Opinion
Argued October 22, 1947 —
Decided January 29, 1948.
On appeal from the Supreme Court, in which court the following opinion was filed:
"This case was submitted to the court on February 11th, 1947, and tried without a jury on a stipulation of facts and on evidence taken before the court. The plaintiff seeks by action in ejectment a judgment for possession of the premises described in the complaint, which is a large tract of land, mostly marshland, known as Blocks 4 and 5 on the tax map of the Borough of North Arlington, East Block, alleged to contain 10.7 acres each. It is alleged that the plaintiff's right to possession accrued on April 20th, 1943, by virtue of an agreement entered into between the owner, the Borough of North Arlington, and the plaintiff and others, dated April 20th, 1943, and the plaintiff also seeks to recover damages.
"The agreement referred to is between the Borough of North Arlington and Katherine Egan, Joseph Egan and Frank J. Egan, trading as C. Egan Sons, the plaintiff being the sole successor of said partnership.
"The agreement may be described as a license or privilege to dump garbage, ashes and refuse upon the above referred to premises and also upon two other tracts known as Blocks 12-C and 13-C, and is based upon consideration, the consideration in part being that the licensee should construct a bridge over a right-of-way for a pipeline owned by Jersey City pursuant to an agreement made by Jersey City with the Borough of North Arlington, and construct a roadway to the premises in question and keep the bridge and roadway maintained during the period for which the license to dump is exercised.
"The agreement recites that the consideration is for the permission to fill the borough-owned property with garbage, ashes and refuse until said premises are properly filled, but not to exceed a period of ten years from the 19th day of March, 1943.
"The clause in the contract which grants the privilege reads as follows:
"`(1) The Borough does hereby grant to the contractor the right and privilege to dump into and upon and fill in Blocks 12-C, 13-C, 4 and 5 with garbage, ashes and refuse until said premises are properly filled, but not to exceed a period of ten years from the nineteenth day of March, 1943.'
"This agreement recites that it is entered into pursuant to a resolution of the Borough Council of North Arlington. The resolution in question was passed on April 20th, 1943, and is in the form of an acceptance of an offer from C. Egan Sons, and provides as follows with regard to the permission granted to said C. Egan Sons:
"`Be it further resolved that in further consideration thereof, the Borough of North Arlington does hereby grant to C. Egan Sons, permission to dump garbage, ashes and refuse in Blocks 12-C, 13-C, 4 and 5 until said premises are properly filled, but not to exceed a period of ten years from the nineteenth day of March, 1943.'
"Subsequent to entering into the agreement with regard to the privilege, the Borough of North Arlington did on the 21st day of January, 1946, enter into an agreement with the La Fera Contracting Company, the defendant herein, which recites that the borough is the owner of Blocks 4 and 5, which is the property described in the plaintiff's complaint, and also recites that the contractor has offered to pay the Borough of North Arlington a consideration for the right and privilege to dump garbage, ashes and refuse upon the premises and to fill the same with garbage, ashes and refuse of all kinds, wherever and by whomever collected; and makes the grant in said agreement as follows:
"`(1) The Borough does hereby grant to the contractor the right, privilege and permission to maintain a dumping ground in and upon a certain tract of meadowland known as Blocks 4 and 5 as the same appear upon the tax map of the Borough of North Arlington, each containing 10.7 acres, more or less, with the right and privilege to dump and fill upon said meadowland, garbage, ashes and refuse of all kinds, wherever and by whomsoever collected, until said meadowlands known as Blocks 4 and 5 are properly filled, but in no event for a term of more than five years commencing on the twenty-first day of January, 1946, and terminating on the twentieth day of January, 1951.'
"The second paragraph fixes a yearly sum to be paid to the borough for said privilege, and that same should be paid in monthly installments.
"Paragraph six contains a provision that the right to dump shall not be considered as exclusive, the Borough retaining the right to grant a similar privilege to any other individuals, provided the same are reasonable and do not create any undue hardship to contractor.
"Subsequently, and on the 15th day of May, 1946, and before the commencement of this suit, the Borough of North Arlington entered into a new agreement with Joseph F. Egan, trading as C. Egan Sons, with reference to dumping on Blocks 12-C and 13-C, consisting of 65 acres, more or less, and recites that Joseph F. Egan, referred to as the contractor, has offered to pay the borough a consideration for the right and privilege to maintain a dumping grounds upon said premises and to fill the same with garbage, ashes and refuse of all kinds, wherever and by whomever collected. The grant is described in the agreement as follows:
"`With the exclusive right and privilege to dump and fill upon said premises garbage, ashes and refuse of all kinds, wherever and by whomever collected, until said premises known as Blocks 12-C and 13-C are properly filled, but for no more than a term commencing on the fifteenth day of May, 1946, and terminating on the fourteenth day of May, 1956.'
"The second paragraph contains a provision for payment of an annual consideration in monthly payments.
"It will therefore be seen that under this last agreement the exclusive privilege was given to Joseph F. Egan for the premises Blocks 12-C and 13-C, which are included in the privilege under the agreement dated April 20th, 1943, entered into between C. Egan Sons and the Borough of North Arlington. The premises Blocks 12-C and 13-C were not included in the privilege granted to the defendant, that being limited to Blocks 4 and 5.
"Proof was submitted at the trial that following the agreement between the borough and C. Egan Sons of April 20th, 1943, the said C. Egan Sons started dumping on premises described as Blocks 4 and 5, and has continued to dump without interference up to January, 1946. Further proof establishes that thereafter the defendant started and has continued to dump on the blocks described as Blocks 4 and 5.
"There is no evidence submitted which shows any actual interference by the defendants with the plaintiff's dumping on the premises in question.
"After both sides rested their case each moved for the entry of judgment. Among the grounds alleged by the defendant on its motion was that ejectment does not lie in the present case and that the license granted to C. Egan Sons to dump on Blocks 4 and 5 is not an exclusive license.
"In an action of ejectment plaintiff must show title in himself, or a right to immediate possession, and for a determination in his favor for possession must depend on proof of his right to possession and not on the weakness of the defendant's claim. Nugent v. Lindsley, 97 N.J.L. 268; Meyers v. Conover, 65 Id. 187 (at p. 189); 18 Am. Jur. 21, § 20.
"To recover judgment plaintiff must establish right to possession. It is a possessory action. He must establish the right to have the sheriff put him in possession and to put the defendant out of possession of the premises in question.
"This cannot be done here. Plaintiff's only right with regard to the premises in question is to dump garbage, ashes and refuse. He cannot stop the defendant from going on the property. His only claim to the property is that he has a right to dump on it and that the defendant has not.
"Plaintiff's right is not even an easement; it is a license with title in another, and plaintiff cannot maintain ejectment to establish an easement. It would be much less in the case of a license. Jacobson v. Hayday, 83 N.J.L. 537; Conover v. Atlantic City Sewage Co., 70 Id. 315; East Jersey Iron Co. v. Wright, 32 N.J. Eq. 248; 18 Am. Jur. 13 and 14, § 8.
"It is my conclusion that ejectment is not the proper remedy where the existence of a right under a license in reference to land is interfered with to the extent of granting a privilege to others to do an act similar to that which had theretofore been granted to another. Under such a license as was granted the plaintiff the licensee is not entitled to possession of the land and takes no title or interest in the land to which the license refers.
"The owner is entitled to possession and may delegate rights to do things on or with the land to others, and the rights so granted are his rights to the extent that the owner has granted them. If it were not for the plaintiff's claim that his license was exclusive, he would not, I assume, have instituted this action.
"If we assume for the purposes of argument that the license held by the plaintiff is exclusive, still the remedy is not by ejectment. The plaintiff's remedy, if his exclusive license was interfered with, is to sue at law for damages, or appeal for equitable relief if the remedy in the action at law for damages is insufficient.
"It might be urged that if the plaintiff's license is exclusive, then an amendment may be allowed to permit the plaintiff to set up a claim for damages. It seems to me, therefore, that I should pass on the question of whether the license is exclusive.
"No specific ground of exclusiveness is contained in the plaintiff's agreement with the owner of the land. That grant is in the following words:
"`The Borough does hereby grant to the contractor the right and privilege to dump into and upon and fill in Blocks 12-C, 13-C, 4 and 5 with garbage, ashes and refuse of all kinds until the said premises are properly filled, but not to exceed a period of ten years from the nineteenth day of March, 1943.'
"These words do not expressly state that an exclusive right or privilege is granted.
"Plaintiff urges that this provision should be construed as an exclusive grant, urging that if others are allowed to fill in the premises in question he may be deprived of an opportunity of continuing his filling in until the end of the ten-year period under the grant, because the filling can only be continued until the premises are properly filled, and it is urged that they may be properly filled before the completion of the ten-year period, urging that C. Egan Sons would not have gone to the expense of building a bridge, constructing a roadway, and maintaining it and paying the money provided for under the agreement, and doing the other things which they were called upon to do if others might be allowed to come in and fill in on the premises in question.
"It was contended by the defendant at the trial that the premises in question under ordinary circumstances would not be filled in during the ten-year period.
"When dealing with a license based on consideration such as the one here, it should not be extended beyond its terms. It does not state explicitly that it is an exclusive license. Plaintiff urges that it should be so construed. I appreciate that if the surrounding circumstances clearly indicated that an exclusive license was mutually intended that this evidence would be considered in construing the license. Schradin v. Harry W. Bealer Co. ( Court of Errors and Appeals), 117 N.J. Eq. 443; International Signal Co. v. Marconi, c., 89 Id. 319 .
"It will be noted that under the agreement the plaintiff has with the Borough of North Arlington he is not obligated to fill in the entire property; he only has a privilege to fill.
"The case having been tried before the court without a jury, evidence of surrounding circumstances have been presented, and it does not appear to me that they indicate an exclusive license.
"There is a significant circumstance in this case. Before the license under which the plaintiff claims, namely, the agreement of April 20th, 1943, the plaintiff had been granted a right to dump into and upon and fill in the premises known as Blocks 12-C and 13-C. This license was by virtue of a resolution introduced in evidence and passed under date of April 12th, 1940, giving the right to dump for the space of seven years from the date of the resolution. There was no specific consideration, it being recited that it was deemed for the best interests of the municipality that the said premises be filled in and thus made available for industrial and other purposes. It will be noted that when the agreement of April 20th, 1943, was entered into the plaintiff had the right to dump on part of the premises included in said agreement. The language in the resolution referred to a right and privilege to dump. It certainly could not be claimed that that resolution gave an exclusive privilege or license.
"As has been already stated, the resolution and agreement of April 20th, 1943, under which the plaintiff claims, did not specifically grant an exclusive privilege.
"It appears by the evidence that subsequently and on the 15th day of May, 1946, the plaintiff entered into an agreement with the Borough of North Arlington covering Blocks 12-C and 13-C wherein the borough grants to the plaintiff the right, privilege and permission to maintain dumping grounds in and upon said premises for a term of ten years commencing on the 15th day of May, 1946, and terminating on the 14th day of May, 1956, thus giving him an additional term over what he had under the previous agreement and providing for additional consideration therefor. The agreement of May 15th, 1946, by its first paragraph provides for an exclusive right and privilege.
"It would thus seem that the parties have by their later action indicated that they did not construe the agreement of April 20th, 1943, to be an exclusive privilege or license.
"The case of Silby v. Trotter, 29 N.J. Eq. 228, clearly establishes that a license is not exclusive unless it so specifically provides. In that case the court was dealing with a license given to two parties to dig ore from the same premises, and the court said (at p. 232):
"`The contracts merely granted a right to take ore; no estate or interest is granted; therefore they simply give a license, but it is a license coupled with an interest growing out of expenditures made pursuant to its requirements, and it cannot therefore be revoked at the pleasure of the licensor.'
"The case of East Jersey Iron Co. v. Wright, supra, holds that an exclusive license grants no interest or estate in the land.
"There will be judgment in favor of the defendant."
For the appellant, Abraham M. Herman.
For the respondent, Budd Larner ( Samuel A. Larner, of counsel).
The judgment under review herein is affirmed, for the reasons expressed in the opinion filed in the Supreme Court.
For affirmance — THE CHANCELLOR, CHIEF JUSTICE, BODINE, DONGES, HEHER, COLIE, WACHENFELD, EASTWOOD, BURLING, WELLS, DILL, FREUND, McLEAN, JJ. 13.
For reversal — None.