On appeal from a judgment of the Superior Court, Chancery Division, where Judge Sidney Goldmann filed the following opinion.
Clapp, Jayne and Francis.
"Plaintiff and defendants are the respective owners of 629 and 625 White Horse Pike, Oaklyn, Haddon Township, N.J. Plaintiff seeks an injunction restraining defendants from closing or obstructing an alleged 20' alley or driveway running along the rear of their premises, and a judgment establishing an easement in the strip for the use and benefit of plaintiff and the adjacent property owners at 631-633-635-637 White Horse Pike.
"Defendants' property (No. 625) is at the corner of White Horse Pike and Collingswood Avenue; plaintiff's (No. 629) is immediately to the southeast. Nos. 625 to 639 White Horse Pike run from Collingswood Avenue to Greenwood Avenue; all have a 125' depth and consist of first-floor stores with living quarters above. The 20' strip which plaintiff claims is a driveway runs from Collingswood Avenue across the rear of these properties as far as No. 639, but does not extend through to Greenwood Avenue.
"Late in 1943 Arthur's Storage, Inc. purchased No. 629 White Horse Pike; it conveyed to 629, Inc. in 1945, and later that year, on August 17, 1945, that corporation conveyed to plaintiff. The corner property at No. 625 was owned by Penn Mutual Life Ins. Co. which in 1941 conveyed to Harry J. Hunter who, on June 11, 1947, conveyed to defendants. Plaintiff's deed refers to a '20' wide private
alley running parallel with White Horse Pike for the use of premises numbers 629, 631, 633, 635 and 637 White Horse Pike, only.' Defendants' deed does not refer to the alley; however, the survey made at the time of their purchase shows, as to the 20' strip, 'This Area Used as Driveway by Adjoiners to the Southeast.'
"On April 12, 1954 defendants' present attorneys wrote plaintiff calling attention to the improper use of the 20' rear strip as a driveway and giving notice that such use would be prohibited and considered a trespass on and after April 26. Plaintiff at once instituted this action, claiming a prescriptive right to use the strip as an alley or driveway by reason of 20 years' continuous, open and notorious user by the owners of Nos. 629-631-633-635-637 White Horse Pike, their predecessors in title, invitees, etc., without interruption or protest. An order to show cause with ad interim restraint against closing or obstructing the alley issued on the basis of the complaint and annexed affidavits. On the return date the restraint was continued to final hearing.
"Defendants' answer denies and disputes the right of plaintiff or anyone to use the rear of their property as a means of ingress or egress from Collingswood Avenue. By way of counterclaim they claim plaintiff is encroaching on their property in the following respects: (1) his building walls extend onto defendants' lands by .35' in front and .62' in back; (2) his windows also encroach; (3) the rainpipe in the rear of his property is wrongfully connected to defendants' underground drain; (4) the capstone atop his wall extends over their property; (5) his television antenna likewise extends over their property. Defendants seek a mandatory injunction requiring plaintiff to remove these offending features. Plaintiff's answer denies the encroachments and, by way of separate defense, claims they have existed for more than 20 years.
"Defendants next moved for summary judgment. Affidavits and counter-affidavits were filed. The court then permitted plaintiff to amend his complaint by setting up
a second count based on the theory of an easement by estoppel, discussed below. On September 17, 1954 the court granted the pending motion for summary judgment, with prejudice, but as to the first count only (prescriptive right), permitting plaintiff to proceed on the second.
"Shortly after defendants again moved for summary judgment; it was denied after the filing of an opinion in which, oddly enough, the court speaks of plaintiff seeking to establish a right-of-way over defendants' lands on the theory of either prescription (a ground already disposed of) or estoppel. However, the case was tried and briefed on the latter theory only, and properly so, for neither the pleadings nor the proofs are of a quality that would ...