Clapp, Jayne and Francis. The opinion of the court was delivered by Jayne, J.A.D.
It is not inappropriate first to mention that this action was instituted in the Chancery Division against the defendant by Anthony J. Pilar and John O. Pilar, then partners trading as A.J. and J.O. Pilar. Subsequently the corporation A.J. and J.O. Pilar, Inc., became the proper party in interest to prosecute the action. One of the former plaintiffs, John O. Pilar, had died. By reason of the eventualities the original cause of action was reconstructed as disclosed by the amended complaint, counterclaim, and responsive pleadings, in the light of which the trial and the propriety of the final judgment are to be considered.
Omitting definite references to the many details that the record of the case embraces, it will be adequately serviceable for present explanatory purposes to say that the entire area of the land within the territorial boundaries with which we are here concerned was during a period of many years under one ownership, latterly, for example, under that of Factory Associates, Inc. The area is situate, generally speaking, north of Chapel Street and Lister Avenue in the City of Newark.
Many years ago the Central Railroad of New Jersey acquired by easement a right of way passing laterally east and west across it over and upon which a so-called siding spur of railway tracks was laid for use in the transportation of freight to the established receiving and shipping points on the property.
In December 1926 a severance of the previously existing ownership occurred in consequence of the conveyance of the southerly portion of the area by Factory Associates, Inc. to John O. Pilar through whom the plaintiff corporation has indirectly but successively derived its title. We shall hereinafter refer to that portion as the Pilar property. The area
contiguous to the northerly line of the railway easement and extending northerly therefrom was ultimately purchased by the defendant in December 1953. This section we shall call the Lister property. The adjacency of the two divisions can be readily envisioned if we explain that the railroad right of way separates them.
There are certain physical characteristics of the Pilar and Lister properties respectively in their proximity and relation to the railroad right of way that attain particular relevancy to the controversial subject matter of the present litigation.
Also many years ago, presumably after the installation of the railroad siding and evidently prior to 1895, several buildings were erected on the northerly end of the present Pilar property along the southerly edge of the railroad siding, which structures have doors and platforms on their north sides, obviously to be used to facilitate the carriage of freight to and from the railroad cars and the particular building. There is evidence that those buildings or some of them and their attached platforms have been devoted continuously, perhaps in some variable degree, to such use for more than half a century.
There is also testimony that there has been and is now an open space immediately to the north of the railroad siding platforms over which the horse-drawn and more recently the motorized trucks have traversed, turned and backed up to the platforms. That open space so used has never been owned by the Pilars. It is at present owned by the defendant.
It may be wondered by what course of passage the vehicular delivery trucks reach that locality on the Pilar property over a thoroughfare on the Lister property. The answer is that from the northerly side of Lister Avenue, which like the railroad siding runs generally east and west, the vehicles enter a previously established passageway of 15 feet in width extending along the easterly side of the Pilar property, proceed northerly thereon, cross the railroad siding, then turn left and move west on the Lister property to the plaintiff's platforms.
It needs to be stated that while there is documentary evidence of the establishment of the passageway leading northerly from Lister Avenue, there has never been any such documented confirmation of the privilege of the owners or occupants of the present Pilar property to operate vehicles westerly from the established passageway over the present Lister property to the entrances and platforms of the plaintiff's buildings.
We may pause here to comment that an acquaintance with the transcript of the testimony suggests the reasonable probability that had it not been for the erection of a fence on the neighboring Kussy property and by reason of the inordinately increased indiscriminate parking of passenger cars in the open space to which we have referred, this litigation between the named parties would not have been precipitated.
The defendant recently denied the plaintiff a continuance of the privilege of such access over the open space to its buildings and loading platforms. The plaintiff prosecutes this action to enjoin the defendant's interference and in quest of a judgment granting it either (1) a prescriptive easement or (2) an implied easement. It is from the judgment qualifiedly in favor of the plaintiff that the defendant appeals.
We respectfully recognize the factual determinations of the experienced trial judge and the resultant conclusion orally expressed by him in his decision of the case. We quote the portion of his decision which is of particular significance:
"The deed to Pilar reserved to them the use of the 15-foot right-of-way leading from the street to the defendant's property. Such use would be futile were the plaintiff not able to cross over the defendant's property to its loading platforms, so by implication it was clearly intended that the Pilars were to pass and repass over the defendant's land.
The present suit was instituted in June of 1954. The Pilars acquired their property in 1927, so that the proofs disclose that for more than twenty years they, and those in privy to them, have used the defendant's land from the 15-foot right-of-way to the loading platforms. Such use has been so open, notorious, hostile and adverse as to establish an easement or right-of-way. I am also satisfied that for many years prior ...