Goldmann, Freund and Conford. The opinion of the court was delivered by Goldmann, S.j.a.d.
Plaintiff appeals from so much of a judgment of the Chancery Division as denies it an easement and injunctive relief over a 10-foot strip of land along the shore of an island-like peninsula known as Callaghan's Island, as that strip lies north of a certain X-Y line on a map in evidence. Defendants cross-appeal from that aspect of the judgment directing the removal of two certain bungalows and restraining defendants from building or moving any bungalows on or beyond the 10-foot strip as it lies south of the X-Y line.
Callaghan's Island, about 22 acres in size, juts out into Lake Hopatcong in a westerly direction from the mainland. Defendant corporation holds title to a strip of land on the peninsula; the individual defendants are some of its stockholders. Plaintiff holds title to another, very much larger, tract on the peninsula.
In 1915 Daniel Callaghan and his wife deeded two tracts of land at Lake Hopatcong to Consumers Coal and Ice Company. The second tract is not involved in this case. The first tract consisted almost entirely of submerged lands lying off the north, west and southwest shores of the peninsula in question. However, by virtue of its fourth course, this tract included a 10-foot-wide strip of land along what in 1915 was the north, west and southwest perimeter of the peninsula. This strip was included to provide Consumers with a place upon which it could heap snow removed incident to its harvesting of lake ice. This fourth course reads as follows:
"* * * thence (4) on a line distant ten feet inland from the high water mark of said lake, following the contour of said lake to a point in property formerly owned by P. George Callaghan and now owned by the Consumers Coal and Ice Company, said point being distant ten feet inland from the high water mark of said lake; * * *"
Because some of the submerged lands adjacent to the 10-foot strip in 1915 have since been reclaimed by filling, the perimeter of the peninsula is not now contiguous at all points with the original strip.
The X-Y line to which we have referred is a straight line running southwesterly from a point near the northeast corner of the peninsula to its intersection with the northerly part of the west shore. This line marks the northern boundary of the land held by the Callaghans at the time of their grant to Consumers Coal and Ice Company in 1915. It was established in Wilomay Holding Co. v. Peninsula Land Co. , 33 N.J. Super. 412 (Ch. Div. 1954), supplementary opinion, 34 N.J. Super. 121 (Ch. Div. 1955), affirmed 36 N.J. Super. 440 (App. Div. 1955), certification denied 19 N.J. 618 (1955), that the Callaghans had no title in 1915, and indeed never had title, to that part of the peninsula lying north of the X-Y line. On the contrary, the court there found that the land north of the line, sometimes called the "gore," was held by Consumers at the time of the purported grant from the Callaghans in 1915. Consumers had obtained title from one Brady and his wife five years earlier, in 1910. See Wilomay Holding Co. v. Peninsula Land Co. , above, 33 N.J. Super. , at pages 413 et seq. James N. Wright, the expert witness for the Wilomay defendant, testified for defendants in the present case and iterated that the Callaghans did not own north of the X-Y line at the time of their grant in 1915. The trial court found as a fact that this was so.
In their 1915 deed to Consumers the Callaghans reserved a right of passage over the 10-foot strip between their remaining uplands and the waters of the lake. The reservation reads as follows:
"Reserving and Excepting however, to the party of the first part, in common with the party of the second part, its successors and assigns, the full, free and uninterrupted right, liberty and privilege of passing and repassing to and from the remaining uplands of the party of the first part and the waters of said lake over and across the strip of land ten feet wide along the fourth line of the first tract hereof."
In 1939 Consumers conveyed to defendant Callaghan Island Land Company the 10-foot strip, delineated with reference to the description contained in the 1915 deed, together with certain adjoining submerged lands. This grant was made subject to the easement created in the 1915 deed, in the following language:
"* * * Subject to the reservation contained in the deed from Daniel Callaghan and Rose A. Callaghan, his wife, to Consumers Coal and Ice Company, which reserves and excepts to the said Daniel Callaghan and Rose A. Callaghan, his wife, in common with the said Consumers Coal and Ice Company, its successors and assigns, the full, free and uninterrupted right, liberty and privilege of passing and re-passing to and from the remaining uplands of the said Daniel Callaghan and Rose A. Callaghan, and the waters of said lake over and across the strip of land ten (10) feet wide along the fourth (4th) line of the first tract mentioned in the deed from Daniel Callaghan and Rose A. Callaghan, his wife, to Consumers Coal and Ice Company, * * *"
By deed from the Callaghan heirs in 1951, plaintiff became the owner of the uplands retained by the Callaghans in 1915, and the beneficiary of such easement as was reserved at that time. The deed into plaintiff refers to the 1915 deed and grants it
"* * * such rights, if any, as the party of the first part may have for themselves, their heirs, executors, administrators and assigns, to pass and repass across lands described in the last mentioned deed, which lands in part abut those hereinabove described."
In December 1955 the individual defendants began to place their bungalows on parts of the 10-foot strip. Plaintiff thereupon filed a complaint for a declaratory judgment and injunctive relief, claiming that the bungalows constituted an obstruction of its easement. An order to show cause with restraints issued, and these restraints were continued by way of temporary injunction. Defendants' answer denied that the bungalows constituted an obstruction of plaintiff's easement, claimed that the easement had not run with the ...