Goldmann, Freund and Conford. The opinion of the court was delivered by Conford, J.A.D.
Here the principal matter in controversy is the construction and extent of the present right of enjoyment of certain easements in respect to an alley running off Fulton Street, near the intersection of the northerly line of that thoroughfare and the easterly line of Broad Street, in the City of Newark.
Our exploration of the factual background of the case from the record before us takes us back to the mid-nineteenth century, when the neighborhood of Broad and Fulton Streets was part of a high-grade residential area of the City of Newark. Cortlandt Parker, a leading lawyer of the day (father of Charles W. Parker, a Justice of our former Supreme Court), acquired the northeast corner of that intersection as a single tract in 1851 to the extent of 184 feet on Fulton Street and 170 feet on Broad Street. Subsequent [47 NJSuper Page 539] conveyances by Parker resulted in the creation of four residential lots, three facing Broad Street and one Fulton Street, and a residual alley fronting on Fulton having a width of 10 feet to a depth of 90 feet and thence widening to 20 feet almost the entire remaining depth of the Parker holding. The rough sketch which follows is Joint Exhibit 1 of the Stipulation of Facts, upon the basis of which this case was tried in the Chancery Division. It shows the [47 NJSuper Page 540] lots resulting from the conveyances by Parker, the indicated parcel numbers being for convenience of reference. The courses and distances are taken from deeds of record. Parcel 3 is the locus of the presently controverted easements. Parcel 1 was for some years the residence of Cortlandt Parker.
Parcels 1, 2 and 3 are, it is stipulated by the parties, presently owned by defendant Fulbro Holding Company (hereinafter referred to as "Fulbro"). The defendant G. & P. Parking Corp. is in possession of said parcels by lease from Fulbro. Parcels 4 and 5 are presently owned, respectively, by the defendants Sidney A. and Violet Franklin, and the plaintiff Leasehold Estates, Inc. (hereinafter referred to as "Leasehold"). The other defendants in the case are incumbrancers. Leasehold and the Franklins claim a right of way for ingress and egress to and from Fulton Street over parcel 3 and contend that their rights are being violated through the obstruction of parcel 3 by cars commercially parked thereon by G. & P. Parking Corp., under authority of Fulbro. The trial court generally sustained their position and granted injunctive relief.
It is stipulated that parcels 1 and 3 were retained in the ownership of Parker, and subsequently of his heirs and devisees, until their conveyance to Fulbro in 1952, along with parcel 2. Parcel 2 was out of the ownership of the Parker interests from 1852 until 1911, when it was conveyed to the Parker heirs by its then owner. Understanding of this controversy requires careful attention to the contents of Parker's deeds of conveyance of parcels 2, 4 and 5.
On March 30, 1852 Parker conveyed parcel 2 to Robert Trippe. The first course in the deed runs:
"to the westerly side of an alley intended to be used in common by the party of the first part [Parker] his heirs and assigns and the said party of the second part [Trippe] and all persons acquiring the lot hereby conveyed, by descent or purchase from him as hereinafter provided * * *."
The second course runs "along the said alley" a distance of 90 feet; and immediately following the description there is an express grant in these terms:
"also the right of way and free use for ingress and egress by and unto the said party of the second part and all persons who shall be owners of the above described lot of land * * * subject nevertheless to the reservation and covenants hereinafter contained which alley runs from said north line of Fulton Street in a northerly direction along the east end of the premises * * * and is in width ten feet."
On February 12, 1853 Parker conveyed parcel 4 out of the tract to Richmond Ward. Parcel 4 fronts on Broad Street for a width of 60 feet, and it extends back to the alley, which, at the point of such extension, is 20 feet wide. The description in the Ward deed runs the second course "to an alley in the rear at that point twenty feet wide," and the third course runs "thence along the alley * * *." Then follows a grant of alley rights in these terms:
"Together with a right of way and passage for the said party of the second part [Ward] his heirs and assigns while owners of the tract of land above described his and their agents and servants, with horses carriages and otherwise for the purpose of ingress and egress to and from barns and stables upon the rear of said lot to be erected, and unto the rear of said lot until the same may be erected over and through said alley running in from Fulton Street ten feet wide and at the rear of said property hereby conveyed widening to twenty feet and so extending along the rear thereof the said right of way being subject nevertheless to the payment of a share in the expense of maintaining said alley in good repair keeping up the fences thereof paving and grading the same and maintaining a suitable gate thereto in common with all persons owning property thereon who have a right thereto and proportionate to the amount of frontage by each owner possessed, such repairs and maintenance to be determined by said owners according to their said interest."
Ward covenanted in the deed with Parker that no building would be erected on his property for a period of twenty-five years on any line nearer the line of Broad Street than the line of the front wall of Parker's dwelling house, which was described therein as situated on the parcel immediately to the south of the parcel conveyed to Ward. Parker reciprocated by the same covenant concerning his properties north and south of parcel 4. The parties mutually agreed that a minimum space of five feet should remain open between the north wall of the house to be erected by Ward and the
boundary line of his parcel. It was also mutually agreed between Parker and Ward that the aforementioned restrictions did not prohibit the attachment to the front of the houses on any of the lots of "any open portico, piazza, or other ornamental appendage not thereby unreasonably obstructing the view from the front of the house contiguous," and that "the rear of said lots upon said alley, by them owned shall be used exclusively for barns or stables and in such a manner as that neither party or his assigns shall by the use thereof create any nuisance whatever."
On April 10, 1854 Parker conveyed parcel 5 to Theodore P. Howell. The first course in this deed runs to the westerly line of the alley referred to, the same being designated as "there 20 feet" in width. The second course runs "along said alley"; and following the description of the land conveyed in the deed, there is the following grant:
"Together with a right of way for the said party of the second part his heirs and assigns of the tract of land above described his and their agents and servants with horses carriages and otherwise for the purpose of ingress and egress to and from barns and stables standing or to be erected upon the rear of said lot and unto the rear of said lot until they shall be erected over and through said alley running in from Fulton Street ten feet wide and at the distance of ninety feet from Fulton Street widening to twenty feet and so extending along the rear of said lots heretofore conveyed to said Richmond Ward and along the rear of said land above described and conveyed for about Eighteen feet then narrowing to about three feet wide to the line of said lot on the north the said right of way being subject nevertheless to the payment of * * *."
Then follow covenants and agreements similar to those in the Ward deed, providing for common sharing of expenses of maintenance of the alley, restricting construction of buildings closer to the line of Broad Street than the existing Parker dwelling, subject to ornamental appendages, etc. , and also the following express agreement:
"And said parties hereby further mutually agree that the front upon said alley by them respectively owned or to be hereafter owned shall be used exclusively for barns or stables and in such a manner
as that neither party or his assigns shall by the use thereof create any nuisance whatever. And the said Parker further agrees as aforesaid that he will not convey any right-of-way in said alley to any person whatever except for the purpose of being used for ingress and egress to and from a barn or stable to be erected on the rear of premises occupied by said person as his dwelling house and with the express condition to be void in case the same shall be hired to or used by any other person than the occupants of said dwelling house as well as render the same covenants as to nuisances herein contained."
It may be noted that the Howell deed also expressly includes in the grant "the barn or stable now standing on said premises."
There are no atlases or maps available to indicate the use to which the Parker tract was being put at or about the time of these conveyances, but references in the deeds abstracted in the stipulation of facts establish beyond any doubt that the then and reasonably foreseeable future use of the entire tract and neighborhood was residential. There are the deed excerpts already noted, referring to the then existent Parker dwelling; to building set-back requirements in terms of non-obstruction of view and uniformity of line; and to restrictions on the use of the rear of the lots to barns and stables. In the case of the Howell deed, there is Parker's agreement to confine any future grants of rights of way in the alley to residential owners. The deed for the tract from Van Rensselaer to Parker in 1851 contains a course running "to the westerly wall of a brick house, the first of a row of brick dwellings * * *."
The stipulation of facts contains practically no direct factual data concerning the specific nature of the use of parcel 3 by any of Parker's grantees or their successors. Aside from historical evidence from city atlases dating from 1873 as to the physical structures existent upon the various lots from time to time, and certain leases to which reference will be later made, the only evidence as to use of the alleyway in the record is the stipulation that:
"While it is known that use was made of the alleyway for ingress and egress by means of parcels 4 and 5, by motor vehicle and on
foot, for business purposes, up until the blocking of the alleyways by the parking of automobiles thereon, the exact extent of such use as to regularity, frequency and the like is not known."
This was supplemented at the oral argument only to the extent of the assertion by Leasehold's counsel, upon inquiry by the court, that trucks can be driven into the building now standing on parcel 5 through doors in its rear wall.
The history of the improvement of the properties here involved is as follows.
We deal first with parcel 5. In 1854 Theodore P. Howell acquired from one James M. Jones a 20-foot parcel of land on Broad Street, with a depth of 168 feet, immediately north of parcel 5, the 30-foot tract he purchased from Parker at about the same time. This 20-foot tract, of course, had no rights in the projected parcel 3 alleyway. In 1859 Howell conveyed both parcel 5 and the 20-foot parcel by a single deed with separate descriptions for the two parcels to Richmond Ward. In 1866 Ward divided the assembled plot into two 25-foot lots, conveying the southerly lot to George A. Clark and the northerly lot to Alexander Dunn, the latter by a single description inclusive of five feet from the Parker parcel 5 and the 20-foot Jones lot. The deeds to both Clark and Dunn grant "alley rights" and are made subject to the restrictions in the Parker-Howell deed, although only five feet of the land described in the deed to Dunn came from parcel 5. The descriptions in both deeds run to a dividing line between the parcels conveyed running through "the middle of the [a] partition wall dividing the two dwelling houses recently erected by" Ward.
The continued existence thereafter of two dwellings, with a common sidewall, on the 25-foot lots carved out of parcel 5 and the 20-foot Jones lot, is confirmed by the 1873 Atlas of the City of Newark, which shows such structures, with street set-backs paralleling dwellings on parcels 4 and 1. The atlas also shows a structure on parcel 2, roughly corresponding with a ...