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Cale v. Wanamaker

Decided: October 30, 1972.

ARTHUR J. CALE, JR. AND CLAIRE CALE, HIS WIFE, PLAINTIFFS,
v.
JOHN R. WANAMAKER, JR. AND LOUISE DEKOVEN WANAMAKER, HIS WIFE, DEFENDANTS



Martino, A.j.s.c.

Martino

This is an action for a declaratory judgment to determine whether plaintiffs have a right of way over defendants' land on which is a house and a detached garage, either by way of necessity or by an implied grant of a quasi -easement.

The parties are in agreement that in 1881 the Seashore Company was the common owner of a large tract of undeveloped land in the Borough of Mantoloking, which extended from the Atlantic Ocean to Barnegat Bay. The tract included lands presently owned by plaintiffs and defendants, as well as other lands lying between Princeton Street on the north and Albertson Street on the south and intersected by Ocean Avenue.

By deed of 1881 Seashore Company conveyed a railroad right of way which divided lengthwise the property lying west of Ocean Avenue. The railroad right of way was abandoned in 1947 and was purchased by A. Gordon Adams. Lots 8, 9 and 10 in Block 38 are bordered on their easterly side by the former right of way. Until 1956 this right of way was used as an access to Lot 8 in Block 38. This use was successfully restrained by Adams in a previous suit which found that no legal right of way existed over the former railroad right of way as an access to Lot 8. Adams v. Cale , 48 N.J. Super. 119 (App. Div. 1958). Plaintiffs' lands are bounded on the north and east by the lands of others, on the south by defendants' lands, and on the west by the waters of Barnegat Bay.

It is not disputed that by deeds dated May 27, 1889 Seashore Company conveyed Lot 8 in Block 38 to Benjamin Albertson and Lots 9 and 10 in Block 38 to Jennie Albertson. On March 11, 1901 the Albertsons conveyed these lands to William R. Albertson. On May 5, 1904 the lots were conveyed to J. Otto Rhome who, on the same day conveyed them to Anna L. Albertson. By this deed Anna L. Albertson became the common owner of Lots 8, 9 and 10 in Block 38 which includes plaintiffs' Barnegat Bay front lot and the two lots presently owned by defendants, Lots 9 and 10, lying between Lot 8 and the northerly side of Albertson Street.

By deed of May 10, 1922 Anna L. Albertson conveyed to Curles J. Hulse and Ollie M. Hulse Lots 8, 9 and 10 in Block 38. The description in the deed specifically refers to Albertson Street as a boundary line of the lots.

On March 25, 1924 Curles J. Hulse conveyed to the Beacon Hotel Company only Lot 8 in Block 38, resulting in an isolation of Lot 8 from any street. On August 17, 1925 Hulse conveyed Lots 9 and 10 in Block 38 to Jessie H. Seabury who, in 1950, conveyed these lots to the present defendants, John R. Wanamaker et al. Lot 10 is bounded on its southerly side by Albertson Street.

The diagram of the chain of title which is appended hereto has been examined by all parties and they have agreed that it accurately represents the passage of title of the lots in question.

Plaintiffs contend that since the conveyance of Lot 8 by the grantors Curles J. Hulse et al. to the Beacon Hotel Company in 1924, and the conveyance of Lots 9 and 10 by the same grantors to Jessie H. Seabury shortly thereafter, the only practicable means of reaching Lot 8 would be over Lots 9 and 10, which lots eventually became vested in defendants. As indicated earlier, plaintiffs had used as access to Lot 8 the lands of a former railroad right-of-way, but that use was restrained by the present owner of the former railroad right-of-way. Adams v. Cale, supra. At present the only lawful means of access to the plaintiffs' lot is by

way of the water of Barnegat Bay. Plaintiffs allege that Lot 8 will become valueless because of its inaccessibility by land, and they seek a means of ...


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