Goldmann, Freund and Conford. The opinion of the court was delivered by Freund, J.A.D.
[48 NJSuper Page 122] The defendants appeal from a summary judgment which declared that the defendants have
no right, title and interest in and to the plaintiffs' lands and restrained their trespass across plaintiffs' lands.
The Sea Shore Company (hereinafter referred to as Sea Shore) in 1881 and prior thereto was the common owner of a large tract of undeveloped land in the Borough of Mantoloking, New Jersey, which extended from the Atlantic Ocean to Barnegat Bay. The tract included the lands owned by the plaintiffs and defendants as well as other lands lying between Princeton Street on the north and Albertson Street on the south. The main street running north and south and generally parallel with the waterfront, both then and now, is Ocean Avenue.
By deed of 1881, Sea Shore conveyed to the Philadelphia and Long Branch Railway Company a right of way which divided lengthwise the property owned by Sea Shore lying west of Ocean Avenue for a considerable distance north and south of the property here in question. The property lies in a block fronting on Barnegat Bay and between Princeton Avenue on the north and what is now Albertson Street on the south. The deed contained a clause that the lands were to be used for railroad purposes only and when they ceased being used for such purposes the land would revert to the grantor. In 1949, by appropriate proceedings, the railroad right of way was formally abandoned for railroad purposes. By deed of May 26, 1952 Sea Shore, having again acquired the title by reversion, conveyed to the plaintiffs the lots described as 8, 9 and 10 in block 47 on the Tax Map of the Borough of Mantoloking, a segment of the former right of way, 66 feet by 100 feet in dimensions.
The defendants are the owners of lots 8, 9 and 10 in block 37 fronting on Ocean Avenue which are contiguous to and east of plaintiffs' lands and also of lot 8 in block 38 which fronts on Barnegat Bay and is contiguous to and west of plaintiffs' lands. The defendants claim an easement of ingress and egress from lot 8 in block 37 over the plaintiffs' lot 8 in block 47 to lot 8 in block 38. The purpose is to afford access to Barnegat Bay from defendants' hotel property east of Ocean Avenue, which property also has access to the
Atlantic Ocean. They argue that they are entitled to an easement by implied reservation, an easement by way of necessity and to a statutory passageway across the former railroad right of way now owned by the plaintiffs.
Disposition of this appeal requires that we now trace the title of defendants' lots as conveyed by Sea Shore. A portion of a map exhibit received in evidence and shown here will help to identify the various mentioned properties. The descriptions in the conveyances to which we shall refer are not by the lot and block numbers here referred to which we use for simplicity of identification.
By deed dated May 27, 1889 Sea Shore conveyed to Benjamin Albertson lots 8 in blocks 37 and 38. It specifically excluded the land conveyed to the railroad and the land proposed for the extension of Ocean Avenue which at that time did not extend southerly to these lots. The deed description monuments Princeton Avenue. At that time Albertson Street, which now runs east-west abutting lots 10 in blocks 38, 47 and 37 on the south, did not exist. On the same day lots 9 and 10 in the same blocks were conveyed by the same grantor to Jennie R. Albertson, wife of Benjamin Albertson. On March 11, 1901 the Albertsons conveyed all the lands that had been conveyed to them by the two prior deeds to William R. Albertson. By this deed lots 8, 9 and 10 in block 38 acquired a common ownership in William R. Albertson and the deed description refers to Princeton Avenue, but makes no reference to Albertson Street.
On May 5, 1904, by mesne conveyances, the title of William R. Albertson in the foregoing premises was conveyed to J. Otto Rhome, and on the same day Rhome conveyed them to Anna L. Albertson. By this deed Anna L. Albertson became the common owner of lots 8, 9 and 10 in blocks 37 and 38, which includes plaintiffs' Barnegat Bay front lot here in question and the two lots lying between it and the northerly side of Albertson Street, although the deed contains no reference to Albertson Street. By deed of May 10, 1922 Anna L. Albertson conveyed to Curles J. Hulse and Ollie M. Hulse the waterfront property, being lots 8, 9 and 10 of block 38. This description refers specifically to Albertson Street as the boundary line of the three lots. By the foregoing deed Hulse and his wife became the common owners of lot 8 in block 38 and of the two adjacent lots, the southerly lot being bounded by Albertson Street, thus giving lot 8, block 38, access to a public street. On March 25, 1924 Curles J. Hulse and his wife conveyed to Beacon Hotel Company only lot 8 in block 38, resulting in an isolation from any street of the lot now in question, and retaining lots 9 and 10 in block 38. On the same day Curles J. Hulse and his wife conveyed to Beacon Hotel Company
lots 8, 9 and 10 in blocks 36 and 37. On August 17, 1925 lots 9 and 10 in block 38, the remaining waterfront property adjacent to lot 8 in block 38, was conveyed by Hulse and his wife to Jessie H. Seabury. Lot 10 bounds on Albertson Street. The Beacon Hotel property, lot 8 in block 38 and lots 8, 9 and 10 in block 37, was reconveyed to Hulse in 1930, and the ...