Opinion
Argued November 12, 1951 —
Decided November 19, 1951.
Appeal from the Superior Court, Chancery Division.
Mr. J. Mortimer Rubenstein argued the cause for the appellants ( Mr. Milton Schamach, attorney).
Mr. I. Arthur Weiss argued the cause for the respondents ( Messrs. Weiss Weiss, attorneys).
"Plaintiffs are the owners of premises known as 292-294 Market Street, in the City of Paterson. Defendants are the owners of the adjoining property known as 296-298 Market Street. Across the rear of 292-294 Market Street there is a cobblestone paved right of way, approximately 12 feet in width, running from Straight Street to the property of the defendants. In this litigation the plaintiffs seek a judgment that the right of way has been abandoned and that the defendants no longer have an interest in it.
"On September 22, 1884, William McAlister, who was then the owner of a tract of land which included the property now owned by both plaintiffs and defendants, conveyed to his daughter, Jane B. McGrogan, a portion of the land now owned by the defendants. The deed contained both a grant and a reservation of a right of way as follows:
`Also granting to the party of the second part the right of a passage opening from Straight Street to the lot hereby conveyed.
And reserving the right of way over the above named passage continued to the last lot deeded or to be deeded this day by the party of the first part to William McAlister, Jr.'
"On the same day, William McAlister conveyed to his son, William McAlister, Jr., a lot which included the balance of the tract now owned by the defendants. This lot was, on April 4, 1888, conveyed by William McAlister, Jr., to Jane B. McGrogan. The deed contained an express grant of a right of way over lots 292-294 Market Street, then owned by William McAlister, Jr. The grant is in the following terms:
`And it is further covenanted and agreed by and between the parties hereto for the consideration aforesaid that the said Jane B. McGrogan, her heirs or assigns shall have the right of way over the rear of premises nos. 292 and 294 now belonging to the said party of the first part fronting on Market Street with an entrance from Straight Street as the same now is for the purpose of driving over the same with wagons and horses and other vehicles and for the use of her tenants to and from the said premises hereby conveyed to have and to hold the same to the said Jane B. McGrogan and her heirs and assigns for the purpose aforesaid forever.'
"Thereafter, on July 3, 1890, the children and only heirs at law of William McAlister, Sr., gave to Jane B. McGrogan a confirmatory deed for the premises conveyed to her by William McAlister, Jr., in 1888. In the latter deed the property was described with more accuracy than it had been in the deed of 1888. The deed of 1890 referred to the right of way as follows:
`Together with the right of way over the rear of premises Nos. 292 and 294 belonging on the fourth of April eighteen hundred and eighty eight to William McAlister, one of the parties of the first part hereto, fronting on Market Street with an entrance from Straight Street as the same then was for the purpose of driving over the same with wagons and horses and other vehicles and for the use of her tenants to and from the said premises hereby conveyed to have and to hold to the same to the said Jane B. McGrogan and her heirs and assigns for the purpose aforesaid forever.'
"This easement is challenged by the plaintiffs.
"Mere non-user of an easement will not suffice to destroy the right. In order to establish the abandonment of an easement, the party asserting such abandonment must present clear and convincing evidence of an intention on the part of the owner to abandon the easement or must prove conduct on the part of the owner of the servient tenement adverse to and defiant of the easement and which conduct acquiesced in by the owner of the easement was the cause of the non-user. In the absence of facts which could give rise to an equitable estoppel, the conduct and acts adverse to the easement must have continued uninterrupted for the full period of 20 years. Raritan Water Power Co. v. Veghte, 21 N.J. Eq. 463 ( E. A. 1869); Johnston v. Hyde, 33 N.J. Eq. 632 ( E. A. 1881); Horner v. Stillwell, 35 N.J.L. 307 ( Sup. Ct. 1871); Arlington Realty Co. v. Keller, 105 N.J. Eq. 196 ( E. A. 1929).
"The facts in this case fail to establish an intention on the part of the owners to abandon the easement. On the contrary, in the conveyances in defendants' chain of title, the existence of the right of way is asserted and transferred to each succeeding grantee. Nor was there proof of any facts which could give rise to an equitable estoppel.
"Finally, plaintiffs have failed to offer proof sufficiently clear and convincing to establish an adverse user for 20 years by the owner of the servient tenement. There was testimony that for some years a fence stood across the right of way. But the evidence was sharply conflicting as to the length of time the fence stood and the extent to which it interfered with the use of the right of way.
"I am of the opinion that the plaintiffs have failed to sustain the burden of proof cast upon them. Therefore, judgment will go for the defendants."
The judgment is affirmed for the reasons expressed in the opinion of Judge Grimshaw.
For affirmance — Chief Justice VANDERBILT, and Justices CASE, OLIPHANT, WACHENFELD, BURLING and ACKERSON — 6.
For reversal — None.