On appeal from Superior Court, Appellate Division, whose opinion is reported at 38 N.J. Super. 488.
For affirmance -- Chief Justice Vanderbilt, and Justices Heher and Brennan. For reversal -- Justices Oliphant and Jacobs. The opinion of the court was delivered by William J. Brennan, Jr., J.
[22 NJ Page 77] The Appellate Division opinion, 38 N.J. Super. 488 (1956), reverses the Chancery Division judgment establishing an easement of right of way over defendant's lands in favor of plaintiff's lands. The trial judge based the judgment upon findings that the easement arose by prescription from adverse user for more than 20 years and also that it had been acquired by implied grant
from the former common owner of both tracts. We granted plaintiff's petition for certification, 21 N.J. 128 (1956).
The defendant's tract lies back of plaintiff's tract, which is at Chapel Street and Lister Avenue in Newark. The two tracts at one time formed a single parcel owned by Factory Associates, Inc. The severance was made in 1927 when Factory Associates sold the plaintiff's tract to John O. Pilar and reserved in the deed a right of way from Lister Avenue along one side of the Pilar tract. Title came into the plaintiff corporation a few years later when John O. Pilar, now deceased, and his brother Anthony J. Pilar incorporated the business conducted there. Factory Associates sold the remainder of the original parcel to defendant Lister in 1953.
Near the boundary separating the two tracts at the back of the Pilar land the Pilar buildings have loading platforms opening upon a railroad siding which runs laterally within the Pilar tract along that boundary line and crosses the reserved right of way.
Trucks as well as railroad freight cars receive and deliver freight at the platforms. The narrow space on the Pilar tract between the railroad siding and the boundary line is insufficient for the passage of trucks coming up the right of way from Lister Avenue bound for the platforms standing furthest from the right of way. Trucks were therefore driven across the railroad siding and the boundary line onto Lister land where, after turning left, they proceeded to points opposite the platform of destination and were maneuvered into a turn and then backed to the specific platform, usually coming to rest astride the tracks of the siding.
Trucks of suppliers and deliverymen receiving or delivering Pilar freight or that of its tenants have followed this practice since 1927; indeed, there was evidence that before 1927 trucks of suppliers of a tenant of Factory Associates in the Pilar buildings (which were built at least as early as 1895) followed the same practice.
The easement established by the Chancery Division judgment was of this right to pass over Lister lands to the Pilar platforms from the right of way from Lister Avenue.
This use of this part of the Lister lands to reach the Pilar platforms is not the only use which was made of that area by others before Lister stopped the practices in 1954. The area was also used indiscriminately for decades, by any one who wished, for parking cars, and on occasion as an outdoor storage space. Such was the use of the area not alone by Pilar and its officers and employees and tenants, but also by residents generally of the neighborhood, who parked, repaired and polished their automobiles there and even stored them for weeks at a time. The testimony stands uncontradicted that such uses were tolerated without objection by successive owners of the Lister tract for many years before the Pilar purchase in 1927. It was said, "Everybody used it," "it was like a public parking lot," every one was "welcome," it was "free."
The Lister corporation itself tolerated such uses for a time and stopped them only when a neighboring concern whose land was used in like manner fenced in its lands and the use of the Lister land became so extensive that parking there became a matter of "pot luck" and caused serious inconvenience to Lister and its tenants and invitees. Lister then sent registered letters to companies and persons in the neighborhood notifying all to stop parking in the area. It is significant for the purposes of this case that Pilar complied promptly upon receipt of the notice sent to it.
And Pilar had also twice before been prompt to comply when similar requests to discontinue use of the area were made by Factory Associates during its ownership of the Lister tract. The first time was in 1935 when Pilar was using the area as a storage place for machinery. An officer of Factory Associates testified that he said to John O. Pilar on that occasion. "I let you park there and do everything you want, and after all, we are friends, and it disturbs the tenants. Please remove the machinery," to which Pilar replied. "All right, you have been friendly with ...