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Rullis v. Jacobi

Decided: May 17, 1963.


Herbert, J.s.c.


This case involves a dispute over a strip of land in Hillside. Triangular in shape, the strip measures a little over three feet along the westerly side of North Broad Street and from that base tapers off to a point, or near point, approximately 55 feet to the west. The plaintiff holds an unchallenged record title to a lot which lies immediately to the south of the strip in question. That lot has a frontage of 25 feet on North Broad Street and a depth of about 175 feet. The defendants are owners of record of the land immediately north of the plaintiff's. They contend that their record ownership of the triangular piece has not been affected, either in fact or in law, by conduct of the plaintiff and his predecessors.

For some time before May 31, 1923 Mr. and Mrs. Stead owned the 25-foot lot which has subsequently passed into the ownership of the plaintiff. It was the site of Mr. Stead's monument and gravemarker business. At a date which the proofs did not accurately establish, but which was before 1923, he erected a fence along most of the northerly side of the triangular strip which is now in dispute. It was described as a typical cemetery fence of the period, and consisted of heavy granite posts set deeply into the ground and connected by metal pipes or tubes as fence rails. One may surmise that Mr. Stead intended to place the fence along his northerly boundary line as defined in his deed, but made the mistake of putting it upon property owned by a predecessor of the defendants. It may be noted, too, that the side lines of the Stead lot (now the plaintiff's), as defined by deed, are

not at right angles to the North Broad Street frontage, and this could have contributed to a mistaken notion about the location of the correct boundary line. There are, however, no proofs as to why Mr. Stead placed the fence in the location where it remained until 1961.

On May 31, 1923 Mr. and Mrs. Stead conveyed to Mr. and Mrs. Gehrie, with a recital in the deed that title had been acquired by the grantors from a Mrs. Hutchinson on July 31, 1915. The Gehries in turn conveyed to Mr. and Mrs. George on December 7, 1951, and on August 11, 1958 the Georges transferred title to the plaintiff and his wife. In this series of transfers none of the deeds describes the line along which the fence stood. That line was, of course, the northerly side of the triangular plot now in dispute. Instead, the deeds all describe a lot having a 25-foot frontage on North Broad Street and a northerly boundary line which, for part of its length, is the southerly side of the triangle in dispute.

Each of Mr. Stead's successors in title operated a monument and gravemarker business, and the plaintiff is still doing so. The defendants made an attempt to prove that the property in dispute was not occupied by the plaintiff and his predecessors. They also tried to show that permission had been granted for such usage as took place. Both of these attempts failed. I am satisfied from the evidence, and find, that the space on the plaintiff's side of the fence was used by, and held in the possession of, him and his predecessors continuously for a total of more than 30 years. A number of photographs taken at various times were placed in evidence showing markers and monuments placed near the fence for display purposes. In addition, the plaintiff was able to produce Mrs. Gehrie as a witness. Though infirmities of age made it necessary for her to give her testimony by deposition, she was clear in mind and memory. She told how she had been active in the business with her husband during the Gehrie ownership, which extended from 1923 until 1951. She made it clear that they had used the disputed triangle as part of their display yard. The plaintiff himself testified that his use of the disputed area, and the

use made of it by his immediate predecessor George, was essentially the same as that of the Gehries.

On October 30 and November 1, 1961 the defendant Herbert Jacobi destroyed the fence. A few days later this suit was started in an effort to establish the plaintiff's claim of title and obtain damages for the destruction of the fence.

Although I am satisfied that the plaintiff and his predecessors held undisturbed possession of the parcel in question for more than 30 years prior to October 31, 1961, the testimony raises a question as to the character of the possession. Mrs. Gehrie testified that she and her husband used the land up to the fence with the thought that the fence line was the boundary line. Plaintiff testified that he was unaware his deed description did not include the disputed triangle, and on cross-examination conceded it was never his intention to use a fence outside of his boundary line. If the present case presented a truly original problem, I think much could be said for the proposition that one who makes a mistake about the location of his boundary line and occupies as owner land which he does not own is by the very fact of exercising the prerogatives of ownership assuming an adverse and even hostile attitude toward his neighbor's record title. It appears, however, that the problem has already been given a different answer in New Jersey: occupancy under a mistaken impression about the true location of a boundary line is not "hostile."

In Predham v. Holfester , 32 N.J. Super. 419 (App. Div. 1954), Judge Jayne pointed out that New Jersey follows the minority rule -- and one strongly criticized -- by holding that a person who by mistake takes possession beyond his true line with no intention of claiming farther than his actual boundary does not have the hostile intent essential to adverse possession.

Counsel for the plaintiff has argued, however, that the period involved in Predham was between 20 and 30 years, thus making N.J.S. 2A:14-6 the statute which the court had to consider there. In the present case the period of possession ...

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