agricultural Chemical Company, each of which then owned adjoining property lying between Lister Avenue in Newark and the Passaic River, established a right-of-way across their respective properties for their common use. The easement was granted for the period of 30 years from the date of the agreement, and the agreement was duly recorded in the Essex County Register's Office.
Subsequently, the M.A.C. Corporation conveyed its property to Hydrocarbon Chemicals, Inc., the present appellant; the Swan Finch Oil Company conveyed its property to the respondent, Turco Products, Inc., and the American Agricultural Chemical Company conveyed its property to Montrose Chemical Company, admitted to the action as a party plaintiff, although it had been named in the original complaint as a defendant.
The easement in question, as specified in the agreement already referred to, is approximately 19 feet wide and 300 feet long. It runs from the northerly side of Lister Avenue in a north-northeasterly direction along the westerly line of Hydrocarbon Chemicals' property to provide an entrance at its northerly terminus into the rear of Turco Products' property.
The building of the appellant, Hydrocarbon, is erected very close to the easterly line of the easement near its Lister Avenue end. Opposite Hydrocarbon's building and along the westerly line of the easement, Montrose Chemical Company has erected a high wire fence with barbed wire along the top enclosing its property.
The easement in the paragraph of the agreement already referred to provided for "a concrete road over the full extent of the right-of-way tracts herein granted by the parties hereto" and the grantor provided "it will promptly build and maintain the said concrete road during the duration of this indenture at its own expense and that the said road shall be built and maintained in a condition suitable for all the year round heavy trucking."
The road was constructed and maintained without any ensuing difficulty between the parties ...