Matthews, Seidman and Horn. The opinion of the court was delivered by Seidman, J.A.D.
[145 NJSuper Page 428] This lawsuit against the Lehigh Valley Railroad Company, though brought on behalf of both municipalities, was actually prosecuted by the Borough of Roselle. It was, in part, a declaratory judgment action seeking
an adjudication as to the ownership of a certain bridge and a declaration that the borough was not obligated to assume future responsibility for its repair; and, in part, an action pursuant to N.J.S.A. 48:12-52 to compel the railroad company to repair the bridge. After a hearing, judgment was entered in favor of plaintiff. It declared that (1) the court had jurisdiction "to try and decide the justiciable issues raised in this matter," (2) ownership of the bridge was in the railroad company, (3) there was no evidence "of any abandonment on the part of the Defendant of the roadbed lying beneath the timber structure" of the bridge; (4) the equitable defenses of laches and estoppel were "inoperable against the Plaintiff," and (5) the railroad company "has a clear duty to repair the 'Gordon Street Bridge' as a matter of law." Defendant appealed and we now reverse.
In the area involved here, the mainline tracks of the Central Railroad of New Jersey (CNJ) ran in an east-west direction. Until 1938 a connecting track constructed on Lehigh Valley's right-of-way linked its nearby mainline with that of CNJ. At this point, Westfield Avenue, located on an embankment in Roselle Park, paralleled the tracks on the north, and First Avenue, on an embankment in Roselle, paralleled the tracks on the south. Gordon Street provided north-south access to the two thoroughfares.
Early in this century, CNJ and Lehigh Valley constructed bridges to take traffic using Gordon Street over their tracks. The CNJ bridge was larger because it crossed four tracks of the railroad's mainline. The Lehigh Valley bridge was a wooden structure which crossed only the single connecting tract. Both met at a concrete abutment jointly constructed and maintained by the two railroads.
In 1937 CNJ removed a turnout, thereby eliminating the connection between the two lines, and the following year Lehigh Valley physically removed its connecting track. In 1948 and 1952, upon application to and approval by the Public Utility Commission, Lehigh Valley sold to private parties its right-of-way east and west of the wooden bridge.
Each deed contained a reservation. The one in the earlier deed was as follows:
EXCEPTING AND RESERVING unto the Lehigh Valley Railroad Company of New Jersey and the Lehigh Valley Railroad Company, their and each of their successors and assigns the right, liberty and easement to construct and maintain an embankment together with retaining buttress and wing wall upon the westerly end of the above described premises for the purpose of providing lateral support for any fill which may be placed in Gordon Street at the site of the present bridge adjacent to the westerly end of the above described premises in order to strengthen or eliminate said bridge.
The 1952 deed provided as follows:
EXCEPTING AND RESERVING unto the Lehigh Valley Railroad Company its successors and assigns the right, liberty and easement to construct and maintain an embankment together with retaining buttress and wing wall upon the easterly end of the above described premises for the purpose of providing lateral support for any fill which may be placed in Gordon Street at the site of the present bridge adjacent to the easterly end of the above described premises in order to strengthen or eliminate said bridge.
Over the years Lehigh Valley made repairs to the bridge planking and guardrails at the request of the Public Utility Commission, but the railroad contended it did so under protest. The bridge thereafter fell into a serious state of disrepair and at the end of July 1973 was closed to traffic by both municipalities. When the railroad refused to effect further major repairs, this suit was instituted, with the result set forth above.
In seeking to compel the railroad to repair the bridge, the municipality relied on N.J.S.A. ...