Opinion
06-03-1904
EVANS v. NEW AUDITORIUM PIER CO.
Burrows C. Godfrey and Jay Ten Eyck, for complainant. C. D. Thompson, for defendant.
Suit by Charles Evans against the New Auditorium Pier Company. Decree for complainant.
Burrows C. Godfrey and Jay Ten Eyck, for complainant.
C. D. Thompson, for defendant.
GREY, C. The complainant seeks to restrain the defendant company from constructing a lateral addition to its pier, which is located close to the ocean end of Pennsylvania avenue, at Atlantic City. The bill of complaint presents several grounds for the restraint, based upon restrictions expressed in three different deeds, under which the complainant contends that he has a status which entitles him to the relief which he asks.
This case was considered on the hearing of an application for a preliminary injunction, in which an option was given on most of the points raised by the pleadings. It is re ported in 63 N. J. Eq. 675, 53 Atl. 111. The same questions here presented, against the building of the same lateral addition to the defendant's pier, were also much more elaborately argued in the cause wherein Atlantic City was the complainant against the New Auditorium Pier Company, seeking to enforce the covenants of the Boardwalk deed of April 30, 1896, made to Atlantic City by Charles Evans, Richard Loper, and others. That case is reported in 63 N. J. Eq. 645, 53 Atl. 99. That case has also been heard on final hearing and an opinion given to the same effect. This final hearing of this cause is on substantially the same lines as were presented in those cases. Almost all the proof is documentary, and was before the court at the preliminary hearing. A stipulation as to the facts agreed upon between the parties covers nearly the same ground as the affidavits annexed to the bill and the answering affidavits of the defendant, which were used at the preliminary hearing.
In the bill of complaint, Mr. Evans bases his right to a restraint upon his status under three several deeds set out or referred to in the bill. The first deed was made by Charles Evans to Atlantic City on January 2, 1890. It grants an easement for a Boardwalk at the ocean edge, with an attending covenant restraining the erection of any buildings oceanward of the Boardwalk. The second deed was made by Charles Evans to Richard F. Loper on July 22, 1895, conveys a lot of land opposite Mr. Evans' hotel, on Pennsylvania avenue, at the ocean front, and imposes on the grantee a covenant that he and his assigns should never erect on the premises granted any house or building nearer the line of Pennsylvania avenue than 27 feet from the property line. The third deed is what has been described as the Boardwalk deed or covenant, dated April 30, 1896, made by Charles Evans and Richard F. Loper, and many others, owners of the ocean front, to the city of Atlantic City. This deed creates the easement of way, 60 feet wide, of the present new steel Boardwalk along the ocean front of Atlantic City, with restrictions against the erection of any building on the ocean side of the Boardwalk, except that an owner may build on his property a pier, provided the same is 1,000 feet long and is built of steel or iron. The claims of the complainant, Evans, under the first and second deeds above referred to, are fully discussed in the two opinions above cited— especially in 63 N. J. Eq. 662, 53 Atl. 106, et seq., citing cases on the subject. When those deeds were made, Evans had no title to the lands lying below high-water mark. The defendant's proposed construction, which is now challenged, is located below high-water mark. Evans could not charge the lands which he did not own with restrictions as to their use. The rule holds good when a riparian owner, who has not acquired the state's right to lands lying below high-watermark, attempts to restrict the use of such lauds. The decisions on the question declare that an attempted charge by such a riparian owner does not bind the lands lying below high-water mark, when the state shall have subsequently granted them to another person. See third paragraph of syllabus, 63 N. J. Eq. 645, 53 Atl. 99.
The complainant, respecting the restriction against erecting buildings within 27 feet of Pennsylvania avenue, contained in the deed from Evans to Loper of July 22, 1895, though admitting that the deed did not convey the lands on which the defendant is building, yet insists that since that time there has been a natural accretion which has carried the high-water mark of the lands conveyed further into the ocean; that this accretion has taken Pennsylvania avenue with it, by operation of law; and that the restriction on the lot originally conveyed is also extended over the new accretion bordering on that avenue. The claim is, in my view, not sustainable. It is within the rulings above referred to, which hold that the restriction imposed is limited to the lands which the grantor owned when the deed was made, and that he cannot, as riparian owner, impose an easement upon the state's land lying under water in front of his own which shall bind the state's subsequent grantee.
The complainant's position regarding the third conveyance—the Boardwalk deed or covenant of April 30, 1896—stands on very different basis. He is an owner of beach front bordering on the Boardwalk. His lands presently enjoy the benefit of the Boardwalk, the use and value of which are threatened by the defendant's proposed structure, which is a step to shut in the Boardwalk from the sea view, for, if the defendant company may build on the ocean side parallel with the Boardwalk, so may every other owner, and its whole distinctive attraction may be thus destroyed. Mr. Evans was also one of the co-grantors who joined in the Boardwalk covenant of April 30, 1896, giving Atlantic City the easement over his portion of the way. Mr. Richard F. Loper, then the owner of the locus in quo by purchase from the state of New Jersey by his deed from the riparian commissioners, dated August 29, 1895, joined with Mr. Evans and others in the covenants of April 30, 1896. Each of these co-grantors gave up that part of his own land which was covered by the Boardwalk 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. All the values were given by the grantors. No one grantor, nor any one claiming under him, having accepted the benefits of the other's gifts, can be permitted to destroy its value in an essential particular, as the defendant company now seeks to do. Its Auditorium pier is built immediately contiguous to the Boardwalk, using it for access to its Auditorium building. Any cograntor who joined in the gift of the easement has a status to enforce the general scheme arranged and perfected by it.
The defendant contends that there is no proof of a general plan, no meetings of owners, no conference or association for any general object it seems to me that it is impossible to read the Boardwalk covenant deeds, and follow the course of its lines for the several miles of its length over dozens of ownerships at the ocean edge, without perceiving on the face of those covenants every indication of a common purpose on the part of the vairous owners to contribute to the creation of a public promenade at the beach front, with free light, air, and ocean view.
The other questions raised in these cases are discussed in the opinion filed at the same time with this one, in the case of Atlantic City v. New Auditorium Pier Company, 63 N. J. Eq. 644, 53 Atl. 99, on final hearing.
I will advise a decree for the complainant, under the provisions of the Boardwalk covenant of April 30, 1896.