At issue in this litigation are the rights of the parties to the use of the waters of a small natural lake or pond situate in Andover Township, Sussex County, now known as Clearwater Lake, but which, at times in the past, bore the more prosaic names of Lake Iliff, Iliff's Pond, and Hall's Pond.
Plaintiff, Camp Clearwater, Inc., claiming to be the owner in fee simple of the bed of the lake, instituted this action against nine individuals and Lake Iliff Community Club, a corporation, to enjoin them from using the lake, to obtain a declaration of the rights of the parties, and to recover damages for alleged trespasses on the lake.
During the course of the trial a settlement agreement was entered into between plaintiff and all the defendants except the defendants George Wilson, Jr., and Mildred D. Wilson.
Defendant George Wilson, Jr., who, with his wife Edith, owns two lots shown as Lots 2 and 3 in Section A on the filed map hereinafter referred to, admits that plaintiff is the owner of the bed of the lake, but claims that by virtue of prior grants and covenants such ownership is subject to an easement which gives him (George Wilson), as the owner of Lots 2 and 3, the right to maintain a dock or open summer house extending not more than 20 feet into the lake and the right to use and enjoy the waters of the lake for boating, fishing and bathing.
Defendant Mildred D. Wilson, who owns Lots 5, 6, and 7 in Section A on the filed map, contends that plaintiff has not established that it has title to the bed of the lake, and that in any event she has "the right to use the waters of the lake and to maintain a dock and bait trap therein, and the right to rent out boats to members of the public generally for purposes of boating, fishing, and swimming in the waters of the lake." She argues that the proofs show that those rights exist by reason of (1) a public easement, (2) an implied easement by prescription which she has acquired, and (3) equitable estoppel.
I find that the proofs do establish that plaintiff holds title to the bed of the lake.
The lake, irregularly oval in shape, extends approximately 2400 feet from east to west and 750 feet from north to south. Many years ago the bed of the lake was divided among, and included in the description of, four separate tracts, which for convenience are hereinafter called Tracts A, B, C, and D.
Tract A, containing 102.8 acres, lies generally west of the lake and includes the westerly tip thereof.
Tract B, containing 2.5 acres, most of which is covered by the waters of the lake, is at the northeasterly end thereof.
Tract C, containing approximately 108 acres, extended northerly from a southerly boundary line which ran from east to west through approximately the center of the lake. Tract C thus included the northerly half of the bed of the lake except for those portions thereof as were encompassed in Tracts A and B.
Tract D, containing approximately 218 acres, included the southerly half of the lake and extended generally southerly from the line which split the lake and formed the southerly boundary of Tract C, to which Tract D was contiguous.
On April 1, 1902 The United Ice Companies of Trenton, N.J., a New Jersey corporation, held title to both Tracts C and D, and was thus the owner of the entire bed of the lake other than those portions included within Tracts A and B. It had acquired Tract C by deed dated March 30, 1901 from Henry M. Goble, executor of the last will and testament of George O. Onstead, who had purchased the tract in October 1864. By deed dated April 1, 1902 it acquired Tract D from Henry Harden and his wife; Harden having acquired Tract D in 1887.
By deed of the same date, April 1, 1902, The United Ice Companies of Trenton, N.J., conveyed to Nathan H. Hart and Lewis S. Iliff all of Tract D, except the portion thereof covered by the waters of the lake. The deed description was the same as that set out in the Harden deed, but by its terms the deed to Hart and Iliff expressly excepted and reserved to the grantor "from and out of the lands above
described all and every part thereof covered by the waters of the pond or lake known as Iliff Pond at high water mark."
The United Ice Companies of Trenton, N.J., continued to be the owner of Tract C, expanded to include the southerly portion of the lake, until August 1, 1925, when by deed of that date it conveyed the property to Charles S. Orben, taking back a purchase money mortgage of $9,000. The description in the deed and mortgage substituted a new metes and bounds description for the description contained in the prior chain of title.
At the time of the last mentioned conveyance Orben was the owner of so much of Tract D as was not included within the bed of the lake, having acquired title thereto by deed dated July 28, 1925, from Wesley Tidey and wife. The Tidey deed description was the same as that contained in the deed of April 1, 1902, to Hart and Iliff hereinbefore referred to.
By the same description, these two parcels of land were conveyed by Orben to Walter E. Fenner by deed of May 24, 1926, by Fenner to Richelieu Company by deed of November 22, 1926, and by Richelieu Company to Lake Iliff, Inc., by deed dated May 6, 1927.
On July 29, 1933 The Broad Street National Bank of Trenton, to which The United Ice Companies of Trenton, N.J., had assigned the purchase money mortgage of $9,000 made by Charles S. Orben under date of August 1, 1925, instituted foreclosure proceedings, a lis pendens being filed on August 4, 1933. The bank was the purchaser at the foreclosure sale, receiving a sheriff's deed dated June 21, 1934, in which the premises were described as they had been in the mortgage and included the entire bed of the lake other than the two portions thereof forming part of Tracts A and B.
That description was also used in all subsequent deeds and title documents, viz. , the deed dated April 3, 1939, from the bank to the German-American Bund Auxiliary; the vesting order dated November 6, 1943, and recorded January 15, 1944, by which, pursuant to the Trading with the Enemy Act, 50 U.S.C.A. Appendix , § 1 et seq. , and executive orders issued pursuant thereto, the Alien Property Custodian
vested the property in himself "subject to recorded liens, encumbrances, and other rights of record held by or for persons who are not nationals of designated enemy countries, to be held, used, administered, liquidated, sold or otherwise dealt with in the interest, and for the benefit of the United States"; the deed dated May 7, 1945, from the Alien Property Custodian to Frank Bucino, and the deed dated May 26, 1945, from Bucino and his wife to the plaintiff Camp Clearwater, Inc.
Omitted from the discussion to this point has been the chain of title to Tracts A and B in which lie the westerly end of the bed of the lake and slightly less than 2.5 acres of the northeasterly portion thereof. A detailed discussion of that chain of title is unnecessary. It is sufficient to note that title to both tracts vested in the German-American Bund Auxiliary by deed dated April 16, 1937, from Nellie I. Morrison (sole heir of William Iliff) and her husband, and that title thereto, as well as, as has been noted, title to the remainder of the bed of the lake which the Bund Auxiliary had obtained from The Broad Street National Bank, then passed successively to the Alien Property Custodian, Frank Bucino, and the plaintiff by the vesting order and deeds referred to in the preceding paragraph.
That record title to the bed of the lake is in plaintiff clearly has been established.
Before leaving this phase of the case, consideration should be given to the objection made by counsel for Mildred D. Wilson to the admission into evidence of various documents in the chain of title, an objection grounded on plaintiff's having failed to list those documents in its answer to an interrogatory demanding that the plaintiff "set forth the chain of title of all documents under which plaintiff claims the right to ownership of the lands under the waters of the lake known as Clearwater Lake."
The answer given set forth some 13 deeds in the chain of title, giving dates thereof, the parties thereto, and the books and pages in which they were recorded.
Although plaintiff should have set forth in its answer all the documents that were offered into evidence, its failure to do so did not, in fact, prejudice the defendant. All the instruments offered are of record in the Office of the Clerk of Sussex County; most, if not all of them, are referred to in the various instruments which were set forth in the answer to the interrogatory. There is no suggestion that the failure to list all the documents was motivated by an intent to deceive; and moreover, during the course of the trial the court offered to afford additional time to the defendant to analyze and investigate the instruments offered if defendant conceived that she was surprised or prejudiced. All the documents admitted into evidence are properly to be considered as evidence against her, as well as against defendant George Wilson, Jr. Ross v. Ross , 35 N.J. Super. 242 (Ch. Div. 1955).
The lots owned by the defendants are lots shown on a map entitled, "Map of Lake Iliff," dated May 6, 1927 and filed in the Sussex County Clerk's Office by Lake Iliff, Inc., which at the time owned all of Tracts C and D. The map showed all the property owned by Lake Iliff, Inc., and included all the lake except the westerly end thereof and the 2 1/2 acres forming the northeasterly part thereof.
However, the filed map showed only two portions of the property actually subdivided and laid out into streets and building lots (most with a frontage of 50 feet); apparently the balance of the two tracts was left for future development and subdivision. Both subdivided portions, designated as Sections A and B, are south of the Andover-Newton-Sparta Road, which itself is south of the lake, although it borders on the southwestern shore of the lake for a distance of some 590 feet.
Defendant George Wilson, Jr., whose title (as tenant by the entirety with his wife) to Lots 2 and 3 in Section A stems from a deed dated August 15, 1929 from Lake Iliff, Inc., to George Wilson, Sr., bottoms his claim that he has the right to use all the lake, except the westerly end and the northeasterly 2 1/2 acres thereof which came through
separate chains of title, on two alleged easement grants in the chain of title to his property.
The first is found in the deed of April 1, 1902 by which The United Ice Companies of Trenton, N.J., conveyed to Nathan Hart and Lewis S. Iliff the portion of the 218-acre tract (Tract D) lying south of the lake, retaining title to the 108-acre tract (Tract C) as expanded to include most of the bed of the lake. That deed provided that the grantees, their heirs and assigns
"shall and may have and enjoy the right and privilege of boating and fishing in and upon said lake at all seasons of the year except during the winter months; said right and privilege to extend to the families of said parties of the second part, or their assigns, and casual visitors thereto."
But the easement and rights granted by that deed were extinguished when Charles S. Orben, who by deed dated July 28, 1925 had acquired Tract D, the dominant estate, then by deed dated August 1, 1925 from The United Ice Companies of Trenton, N.J., took title to Tract C, the servient estate, ...