Opinion
12-16-1897
SEIBERT v. GRAFF et al.
G. A. Bourgeois, for complainant. A. Stephany & Son, for defendants.
Action by Justus Seibert against Catharine Graff and others to prevent the defendants closing a certain way. Injunction made perpetual.
This bill is filed to prevent the defendants closing an alleged way, which is claimed by complainant to exist over certain property, of which Louis Graff holds the legal title, and upon which he asserts that he has a right to build, and has commenced to build, structures which will shut off the complainant from using the land as a way to his property. The tract in question is a strip of land 50 feet in width and 200 feet in length, on the north side of Baltic avenue, opposite the terminus of New York avenue, on the south side of Baltic avenue. New York avenue is a street 50 feet in width, running from the ocean, across Pacific and Atlantic avenues, and stopping as an open street at Baltic avenue. If the said New York avenue should be extended further north, it would include substantially the strip of land in dispute, as the westerly side of said New York avenue would run entirely or almost coincidently with the west side of this tract, and the east side of the avenue with the east side of the tract. The complainant owns a piece of land adjacent on the west side of this land of Graff's. He claims that he had a right of way over said land of Graff, and whether he has such right is the question in dispute. The evolution of the titles of the respective parties is as follows: Both tracts were originally owned by Richard Hackett. On October 20, 1880, he sold to Edward Champion a tract, including the land now owned by both complainant and defendants. The deed from Hackett to Champion contained the following description: "Beginning at a point in the northerly line of Baltic avenue, whence the same would be intersected by the easterly line of New York avenue, if continued across Baltic avenue; and runs thence (1) westerly, along Baltic avenue, about one hundred and sixty five feet, more or less, to a point in J. J. Gardner's line; thence (2) at right angles with Baltic avenue, and along J. J. Gardner's line, two hundred feet to a point; thence (3) easterly, parallel with Baltic avenue, about one hundred and sixty-five feet, more or less, to a point in the continuation of the easterly line of the said New York avenue; thence (4) southerly, at right angles to said last-described line, two hundred feet, to the place of beginning." Edward Champion, on March 1, 1894, sold a part of this tract to Justus Seibert, the complainant. The following is the description contained in this deed: "Beginning at the northeast corner of Justus Seibert's land, in the line of Daniel Morris' land; and runs thence (1) eastwardly, along said Daniel Morris' line, sixty feet, more or less, to the intended New York avenue line; thence (2) southwardly, along said intended New York avenue line, one hundred and twenty feet, to a post; thence (3) westwardly, along the line of Ed. Champion's land, fifty-eight feet, to Justus Seibert's land; thence (4) northwardly, along said Seibert's land, one hundred and twenty feet, more or less, to the place of beginning." This description, it is perceived, carried Seibert's title to the west side of the intended New York avenue. On January 6, 1896, Cnampion conveyed to Catharine Graff the space adjoining Seibert's land, which would be included in said New York avenue if extended north of Baltic avenue. The description covers a piece of land 50 feet on Baltic avenue, running north that width, 200 feet. She and her husband erected a fence, and began the erection of buildings which would substantially cover the entire tract it is in evidence that, after Champion bought of Hackett, he took down a fence which had inclosed a lot on the north side of Baltic avenue, opposite the terminus of New York avenue. He put a double house on the north side of Baltic avenue, and made a footwalk along what would be the west side of New York avenue, if extended, with a rude curb. This was the condition of the land when Seibert bought. After his purchase, he built several houses fronting on New York avenue, if extended, and made a path or sidewalk, which met the footpath or sidewalk of Champion. Besides this, thespace which would be covered by New York avenue extended has been used by wagons in delivering coal and groceries to those residing along it.
G. A. Bourgeois, for complainant.
A. Stephany & Son, for defendants.
REED, V. C. (after stating the facts). It is entirely settled that if a person sells land by reference to a map, and there is delineated upon the map a road adjoining the land sold, the grantor, if owner of the land upon which the road is marked, is estopped from asserting, as against his grantee, that such road does not exist. Clark v. City of Elizabeth, 40 N. J. Law, 172; Crowell v. Beverly, 134 Mass. 98; Lowe v. Redgate, 42 Ohio St. 329; Bartlette v. Bangor, 67 Me. 460; Donohoo v. Murray, 62 Wis. 100, 22 N. W. 167. The reference to the map in the deed implies that the land sold has, as an appurtenant, a way to and from it; and it is presumed that the presence of the way enhanced the consideration paid for the property. The grantor, therefore, will not be permitted to close the way against his grantee. Although there may be no reference to a map, yet the fact that land is described in a deed as bounding upon a street, and there are marked, upon the ground adjacent to the land sold, traces of the existence of a street, this condition of affairs will produce the same result. Tobey v. Taunton, 119 Mass. 404; Smith v. Lock, 18 Mich. 56. The estoppel is effective, not only against the grantor himself, but his privies. Under the principle just stated, I am of the opinion that Mr. Champion, the grantor, and his privies, the Graffs, are estopped from asserting that Mr. Seibert has no right of way over the 50-foot strip which would be included in New York avenue extended. The description contained in the deed from Champion to Seibert ran to and along an intended New York avenue line. Champion owned the land covered by the intended New York avenue. As already remarked, New York avenue stopped as a physical open street, and is marked upon the maps of Atlantic City on the southerly side of Baltic avenue. Every one acquainted with local affairs confidently expected that it would be extended north whenever increase of population required such extension. The allusion to the line of an intended New York avenue, both by reference to the physical appearance of the ground, and by the plotting upon the said map, was as clear as if the intended street had been mapped or had been in actual use. Both grantor and grantee bargained in the belief that New York avenue would be extended alongside the property sold. It will be presumed that the consideration was fixed in view of that circumstance; and, in my judgment, neither Champion nor Graft is now in a condition to say that no such right of way exists. I will advise a decree that the injunction be made perpetual.