Goldmann, Freund and Conford. The opinion of the court was delivered by Conford, J.A.D.
[40 NJSuper Page 529] We first call attention to the unqualified endorsement of consent at the foot of the judgment under review by counsel for defendants. On its face the consent thereby evidenced would bar the right of appeal. Cf. Lincoln Memorial Park of Millstone v. Lutheran Cemetery , 117 N.J. Eq. 481, 482 (E. & A. 1935). But it is conceded by plaintiffs that the form of endorsement drawn by their counsel was intended only to secure a consent by defendants to the form of the judgment. We consequently accept the representation of counsel for both parties that no more was intended by them, and, to avoid injustice, we entertain jurisdiction of the appeal.
This was an action for an injunction and for damages, based upon a complaint that defendants' removal of part of a sand dune situated upon their property and continuing upon the adjoining lands of the plaintiffs, close to the waters of Barnegat Inlet, had resulted in a wrongful deprivation of lateral support of those lands; that some of the sand on plaintiffs' property had consequently caved in and been carted away by defendants; and that these acts were done "willfully and maliciously and for the purpose of injuring the property of the plaintiffs." The pretrial order essentially restates the same grievance and asserts damage constituted by diminution of the value of plaintiffs' lands, weakening of buildings on the property and deprivation of protection of the lands against erosion by inlet waters and winds.
At the trial there was evidence on behalf of plaintiffs that defendants had caused the dune to be bulldozed away practically to the property boundary line, causing some 80 cubic yards of sand on plaintiffs' side of the dune to fall over onto defendants' side, whence it was later carted away by defendants' workmen. There was evidence that the defendant, Henry D. Hohl, had disregarded protests by plaintiffs under circumstances from which an inference of malice might be drawn; also that defendants' operations caused a bulkhead on plaintiffs' property to fall and that this was also removed by defendants. A realty expert purported to give an opinion as to diminution of the value of plaintiffs' lands, but the trial judge found his testimony to be without probative weight.
At the end of plaintiffs' case defendants moved to dismiss. At that juncture the trial court ruled: (1) there was no satisfactory proof of damage within the legal measure of damages in a lateral support case, i.e. , diminution of "reasonable market value"; (2) punitive damages might be awarded notwithstanding "the omission of proofs of compensatory damage"; (3) the question of injunctive relief was held until the conclusion of the case. The court announced:
"* * * The position in which the parties are left in consequence of the Court's pronouncement just concluded is that the case is held in a [ sic ] matter of punitive damages and the defendant will proceed if he chooses to.
Mr. Hiering: As I understand the situation, your Honor, the only thing left in this case is the question of punitive damages, if any, against the defendant?
The Court: And the injunction.
Mr. Hiering: And also as to the injunction."
There was the following colloquy between counsel for plaintiffs and the court.
"Mr. Robinson: I am wondering what the Court conceives with respect to the actual sand which was carted away by the defendant?
The Court: I have ruled. If I have not covered that, you will hold it against the Court and ...