Summary
In Colonial B. L. Assn. v. Bergen Mutual B. & L. Assn., 124 N.J.L. 92, 11 A.2d 125, 127, the Court of Errors and Appeals, in part, said: "The way to the rear building was necessary within the meaning of our cases.
Summary of this case from Boylan v. Loy Corp.Opinion
Argued October 18, 1939 —
Decided January 25, 1940.
Held, that an easement exists in favor of plaintiff herein, its successors and assigns, for ingress and egress, through, over and along the alleyway in question, and that whatever estate defendant may have in the lot containing such alleyway is subject to the easement.
On appeal from a judgment of the Supreme Court entered upon the findings of Circuit Court Judge Ackerson (sitting by consent without a jury) who filed the following findings:
Plaintiff, the owner of a lot known as Lot No. 36 Vroom street in Jersey City, upon which there are two frame dwelling houses, one occupying the full width of the lot at the front thereof and the other standing in the rear, is seeking a declaratory judgment under R.S. 2:26-66 establishing that it has an easement or right of way for ingress and egress over a long used alleyway on defendant's adjoining Lot No. 34, to and from the aforesaid rear dwelling on Lot No. 36 along the westerly line of said Lot No. 34 to Vroom street.
The matter was submitted to the court for trial without a jury, partly upon stipulated facts contained in stipulations dated March 6th, and March 21st, 1939, and partly upon oral testimony and exhibits.
According to the stipulation submitted March 6th, 1939, "the only question of fact to be determined is whether the right of way is necessitous for plaintiff to reach its rear building, as necessity has been defined by the courts."
I find from the stipulations and the evidence that Lots Nos. 34 and 36 are adjoining lots, each approximately twenty-five feet wide by one hundred and twenty-five feet deep. On Lot No. 36 there are two frame dwelling houses, one on the front part of the lot, three stories high, occupying the full width of the lot, and tenanted by several families, and the other some feet in the rear, being an entirely separate building, one and a half stories high with an extension on the easterly side extending a few feet over on to the rear of Lot No. 34. These two buildings have stood on Lot No. 36 for over forty years.
On Lot No. 34 there is a four-story brick dwelling house, tenanted by several families, not covering the full width of the lot on Vroom street, but leaving about two and one-half feet or so between its westerly wall and the westerly side line of the lot along which the easterly wall of the front building on Lot No. 36 stands. The space thus existing between these two buildings constitutes the alleyway in question over which an easement is claimed by the plaintiff. The four-story brick building on Lot No. 34 has stood as at present for at least twenty-eight years and was built in place of another building which had stood there for many years before, which former building, however, was not as wide as the present one, the alleyway during that period being about seven feet wide.
Both of these lots were owned by a common owner until November, 1913, when each passed into separate ownership, to be reunited a few years later into common ownership again, the last common ownership terminating January 13th, 1926, according to the stipulations.
For over forty years this alleyway has been used by the plaintiff and his predecessors in title and their tenants and guests, both during the common and separate ownerships for the purpose of ingress and egress to and from said rear house and Vroom street, and that physical evidence of its existence and use was apparent during all of this time.
Lot No. 36 is completely surrounded by property of third persons except for its frontage on Vroom street, and this entire frontage is taken up, and was during the common ownerships of both lots, with the width of the three-story frame building thereon used for occupancy by several tenants, so that the only means of access to a public thoroughfare for the tenants occupying the smaller frame house in the rear of Lot No. 36 was and is over the alleyway in question, unless they were permitted to descend an areaway into the low beamed cellar under the building in front, traverse a crooked course around coal bins and supporting posts, stoop under service pipes and pass through a door at the far end and eventually emerge by ascending a set of steps into Vroom street.
I further find that the two houses on Lot No. 36 and the one house on Lot No. 34 were adapted and used by the common owners as separate and distinct establishments for separate and distinct groups of tenants, and that they adapted the said alleyway to the use of the tenants of the building in the rear to increase the beneficial value of the whole of Lot No. 36 and develop its greatest usefulness as a whole, and that this adaptation and use was open and apparent and so continued under both common and separate ownerships of these lots for a period of over forty years.
I, therefore, find and determine that the alleyway for its existing width between the four-story brick building on Lot No. 34 and the three-story frame building now standing on the front part of Lot No. 36, from said Vroom street back to the yard in the rear of Lot No. 36, is a way of necessity for ingress and egress to and from said Vroom street and said frame building on the rear of Lot No. 36, as said buildings presently exist, as necessity has been defined by the courts. Kelly v. Dunning, 43 N.J. Eq. 62 ; affirmed, 46 Id. 605; Goodal v. Godfrey, 53 Vt. 219; 38 Am. Rep. 671; Agalias v. Hirschfield, 99 N.J. Eq. 622 ; 133 Atl. Rep. 526; German Saving and L. Co. v. Gordon, 102 Pac. Rep. 736 (Or.); 26 L.R.A. ( N.S.) 331 (also see annotation at p. 376); McPherson v. Acker, MacArth. M., 48 Am. Rep. 749; 19 C.J. 919, § 112.
I further find and declare, upon the whole case, from the stipulated facts and the evidence as a whole, that an easement exists in favor of the plaintiff, its successors and assigns, for ingress and egress, through, over and along the aforesaid alleyway, and that whatever estate defendant may have in said Lot No. 34 is subject to the aforesaid easement.
A form of postea may be submitted in accordance with the conclusion thus reached.
For the plaintiff-respondent, George G. Tennant.
For the defendant-appellant, Frederick M. Barnes.
The questions of fact and of law were correctly resolved below. The way to the rear building was necessary within the meaning of our cases. When the owner of both properties conveyed out the title to No. 34 Vroom street, there was, as an incident to that conveyance, an implied grant of a quasi easement in favor of that property and against the retained lot. The proofs disclose that the use of the way to the rear building was accompanied by physical conditions which were obvious and continuous.
The postea and the judgment are drawn upon the assumption that the matter was heard by Judge Ackerson as "Supreme Court Commissioner, occupying the position of Circuit Court judge." This is a mis-statement of the fact. The matter was heard and disposed of by Judge Ackerson in his capacity as Circuit Court judge; he had no authority otherwise. The briefs make no mention of this discrepancy which may be corrected by amendment.
Subject to that amendment the judgment will be affirmed, for the reasons, except as noted, stated below.
For affirmance — THE CHANCELLOR, CHIEF JUSTICE, TRENCHARD, CASE, BODINE, DONGES, HEHER, PERSKIE, PORTER, HETFIELD, DEAR, WELLS, WOLFSKEIL, RAFFERTY, HAGUE, JJ. 15.
For reversal — None.