Price, Schettino and Gaulkin. The opinion of the court was delivered by Price, S.j.a.d.
[53 NJSuper Page 43] By this appeal defendant challenges the propriety of a judgment against it for $18,250 entered in favor of plaintiff, its tenant, in the Superior Court, Law
Division, upon a jury verdict in that sum. The action was based on defendant's alleged violation of the terms of a written lease.
Defendant is the owner of premises located on the southwesterly side of Route 17, Bergen County, New Jersey, which in 1948 it used in part for the operation of a gas station. In that year defendant leased a portion of the premises to plaintiff for a period of ten years at an agreed monthly rental of $50. Plaintiff utilized the demised property for the operation of a diner which he purchased from defendant at the time of the execution of the lease. The diner was located southeasterly of defendant's gas station with the nearest point of the dining car about 85 feet from the gas station. The leased premises were described as follows:
"* * * the land and premises on Route 17 in the Township of Mahwah, Bergen County, New Jersey upon which there is located a diner this day sold by the Landlord to the Tenant. In addition to the area upon which said diner is located, the leased premises shall extend for a distance of 40 feet on the north and south sides of said diner and approximately 130 feet from Route 17 to a cyclone fence in the rear. This makes the frontage on Route 17 approximately 118 feet; * * *"
Paragraph "Twenty-Fourth" of the lease provided: "Both the Landlord and Tenant shall have the right of ingress and egress across the driveway adjoining the diner." The driveway referred to was not further identified in the lease. Its true location constituted one of the major issues at the trial.
In July 1954 the old diner was replaced by a new one purchased by plaintiff for approximately $80,000. A new site for the new diner, southeasterly of the location of the old diner was agreed upon by the parties. It was conceded that the new diner so located extended beyond the demised premises in a southeasterly direction and encroached upon defendant's retained land.
In January 1957 plaintiff, exercising an option contained in the lease, renewed it for an additional ten-year
period. There was no written modification or alteration of the lease at any time to reflect the changed location of the diner.
In March 1957 defendant demolished its gas station and erected a new one, so located that its northeasterly corner encroached for a few feet upon the northwesterly portion of the premises previously demised to plaintiff. The defendant's right to do so and whether, in addition to encroaching on the demised premises, the gasoline station encroached on and interfered with plaintiff's aforesaid driveway rights, were major issues. It was conceded that there was no physical delineation of a driveway on the ground. The area, in dispute, which plaintiff claimed was part of the driveway, was beyond the northwesterly boundary of the demised premises.
Plaintiff's complaint contained the following allegation:
"Notwithstanding the terms and conditions of said written lease, as therein provided, the Defendant-Corporation has breached and violated the terms, covenants, and conditions therein contained, and has erected and constructed a gasoline station across and on said driveway, and at a height so to obstruct the view of Plaintiff's diner on said premises, and is depriving the Plaintiff of his patrons' and customers' right of ingress and egress across said driveway referred to in said lease, and has terminated and destroyed the Plaintiff's right of ingress and egress across said driveway as provided in said lease."
The complaint did not contain any allegation that the new gas station encroached on the demised premises.
The answer denied the allegations of the complaint and in addition raised the defense that the lease was terminated by act of the parties and by operation of law as a consequence of the 1954 location of the new diner partially outside the demised premises.
Plaintiff's contentions set forth in the pretrial order included the following:
"Said lease provided amongst other things that both the plf & deft, as landlord & tenant, should have the right of egress & ingress across the driveway, adjoining the diner which was purchased by plf from deft, & which right of ingress & egress was created for the benefit
of plf as tenant & his customers in trade in connection with the ...