White v. Young's Pier & Hotel Co.

Full title: WHITE et al. v. YOUNG'S PIER & HOTEL CO. et al.

Court: COURT OF CHANCERY OF NEW JERSEY

Date published: Mar 13, 1911

78 N.J. Eq. 498 (Ch. Div. 1911)

78 N.J. Eq. 498

Opinion

03-13-1911

WHITE et al. v. YOUNG'S PIER & HOTEL CO. et al.

George A. Bourgeois and Robert H. McCarter, for complainants. Harry Wootten, Clarence L. Cole, R. V. Lindabury, and William J. Magie, for defendants.

WALKER, V. C.

Syllabus by the Court.

Bill by Josiah White and others against the Young's Pier & Hotel Company and others. Decree of dismissal.

George A. Bourgeois and Robert H. McCarter, for complainants.

Harry Wootten, Clarence L. Cole, R. V. Lindabury, and William J. Magie, for defendants.

WALKER, V. C. The bill of complaint was filed by certain owners of lands situate on the landward side of the Board Walk in Atlantic City, in this state, to enjoin the conducting of, or permitting to be conducted, a mercantile business on the lands of the defendant Young's Pier & Hotel Company (hereinafter to be called the Pier Company) on the oceanward side of the Board Walk, and from erecting and maintaining stores on the pier thereon, and also commanding the Pier Company to remove the stores by it already erected on the pier. Such facts as are necessary for the elucidation of the question at issue will be hereafter stated.

Atlantic City, as is well known, is a large seaside resort, with a very extensive ocean frontage. The complainant's contention is that a general scheme was entered into between the various property owners fronting upon the Atlantic Ocean by written covenant with Atlantic City and by implied covenant with each other—Atlantic City being trustee for all of the grantors—for the purpose of maintaining an open and unobstructed beach front. There is no claim that the Pier Company has entered into any express contract with the complainants. Complainants' principal reliance is upon the covenants contained in what is called the "Board Walk easement deed of April 30, 1896." It appears that the Pier Company's predecessors in title to the land whereon the pier in question is erected executed one of the Board Walk easement deeds, which deed was recorded, and therefore the Pier Company took with notice. The series of Board Walk easement deeds, and there were many of them, Atlantic City accepted. They contain the following covenant and proviso: "And the said parties of the first part, for themselves, their heirs, executors, administrators, and assigns, do hereby covenant, promise, and agree to and with the said party of the second part, its successors and assigns, that they and each of them, the said parties of the first part, their heirs, executors, administrators and assigns, shall not and will not put or erect or allow to be placed or erected on the lands hereby granted or on the ocean side thereof any building or structure, except as provided by ordinance, and the party of thesecond part hereby covenants and agrees that it will not place or erect or allow to be placed or erected any buildings or structure of any kind or description on the lands above described except as above provided, and that these covenants shall attach to and run with the lands and premises hereby granted and the lands on the ocean side thereof so long as the same shall be used for the purpose of a street and a public steel, board or plank walk, and that the same may be enforced or its breach or nonobservance may be restrained or enjoined at any time by the said party of the second part, its successors, and assigns. * * * Provided, however, that the within grantors shall not be prohibited from building a pier in front of their property and connecting the same to the new walk about to be erected, and upon the further condition that the said pier shall be of at least one thousand feet in length, extending into the ocean beyond the present sixty-feet wide strip, and constructed of iron or steel, and shall not permit the sale of any commodity upon the same and be confined to charging only an entrance fee; and provided, further, that the city council of Atlantic City shall not grant a right of way to any railroad company or street railway company now incorporated or to be hereafter incorporated, over and along the same." On a bill filed by Atlantic City against the Young-McShea Amusement Company (one of the Pier Company's predecessors in title) to restrain the defendant from selling commodities on its pier (the very pier in question) and from charging a fee for witnessing entertainments upon the pier other than a fee for entrance to the structure, Vice Chancellor Reed advised a decree for the complainant (Atlantic City v. Young-McShea Amusement Co., 62 N. J. Eq. 147, 49 Atl. 1135), and an injunction issued. On appeal the Court of Errors reversed the decree of the Vice Chancellor upon the ground that the case rested upon the proviso in the easement deed, and held that the proviso related exclusively to a pier to be erected in the future, and that it did not inhibit the using and maintaining of one already built; that the defendant had a property right in the pier existing upon the premises at the time the easement deed was made which had not in any respect been surrendered to the city; and that the complainant had shown no right to interfere with the defendant in the use of the old pier as fully as that right had been enjoyed before the execution of the easement deed. Atlantic City v. Young-McShea Amusement Co., 63 N. J. Eq. 831, 833, 53 Atl. 168.

The Pier Company contends that the case just cited, and also the unreported case of Atlantic City v. Young-McShea Amusement Company (bill filed April 28, 1902, docket 25, page 13), the files of which were offered in evidence, are absolutely dispositive of the case at bar, the question at issue being res judicata if the complainants' claim in the right of Atlantic City, or, if they claim as individuals and not as privies to the suit mentioned (for they were not parties), the question is at rest under the doctrine of stare decisis. The bill in the unreported case showed that at the time of the execution and delivery of the easement deed of 1896 by the Young-McShea Amusement Company to Atlantic City there existed upon and across the land owned by the company, extending into the ocean on the ocean side of the 60-foot wide strip of land conveyed for a highway (the Board Walk), a wooden structure or pier upwards of 1,000 feet in length extending into the ocean, and that on April 3, 1902, upwards of 300 feet of that wooden structure or pier was burned to the water's edge and entirely destroyed; that the Young-McShea Amusement Company had then recently begun to construct and rebuild entirely of wood that portion of the pier which was destroyed by fire, and intended to erect a large wooden superstructure with lofty roof for a dancing hall and for other similar purposes; that the structure, when completed, would obstruct and interfere with the view of the ocean from the Board Walk and would be in every respect a violation of the covenants and conditions of the easement deeds; that, under the proviso mentioned, there existed authority to build, construct, and maintain only a pier of steel or iron upon and across the grantor's lands on the beach front, and prayed an injunction against such reconstruction. This bill was verified by affidavits, and upon its being filed an order to show cause with an ad interim stay was made and served. On the return of the order, the defendant filed affidavits, and an order was made and filed April 18, 1902, discharging the order to show cause and denying the injunction prayed for. Here the case ended, no answer being filed. No issue was raised between the parties which was adjudicated upon final hearing. No opinion or memorandum was filed by Vice Chancellor Reed who advised the order denying the interlocutory injunction asked for, and it may well be that the denial went upon the ground that the case in the preliminary stage was doubtful on the law or the facts or both, or that irreparable injury was not shown. In any event, there is no such adjudication in the case as makes the question at issue in the cause now being considered res judicata, or gives it force stare decisis. The merits were not decided, and it is only a decision on the merits of a cause of action that is conclusive upon the parties and their privies. Buckingham v. Ludlam, 37 N. J. Eq. 137. The judgment must be final to be res judicata. 24 Am. & Eng. Ency. of L. (2d Ed.) p. 793. For the same reason that the unreported case has no application res judicata to the cause sub judice, it has no application stare decisis. As already remarked, the very pier concerning which the controversyarose in Atlantic City v. Young-McShea Amusement Company is the same pier which is the subject of the controversy in the case at bar. That case (Atlantic City v. Young-McShea Amusement Co., 62 N. J. Eq. 147, 49 Atl. 1135) in this court was decided upon a mere memorandum which referred to the opinion of Vice Chancellor Reed in Atlantic City v. Atlantic City Steel Pier Co., 62 N. J. Eq. 139, 49 Atl. 822, as deciding all the points raised in the former. Now, in Atlantic City v. Atlantic City Steel Pier Company, the learned Vice Chancellor had before him the same question of general scheme for the improvement of the beach front at Atlantic City as is here involved, and, as I understand it, that scheme was found to exist, and to be operative upon the land in question. Said Vice Chancellor Reed, 62 N. J. Eq. at page 143, 49 Atl. at page 824: "Then, again, this covenant is one of many similar covenants entered into by a body of covenantors as part of a common scheme for the mutual advantage of each and all such covenantors. This feature in my judgment brings it within the exceptional class of cases discussed by Chief Justice Beasley in Brewer v. Marshall, 18 N. J. Eq. 337, s. c. on appeal, 19 N. J. Eq. 537 ." Furthermore, in this same case of Atlantic City v. Atlantic City Steel Pier Company, Vice Chancellor Reed observed at page 142 of 62 N. J. Eq., at page 824 of 49 Atl.: "Now the agreement, as I construe it, contains a grant to the public of a right in the nature of an easement. It, indirectly by a negative covenant, grants a right of light, air, and view over and across the oceanward land from the Board Walk. This right is limited by a reservation to the donors of the privilege of placing thereon a certain kind of structure. And the uses to which those structures shall be confined is defined for the purpose of regulating the kind of structure and the number of structures which could be, and would likely be, erected. The owners have themselves limited the uses to which such structures may be put. Such a restricted grant in my judgment the city may accept, and, as the representative and trustee of the public, may invoke the judicial arm of the government to protect."

Then, too, the Court of Errors and Appeals seems to have expressly decided in the two cases of Atlantic City v. Associated Realties Corporation, 73 N. J. Eq. 721, 70 Atl. 345, and Atlantic City v. Associated Realties Corporation, 75 N. J. Eq. 568, 72 Atl. 61, that these Board Walk easement deeds created a general scheme for the benefit of the grantors and of the public in the preservation of an open view oceanward of the Board Walk. The Board Walk easement deeds of 1896 were founded upon a sufficient consideration. This was expressly, held by Vice Chancellor Grey in Evans v. New Auditorium Pier Co., 67 N. J. Eq. 315 at page 318, 58 Atl. 191 at page 192, where he said: "Each of these co-grantors gave up that part of his own land which was covered by the Board Walk strip in consideration of a like gift made by his co-grantors. The attending covenants, securing light, air, and view, were obtained for a like consideration. It was a general scheme of public improvement in which all participated. Its form was a covenant with Atlantic City, but in fact it was a gift by the co-grantors to the public and to each other. Atlantic City paid nothing to the grantors, but it spent large sums in building the Board Walk. All the values were given by the grantors. No one grantor, nor any one claiming under him, having accepted the benefits of the others' gifts, can be permitted to destroy its value in an essential particular, as the defendant company now seeks to do." All of the complainants or their predecessors in title were owners of land abutting on the Atlantic Ocean in Atlantic City and executed the Board Walk easement deed, likewise as to the defendant Pier Company in reference to the lands whereon the pier in question was and is erected, and therefore these covenants are effective and operative between the parties to this suit on the issue here presented, if the complainants have capacity to sue in respect to the matters charged in the bill, and if, further, the facts in the case at bar bring the defendants' land, whereon its pier is erected, within the terms of the covenant.

As to the standing of the complainants to maintain this suit. That Atlantic City, as grantee in the easement deeds and as trustee for the public with reference to its rights under the grant and the general scheme of improvement, may sue to enforce its and the public's rights, is, I think, undoubted. It was expressly so decided by Vice Chancellor Reed in Atlantic City Steel Pier Co., supra, and is conceded by the defendants. The complainants or some of them requested the city to bring this particular suit, but the city, upon the advice of counsel that the owner of the pier has a right to have stores upon it on the ocean side of the Board Walk, so long as they are kept within the limits of the pier as it existed when the Board Walk easement deed was executed, refused to bring the suit.

The defendants contend that the complainants themselves have no standing to maintain this suit. But this question was decided otherwise by Vice Chancellor Grey in Evans v. New Auditorium Pier Co., 67 N. J. Eq. 315, 58 Atl. 191, in which case he considered the very same easement deed of April 30, 1890, and said at page 319 of 67 N. J. Eq., at page 192 of 58 Atl.: "Any co-grantor who joined in the gift of the easement has a status to enforce the general scheme arranged and perfected by it. This was a case brought by one of the grantors individually and not by the city." Although this case was reversed (Evans v. New Auditorium Pier Co., 67 N. J. Eq. 620, 59 Atl. 1117) for the reasons given for the reversal of Atlantic City v. New AuditoriumPier Co., 67 N. J. Eq. 610, 59 Atl. 158, the reversal proceeded upon grounds other than the capacity of the complainant, Evans, to sue. Therefore I conclude that the complainants in this case have a right to maintain this suit, especially in view of the fact that Atlantic City was requested to bring it and refused.

The question is, therefore, squarely presented, as to whether the Pier Company shall be restrained from erecting stores upon its pier, and from conducting mercantile business in those already erected, and be commanded to remove from off the pier the stores already thereon.

As to complainants' right to an injunction. The complainants contend that the covenant in the Board Walk easement deed operates to prevent any building or structure being put or erected on the lands thereby granted (the Board Walk strip) or on the ocean side thereof, except as provided by ordinance (and no ordinance has authorized their construction), and, as covenants in a deed are construed most strongly against the grantor, that, therefore, it should be held in this case that the stores in question may not be erected, or, being erected, should be decreed to be removed. The argument is that although under the decision of the Court of Errors and Appeals in Atlantic City v. Young-McShea Amusement Co., 63 N. J. Eq. 831, 53 Atl. 168, the building erected upon the lands of the Pier Company oceanward of the Board Walk at the time the easement deed was executed may be maintained as a then existing structure, nevertheless, the covenant referred to is operative so as not to permit of any erections being made upon the pier subsequent to the execution of the deed; in other words, that only the pier as it then existed may be continued in existence, and they say that the case just mentioned went no further than to hold that the defendant had the right to sell commodities and to charge fees other than for admission to the pier, because it was an existing structure. This view in my judgment is untenable. It is true that the precise facts here involved were not present in the former case, but I think the opinion of the Court of Errors and Appeals that the pier owner had a property right in the existing pier which had not in any respect been surrendered to the city, and that the defendant might use the pier as fully as its right to do so had been enjoyed before the execution of the easement deed, is equally applicable to the facts present in the case at bar. With the language of this very covenant before him, Mr. Justice Van Syckel, speaking for the Court of Errors and Appeals in Atlantic City v. Young-McShea Amusement Co., 63 N. J. Eq. 833, 53 Atl. 168, made in effect, as I read it, an unqualified declaration that the Amusement Company had a right to use the old pier already erected as fully after the execution of the easement deed of 1896 as before. True it is that the exact language of the learned justice was that "the complainant has shown no right to interfere with the defendants in the use of the old pier as fully as they enjoyed it before the execution of the agreement of 1896"; but in deciding the question presented to me in the case at bar I have no hesitation, in view of the facts in this case, and the law pronounced by the court of errors in that case, to hold that the defendant Pier Company in this case has the absolute right to use the old pier on the land in question, including such parts of it as have been repaired and reconstructed, as fully to all intents and purposes as its then owner enjoyed the right to use it at and before the time of the execution of the easement deed of 1896. "Maintenance," of course, includes repairs; and "use," without restriction, must mean "lawful use," which at least includes such alterations and reconstruction as might have been made for any purpose for which the pier might lawfully have been used before the execution of the easement deed. In other words, if the owner of the pier prior to the execution of the easement deed of 1896 might have turned a pavilion on it into stores, then equally so may that alteration now be made, or, having been made, may now be maintained.

In my judgment the restrictive covenant in the easement deed of 1896 does not operate at all upon the facts of this case. The Pier Company, as to its existing pier, does not come within the proviso of the covenant as it has not erected a new steel pier, which sort of erection is permitted by the proviso, and it is not bound by the covenant with reference to the old pier because that structure existed at and before the time the covenant, which operates in futuro, was made, and which pier, therefore, it is entitled to use and enjoy as fully as the right to use and enjoy it inhered in its predecessor in title prior to the execution of the easement deed, which right was then unlimited, and is so now as far as the easement deed is concerned.

These views lead to a denial of the injunction sought and the dismissal of the bill. The defendants are entitled to costs.