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Levinson v. Costello

Decided: June 5, 1962.

ALBERT LEVINSON AND JOYCE LEVINSON, HIS WIFE, PLAINTIFFS-RESPONDENTS,
v.
FLORENCE M. COSTELLO, AGNES C. BELL, FRANK D. DONOVAN AND JULIA C. DONOVAN, HIS WIFE, DEFENDANTS-APPELLANTS



Conford, Gaulkin and Kilkenny. The opinion of the court was delivered by Conford, S.j.a.d.

Conford

Plaintiffs own an improved ocean front lot in Long Beach Township sold and conveyed to them by reference to a subdivision map described as "Plan of Marlin Beach Section 1." The lot is numbered #9 on the said map. Defendants Bell and Costello own an unimproved lot in the same subdivision, numbered #1, and fronting on Long Beach Boulevard. Altogether there are 12 building lots in the subdivision lying between Long Beach Boulevard on the west and the Atlantic Ocean on the east. The lots are laid out in three north-south rows, each row containing four lots, one row being on the boulevard, one on the ocean and the third between them. In order to afford access to and from all the lots both to the ocean and the boulevard, which is the only public highway abutting the development, the original grantor appears to have created out of the lots conveyed two 20-foot easements of passage running from the boulevard to the ocean, each consisting of contiguous ten-foot strips reserved for said purpose out of the lots conveyed, so that one of these 20-foot passageways serves the six northernmost lots, jointly, and the other the six southernmost lots similarly. Lots #1 and #9 are each the northernmost lots of their respective rows and consequently share the same 20-foot passageway. (There are also easements of access to Barnegat Bay, lying west of Long Beach Boulevard, but these are not material here.)

This action involves a grievance by plaintiffs over the use of the passageway and of the ocean beach constituting the easterly end of their property by invitees of the defendants Costello and Bell.

The nature and objects of the easements of passage are properly to be derived from a consideration of both the subdivision plot-plan, which was introduced in evidence and shows the two sets of contiguous ten-foot strips laid out as described above, and the language of the deeds conveying lots #1 and 9 to the respective parties herein. See

Zeller v. Littell , 58 A. 377 (Ch. 1904) (not officially reported); Herold v. Columbia Investment and Real Estate Co. , 72 N.J. Eq. 857, 14 L.R.A., N.S. , 1067 (E. & A. 1907); Bozarth v. Egg Harbor City , 89 N.J. Eq. 26 (Ch. 1918). The deeds both to plaintiffs and to defendants Costello and Bell grant easements in substantially identical terms, as follows: "together with a 10 foot wide easement for vehicular and pedestrian access to and from Long Beach Blvd., a 10 foot wide easement for pedestrian access to and from the Atlantic Ocean and * * *"; and also, "together with right of reasonable use of the beach front by property owners and occupants only of the Marlin Beach development." Both deeds contain reservations out of the lots as follows: "excepting and reserving a 10 foot wide easement extending for the entire width of this lot along the southerly line thereof; said easement to be used for pedestrians and vehicles serving this and other lots on the tract and for occupancy by utilities serving this and other lots on the tract."

Except for one lot on which there is erected a duplextype house sometimes accommodating more than one family, the improvements thus far built on other lots using the same 20-foot passageway as plaintiffs and defendants Bell and Costello are single-family dwellings. It is inferable from all the surrounding circumstances that all these structures are used primarily as summer beach residences.

The proofs indicate that the defendant Frank D. Donovan, who owns no property in the development, has frequently driven a motor vehicle onto the passageway, which is paved with gravel, and left it parked thereon alongside the plaintiffs' home for hours at a time, sometimes while going to the beach at the development, and sometimes while returning to his home nearby on the other side of Long Beach Boulevard. His and his wife's use of the beach and passageway has been by permission of the defendants Bell and Costello, to one of whom he is related. Moreover, Bell and Costello have granted permission to tenants of the Donovans, in one

case by a written "permit," to use the passageway for access to the ocean front of the development. Plaintiffs' suit was to enjoin these practices, the claim being that defendants Bell and Costello had no right to permit such persons as the Donovans or the tenants of the latter to use either the passageway or the oceanfront. Defendants contested the claim and urged that other property owners were necessary parties to the proceedings.

After trial, the Chancery Division entered a judgment in effect accomplishing the following: declaring the Donovans had no right to use the passageway insofar as any claim thereto was based on their ownership of lands elsewhere; enjoining the Donovans from blocking the passageway; enjoining the Donovans from using the beach front lands owned by plaintiffs except as "bona fide social guests" of Bell and Costello, that term being defined as "a person spending a social time with [Bell and Costello] upon the lands owned by them in Marlin Beach," and excluding "any one paying a consideration for the privilege of being a social guest"; enjoining Costello and Bell from granting permission to persons other than their bona fide social guests to use the passageway or the beachfront lands owned by plaintiffs "for bathing and recreational use."

This appears to be a case of novel impression on its specific facts.

Preliminarily, we reject the argument of the defendants that the language of the deeds requires the construction that there are two separate easements of ten feet each, one in favor of and one granted by each lot owner, with each having separate and distinct incidents. As indicated above, where the grants refer to a map or plat, as here, the instruments of title are to be read in the light of the map, as well as of all the surrounding circumstances. So considered, the intent of the original developer, acquiesced in by the purchasers, was to create ...


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