Goldmann, Freund and Conford. The opinion of the court was delivered by Goldmann, S.j.a.d.
This is an appeal from a judgment in the Chancery Division enjoining defendants, the Borough of Manasquan and Albert Holloway, a builder-contractor, from constructing a comfort station at the easterly end of Brielle Road where it adjoins the boardwalk. The prohibition applies to an area referred to in the judgment as the "dedicated beachfront" which lies between the boardwalk (running north and south) and the boundary of the monumented beachfront line 22.25 feet to the west, and the lines of Brielle Road (running east and west) as extended easterly to the boardwalk. The trial court found that this area had been abandoned by the borough to the public for use as a street, and that the borough had acquiesced in such use for a period of more than 20 years.
In September 1914 the Seacoast Real Estate Company conveyed to the borough a strip of land along the beachfront about one mile long, bounded generally by the shoreline of the Atlantic Ocean on the east, the monumented beachfront line on the west, Ocean Avenue on the north, and Manasquan Inlet on the south. The deed specifically provided that the lands were dedicated "for public purposes and for a place of resort for public health and recreation, subject to the restriction that said strip of land shall never be used for business
purposes, and that no structures shall ever be erected thereon, except a boardwalk and open summer houses or pavilions, with the privilege, however, of erecting piers only at the ends of and in front of streets extending back from the ocean." The borough accepted the deed of dedication a month later.
In 1928 the borough constructed a 16-foot-wide boardwalk within the boundaries of the dedicated strip, the western line of the boardwalk at Brielle Road being, as noted, 22.25 feet from and parallel to the westerly line of the dedicated beachfront. At the same time the municipality widened and gravelled Brielle Road, installed curbs on both sides and a sidewalk on the north side, and built wooden ramps connecting the sidewalk from a point at or near the monumented western beachfront line to the boardwalk proper. It subsequently erected three wooden comfort stations on the beachfront, one at the south end of Manasquan Inlet, another at the foot of Ocean Avenue to the north, and the third approximately half-way between these two on the east side of the boardwalk opposite Brielle Road.
There was testimony that the latter comfort station had been battered and damaged by tides and storms over the years and been costly to maintain, the borough having in three years spent more than $2,000 for repairs. For these reasons, and in view of the present poor condition of the comfort station, the governing body decided it was necessary to erect a modern comfort station on the west side of the boardwalk, opposite the present structure and on the dedicated beachfront, where it would have greater protection from the sea and storms. The proposed new comfort station would be of cinder block with brick veneer, modern in all details, and with entrances facing toward the ocean. On March 15, 1954 the governing body adopted an ordinance authorizing this improvement and the issuance of bonds and bond anticipation notes to finance its cost. The ordinance was duly advertised; thereafter the construction contract was awarded to defendant Holloway on April 12, 1954.
Plaintiffs are the owners of a strip of land fronting on the north side of Brielle Road between the westerly line of the
dedicated beachfront and First Avenue to the west, having acquired the premises in 1940. There are two dwellings on the property -- one near First Avenue with two apartments which plaintiffs rent out for the summer season, and another on the ocean end with one apartment, also rented out, the remainder of the dwelling being used by the Priorys as their home. Mrs. Priory has lived in this house since 1920. The corner of the Priory porch is 40 to 50 feet from the nearest (northwest) corner of the proposed comfort station.
Plaintiffs initially instituted an action in lieu of prerogative writ, but this was dismissed without prejudice in order to permit them to seek the remedy they now invoke. The present injunction proceedings were instituted by a complaint and order to show cause with restraint on June 29, 1954. The complaint alleged that the proposed comfort station was in direct violation of the restriction contained in the deed of dedication which limited structures that might be erected on the lands conveyed to a boardwalk, open summer houses or pavilions, and piers at street ends; that defendants were about to construct the comfort station in a portion of Brielle Road which had been dedicated to public use for over 20 years last past and which was now a public street, so that the construction was in violation of plaintiffs' rights as taxpayers and owners of abutting property; that the comfort station would be attended by noxious and unpleasant odors and by noise which would constitute a nuisance; and that if the construction were allowed to proceed plaintiffs would suffer serious permanent and irreparable injury.
Defendants moved to dismiss the complaint because the action was brought beyond the time permitted under R.R. 4:88-15(b)(4) and (11), and R.S. 40:1-19, and because the complaint failed to state a claim upon which relief could be granted. The motion was denied and the restraint continued pendente lite , the court observing that although it might "doubt that plaintiffs have a good cause of action," the facts were in dispute and the parties entitled to a full hearing, so that it was necessary to maintain the subject of
litigation in statu quo pending final hearing. Defendants then answered, denying the essential allegations of the complaint and again raising by way of separate defenses the same matters as were raised on the motion to dismiss the complaint. Defendants' position in the Chancery Division, as fixed by the pretrial order, was that the comfort station was not to be built on a street but rather within the boundaries of the dedicated beachfront; that the structure did not fall within the restrictions contained in the deed of dedication; that the erection of a comfort station was a proper and necessary exercise of municipal police power; that plaintiffs had no status to bring this injunction action; and that their suit was untimely in view of R.R. 4:88-15(b)(4) and (11) and R.S. 40:1-19.
Plaintiffs and other witnesses testified that Brielle Road has at least since 1928 run all the way to the boardwalk proper, and that the entire stretch of this street, from First Avenue to the boardwalk, has been used by automobiles and other vehicles, as well as by the public for ingress to and egress from the beach, for well over 20 years. Plaintiffs also claim -- they alone testified to this -- that the use of the present comfort station has been attended by noises, odors and unclean conditions. The testimony in this respect is somewhat less than satisfactory. Mrs. Priory, for example, first stated generally that the comfort station was not too carefully policed, people changed their clothes inside, and teenagers gathered there late at night causing disturbances and breakage. She then went on to say that the police had to be called two or three times in 1953; conditions in the summer of 1954 were "quieter"; she had noticed unpleasant odors once or twice during recent seasons, and young people had strewn toilet paper about the place two or three times. Mr. Priory told of young people parking with their car radios ...