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Duke v. Tracy

Decided: April 25, 1969.

JAMES B. DUKE AND BARBARA P. DUKE, PLAINTIFFS,
v.
JOHN F. TRACY, EILEEN M. TRACY, AND FRANK FORMICA, DEFENDANTS, AND TOWNSHIP OF BERKELEY HEIGHTS, A MUNICIPAL CORPORATION OF THE STATE OF NEW JERSEY, INTERVENOR



Herbert, J.s.c.

Herbert

[105 NJSuper Page 443] In 1956 there was filed with the Register of Union County an approved map showing a small

real estate development of ten lots all fronting upon the easterly side of Timber Drive in Berkeley Heights. The numbers of the lots as given on the map run from 19 to 19-9. Plaintiffs own number 19-4. There is a one-family house on it in which they live. The defendants Mr. and Mrs. Tracy hold lot 19-5 on which their one-family house stands just to the north of plaintiffs' property.

The cause of this controversy is a proposal to devote a strip of the Tracy lot to a public way ten feet wide which will run along the side line of the plaintiffs' property. From the rear of the Tracy lot the public walk would continue in an easterly direction to the next street, which is Wentworth Drive. The potential usefulness of the walk is plain: A good look at the marked copy of the township map which is an exhibit shows that pedestrians from Wentworth Drive and several neighboring streets would find the walk a relatively short route to use in going back and forth to school, to the community swimming pool and possibly to the railroad station.

The ten lots shown on the subdivision map of 1956 lie side by side in a row. At the southerly end, numbers 19 and 19-1 were never subjected to deed restrictions. The other eight were sold by the developer by deeds containing uniform restrictions. His conveyance of lot 19-5 (now the Tracy property) was dated April 1, 1957, and that of lot 19-4 (plaintiffs') was dated July 31, 1958. Five of the other lots were included with number 19-4 in the latter deed. Another of the eight restricted lots (19-6) was conveyed out by the developer November 8, 1956.

Plaintiffs and the Tracys were not original purchasers from the developer. Plaintiffs got title January 8, 1964 and their deed, as well as other deeds in their chain of title, includes the restrictions. The Tracys took title in 1965 from U.S. Home and Development Corporation, which had held under a chain of title in which all deeds contained the restrictions.

The deed language pertinent for present purposes is:

"This conveyance is made subject to the following restrictions which shall run with the land:

"1. All lots in the tract shall be known and described as residential lots. No structure shall be erected, altered, placed or permitted to remain on any residential building plot other than one single family dwelling and a private garage for not more than three cars."

"4. The land herein conveyed shall not be used for street purposes."

Mr. and Mrs. Tracy acquired their lot by a deed which purported to reserve

". . . a perpetual easement and right of way for pedestrian walk-way purposes in favor of and for use by the public at large, through, on and over the portion of the premises conveyed as hereinafter described, together with the right to enter upon the premises in order to ...


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