On appeal from Superior Court, Appellate Division, whose opinion is reported in 46 N.J. Super. 527.
For affirmance -- Justices Heher, Wachenfeld, Burling and Proctor. For modification -- Chief Justice Weintraub, and Justices Jacobs and Francis. The opinion of the court was delivered by Burling, J. Weintraub, C.J. (dissenting in part). I am authorized to say that Mr. Justice Jacobs and Mr. Justice Francis join in this opinion.
This case involves a dispute between adjoining property owners over the meaning and effect of certain reserved easements and restrictions in a deed. The judicial task is one of the construction of a written instrument.
In 1928 the plaintiff, John E. Hammett, purchased two adjoining parcels of land located in Sussex County. The area was and is scenic, rural and secluded. Since 1928 the plaintiff has maintained one of the parcels as a one-family country estate. Shortly after his original acquisition the plaintiff conveyed the other parcel, an estate known as "Casa Stradella," presently owned by the defendants, to a friend, one Luebbers. Located largely within the confines of these two parcels is a small (approximately 35-40 acres) lake or pond called Roseville Pond. Roughly, one-third of the pond is included within the 35.368-acre Luebbers Tract, while slightly more than one-half of the pond's area is located within the bounds of the plaintiff's 71.104-acre tract. The remainder of the lake area is located within two separate parcels which are also currently owned by the defendants.
The plaintiff and Luebbers maintained the manorial character of their respective holdings, enjoying the quietude, the seclusion and the natural beauty of their surroundings. In 1934 Luebbers died, and plaintiff, in order to protect his property from the intrusion of a neighbor with dissimilar tastes, reacquired the Luebbers Tract.
In 1935 one Hopson became interested in the Casa Stradella estate. Hopson purchased the estate from plaintiff, taking title through his corporate nominee, General Public Utilities Corporation. This 1935 deed contains the various easements and restrictions which form the basis for the instant controversy. (These will be referred to hereafter.) Hopson also acquired several other parcels of nearby realty, taking title through different nominees. In 1936 he purchased the Sickels Tract, a large parcel of land lying adjacent to the Luebbers Tract along the eastern boundary, the confines of which include the extreme easterly portion of Roseville Pond. In 1937 he purchased the Rusby Tract, which includes three small separated segments. Small portions of the pond are included in two of the segments of the Rusby Tract. By mesne conveyances the defendants, James Rosensohn and Florentine R. Rosensohn, his wife, in 1947 acquired the Hopson's interest in the Luebbers, Sickels and Rusby Tracts (less a 22-acre portion not here pertinent).
The 1935 deed from plaintiff to the General Public Utilities Corporation contained the following provisions designed to effectuate the plaintiff's and Hopson's mutual desire to preserve the country estate character of their holdings and to afford to each party the beneficial use of the pond:
"The parties of the first part also grant and convey to the party of the second part, its successors and assigns, the right to use, in conjunction with the parties of the first part, their heirs and assigns, the waters in Wright's or Roseville Pond now owned by the party of the first part for boating, fishing, skating, ice-cutting, hunting and bathing purposes.
1. The said respective premises shall each be used solely for a one family country home or estate.
2. No building or structure shall be erected on said premises inconsistent with the use thereof as one family country homes or estates.
3. No hedge or trees shall be planted and no fence shall be constructed by either of the parties hereto on the 14 to 17 courses, inclusive, of the First Tract hereby conveyed.
4. No building or other obstruction shall be erected to the westward of the present ice-house so as to obstruct the view, from the residence of the parties of the first part, of the Wright's or Roseville Pond, except however, the party of the second part shall have the right to construct a structure to be used solely as a boat house of not more than one and one half stories in height, upon the south side of said Wright's or Roseville Pond to the westward of the present ice-house and within the boundaries of said First Tract hereby conveyed.
5. The parties of the first part shall have the right to erect on the premises now owned by John Hammett, one of the parties of the first part, and located on the northerly side of Wright's or Roseville Pond a one family cottage to be used by said parties of the first part in connection with the home upon the premises now owned by said John Hammett and occupied by the parties of the first part, adjacent to the First Tract hereby conveyed.
The parties of the first part reserve the right, during the lifetime of John Hammett, one of the parties of the first part, to occupy the westerly one half of the ice-house located upon the First Tract hereby conveyed and agree to pay during said occupancy thereof one half of the cost of the maintenance of said ice-house.
The parties of the first part reserve the right to use that portion of the present road adjacent to the ice-house and which lies between the 15th and 17th courses, inclusive of the First Tract hereby conveyed and the border of said Wright's or Roseville Pond.
This conveyance is made subject * * * to the right of the parties of the first part, their heirs and assigns, to use the waters of Wright's or Roseville Pond for boating, fishing, skating, ice-cutting, hunting and bathing purposes, where said waters of Wright's or Roseville Pond or contained within the boundaries of the First Tract hereby conveyed.
Any and all rights to the use of the waters of Wright's or Roseville Pond now owned or hereafter acquired by the parties hereto, shall not extend to the use of said waters in conjunction with any business enterprise or development or public use whatsoever, and said use of said waters shall be limited to the occupants of the premises of the parties hereto abutting upon said Wright's or Roseville Pond, and their families and private guests."
The defendants' immediate deed makes reference to the restrictions contained in the 1935 deed of the Luebbers Tract and the defendant, James Rosensohn, admits his knowledge at the time of the purchase of the restrictions.
The defendant, James Rosensohn, is a real estate broker and investor. At the trial he testified that he intended to utilize portions of his property for development purposes. His plans were to subdivide the Sickels and Rusby Tracts, and to build a public beach on the easterly shore of the pond within the Sickels Tract for the purchasers of lots.
As for the Luebbers Tract, it was Rosensohn's intention to subdivide that parcel and to erect two dwelling houses thereon for members of his family. He did not plan, however, to sell lots in the Luebbers Tract to "outsiders."
Rosensohn also planned improvements along the southerly shore of the pond located within the Luebbers Tract, in the area between the 14th and 17th courses referred to in the 1935 deed of the tract from plaintiff to Hopson. He testified that these improvements were to be for private purposes, i.e., to facilitate his enjoyment of the pond. While three separate proposals for improvements were introduced in evidence, defendants rely upon one bearing date June 1955. This plan contemplates: (1) changing the grade of a roadway which runs adjacent to the shore of the pond and over which plaintiff has a right of way for the purpose of eliminating a precipitous drop; (2) extending the present shore line an average of 22 feet into Roseville Pond along a length of 135 feet; (3) building a luxurious boat house structure to be located at the westerly end of the area to be filled in.
In furtherance of his contemplated scheme for improvements, Rosensohn commenced chopping down trees along the shore area and demolished an ...