For affirmance -- Chief Justice Weintraub, and Justices Jacobs, Francis, Proctor, Hall, Schettino and Haneman. For reversal -- None. The opinion of the court was delivered by Hall, J.
[42 NJ Page 593] The prime question in this case is whether the owner of the land through which a petroleum pipeline easement runs may erect a building over the line. The Chancery Division, in the easement holder's suit to enjoin construction
of the building, held that the landowner had no such right. Defendants' appeal is here by reason of certification granted on their application while the matter was pending unheard in the Appellate Division. R.R. 1:10-1A.*fn1
The property involved is a somewhat irregularly shaped tract of land, having an average depth of approximately 1,800 feet and a frontage of about 500 feet on the westerly side of Blair Road, a north-south highway in that section of the Township of Woodbridge near the boundary of the Borough of Carteret.
Plaintiff's easement derives from a recorded instrument executed in 1914 on a printed form, prepared by plaintiff, with blanks filled in, wherein Carteret Realty Co. for a consideration of $750, made the following grant:
"* * * to The Tide-Water Pipe Company, Limited, its heirs, successors and assigns, a right of way upon and through our lands lying in Woodbridge Township, Middlesex County, State of New Jersey, and described below, for the purpose of constructing from time to time, two lines of iron pipe for the transportation of petroleum, in such manner as said grantee may deem necessary, and with free ingress and egress, to construct, operate, repair, replace, maintain, and from time to time alter and remove the same in such manner as it may desire.
Provided, that said pipe or pipes shall be so laid as not to interfere with the usual cultivation of the premises nor with any buildings thereon -- and that all actual damage done to crops, timber or otherwise, by the construction or operation of said pipe lines shall be paid for in full by the said grantee.
And that the said grantors shall fully enjoy the said premises except for the purposes hereinbefore specified."
The description of the lands (the parcel now owned by defendants) was set forth in the last paragraph of the instrument:
"Bounded on the north by J. Toth, Lands of P.R.R. Co. and others, East by the Blair road, on the south by New Jersey Terminal Railroad and on the west by said R.R."
There must have been some question as to the fee ownership of the tract at the time this grant was given, for another instrument, dated March 15, 1915, about four months after the first, is found on record. It is identical with the earlier one except that the recited consideration is $1, the grantor is Edward S. Savage, and the following language appears after the description:
"Being same lands for which the Carteret Realty Co. gave a right of way, for said pipe lines but which land is now owned by E. S. Savage. Said pipe lines to be operated and maintained where they are now located."
The two parallel pipelines were installed either just before or just after the second grant since a survey in evidence made for plaintiff under date of January 4, 1915 plots their course. The final sentence quoted from the second grant establishes that the grantor knew and agreed to their intended or actual location, as shown on the survey or in the ground in accordance therewith, and that plaintiff, by accepting this grant, acknowledged that it could not change that location, at least to any substantial degree, without the landowner's consent. The lines as actually installed ran, probably in a straight line, for a distance of slightly over 500 feet in a southwesterly direction from a point on Blair Road about 100 feet south of the northeasterly corner of the tract to a point in the southerly line thereof about 400 feet west of the southeasterly corner, where they crossed under the tracks of New Jersey Terminal Railroad (now Jersey Central lines) which ran in an eastwest direction south of and parallel to the southerly line of the tract. At the time the grant was given, the tract was vacant and unimproved. A good part of it was heavily wooded and the rear portion was swampy. The latter condition still exists. Other lands in the area were generally in the same undeveloped state or being used for agricultural purposes.
It is unlikely anyone even dreamed at that date of the vast industrial and commercial development which would take place in this general section during the next few decades.
For many years the lines were used to transport crude oil as a common carrier from fields in western Pennsylvania and, by connecting lines, from those in the midwest and southwest to refineries in Bayonne as well as, during some periods, to carry crude oil brought to the Atlantic seaboard by tanker to refineries in other parts. Since 1954 the use has been confined to the transportation of No. 2 fuel oil from Linden to points west. This gives rise to defendants' second principal point -- that the easement is limited to the transmission of crude oil by reason of the use of the word "petroleum" in the grant. By counterclaim they sought to enjoin plaintiff from any other use. The trial court denied this relief holding that "petroleum" is a sufficiently generic term and at least should not prevent use of the lines to carry fuel oil, a product of petroleum less hazardous than the substance in its crude form.
Apparently a small factory of some kind was built somewhere along the frontage of the tract about 1920. By 1937 two commercial or industrial buildings, which still remain and are used by defendants, had been erected parallel to each other, near the southeasterly corner and generally east of the pipelines. A railroad siding was brought in between the buildings. It is probable that the lines were relocated a few feet westerly at that time to clear the northwesterly corner of the northerly of the two structures and that the lines were encased for the distance that the railroad siding passed over them, under arrangements not clear. It is also probable that ...