Conford, Freund and Haneman. The opinion of the court was delivered by Freund, J.A.D.
Plaintiff instituted this action to obtain an injunction against, and to recover damages for, the defendants' use of a sewer system under the plaintiff's property. The Chancery Division, finding no proof of damages, ordered an injunction requiring the defendants to disconnect their attachments from the sewer system "forthwith." Pending the disposition of defendants' appeal to this court, that judgment was stayed.
On January 20, 1953 defendants Richard N. Dinallo and Vincinio P. Carnecchia, trading as Caldwell Enterprises (Caldwell), purchased a tract of approximately 20 acres of land in West Caldwell, located at the intersection of Clinton Road and Passaic Avenue, with the intention of developing it for industrial purposes. The municipality does not have a public sewer system servicing the area of which Caldwell's tract is a part; although there is an ordinance
authorizing such an installation, the work has not been performed. As a result, Caldwell installed its own sewer system running under part of the 20 acres. The sewer lines form a "U," at the bottom right corner of which is a pumping station located at the point where Clinton Road intersects Passaic Avenue. Clinton Road corresponds with the right line of the "U"; Passaic Avenue, the bottom line.
On June 13, 1956 Caldwell sold and conveyed to the plaintiff, American Rieter Co., Inc. (Rieter), for $36,200 that part of its tract under which the sewer lines and pumping station are located. The 4.5-acre parcel conveyed to Rieter has a 400-foot frontage on Passaic Avenue; i.e. , from the point at which the sewer line intersects Passaic Avenue to the corner of Clinton Road. Except for the frontage on these two streets, Rieter's property is bounded by the lots which Caldwell retained.
In the contract of sale and in the deed, the parties inserted provisions reserving to Caldwell an easement as to that strip of land conveyed under which lie the sewer lines and pump. Caldwell agreed as part of the easement to service Rieter's land for sewerage, and to remove the pumping station and abandon the easement when the municipal system took over the operation. The deed contains the following language:
"The easement described above and reserved to the Grantors is specifically reserved for the purpose of enabling the Grantors to maintain the present sewage system and drainage and sewer pipes which exist over part of said easement, and further, to enable the Grantors, their heirs, executors, administrators, successors and assigns to further continue the installation of sewage lines , which sewer and drainage will be maintained by the said Grantors, their heirs, executors, administrators, successors and assigns for the maintenance over the said sewer, which sewer services the lands herein conveyed as well as other lands now owned by Grantors.
All of the rights herein granted to the Grantors, in the easement mentioned above, shall run to the Grantors, their heirs, executors, administrators, successors or assigns, and shall run with the land and all of the obligations of the Grantors relating thereto shall inure to the benefit of the Grantee, its successors and assigns, and likewise shall run with the land. * * *" (Emphasis added.)
The property across Clinton Road at the corner of Passaic Avenue, beyond the right side of the U-shaped system, is owned by the defendant Levin Corporation and leased to an Acme Supermarket. In January 1957 the Levin Corporation, with the consent and permission of Caldwell, constructed a sewer line for its property, extended it under Clinton Road, and tied it into the pumping station on plaintiff's property for the purpose of disposing of its sewerage. It is conceded that Caldwell never owned the land upon which is located the Acme Supermarket.
Rieter's theory in instituting this action is that the Levin connection to the sewer, actually made by the defendant Joseph Shur, a plumbing contractor, constitutes a trespass, and that Caldwell had no right to authorize the "hook-in" since the easement was reserved only to service lands owned by Caldwell at the time of the conveyance to Rieter. Defendants countered with the argument that the language of the instrument, quoted above, does not admit of such a limited construction, but was intended to and does permit Caldwell to authorize owners of nearby properties to tie into the system.
Defendants offer two grounds for reversal: (1) the construction by the Chancery Division of the operative words in the deed is erroneous, and (2) the court erred in excluding evidence bearing upon the actual intentions of the parties to the deed. In the alternative, ...