Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

Kish v. Beruth Holding Corp.

Decided: March 8, 1961.

ANDREW KISH AND FRANCES KISH, HIS WIFE, PLAINTIFFS-APPELLANTS,
v.
BERUTH HOLDING CORP., A NEW JERSEY CORPORATION, ET AL., DEFENDANTS-RESPONDENTS



Goldmann, Foley and Drenk. The opinion of the court was delivered by Goldmann, S.j.a.d.

Goldmann

Plaintiffs appeal from a Chancery Division judgment entered in their quiet title action. Resolution of the dispute revolved around the true location of the boundary line between the parties. The judgment held that

"* * * the boundary line between the plaintiffs' and defendants' lands is the first course of the plaintiffs' deed; that the plaintiffs sat back and did nothing to point out their line or indicate during the time that the defendants were permitted to lay out and grade the land and to erect properties thereon under the belief that they owned the parcels up to the line set forth in the report of the Commissioners aforesaid. That the plaintiffs are perpetually restrained and estopped from asserting their legal title against any encroachments, if there are any. That the plaintiffs convey a strip of land in question to the defendants, payment by the defendants to the plaintiffs, to wit, approximately $200.00 to $250.00; that if plaintiffs do not accept said amount and refuse to convey to the defendants title to the disputed strip aforesaid, they are perpetually restrained and estopped from asserting their legal title against any encroachments as alleged, said restraint to extend to the line established by the Commission appointed as herein above mentioned and shall run Northerly to the end of Oakwood Terrace, Section 2, mentioned herein."

Plaintiffs contend that defendants' encroachments upon their lands were the result of a mutual mistake as to the location of the boundary, and without fault on their part. They further argue that the relief granted by the trial court extends far beyond allowing those encroachments to remain, and that the court required them to convey much more land than was encompassed by the encroachments -- an inequitable result not in accord with the discretion exercised by equity courts in similar situations.

The facts are not in dispute. Ludwig Clauss died in 1904, devising his 40-acre lot, an irregularly shaped rectangular piece of land in the Borough of Carteret, to his wife Mary. In 1910 she subdivided the property by drawing two interior cross-lines and conveyed the four parcels, of about 10 acres each, to her children, Helena Clauss, Michael Clauss, Elizabeth Markwalt and Emma Grover, respectively. Plaintiffs'

title stems from the northwest quarter conveyed to Elizabeth Markwalt, and defendants' from the northeast quarter conveyed to Emma Grover. Plaintiffs' claim of encroachments by defendants involves the first course in their deed, which runs from the low-water mark in the Rahway River south 17 degrees 3' west 478 feet, more or less, to a stake.

In 1930 Gottlieb Markwalt, Elizabeth's husband, instituted proceedings for the appointment of commissioners to determine the dividing line between the properties owned by him, Grover and one Leszczyk, grantee of part of the Grover property. The Common Pleas Court appointed three commissioners, who filed a report in June 1931 whereby they decided that the boundary line was determined by the center of Clauss Lane. They relocated the lane and fixed the boundary line accordingly. Clauss Lane terminated a short distance south of what is now plaintiffs' property. The commissioners, going beyond the scope of their authority, extended the center of Clauss Lane northerly to the Rahway River, along a line running north 18 degrees 12' east.

At the time the commissioners fixed the line the owner of the property to the west was William Rapp, Sr., plaintiffs' predecessor in title. Since Rapp was not made a party to the boundary proceedings, the action taken by the commissioners could not bind him or plaintiffs, his successors in title.

Plaintiffs bought their property in 1951. The land to the east was purchased by Beruth Holding Corp. in April 1958. The property was thereafter laid out on a map entitled "Oakwood Terrace, Section Two." It sold a portion of the property to Denise Homes, Inc. and another portion to Rand Building Corp. Rand sold lot No. 14 in Oakwood Terrace to defendants Campbell by deed dated November 21, 1958. The westerly line of this lot abuts plaintiffs' property and runs a course of north 18 degrees 12' east for 145.64 feet. Denise Homes conveyed lot No. 17 in Oakwood Terrace to defendants Wilkey on December 1, 1958, the westerly line abutting plaintiffs' property and running a course of north

18 degrees 12' east for 152.94 feet. Defendant Berkeley Savings and Loan Association holds a mortgage on lots Nos. 14 and 17. The Wilkeys lost their property through foreclosure, and defendant Denise Homes, Inc. reacquired title to lot No. 17.

Plaintiffs claim as their eastern boundary a line running south 17 degrees 3' west, as shown in their deed. Defendants claim as their westerly line the one established by their surveyors, who used the line fixed by the commissioners in 1931, running north 18 degrees 12' east. The boundary line which plaintiffs contend is the true line falls 14 to 14 1/2 feet east of the line established by the commissioners. Hence, the disputed area between these two lines may be described as a trapezoid, some ...


Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.