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Stalter v. Arndt

Decided: March 21, 1962.

EDMUND STALTER, PLAINTIFF,
v.
WILLIAM C. ARNDT AND ROSE ARNDT, DEFENDANTS



Collester, J.s.c.

Collester

Plaintiff Edmund Stalter sues to enjoin defendants William C. Arndt and Rose Arndt from interfering with plaintiff's easement over a part of the defendants' land. The pertinent facts are as follows:

On October 13, 1890 Elizabeth and William Ruga, her husband, conveyed to Jean Westervelt and Benjamin Westervelt, her husband, a tract of land fronting on Sylvan Avenue in the Borough of Englewood Cliffs. Sylvan Avenue runs in a general northerly direction at this point. The property extended 302 feet easterly in depth to the westerly boundary of property of DeMott or Irving.

On September 14, 1900 Jean and Benjamin Westervelt conveyed to their son Daniel Westervelt the easterly half of such tract. The deed contained the following reservation:

"Together with a right of way out to Sylvan Avenue eight feet in width, said right of way to be used as such only until an avenue shall be laid out along the within described lot's easterly end when the said right of way shall cease."

On February 27, 1917 Jean Westervelt died testate and her son Daniel thereupon became the owner of the westerly half of said tract. Thus Daniel owned the entire tract as originally conveyed by Ruga to his parents.

On July 20, 1920 Daniel Westervelt and Doretta, his wife, conveyed the westerly half of the tract fronting on Sylvan Avenue to defendant William C. Arndt. Said deed contained the following reservation:

" Saving and reserving to the said parties of the first part the right of egress and ingress over a strip of land eight feet wide along the Southerly side of said described premises." (Emphasis added)

Thereafter William C. Arndt, through mesne conveyances, caused title to the westerly parcel to be conveyed to himself and his wife Rose Arndt, as tenants by the entirety. Such deeds recited that said property was subject to the eight-foot right of way reserved in the Westervelt deed.

On February 14, 1929, a question having arisen and having been resolved concerning the depth of the Arndt property, a correction deed was executed by Doretta Westervelt, then a widow, to the Arndts which corrected the depth of the property heretofore conveyed to 136 feet instead of 120 feet. This deed contained the following reservation:

"Saving and reserving to the said party of the first part, her heirs and assigns, the right of egress and ingress over a strip of land eight feet wide along the entire Southerly side of said described premises." (Emphasis added)

Some time thereafter defendant William C. Arndt protested to Joseph Cook, Mrs. Westervelt's attorney, concerning the use of the words "her heirs and assigns" in said deed. Cook did nothing about it and Arndt then retained Thomas S. Clancy as his attorney. Mr. Clancy went to see Mrs. Westervelt concerning the language in the correction deed, stating Arndt's objections. She referred him to Mr. Cook stating, "You see Mr. Cook and if he tells you it can be changed, why you change it, but that is my intention as the original deed was written." (Emphasis added)

Thereafter new deeds were drawn by Mr. Clancy which were executed on March 4, 1930: the first, from William C. Arndt and his wife to Doretta A. Westervelt, a widow, followed by a deed on the same date from Doretta A. Westervelt to William C. Arndt and Rose Arndt, his wife. This last deed contained the same language for the reservation of the eight-foot strip as set ...


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