Goldmann, Foley and Halpern. The opinion of the court was delivered by Halpern, J.s.c. (temporarily assigned).
This action in lieu of prerogative writ was instituted by plaintiffs, as residents and taxpayers of Warren and Bridgewater Townships, in Somerset County, seeking to restrain the quarry defendants, Dock Watch Quarry Pit, Inc., Harry E. Von Osten, Edward Mundock and John W. Mondak, from operating a stone quarry on the theory that it was a nuisance; and to compel Warren and Bridgewater to enforce their zoning ordinances against the use of the quarry defendants' premises as a stone quarry. After a full hearing on the merits, including an inspection of the premises by the trial judge, he rendered an opinion, upon which a judgment was entered, wherein he determined that the quarry defendants had a prior nonconforming use to operate the quarry in Warren and Bridgewater; that the quarry operation, as conducted, was not a nuisance, and could be continued; that mandamus would not lie against the townships because there was no violation of their ordinances; but he limited the hours of the quarry operations from 8 A.M. to 4:30 P.M. on weekdays, and prohibited work on Saturdays, Sundays and legal holidays.
The plaintiffs appeal from this judgment (except so much thereof as orders the quarry defendants to discontinue the use of their lands lying to the east of Dock Watch Hollow Road). The quarry defendants cross-appeal from so much of the judgment limiting their hours and periods of operation.
The issues presented for decision by this appeal and cross-appeal are:
(1) How much of the quarry's 20.47 acres of land are in Warren and how much in Bridgewater?
(2) May the quarry defendants operate the quarry in Warren and Bridgewater as a nonconforming use, and, if so, have they unlawfully extended and intensified the permitted use?
(3) Have the quarry defendants violated the townships' building and structure ordinances by utilizing larger and modern equipment and structures?
(4) Are the plaintiffs guilty of laches?
(5) Do the quarry operations amount to a nuisance and did the trial judge properly limit the hours and days for quarry operations?
Before deciding these issues, a summary of the facts which the trial judge could properly find from the testimony, exhibits and his inspection of the quarry property, follows:
In 1926 the defendant, Von Osten, came into possession of a tract of mountain land consisting of 20.47 acres; 6.06 acres thereof is located in Warren and 14.41 acres in Bridgewater. On December 31, 1946 he acquired title thereto. The tract is located on the second mountain of the Watchung chain and lies north of Washington Valley Road and mostly west of Dock Watch Hollow Road. Its lowest point at the brook is 300 feet above sea level, and it rises to a point about 600 feet above sea level. Washington Valley Road runs along a valley, for about nine miles, between the first and second Watchung Mountains, and extends from Pluckemin, in Bedminster Township, to the Borough of Watchung. Dock Watch Hollow Road extends northerly from Washington Valley Road and cuts across a small portion of the easterly end of the Von Osten tract. Von Osten lived in an old house situated on the west side of Dock Watch Hollow Road. A small area of the property near the house has been cleared and leveled, and practically all of it comprises a sheer cliff of rock, with tree growth thereon, which rises [69 NJSuper Page 6] almost perpendicularly from the leveled portion. The topography of the property makes it impractical, if not impossible, for residential or agricultural use, and its highest use is that of a quarry. The tract contained a unique deposit of commercially usable rock from which an estimated six million tons were obtainable without blasting. In the early 1930's there were few, if any, residences near the property. In fact, even today, there are no residences for miles on the same level with the Von Osten tract on the second mountain. In recent years homes have been built along Washington Valley Road and some home development south and east of the quarry property toward Washington Valley Road has taken place. The locale however is still essentially a rural mountain area. During 1930 Von Osten had a geological survey made and, realizing he had a valuable natural resource, commenced to exploit it despite his limited finances. In 1931 and 1932 he started to "break the mountain down" and to quarry stone, in a small way, at a point in Warren near his house. He sold the stone so obtained and tried to get financial support from others to develop this business. He marked off the boundaries of the entire tract by erecting a fence which enclosed three sides of the property; the fourth side had a brook for a natural boundary. He continued his digging and quarrying, using a stone crusher and other equipment for that purpose, from 1931 to about 1949, continuing into the mountain from his starting point in Warren near his house. While he did some digging and stone removing on a portion of his Bridgewater land, such was abandoned prior to 1950, but the operation from the Warren side was continuous. During these years he slowly, but steadily, increased his quarrying operations. In the early 1940's he had surveys made to more accurately determine the quality and quantity of the stone on the entire tract. He had test holes made "all over the acreage on top of the hill." He hired others to help him clear trees in the area being quarried. He continually sold stone to masons, friends, neighbors and
construction contractors. In 1947 he entered into a written contract with one Roger Dealaman giving Dealaman the exclusive right to remove dirt from any part of the entire tract.
On November 2, 1937 Bridgewater adopted its building and structure ordinance, and on August 28, 1950 it adopted its land use ordinance. On February 2, 1948 Warren adopted its building and structure ordinance, and on May 5, 1952 adopted its land use ordinance. Warren's land use ordinance classified Von Osten's property as rural; and Bridgewater's land use ordinance classified it as residential. Quarrying on Von Osten's land was forbidden under both ordinances.
Despite the passage of these ordinances Von Osten continued his operations without objection or hindrance from either township until sometime in 1952. In May 1950 Von Osten entered into a written contract with Roger Dealaman and Edward Mundock for the digging and removal of all dirt, stone and rock, from the entire tract for a 20-year period, and gave them first refusal to purchase the entire tract. The lessees commercially operated the quarry under this lease. In February 1951 Von Osten entered into a written contract with Joseph Mondak, John W. Mondak and Edward Mundock for the digging and removal of all dirt, stone and rock from practically all of his land for a 20-year period; the operations to begin and continue at the site near the "Homestead area." These lessees continued to commercially operate the quarry. In July 1954 the lessees assigned their rights to Dock Watch Pit & Quarry, Inc., which corporation thereafter continued the quarry operation. In September 1956 Von Osten, Edward Mundock and John W. Mondak formed a corporation known as Dock Watch Quarry Pit, Inc. to dig, quarry and sell stone, etc. This corporation is presently operating the quarry business.
Sometime in 1952, residents in the area began complaining of the quarrying operations to the officials of Warren and Bridgewater. This resulted in the development of a strange
and unusual situation. Both townships refused or delayed taking any affirmative action, each contending that the Von Osten property was not located in its township. The answer filed by each township in this suit denied that the Von Osten property was within its respective boundaries. The townships took this position despite the fact that for years prior to the institution of this suit they each levied and collected taxes on portions of the property. The manner in which the taxes were levied only confuses the picture but it is briefly mentioned to show the inconsistency of the positions taken by the townships. It is obvious that both townships, for reasons best known to themselves, wanted no part of the quarry. Each township assessed two acres of the land for about 20 years. From 1949 to 1958 Warren assessed nine acres of the quarry land. In 1954 Bridgewater adopted a new tax map in which it placed 14.41 acres of the quarry land in Bridgewater and the balance of 6.06 acres in Warren. Despite this fact, Bridgewater has also been assessing the quarry defendants' realty, personal property and equipment, although such personalty was located in Warren. Warren's new proposed tax map places all of the Von Osten property in Bridgewater Township. This attitude, on the part of both townships, has only served to muddle the situation and to create uncertainty and confusion in the minds of all interested parties. For this reason the quarry defendants were unable to get zoning relief from either township.
When pressure by citizens intensified in the early part of 1952, Bridgewater's engineer and its building inspector examined the quarry site. On February 13, 1952 they reported, in writing, to the Township Committee that the quarry was located entirely in Warren. In June 1952, upon request of the Bridgewater Township Committee, its engineer drew a sketch of these conclusions. Meanwhile the quarry defendants continued their quarrying operations without molestation. In 1958, because of complaints being made, these Bridgewater officials made a further investigation of the quarry property, took pictures, prepared a map and
reported to the Township Committee that quarrying had continued in Warren but was now getting closer to the Bridgewater line. In 1959, after this suit was filed, they made another examination and reported that the quarry operations were now about 150 feet within the Bridgewater line.
As the result of complaints made by residents of Warren to the Warren Township Committee it directed its attorney to investigate and report on the situation. The attorney, after a thorough investigation, reported, in writing, to the Committee on February 9, 1954, that Von Osten had a non-conforming use in Warren, and could not be prevented from continuing it.
With these facts as a backdrop we consider the issues presented, enlarging on the facts where necessary under the separate points covered.
To the extent necessary for this decision, we have concluded that 14.41 acres of the Von Osten tract are located in Bridgewater; and 6.06 acres thereof are in Warren. There were ample proofs in the record to justify this determination and we concur therein. We have been asked by plaintiffs, in their briefs, to compel Bridgewater and Warren to determine and fix their boundary line. Since this issue and such relief were not presented by the pleadings, or tried below, we take no affirmative action thereon. The parties, however, are not without a remedy. See N.J.S.A. 40:18-14, et seq.
NONCONFORMING USE AND ITS EXTENT.
At the outset, we wish to make it clear that since the Von Osten land is a single tract lying in Warren and Bridgewater Townships, it is affected by the zoning ordinances of both townships.
The plaintiffs proved, and it was admitted by the quarry defendants, that when this suit was started, quarrying was being done on the Von Osten lands contrary to the permitted uses in the present zoning ordinances of both townships. This cast upon the quarry defendants the burden of establishing that such use, though nonconforming, nevertheless existed at the time of the passage of the townships' ordinances. Heagen v. Borough of Allendale , 42 N.J. Super. 472 (App. Div. 1956).
The plaintiffs, in their brief, in effect admit that the trial judge could have found from the proofs that a nonconforming use existed for the two-acre "Homestead Tract" in Warren. They argue however that such quarrying be limited within this two-acre tract; and that such quarrying be done only by means of the equipment and structures utilized on the date of the adoption of the applicable zoning ordinances.
The proofs in this case are conclusive that Von Osten and his lessees were quarrying stone on the Warren end of the Von Osten lands, at the two-acre Homestead site, long before the Warren and Bridgewater land use ordinances went into effect. It remains for us to determine, in the first instance, whether such nonconforming use must be limited to the area where the operations were then taking place, or whether it may be continued and extended to all, or other portions, of the tract.
The applicable statute is R.S. 40:55-48 and it provides:
"Any nonconforming use or structure existing at the time of the passage of an ordinance may be continued upon the lot or in the building so occupied and any such structure may be restored or repaired in the event of partial destruction thereof."
This statute has existed, without change, since its original adoption in 1928. Our courts have consistently determined, and we are today committed to the philosophy, that while nonconforming uses may be continued as of right they are to be restricted, and may not be enlarged as of right, except where the enlargement is insubstantial or where a variance
therefor has been granted. Grundlehner v. Dangler , 29 N.J. 256 (1959).
The thrust of plaintiffs' arguments on this point is that only the nonconforming use existing at the time of the enactment of the ordinance may be continued upon the lot as then occupied, Ranney v. Istituto Pontificio Delle Maestre Filippini , 20 N.J. 189 (1955); that the statute protects the use occupying the land and does not deal in mere intentions of the owner, Martin v. Cestone , 33 N.J. Super. 267 (App. Div. 1954); that the criterion is whether the incipient use manifestly implies an appropriation of the entire parcel prior to the adoption of the restrictive ordinance, Gross v. Allan , 37 N.J. Super. 262 (App. Div. 1955); and that the statutory expression, "existing use," should be interpreted to mean that there was a manifest use of the ...