Goldmann, Freund and Conford. The opinion of the court was delivered by Goldmann, S.j.a.d.
This is an appeal from a Chancery Division judgment in favor of defendants on plaintiffs' cause of action and on their own counterclaim. Involved is the extent of the easement across plaintiffs' land for passage to and from defendants' property, and defendants' right to repair the roadway by paving it with blacktop.
Plaintiffs are the owners of certain premises bordering on the east side of Chestnut Ridge Road in Saddle River Borough, having a frontage of 200 feet and a depth of 275. Defendants own the premises directly behind this property, having a width along plaintiffs' rear or easterly boundary of 200 feet and a depth of some 450 feet, with access to Chestnut Ridge Road over the easement here in question. The neighborhood is high-class residential, between suburban and semi-rural in character.
In 1951 the two lots constituted a single tract owned by Scientific Research Corporation which, in April of that year, conveyed the street-bordering portion to one Susan Scheitlin, the deed containing the following reservation:
"Reserving, however, unto the party of the first part [Scientific Research Corporation], its successors and assigns the right of ingress and egress for roadway purposes along a strip 25 feet in width along the entire northerly boundary for roadway purposes, together with the right to dedicate said strip, together with any additional land of the party of the first part for roadway purposes whenever a municipality shall accept the same as a public thoroughfare."
Miss Scheitlin conveyed this property to plaintiffs in August 1952, the deed being subject to the above reservation. Scientific Research Corporation conveyed the balance of its tract to defendants in August 1954. The deed expressly transferred the easement rights reserved in the Scheitlin deed.
The present roadway is from 9 to 11 feet wide and runs for a distance of some 260 feet through plaintiffs' property. When plaintiffs bought in 1952, the first 65 feet of this roadway, leading to their garage, were paved with blacktop, the next 10 or 15 feet toward defendants' property were covered with small white stones, and the remainder within plaintiffs' boundaries was dirt and stone, which they later covered with bluestone dust. There was also a split rail fence along plaintiffs' entire frontage except for a 15' 3" opening required for the driveway which, at that point, was 11' 6" wide. It appears that the roadway, both the paved and unpaved portions, was used in substantially the same condition by predecessor occupants of the dwellings of the respective parties.
By their complaint filed June 21, 1955 plaintiffs sought to enjoin defendants from disturbing the roadway across their lands, from changing or altering it from what it was before defendants in mid-May 1955 had traprock placed on the roadway preparatory to paving it with blacktop, and from imposing upon plaintiffs' land any greater servitude than might reasonably be contemplated under the easement. Defendants' answer denied the allegation of the complaint that if they paved the roadway "the rural charm and attraction of plaintiffs' land will be destroyed and plaintiffs' lands will be subjected to an unreasonable servitude, to plaintiffs' great and substantial irreparable damage and immediate loss and injury." In their counterclaim defendants asked for an injunction restraining plaintiffs from interfering with the paving, repair or maintenance of the roadway over the 25-foot right-of-way or any portion thereof or with the placing of a name sign on the right-of-way near Chestnut Ridge Road; enjoining them from any use of the right-of-way which would interfere with defendants' reasonable use over its entire 25-foot width for roadway purposes, and compelling plaintiffs to remove any obstruction from any portion of the 25-foot right-of-way.
The proof on behalf of defendants at the trial was that while the dirt and stone roadway looked "rather firm" and
"apparently in good condition" when they first occupied their property in August 1954, during the ensuing winter it "showed rapid deterioration," became soft and muddy, "deep ruts and holes appeared, and it was nearly impassable." Mr. Fonda said, "Before I would get stuck I certainly wanted to have the condition of it repaired." He then spoke to Mr. Hyland concerning the condition of the road and inquired where he might obtain white stone like that immediately adjacent to plaintiffs' blacktop so that he might fill in the ruts and holes and make the road passable. He testified that Hyland became very angry and said, "You are not going to do anything to that road; you have no right to do any repairs," and further stated, "There is another road going to be built in over there [near defendants' property]; why don't you use that?"
Thereafter the Fondas engaged a paving firm to blacktop the entire roadway. While there is some pretense in the testimony of the paving people of an initial hiring for repair short of paving, the testimony of Mr. Fonda, particularly that given on cross-examination, makes it plain beyond question that the "repair" work first done was merely preparatory to and a foundation for blacktopping. Before the work was stopped by a temporary restraining order issued by the trial court the roadway had only been covered with crushed stone. The representative of the paving firm admitted that in that condition there was not a proper repair of the road, even short of paving, "Because it is a heavy stone, and after that you should have a lighter stone, and then a dust to make it more passable." In answer to a leading question he said that crushed stone would have to be put on every year to maintain the road. The same witness testified that in the spring of 1956 the road "was all uneven again" and "ready for more repair." As noted, however, the road has never once been properly repaired by defendants.
At the hearing the trial court overruled, as immaterial, efforts on behalf of plaintiffs to prove that the value of their property would deteriorate if the road were blacktopped, and also an ...