author: Brown, A. J. S. C.

text:
    IN THE MATTER OF THE APPLICATION OF SEBASTIAN P. VACCARO, A RESIDENT AND VOTER OF THE CITY OF ASBURY PARK, FOR A DETERMINATION OF HIS RIGHTS, STATUS AND OTHER LEGAL RELATIONS UNDER THE STATUTES OF THIS STATE, ET AL.
    Superior Court of New Jersey Law Division
    Decided Oct. 29, 1948.

      Ward Kremer, for petitioner. .

      Kays Morgan, for councilman Roland J. Hines.

      Harry Shure, for interveners, Carney Lebra, et als.

   Brown, A. J. S. C.

Sebastain P. Vaccaro, who- claimed to be a voter and resident of the City of Asbury Park, presented to the New Jersey Supreme Court in August, 1948, a petition for a declaratory judgment adjudging his “rights, status and other legal relations” in connection with a petition stated to have been signed by qualified voters in excess of twenty per centum, o-f the voters of Asbury Park, It is alleged in the petition that a “controversy” has arisen in Asbury Park over the petition signed by the qualified voters, and whether the same should be filed and an election to proceed thereon, under R. S. 40:70-1 et seq., as claimed by the petitioner, or under R. S. 40:8S — 1 et seq., as alleged by those in opposition.

The matter in controversy was assigned to this Court for determination, before the Mayor and other city officials were ordered by the Supreme Court to be joined as parties to the proceeding, and since there has been joined, upon application, a number of legal voters in the municipality who support the petition. On September 30, 1948, an' answer was filed by the Mayor and other officials made parties, in which it was denied that R. S. 40:70-1 et seq., had any application for the reasons alleged; that said statutes “deal with the establishment for the first time of the commission form of government; whereas the pertinent statutes are those dealing with the procedure for the abandoning of municipal form of government adopted under R. S. 40:8S — 1 et seq.” The answer further charges that the relief prayed for should not be granted because the petition for a change in government was not filed; that the petitioner, Sebastian P. Vaccaro, is not a resident and qualified voter of Asbury Park and has no rights or legal relations that are effected and that he has no right to- file the application for a declaratory judgment.

Depositions were taken and oral arguments were heard. During this period the petition with the signatures of the legal voters was presented to the City Clerk, who refused to retain the same. Depositions relating to petitioner’s legal residence disclosed that the petitioner had a business office in Asbury Park, with rooms above, which he claimed as his “legal residence”, while his wife and children lived continuously in a house owned by the petitioner and his wife in an adjoining municipality, in which the telephone and other utility services were listed in the petitioner’s name, and paid for by him. It also was shown that he stayed quite frequently at the address outside of Asbury Park. During an oral argument, on this subject, it was conceded that residence was not pertinent to the issue since legal residents of Asbury Park were now parties in the case favoring the petition, and it was admitted by the answering defendants that the petition was presented to the City Clerk. Though these defendants have consented to the elimination of their objection that the petitioner is not a legal resident, and the Court has consented thereto, it should not be understood that the Court encourages a split loyalty in community or family life.

On October 21, 1948, there was filed with the court final briefs and a stipulation signed by all the parties in the case, including the interveners; in which it is stipulated the latter are residents and qualified voters of Asbury Park; that the question of the residence of the .petitioner, Sebastian P. Vaccaro, is not material to the determination of the issues in the case and that the City of Asbury Park was governed by a commission form of government from the month of March, 1915 to December 5, 1933, and since the last mentioned date to the present time under the Municipal Manager Law.

The only issue remaining for determination is whether the petitioners who seek to change the City’s present form of government should proceed under statute R. S. 40:70-1 et seq., or R. S. 40:85 — 1 et seq.

A comparison of the statutes last mentioned will help to determine which, if any one of them, controls absolutely the procedure to be followed in effecting a change of government from a Municipal Manager form to a Commission form.

of the Commission The following are pertinent chapters Government Law:

R. S. 40:70-3 — “All municipalities which shall have heretofore adopted the provisions of the act entitled ‘An act relating to, regulating and providing for the government of cities, towns, townships, boroughs, villages and municipalities governed by boards of commissioners or improvement commissioners in this state’ (title, as amended), approved April twenty-fifth, one thousand nine hundred and eleven, as amended and supplemented and all municipalities which shall hereafter adopt the provisions of chapters 70 to 76 of this title (Sec. 40:70-1 et seq.), shall have the commission form of government and be governed in the manner hereinafter in said chapters 70 to 76 set forth.”
R. S. 40:71-1 — “The legal voters of any municipality not governed by chapters 70 to 76 of this title (Sec. 40:70-1 et seq.) may adopt said chapters at an election held in such municipality, to be called by the municipal clerk upon request or petition in writing of twenty per cent of the persons qualified to vote at the last general election as shown by the registry of qualified voters used at such election.”
R. S. 40:71-2 — “Upon the filing of the petition or request in writing with the clerk, he shall forthwith call an election, to be held on the third Tuesday following the date of the filing of the petition, and shall cause public notice of the time and place of holding the same to be given by advertisement signed by himself and set up in at least twenty different places in the municipality and published for at least six days previous to the time of the election in at least one newspaper printed and published in the municipality, and if there be no such newspaper then in a newspaper circulated therein.”

The following are pertinent chapters of the law relating to the abandonment of Municipal Manager form of government:

R. S. 40:85-1, as of January 22, 1945 — “Any municipality which shall have operated for more than four years under the provisions of the act entitled ‘An act relating to, regulating and providing for the government of municipalities, except counties, by a municipal council and a municipal manager,’ approved March nineteenth, one thousand nine hundred and twenty-three, or under the provisions of this subtitle, or both, may at any general election abandon such organization thereunder and may resume the form of government under the law under which it was being governed when said act or this subtitle was adopted. The procedure shall be as hereinafter in this chapter provided.
“The provisions of this chapter shall not apply to any municipality which immediately prior to the adoption of said act or of this subtitle, had operated under the provisions of chapters 70 to 76 of this title (Sec. 40:70-1 et seq.). Any such municipality may revert to its former form of government by electing to do so under the provisions of said chapters 70 to 76.”
On January 23, 1945, the last stated paragraph, in quotations, was stricken from R. S. 40:85-1 as amended by P. L. 1947, Chapter 2, p. 12.

It appears that the confusion resulting in the controversy in this case was caused by the amendment to R. S. 40:85 — 1 in P. L. 1947, C. 2, by eliminating the exception contained in the last paragraph of the original act.

COMPARISON OF COMMISSION GOVERNMENT LAW AND MUNICIPAL MANAGER LAW AS TO ELECTIONS

COMMISSION GOVERNMENT LAW

1. Calling Election

40:71-1; 40:71-2 — Petition filed with clerk. Clerk forthwith calls election for third Tuesday after filing petitions.

2. Time of Taking Effect

40:75-1. If voters vote to adopt commission government, then first commissioners are elected fifth Tuesday following adoption election, and take office on first Tuesday after their election.

3. Nomination of New Candidates for Office

40:75-3. Candidates for commissioner are nominated by petition consisting of individual certificates signed by one half of one per cent of the voters at the last general election.

4. Election of New Officials

40:75-1. First officials elected 5th Tuesday after vote to adopt commission government.

40:75-2. Commissioners elected 2nd Tuesday in May-every 4th year. Hold office for four-year terms.

MUNICIPAL MANAGER LAW IN RE ABANDONMENT

1. Calling Election

40:85-7 — Clerk has ten days to examine petitions. Then certifies them to municipal council.

40:85-8 — Municipal council passes resolution and forwards same to county clerk.

40:85-9 — County clerk places question on ballot at next general election.

2. Time of Talcing Effect

40:85-10. If voters vote to abandon municipal manager act, the abandonment takes effect January first of the second year after the election.

3. Nomination of New Candidates for Office

40:85-11. Candidates nominated at primary election in year after the general election at which municipal manager law was abandoned.

4. Election of New Officials

40:85-11. After general election at which vote to abandon is adopted- and in the primary election of the succeeding year, officials are nominated for new form of government. They are elected at general election and take office January 1 of the 2nd year following vote to abandon.

Our present Constitution provides, in section VII, paragraph 5: “No law shall be revived or amended by reference to its title only, but the act revived, or the section or sections amended, shall be inserted at length. No act shall be passed which shall provide that any existing law, or any part thereof, shall be made or deemed a part of the act or which shall enact that any existing law, or any part thereof, shall be applicable, except by inserting it in such act.” R. S. 40 :85 — 1 et seq., does not amend 40 :70-1 et seq., in accordance with the Constitution as above stated. R. S. 40 :85 — 1 as amended by P. L. 1947, C. 2, removed the exception by which R. S. 40 :70 — 1 et seq., was without the provisions of the original act and did not by any provision declare that R. S. 40:70-1 et seq., was amended or controlled by R. S. 40:85 — 1.

The evident reason for the adoption of the above stated provision in the Constitution was to prevent covert and incautious legislation; Baldwin Lumber Co. v. Moskowitz, 15 N. J. Misc. 438. Covert and incautious intentions should not be presumed. The additional legislation should be considered as an improvement without any alteration by implication or otherwise of R. S. 40:70-1 et seq. So far as reasonably possible where two statutes are not entirely conflicting they should be harmonized and each given force and effect to that end. The legislature in enacting R. S. 40:35-1, as amended, evidently had this intention as the act is in permissive form; that is to say, it provides that a municipality under R. S. 40:85-1 “may at any general election abandon such organization” and “may resume” its former form of government.

A computation of the time required to adopt a Commission form of government according to the diagrammatic comparison above set forth, under R. S. 40:71 — 2 et seq., and until the newly elected Commissioners could take office would be nine weeks. Under R. S. 40:85 — 1 et seq., from the time of filing the petition, in this case, until the Commissioners took office would be two years and two months. It is not to be presumed that undesirable consequences were intended by the enactment of R. S. 40:85-1 et seq.; nevertheless, the results which will follow one construction or another is often a potent factor in its proper interpretation, 50 Am. Jur. p. 372, Sec. 368. It is reasonable to presume the Act last mentioned was intended to have the most beneficial operation that the language permits. The permissive character of the Act supports this conclusion. The statutes under consideration are permissive and not mandatory and relate to the same subject matter and therefore should be construed in pari materia.

In White v. Hunt, 6 N. J. L. 415, 417, Chief Justice Kinsey stated: “In the construction of the acts of the legislature, it has ever been held a sound and wholesome rule, that when divers laws are made relating to one subject, the whole must be considered as constituting one system, and mutually connected with each other.” See also In re Book’s Will, 90 N. J. Eq. 549. In Public Service Electric Co. v. Camden, 118 N. J. L. 245, it is stated that statutes which are in pari materia are to be construed together so as to effectuate a general legislative policy.

The defense that R. S. 40:70-1 et seq., pertains to “establishment for the first time of the commission form of government” is without merit, as the statute referred to does not contain such restriction. The comparison previously set forth as to methods of election, under both statutes, illustrates the advantages and disadvantages of each, depending on one’s point of view. They both affect the political rights of the parties interested. Under all the facts and law involved, a liberal and reasonable view should be taken to preserve those rights. It is the declared judgment of the Court that R. S. 40:70-1 et seq., is the statute that governs in this case and that an election be held in accordance therewith.


source: Caselaw Access Project

author: Leyden, J. S. C.

license: Public Domain

text:
    GEORGE A. McLAREN, SR., AND ALFRED H. TUCKER, PLAINTIFFS, v. AMERICAN TELEPHONE AND TELEGRAPH COMPANY OF NEW JERSEY, A CORPORATION OF NEW JERSEY, DEFENDANT.
    Superior Court of New Jersey Law Division
    Decided October 22, 1948.

      Mr. Hymen Siegendorf, for the plaintiffs.

      Mr. Schenck, Price, Smith & King (Mr. Harold A. Price), for the defendant.
   Leyden, J. S. C.

This suit in ejectment was instituted in the former New Jersey Supreme Court, Morris County, and transferred on September 15th, 1948 to this court. The parties waived trial by jury and submitted the matter on a stipulation of facts and briefs to the court on October 15th, 1948 for decision.

The facts giving rise to the dispute are, and I find them to be as follows :

The plaintiffs are presently the owners of partially developed lands situate in the Township of Mendham, Morris County, New Jersey, comprising approximately three and one-half acres and more particularly described in the complaint. The premises in question were formerly owned by A. Siegfried Lau.

On June 18th, 1923 Lau, then the owner of the premises made, executed, sealed and delivered the following instrument:

“$100.00 Received of the American Telephone and Telegraph Company of New Jersey One Hundred 0/100 Dollars, in consideration of which I hereby grant unto said Company, its successors and assigns, the right, privilege and authority to construct, operate and maintain its lines of Telephone and Telegraph, including the necessary poles, wires, cables and fixtures upon, over and across the property which I own, or in which I have any interest, in the Township of Mend-ham, County of Morris and State of New Jersey, and upon and along the roads, streets, or highways adjoining the said property, with the right to permit the attachment of the wires and cables of any other company, and the right to trim any trees along said lines so as to keep the wires and cables cleared at least eighteen inches, to erect and set the necessary gny and brace poles and anchors and to attach thereto and to trees the necessary guy wires; said sum being received in full payment therefor, pole west of old Calais road to be located on property line. Trees interfering with said line to be cut down. ■
Witness my hand and seal, this 18 day of June, A. D. 1923, at 35 Ramge Terrace, Bloomfield, N. J.
(Post Office Address)
Witness: D. L. Ladrigan
A. Siegfried Lau (L. S.)
(Land Owner)
Approved: F. R. Elsasser,
Attorney
F. L. B.”

The above instrument was not recorded in the County Clerk’s Office of Morris County, New Jersey.

Thereafter the defendant entered upon the premises in question and erected thereon four telegraph or telephone poles bearing wires, cables and fixtures with the required and necessary guy wires and anchors. The poles range in height from twenty-five to thirty feet and are spaced at intervals of 107 feet, 111 feet, 111 feet and 102 feet respectively in a general east-west direction, and since October 1923 have been and still are being used by the defendant to maintain three long distance telephone and telegraph cables. The defendant has kept the surface area for a distance of approximately fifteen feet in width on each side of the pole line as it traversed the property clear of underbrush, saplings and plant growth. From October 1923 to and including the present time, this pole line bearing the wires, cables and fixtures and with the required and necessary guy and brace poles and anchors has remained in the same location as when installed on the premises.

On May 19th, 1925 A. Siegfried Lau and Ernestine Lau, his wife, conveyed the aforementioned premises to one Leonora B. Natkins, which deed of conveyance was recorded in the Clerk’s Office of the County of Morris on the same day in Book M-29 of Deeds on page 432, etc. On August 27th, 1932 Leonora B. Natkins, widow, conveyed the premises in question, still undeveloped, to George A. McLaren, Jr. and Alfred H. Tucker, which deed of conveyance was recorded on August 29th, 1932 in the Clerk’s Office of the County of Morris in Book.C-33 of Deeds on page 532, etc. On May 10th, 1938 George A. McLaren, Jr., unmarried, conveyed to George A. McLaren, Sr., his undivided one-half interest in the premises in question. None of the deeds in the chain of title from A. Siegfried Lau to the present owners of the premises contains any statement or recital that the conveyance was made subject to the instrument made and executed by A. Siegfried Lau on the 18th day of June 1923 set forth in full, supra. In the month of September 1932 a small summer dwelling was erected on the premises by the then owners thereof. The present plaintiffs are now the sole owners of the premises in question.

At no time prior to April 8th, 1947 did the aforementioned owners of the property, including the plaintiffs, object to the construction, operation and maintenance of the pole lines. In 1940 the plaintiffs requested the defendant to remove brush that was on the said defendant’s so called right of way. At the request of the plaintiffs, defendant in May 1947 removed six partially dead trees which were within twenty to twenty-five feet of the defendant’s pole line and constituted a hazard to it. On April 8th, 1947 and again on June 25th, 1947 plaintiffs directed communications to defendant requesting the removal of the pole line, wires, cables, fixtures, etc. The defendant refused so to do. Hence the present suit which seeks, by ejectment, possession of the disputed strip of land.

The first question which presents itself is: what is the legal effect of the instrument made and executed by A. Siegfried Lau to the defendant on June 18th, 1923? Is it a grant running with the land and constituting an easement so-called or other irrevocable interest in the land; or is it a revocable license, personal between A. Siegfried Lau, the licensor, and the defendant, and as such does not run with the land?

The owner of land may impose any legal burden upon it he may choose to create. He may do so by a direct conveyance of some right or privilege over his property for the benefit of some designated grantee. The intent to encumber the land with the burden must be clear. Turning, then, to the instrument in question, we have the phrase “in consideration of which I hereby grant unto said company, its successors and assigns, the right * * *.” The word “grant” connotes a conveyance; an intention to pass something; an extinguishment of the right of the grantor and implies a contract not to re-assert that right. The phrase “unto said company, its successors and assigns,” indicates an intent to make the given right, privilege and authority permanent. The right or privilege, having been brought into existence by a deed, is presumed to be permanent, unless a contrary intention is expressed. If it were intended to make the grant continue for a limited term, that fact should have been expressed. The instrument in question contains all of the elements of a grant of a servitude on the land in favor of the defendant. Such was obviously the intention of the parties as expressed in the instrument in the light of the surrounding circumstances. The defendant company desired to extend its telephone and telegraph communication system. To do so, with convenience, it became necessary to cross the lands of Lau and he granted that right and privilege in consideration of the payment of $100. It was the intention of the parties that the pole lines were to remain indefinitely and that a servitude be created on the land for the benefit of the defendant for that purpose.

I therefore find that the writing of June 18th, 1923 is a grant running with the land and constitutes an irrevocable servitude on the land. It is more than a mere license to do some act upon the land which may be revoked at the will of the licensor.

It is argued that the instrument is indefinite as to the location and therefore the right is too uncertain to be enforced. The answer is that the parties have defined the right and privilege by practical location. If the location and limits of the servitude are not defined in the grant, a reasonably convenient and suitable way is presumed to be intended. Here the defendant exercised the right in a particular line with the acquiescence of the owner of the servient tenement. The location and extent of the servitude was determined by practical location and use by the defendant, acquiesced in by the grantor and his successors in title, for a long period of time. The location and extent of the right and privilege is as fixed as if it had been described in the grant by meets and bounds.

The next question which presents itself is: what is the effect of the failure to record the instrument of June 18th, 1923 in the Clerk’s Office of the County of Morris ?

As an instrument affecting the title to real estate or any interest therein or granting any right or interest therein, R. S. 46:16 — 1 & 2, it was void and of no effect against subsequent bona fide purchasers not having notice thereof until duly recorded or lodged for record in the office of the county recording officer in which the affected real estate is,situate, R. S. 46:22-1. _ The key words are “not having notice thereof.” Possession or occupation of land, to be effectual as notice must be exclusive and uninterrupted, open, notorious and visible, i. e., it must indicate the occupant; it must indicate that someone other than he who appears by the record to be the owner has rights in the premises. Cox v. Devinney, 65 N. J. L. 389, 47 Atl. Rep. 569. Whatever is sufficient to put a party on inquiry is good notice. The rule is the same at law as in equity arid the ground upon which the title acquired by a prior registry of a deed is lost in the case of notice to the second grantee of the existence of the prior conveyance is that it is a fraud in the second grantee to take a deed knowing or having reason to suspect the existence of a prior title. Holmes v. Stout, 10 N. J. Eq. 419. The plaintiffs had constructive notice of the prior rights of the defendant. Since October 1923 when the poles were erected, the defendant’s occupation of the strip of land upon which the poles were erected was exclusive and uninterrupted, open, notorious and visible. The presence of the poles, the wires, cables, guys and anchors as a part of a communication system indicated that someone other than he who appeared by the record to be the owner had rights in the premises. The visible presence of the poles and wires was sufficient to put the plaintiffs upon inquiry to determine whether the defendant or some other similar company had the right to erect and maintain the telephone lines. The occupation of the strip of' land by the defendant was as exclusive as the circumstances of the case would permit. The plaintiffs took title to the premises in question with notice of the defendant’s rights and subject thereto. The failure of the defendant to record the instrument does not affect its rights in the circumstances.

Therefore I find a verdict in favor of the defendant American Telephone and Telegraph Company, a corporation of New Jersey, and against the plaintiffs George A. McLaren, Sr., and Alfred H. Tucker, no cause of action.


author: Brown, J. S. C.

text:
    CROMPTON AND COMPANY, PLAINTIFF v. BOROUGH OF SEA GIRT, A MUNICIPAL CORPORATION, DEFENDANT.
    Superior Court of New Jersey Law Division
    Decided January 31, 1949.

      Mr. Edward J. Ascher, attorney for plaintiff.

      Mr. J. Stanley Herbert, attorney for defendant.
   Brown, J. S. C.

The plaintiff filed a complaint in this cause in which it seeks to have this court declare that an ordinance adopted by the defendant, the Borough of Sea Girt, known as Ordinance 101, adopted on April 11, 1933, and the amendments thereto and supplements thereof, are unconstitutional, and' that they be declared to be unreasonable and arbitrary, as to the plaintiff, on the ground that the use of the hereinafter mentioned premises by the plaintiff constitutes a conforming use, and that the court restrain the defendant from proceeding with two complaints now pending in the Recorder’s Court in the Borough of Sea Girt against the plaintiff, as well as further proceedings thereon, in which violations are charged by the defendant against the plaintiff.

In a stipulation signed by the parties it was agreed that the plaintiff contends that its use of the premises in question is permitted by virtue of the establishment of the use thereof prior to and since the enactments of the zoning ordinances and is therefore a nonconforming use, protected and continued under N. J. R. S. 40:55-48, and that said use has not been enlarged or extended.

The defendant contends that the use is in violation of the ordinances mentioned, and that the use thereof by the plaintiff at the present time is not protected by the statute above mentioned.

The stipulation also provided that the transcript of the testimony taken before the Recorder of the Borough of Sea Girt on December 22, 1947 be used as evidence in the issues before this court as well as affidavits furnished on motions made in this cause.

. Ordinance No. 101, adopted April 11, 1933; provides in Section S as follows;

“In District 4 no building or premises shall be used and no- building shall be erected or altered or arranged, intended or designed to the use for any of the following specific trades or-industries; ■'
“1. Manufacturing of any kind, except such as is incidental to the carrying on of a retail business therein. * * *
“10. Warehouses.”

Ordinance No. 177, adopted on November 21, 1944, was an amendatory ordinance of Ordinance 101, particularly wherein the premises occupied by the plaintiff is placed in a residential zone wherein no building could be erected or used except for a one-fatnily dwelling. Ordinance No. 177 contained a prohibition against the use of buildings for “warehouses” as mentioned in Ordinance 101.

The premises in question is occupied by -a one-story cement-block building with stucco finish and rectangular in shape. The affidavit of Paul Newman submitted on behalf of the plaintiff, states that he acquired title to this property from his father in 1914 and erected thereon the building last mentioned. In 1931 (before Ordinance 101 was adopted) the building was used during the summer months for the storage of automobiles, gasoline and oils for automobiles, under lease to the Stockton Hotel, and in the winter months storage of small boating craft. In other summer months the premises were rented for garage purposes, and in 1940 the storage of trucks and equipment of a jetty contractor. “From September 1942 to July 1942” (this is understood to mean from July to September in the year mentioned), the Red Cross used the premises for the storage of bandages and like materials, From August 1, 1942 to May 1944 the Dackerman Motor Company stored new cars in the premises; from May 31, 1944 to June IS, 1946 the premises were vacant; from June 1946 to September 1946 the premises were rented to Chilitzi Brothers who operated the premises as a garage and for the storage of automobiles, at which time it was rented to the plaintiff, who has since continued to occupy the premises to the present time.

Newman’s affidavit also contains statements that the zoning ordinance of 1933 placed his property in a business zone and the 1944 amendment placed the premises in District 1, making it a residential zone. His affidavit contains the further statement that he rented the property to the plaintiff company,

“for the storage of automobile trucks, gasoline and oil, and for temporary storage of other commodities incidental to the manufacturing business of the plaintiff, whose main plant is located at Manasquan, New Jersey.”

It appears from the evidence before this court that he was tried and convicted before the Recorder’s Court in Sea Girt, New Jersey, on December 22, 1947 for alleged violations occurring on July 7, 1947 and August 12, 1947 of paragraph one of section 4 of the Zoning Ordinance, charging that the premises was used as a warehouse and for the storage of food products contrary to the aforesaid ordinance. These convictions are awaiting hearing on appeal to the County Court.

In the affidavit of Robert Crompton, who is president of the plaintiff company, appears the statement:

“There are five of our company trucks stored there (referring to the cement-block stucco garage) over night, together with certain commodities that are allied to the product we manufacture at our main plant in Manasquan, New Jersey, namely, potato chips. There are also stored paper containers, cartons and boxes which are used to package our product for retail distribution. We also, from time to time, store surplus items which cannot be accommodated at our Manasquan plant, and they are stored on the premises in question temporarily until there is available space at our main plant. Usually the temporary period is from ten days to two weeks maximum.”
“There has been stored from time to time tin cans or containers which are received in car-load lots from the Continental Can Company, with a capacity of 12 ounces each, and are put to use and the pile substantially reduced during the summer months when there is a greater demand for our products.”
“from time to time, motor oil for use in the company’s trucks and on one occasion some vegetable oil temporarily stored until some space could be found at the main plant. Storage was the purpose for which we leased the premises in question, and the use that the premises has been put to during our occupancy. It would seem futile to lease such a sizeable premises for storage purposes and to have it limited to a single purpose.”

The deposition of Ward Brasch discloses that he was the Borough Clerk of the Borough of Sea Girt and that the premises in question was known as the Newman Garage; that it was a business zone in 1933, and states that at the time of the adoption of Ordinance 101 in that year the Newman Garage was use.d as a garage.

In depositions taken on behalf of the defendant in this cause, William H. Panz testified that he was the Chief of Police of the Borough of Sea Girt, that he was at the premises on August 12, 1947 and also on July 7, 1947, and at that time the premises were under the residential district ordinance as District No. 1. On July 7th he looked in the building when the door was opened and he states that he saw containers that looked like steel drums of fifty gallon capacity, and on the west and east side of the garage he saw cartons “stacked up” behind a lattice enclosure. He looked in other parts of the building and saw more cartons and more oil drums and metal containers which bore the name of “Quinlan Pretzels”. Pie further testified that the premises were used for other purposes than a garage. Pie visited the premises again on August 12, 1947 and saw the same conditions as in his visit on July 7, 1947; that the quantities might have been greater; that some of the articles mentioned were situated on one side and some on the other, that there was a concrete or paved strip down the center of the building, and that beside this place there was a lattice enclosure which was on the west inside of the garage, and that there was stored therein the articles heretofore mentioned; that the Crompton automobiles passing in and out of the premises contained the inscription, “potato chips”, and that the use of the premises made by the Crompton Company was detrimental to the health or welfare of the Borough ofvSea Girt; and that the inscription on the outside of the building was, “Crompton Food Products, or something like that, food distributors.” He further stated that the use of the premises prior to 1933 and thereafter was for the use and storage of automobiles, and at one time Red Cross materials.

Under R. S. 40:55-48, “Any nonconforming use or structure existing at the time of the passage of an ordinance may be continued upon the lot or in the building so occupied and any such structure may be restored or repaired in the event of partial destruction thereof.”

It appears in the proofs furnished to the court and the admissions of counsel in their briefs, that the use of the premises in question as a garage, and the activities and necessities arising out of such a use, while not conforming to the ordinance may be continued.

The uses of the premises by the plaintiff company are restricted to the non-conforming use that was in existence at the time the original ordinance and its supplements and amendments were adopted.

In “Words and Phrases”, the term “warehouse” is defined as a building or place adopted to the reception and storage of goods and merchandise. And in a more limited sense, it is the building or place in which a warehouseman deposits the goods of others in the course of his business.

It seems clear that the use of a premises as a garage is an entirely different use than used as a storage or warehouse, whether temporary or permanent, for materials that are not connected with and necessary for the proper storage and operation of automobiles. There may be some incidental storage in a garage such as gasoline, oil, automobile parts, but such an incidental storage is not contemplated as a storage for food products or other oils and materials,

Under R. S. 40:55 — 30 a municipality is empowered and may pass ordinances to limit and restrict specified districts, buildings and structures, and- the extent to which they may be used and the exercise of such authority is deemed to be within the police power of the municipality.

R. S. 40:55 — 36 provides for the appointment of a board of adjustment and in the case of ordinances such as existing in this case that the said board of adjustment may, in appropriate cases, and subject to appropriate conditions and safeguards, make, special exceptions to the terms of the ordinance in harmony with its general purpose and intent and in accordance with the general rules therein contained.

In R. S. 40:55-39 and they have power to hear and decide appeals where it is alleged there is error in any order, requirement or determination made by an administrative officer in the enforcement of any ordinance adopted.

In the briefs submitted in this case it appears that there is a board of adjustment in the Borough of Sea Girt and that the plaintiff by-passed this board, as no application was made by the plaintiff for an adjudication on the extent of the use to which the plaintiff made of the building in question; consequently, this court is not called upon to decide whether the board of adjustment would have made an exception in the case of the plaintiff. This court should not interfere and substitute its judgment for that of the local agency entrusted with the quasi judicial function of determining such issues. There is a presumption in law in favor of the validity of the action of the local authority and the burden is on the land-owner or occupant to establish by evidence that the denial is arbitrary. Citing Peterson v. The Palisades Park, 127 N. J. L. 190; Silvester v. Princeton, 104 N. J. L. 18.

It should be further understood that the board of adjustment and not the land-lord or lessee is chargeable with responsibility of determining whether the statutory prerequisites have been met and what is required to serve the public need.

It is not a good ground for variance that the nonconforming use would be more profitable or advantageous to the land-owner or lessee. Citing Brandon v. Board of Commissioners of Montclair, 124 N. J. L. at 135; Scaduto v. Bloomfield, 127 N. J .L. 1. See also Durkin Lumber Co. v. Fitzsimmons, 106 N. J. L. page 183, where a case before the Court of Errors and Appeals on a judgment from the Supreme Court affirmed a conviction of the appellate for violation of the provisions of a zoning ordinance in the town of Bellville.

In Burmore Co. v. Smith, 124 N. J. L. 541, it was held; that the use of a property at the time of passage of a zoning ordinance is the authority that this standard for determining the use thereof, which may be continued after passage of the ordinance. The non-conforming use must be the same before and after the passage of the ordinance. Evidently what the plaintiff intends to do in this case is to extend or enlarge the conforming use of the structure. In the Burmore case, supra, the Supreme Court and Court of Errors and Appeals held that the proofs and issues in the case at bar did not show that the ordinance was not unreasonable. It should be understood that the spirit of the ordinance was to restrict rather than to increase any conforming use.

This court holds and determines that the ordinances referred to in this case are not unreasonable, arbitrary or unconstitutional and that they are enforceable.


author: Davidson, A. J. S. C.

text:
    MORRIS PASHMAN, PLAINTIFF, v. ELMER FRIEDBAUER AND MICHAEL ANDRUS, DIRECTOR OF PUBLIC SAFETY OF THE CITY OF PASSAIC, DEFENDANTS.
    Superior Court of New Jersey Law Division
    Decided January 27, 1949.

      Mr. Isadora Rabinowitz, attorney for plaintiff.

      Mr. Benedict Krieger, attorney for defendant, Elmer Friedbauer.

      Mr. Oscar R. Wilensky, attorney for defendant, Michael Andrus.
   Davidson, A. J. S. C.

This ac.tion, a proceeding in lieu of prerogative writs, seeks to vacate certain-appointments of defendant Friedbauer made by Commissioner Andrus, and shortly, to test title to the office of Magistrate of the Municipal Court of the City of Passaic.

The essential facts, being matters of public record, are not in dispute. The Commission-governed City of Passaic, in accordance with the provisions of Chapter 264, as amended by Chapter 394 of the Laws of 1948, duly established, by ordinance, a Municipal Court as of January 1, 1949, and by Resolution adopted on December 28, 1948, assigned said court to the Department of Public Affairs. On .the same day, subsequent to the adoption of said Resolution, plaintiff was appointed Magistrate of said court, both by Nicholas Martini, Director of Public Affairs, and by said Board of Commissioners, the appointment to take effect January 16, 1949, and duly qualified by subscribing the oath of office. In accordance with the provisions of Section 36 of said Chapter 264, plaintiff, then serving as Police Judge of the Police Court, automatically became Magistrate of said Municipal Court for a term equal to the balance of his unexpired term, which ended January 15, 1949, and seeks to hold title to and continue in said office by virtue of his appointment of December 28, 1948.

Defendant Andrus, Director of Public Safety, by Resolution dated May 20, 1947, had been assigned certain departments, boards and agencies, among which was the Police Court, and on December 18, 1948 and December 27, 1948, he appointed defendant Friedbauer as Magistrate of the Municipal Court for a term commencing January 16, 1949 and his appointee duly subscribed an oath of office for each appointment, and by way of counterclaim seeks to have plaintiff’s appointment set aside and his own declared valid.

The sole issue is whether plaintiff Pashman or defendant Friedbauer holds a valid appointment, and a mere recital of the foregoing admitted facts can lead, in my opinion, to but one conclusion, for while many points have been raised, the only meritorious question presented is that which is dispositive of the case, namely, who had the power of appointment at the time of a vacancy in the office of Magistrate.

After the organization meeting of the Commissioners and mandatory assignment of municipal offices to the several departments, the power of appointment vests in the individual Commissioner holding the department (Murphy v. Board of Commissioners of Newark, 119 N. J. L. 537, aff’d 121 N. J. L. 75) and by statute the Board of Commissioners, acting through its majority, is the governing power in the municipality, and is vested with the power and charged with the duty of determining the powers and duties to be performed by each department, and of assigning, or at any time re-assigning, such powers and duties to such department as the Board of Commissioners “ ‘in their judgment deem appropriate,’ and, in the absence of any evidence that such a determination and assignment was made in bad faith or was an abuse of discretion, a reviewing-' court will not disturb such action.” Tagliareni v. Stilz, 120 N. J. L. 5, aff’d 121 N. J. L. 49. The 1930 amendment to the Walsh Act provides that “The board of commissioners shall determine the powers and duties to be performed by each department and shall assign such powers and duties to such department as they in their judgment deem appropriate” and there is complete discretion in the board in distributing, assigning and re-assigning offices and departments at any time, or from time to time, and the courts will decline to review the propriety or reasonableness of any such distribution, assignment or re-assignment. Tagliareni v. Stilz, supra; Murphy v. City of Bayonne, 130 N. J. L. 336; Taggart v. Altman, 130 N. J. L. 563. The last cited case holds:

“That the Board has power to assign powers, duties and departments from time to time among the various commissioners which it may conclude in the exercise of sound discretion to be for the public good.”

and

“The duty and responsibility of these- officials to the people who elected them is to use their powers for the public good by the exercise of sound discretion, and we may not say that they have been recreant to this trust except upon clear and convincing evidence to that effect.”

There has been no such evidence presented in this case.

The Resolution of the Board of Commissioners assigning the Municipal Court to the Department of Public Affairs on December 28, 1948 was, therefore, a valid exercise of its statutory power, and it is wholly immaterial in this determination to define the status of the Municipal Court. While the Municipal Court was established as of January 1, 1949, plaintiff’s term as Police Judge (and thereafter as Magistrate) continued until January IS, 1949, and no vacancy could exist before that date. The valid appointing power necessarily rested in the Commissioner to whose department the office was assigned at that time, for it is obvious that one cannot make an appointment to become effective at a future time when he no longer is vested with the power of appointment. The vacancy and the power of appointment must coincide. As was held in Dickinson v. Mayor, &c., of Jersey City, 68 N. J. L. 99, 102;

“The official board or body of a municipality which is or will be in office at the time an appointee is to take his office can alone make an appointment to such office, unless there be express legislative authority otherwise. This rule is founded in sound public policy. Any •other rule would work for confusion and disorganization in municipal affairs. If an existing board can appoint to an office falling within the term of the next incoming board, why not for one falling in the term of the same board two or five years hence?”

The same is true of an individual appointing power.

The inescapable conclusion is that both the Resolution of the Board of Commissioners assigning the Municipal Court to the Department of Public Affairs on December 28, 1948, and the subsequent appointment of plaintiff, Morris Pashman, by Nicholas Martini, Director of said Department, as Magistrate of said court, were valid, and necessarily the appointments of defendant, Elmer Friedbauer, by Michael Andrus, Director of Public Safety, were null and void and are hereby set aside and vacated. Judgment accordingly.


author: Proctor, J. S. C.

text:
    HERBERT C. AICHELE, PLAINTIFF, v. BOROUGH OF OAKLEY, ET AL., DEFENDANTS.
    Superior Court of New Jersey Law Division
    Decided December 17, 1948.

      Mr. Mark Marritz, attorney for plaintiff.

      Mr. George D. Rothermel, attorney for defendants.
   Proctor, J. S. C.

Plaintiff, a taxpayer of The Borough of Oaklyn, N. J., challenges the validity of a resolution adopted by the governing body of the borough on August 4th, 1948. The resolution provided:

“Whereas, the Collector of Taxes advises that in the Tax Duplicate for the year 1948 an error in assessment was made on premises designated on the Official Tax Map of The Borough of Oaklyn as follows: (Then follow descriptions of 21 properties by plate, block and lot number, the respective owners’ names and addresses together with reductions in the assessments ranging from $50.00, to $500.00 upon the various properties.)
“Whereas, said above assessments were an error:
“NOW, THEREFORE, BE IT RESOLVED by the Mayor and Borough Council of the Borough of Oaklyn, in the County- of Camden, State of New Jersey, that:
“1. The Tax Collector, Treasurer and Borough Auditor be and they are hereby authorized and instructed to reduce the assessments on the above premises in the above amounts on the Tax Duplicate for the year 1948 as having been made in error and to credit the amount of taxes on said reduction of the 1948 taxes levied upon said property at the present rate of $6.92 per hundred.”

Defendants argue at the outset that a judgment o-f dismissal should be entered for the reason that plaintiff “has failed to show the .infringement of any private right and has failed to show any personal or property interest specially and immediately affected adversely .by the resolution;” It appears, however, that our courts from an early date have lent their aid to private persons seeking to remedy wrongful acts of public officials, when the applicant is one of the class of persons to be most directly affected in their infringement of public rights. Cf. Ferry v. Williams, 41 N. J. L. 332, 337.

A reduction in the assessed valuation of the tax ratables in the municipality would necessarily be reflected on the tax burden of the remaining ratables of the municipality, including that of the plaintiff. The defendants assert that the reduction called for in the resolution is only approximately one-tenth of one per cent, of the total taxes for the year, and that this amount will be more than offset by unanticipated revenue within the control of the defendants; that the aforesaid resolution will make no change whatever in the tax rate of the borough. If the assessments were not reduced, however, it is obvious that there will be additional revenue to the borough. Though the pecuniary interest of the’ plaintiff is small, the standing of one otherwise qualified to question the resolution is not to be determined by the mere matter of dollars and cents involved. Cf. Schwartz v. Essex County Board of Taxation, 129 N. J. L. 129. Plaintiff has a legal status which would have permitted him to prosecute a writ of certiorari. Schwartz v. Essex County Board of Taxation, supra. Under the rules governing our courts, effective September 15th, 1948, the prerogative writ of certiorari is superseded and. in lieu thereof reviewing, hearing and relief may be had as of right in the Superior Court. Rule 3:81-1. Certainly the plaintiff, as a taxpayer, is one of the class of persons to be most directly affected in their enjoyment of public rights. I find that plaintiff has a legal status which permits him to challenge the validity of the aforesaid resolution in this court.

It is conceded that a municipal corporation is a creature of the legislature, and can act, therefore, only under the ^authority of and in the manner accorded by statutes. Defendants contend, however, that plaintiff has the burden of proof “to show that the resolution in question is illegal and void”; that “there is'no burden on the defendants to show, that the resolution is legal”; and) “if there is any statutory authority whatever under which the resolution -can be sustained, it is submitted by defendants that it must be sustained.” Defendants cite R. S. 54:4-54, R. S. 54:4 — 99, and R. S. 54:4-100 as statutory authority to sustain the resolution.

R. S. 54:4-54, provides:

“Where by mistake property real or personal has been twice entered and assessed on the tax duplicate, the governing body of the taxing district or county board of taxation may order and cause the tax record to be corrected and if the tax has been twice paid the governing body of the taxing district shall refund the excessive payment without interest. Where by mistake an assessment intended for one parcel has been placed upon another, the governing body may cancel the erroneous assessment, return without interest any money paid by one not the owner of the parcel intended to be assessed, and enter upon the record the assessment and tax against the proper parcel, after a hearing upon five days’ notice to the owner. Where one person has by mistake paid the tax on the property of another supposing it to be his own, the governing body after a hearing, on five days’ notice to the owner, may return the money paid in error without interest and restore the record of the assessment and tax against the property in the name of the time owner, provided the lien of the tax has not expired and no transfer or encumbrance has been put on record against the property since the date of the payment in error. No assessment of real or personal property shall be considered invalid because listed or assessed in the name of one not the owner thereof, or because erroneously classed as the land of an unknown or nonresident owner.”

Defendants argue that the burden of proof is upon plaintiff to establish that the reduced assessed valuations mentioned in the resolution were not duplicate assessments, and as plaintiff did not produce such evidence, the resolution is presumed to be valid. I cannot agree with this contention. The governing body must show all facts necessary to the exercise of its authority granted it by the legislature. If the jurisdictional fa-cts do not appear upon the face of the resolution, the municipality should, at least, assume the burden of going forward with the proof of the jurisdictional facts. In State v. Council of Elizabeth, 30 N. J. L. 176 at 178 (Sup. Ct. 1862), Justice Brown, in discussing proceedings of a city council in laying out a street, said:

“Inferior jurisdictions have upon them the burthen of showing their acts to be within the authority granted to them. What are called jurisdictional facts must appear on the face of their proceedings or otherwise.”

In the present case the only language in the resolution purporting to give the governing body authority to act on the resolution is this: “The Collector of Taxes advises an error in assessment was made” on certain premises; and, following the descriptions of certain properties with reductions of assessments, “said above assessments were an error.” Nothing appears in the resolution or otherwise (State v. Elisabeth, supra) to show that the properties have been twice entered and assessed by mistake on the Tax Duplicate, which would bring the action of the governing body within the authority granted it by R. S. 54:4-54. The “error” in the assessments, for all that appears, may have been such which could be corrected only by the county tax board. R. S. 54:4-46 et seq.

R. S. 54:4-99 and R. S. 54:4-100, are not applicable to the present case. The term “assessments” as read in the context therein clearly means municipal charges and not the value of land subject to taxation. The terms “assessment” and “assessments” as used in the resolution under discussion mean the listing and valuing of property subject to taxation.

I know of no law which authorizes a borough council to substitute itself for those who in law are charged with the duty of assessing the value of property for taxes. See Consolidated Cigar Corporation v. Brunner, 42 Atl. Rep. 2d 631.

The resolution is set aside and the defendants are ordered to restore the original assessments altered by said resolution.


text:
    NATIONAL RETAILERS MUTUAL INSURANCE CO., PLAINTIFF, v. JOSEPH R. GAMBINO, DEFENDANT.
    Superior Court of New Jersey Law Division
    Decided December 15, 1948.

      Mr. Edward W. Eichmann, attorney for plaintiff.

      Mr. Albert B. Melnik, attorney for defendant.
   Proctor, J. S. C.

This suit in replevin was submitted to the court for trial without a jury. Though the evidence was in dispute, at the conclusion of the testimony I found the factual situation to be as follows:

On October 29, 1947, a 1947 Plymouth Sedan was stolen from one Skellinger. Prior thereto, the thief had purchased a wrecked 1946 Plymouth Sedan from one Korb and had obtained the original title papers. The culprit then' removed the motor unit from the purchased 1946 sedan and substituted it for the motor unit in the stolen 1947 Plymouth Sedan. He also substituted the metal containing the serial number of the 1946 sedan for the one in the 1947 sedan. His obvious purpose in substituting the motor unit with the engine number and the serial number in the stolen automobile was to give it the indicia of legitimacy by corresponding to the description contained in the documentary title of the purchased 1946 Plymouth Sedan. Plaintiff, as insurer against the theft of the 1947 Plymouth Sedan, paid Skellinger and obtained from her an assignment of her rights in the automobile. On November 7th, 1947, the thief sold the automobile with its substituted motor unit to Merlin Motors, who later sold it to defendant. There were some elements in the case which might have aroused the suspicions of Merlin Motors and in turn the defendant in the purchase of the automobile. However, as the trier of the facts, at the conclusion of the trial I found each of them was an innocent purchaser. On May 18, 1948, police found the automobile in the possession of the defendant, and this suit in replevin was commenced.

Defendant concedes that the thief could not pass title to the automobile to the Merlin Motors, and hence to defendant. Defendant contends, however, that he is entitled to retain the motor unit in the automobile for the reason that it never belonged to plaintiff’s assignor, but was a part of an automobile (1946 Plymouth) for which he holds a legitimate, documentary title.

It is an elementary principle of law that no one can be deprived of his property except by his own voluntary act or by operation of law. The thief who steals a chattel acquires no title by such wrongful taking. The subsequent possession by the thief is a continuing wrong; and if during its continuance the wrongdoer enhances the value of the chattel by labor upon it or adds or substitutes new appliances or parts, the chattel in its enhanced value or changed condition' with its substituted or added parts still belongs to the owner of the original chattel, and the original owner may retake it. Wetherbee v. Green, 22 Mich, 311, 7 Am.Rep. 653 (1871). And if the wrongdoer sells the chattel to an innocent purchaser, the latter obtains no title from the trespasser because the wrongdoer had none to give. The owner may still retake it in its improved or changed state. Silsbury v. McCoon, 3 N. Y. 379 (1850).

Defendant relies upon the cases of Atlas Insurance Company, Limited v. Gibbs, et als., 183 Atl. 690 (Conn.) and Ochoa v. Rogers, 234 S. W. 693, (Tex. Civ. App.). These cases may be distinguished from the instant case. In the Atlas case a purchaser had installed his own motor in' a stolen automobile which he had innocently acquired. In the Ochoa case the innocent purchaser of a wrecked automobile, which later was determined to have been stolen', had expended a large sum of money in converting the wrecked car into a truck. It will be noted that in each of the above cases the accession was accomplished by an innocent person; the distinction between a willful and involuntary wrongdoer is uniformly recognized. Wetherbee v. Green, supra; Bozeman Mortuary Association v. Fairchild, 253 Ky. 74, 68 F. W. 2d 756, 92 A. L. R. 419.

In the present case the accession was made by the thief prior to the sale to Merlin Motors. The maxim, “caveat emptor”, applies to the purchaser; and, of course, Merlin Motors could pass no better title to defendant than it acquired itself. To hold otherwise would be to encourage the nefarious business of dealing in stolen automobiles. See Bozemam Mortuary Association v. Fairchild, supra.

My conclusion is that the motor unit installed in' the stolen 1947 Plymouth Sedan became the property of the owner of the 1947 Plymouth Sedan. The plaintiff, as the owner’s assignee, is entitled to judgment of possession.


author: Smalley, J. S. C.

text:
    WILLIAM ALLGAIER, PLAINTIFF v. TOWNSHIP OF WOODBRIDGE, DEFENDANT.
    Superior Court of New Jersey Law Division
    Decided February 7, 1949.

      Mr. John C. Stockel, for the plaintiff.

      Mr. Bernard W. Vogel, for the defendant.
   Smalley, J. S. C.

This suit is instituted by the plaintiff pursuant to Rule 3:81 of the Rules Governing Civil Practice.

It is a civil action brought in lieu of a prerogative writ in which the plaintiff seeks judgment “reinstating him to the office of Building Inspector” of the defendant, Township of Wood-bridge.

The necessary pleadings have been filed, the parties are at issue and thereafter the matter was submitted on an agreed state of facts.

It was further stipulated by the parties that the action should be tried without a jury.

The agreed state of facts discloses that the defendant Township on June 17, 1935 adopted a building code, which code (article 3, section 1) provides for the appointment of a building inspector whose appointment “shall continue during good behavior and satisfactory service. He shall not be removed from office except for cause after full opportunity has been given him to be heard on specific charges”. . •

The plaintiff was appointed building inspector under the provisions of the aforementioned building code of the defendant Township, by resolution on June 17, 1935, effective July 1, 1935 at a salary of $2400. per year.

The pertinent part of the resolution being as follows:

“Whereas, by Section 1 of Article 3 of said ordinance the office of building inspector is created and to be appointed by the Township Committee for an indefinite period and during good behavior and satisfactory service;
“NOW, THEREFORE, BE IT RESOLVED by the Township Committee of the Township of Woodbridge that William A. Allgaier be and he is hereby appointed Building Inspector in accordance with the provisions of the ordinance entitled ‘AN ORDINANCE providing for fire limits, the construction and equipment of buildings and other structures and for other purposes’ and said building inspector shall not be removed from office during good behavior and satisfactory service and except for cause after full opportunity has been given him to be heard on specific charges, and be it further
“RESOLVED that the salary of the building inspector be fixed at $2400. per annum payable in semi-monthly installments and be it further
“RESOLVED that the said appointment shall be effective July 1st, 1935 ADOPTED: June 17, 1935”

Some time during the year 1937, the plaintiff was also appointed Director of the Real Estate Department and on January 1, 1943 was reappointed Director of the Real Estate Department for a further term of five years expiring on December 31, 1947.

The plaintiff continued to act as Building Inspector until December 31, 1947 when he was notified by the Chairman of the Administration Committee of the defendant Township that his service both as Building Inspector and as Real Estate Director of the Township of Woodbridge would terminate as of December 31, 1947 and that he would not be reappointed to either of said positions.

The plaintiff made application to the Civil Service Commission of this State for the purpose of securing his reinstatement to the position of Building Inspector and Real Estate Director of the Township of Woodbridge.

The agreed state of facts reveal that the Civil Service Commission refused to entertain such application with respect to the position of Building Inspector but did conduct a hearing on April 15, 1948 and thereafter issued an Order setting, aside the action of the defendant Township in terminating the services of the plaintiff as Real Estate Director.

That the defendant Township has appealed this decision of the Civil Service Commission and the appeal is now pending, is of no significance in so far as this suit is concerned.

The defendant Township, did, at a meeting held on January 1, 1948, adopt a resolution terminating the service of the plaintiff as Building Inspector and appointed one Charles Mangione as Building Inspector for the term of one year.

It is admitted that no written statement of the charges for the plaintiff’s removal as Building Inspector was ever furnished, nor was there a hearing accorded to the plaintiff.

It is further stipulated that the plaintiff is the holder of a Firemen’s Certificate from the Fire Commissioners, District No. 1, Township of Woodbridge, which certificate is dated May 11, 1928.

On September 17, 1948 the plaintiff filed this suit against the Township of Woodbridge for reinstatement as Building Inspector of said Township of Woodbridge.

The defendant sets up several defenses, including the contention that the building code under which the plaintiff was appointed Building Inspector is ultra vires, illegal and void.

To determine the validity of the ordinance providing for the appointment of a Building Inspector as adopted by the defendant Township on June 17, 1935, it is necessary to examine the statutory authority under which it was enacted.

R. S. 40:145-12 contains the authority for the appointment of a Building Inspector by a Township Committee:

“In addition to the officers to be elected the township committee may appoint and employ a township attorney, a township engineer, a township building inspector, a township physician and a treasurer. All such officers except the township attorney, engineer and building inspector must be residents of the township”.

R. S. 40:14S — 13 contains the limitations imposed upon the appointing authority:

“All appointive officers, except where otherwise provided, shall hold office until January first next following their appointment. Where a vacancy occurs in any appointive office, the township committee shall fill such vacancy for the unexpired portion of the term thereof.
“No officer shall hold over in his office after the expiration of the term for which he shall have been appointed.”

By later amendments the statute did “otherwise provide” as regards the positions of Township Engineer, Attorney and Treasurer, and, fixed -terms for these positions of periods up to four years. However, it is significant that these amendmeiits neither directly nor indirectly affected the provisions regarding the office of Building Inspector.

It is fundamental, and I am sure counsel agree, that the defendant municipal corporation has no inherent jurisdiction to make laws but is a government of innumerated powers acting by delegated authority of the legislature: Hart v. Teaneck, 135 N. J. L. 174; New Jersey Good Humor Inc. v. Bradley Beach, 124 N. J. L. 162.

The plaintiff’s contention in brief is, that the phrase “except where otherwise provided” should be.construed as an authorization to permit a municipality to appoint a Building Inspector for a period of a greater length of time than one year, or, for an indefinite term because of the existence of such provision in its local ordinance. The plaintiff also contends, “it is elementary that a Township may provide for tenure of office in any position if the statute does not expressly forbid the provision.”

It is this Court’s view that this contention is unsound; that the statute expressly forbids the appointment of a Building Inspector in municipalities of this class for a term of more than one year. To otherwise construe the phrase “except where otherwise provided” should be to permit municipal corporations of this class, who are necessarily creatures of limited and enumerated powers, to change and circumvent the provisions of the statute by local ordinance. Davaillon v. City of Elizabeth, 121 N. J. L. 380; Browne v. Hagen, 91 N. J. L. 544; Atlantic Coach Electric Railway v. Public Utility Bowd, 92 N. J. L. 168.

As a second basis for his claim to the position of Building Inspector, the plaintiff relies on certain statutes conferring tenure upon those persons holding certificates as exempt firemen.

R. S. 40:47 — 60 does not give tenure to exempt firemen in offices, positions and employment whose terms are fixed by law. Ronchetti v. Board of Chosen Freeholders of Cumberland County, 130 N. J. L. 65; Greenfield v. Passaic Valley Sewerage Commission, 126 N. J. L. 171; McGrath v. Bayonne, 85 N. J. L. 188.

Finally, the plaintiff urges that the defense of ultra vires is not available to the defendant on the theory that the ordinance in question having served its purpose, the defendant cannot now attack it collaterally.

The answer to this in brief is to say, that we are not here dealing with an ordinance whose purposes have been accomplished nor one whose only defect was in mere failure to comply with some formal requirement of enactment. Rather we are here confronted with the ultra vires act of a municipal governing body where the municipality has exceeded its power and no doctrine of estoppel may apply. Meday v. Borough of Rutherford, 65 N. J. L. 645.

It is settled law that the illegality of an ordinance can be raised without a direct attack on the ordinance itself. McAvoy v. Inhabitants of the City of Trenton, 82 N. J. L. 101; Loper v. Mayor, etc. City of Millville, 53 N. J. L. 362.

Accordingly the relief sought by the plaintiff in this action must be denied.

R. S. 40 :145 — 13 can be construed only in one manner, namely, that the innumerated officers are to hold their positions for the term specified in the Statute and not as provided in the local ordinance when the ordinance is in disagreement with the statute.

It must therefore follow that the defendant is entitled to judgment.

Having reached this conclusion it becomes unnecessary to further consider any of the other defenses raised by the defendant.

I therefore find in favor of the defendant and against the plaintiff a verdict of no cause of action.


text:
    ARTHUR J. O’CONNOR AND JOSEPH CALO, PLAINTIFFS, v. MAYOR AND COUNCIL OF THE BOROUGH OF NORTH ARLINGTON, AND CORDON MOTORS, INC., A CORPORATION OF THE STATE OF NEW JERSEY, DEFENDANTS.
    Superior Court of New Jersey Law Division
    Decided March 29, 1949.

      Mr. Wimmer & Chasnoff, for the plaintiff Arthur J. O’Connor.

      Mr. James A. Breslin, for the plaintiff Joseph Calo.

      Messrs. Bruck & Bigel, for the defendant Borough of North Arlington.

      Mr. Harold Heller, for the defendant Cordon Motors, Inc.
   Leyden, J. S. C.

Plaintiffs challenge the validity of (1) a resolution°of the Board of Adjustment recommending the granting of a zoning variance to Cordon Motors, Inc., and (2) the resolution of the mayor and council of defendant borough approving such recommendation, upon the ground there was no proof by the applicant of special reasons which would justify relaxing the strict application of the zoning regulations and thus prevent infliction of exceptional and undue hardship upon the applicant.

The board of adjustment and the borough council acted under the authority granted by statute, R. S. 40:55-39, subdivision d, as amended, P. L. 1948, Chapter 305. The statute, before amendment, was interpreted in Brandon v. Montclair, 124 N. J. L. 135, affirmed 125 N. J. L. 367. Mr. Justice Heher pointed out that the legislative purpose was “to condition the exercise of the power thus saved in subsection d by the particular standard prescribed by subsection c. It is of the essence of the statutory scheme that the board of adjustment shall have exclusive authority, upon appeal in a ‘specific case,’ to grant ‘such variance from the terms of the ordinance as will not be contrary to the public interest, where, owing to special conditions, a literal enforcement of the provisions of the ordinance will result in unnecessary hardship,’ to the end that ‘the spirit of the ordinance shall he observed and substantial justice done.’ ”

It seems safe to say that while the amendment of 1948 broadened somewhat the power of boards of adjustment, it did not affect the limitations on the exercise of that power as contained in the statute before amendment. The interpretation of the statute in the Brandon case still controls, and the jurisdiction to grant a variance is to be exercised only where, due to special conditions, a literal enforcement of the ordinance would result in exceptional and undue hardship upon the property owner.

There was no proof of special reasons or exceptional and undue hardship before either the board of adjustment or the mayor and council.

The proceedings before the board were brief. The application of Cordon Motors, Inc., to erect a building for the purpose inter alia of selling gasoline, was presented. The discussion took the line that similar variances had been granted and therefore this one should be; tax revenue would be increased; the proposed building would be an asset to the town, and an exception should be made because the applicants were ex-service men. Whereupon' the board adopted the following resolution:

“WHEREAS after due consideration of this application, a motion was made by George Silcox and seconded by Kurt Akerston that the exception be granted, governed by the following statement: That this building will be built according to the plans presented to the Board and that no gas pumps will be placed in operation until such time as said building is complete in all respects.
“This petition as stated above is approved in the interest of the Borough of North Arlington and subject to the approval of the Mayor and Council.”

The matter came on to be heard at a regular meeting of the mayor and council, at which time the applicant and the objectors were heard. No proof was presented of any special reasons or exceptional and undue hardship. After an extended meeting the following resolution was adopted:

“WHEREAS, it appears that Cordon Motors, Inc. of North Arlington, New Jersey, has heretofore made application to the Board of Adjustment for a variance from Section 8, Paragraph (4) of the Zoning Ordinance prohibiting the erection of gasoline filling stations within 1,000 feet of each other and thereby permitting it to erect a building on the Southwest corner of Jauncey Avenue and Ridge Road to be used for the sale of automobiles, auto accessories, gasoline and for automobile maintenance; and
“WHEREAS, pursuant to said application, in accordance with the statute made and provided, the Board of Adjustment did on Tuesday, November 30, 1948, conduct a public hearing, at the conclusion of which the said Board of Adjustment did adopt a resolution recommending to the Mayor and Council that such variance be granted and a building permit be issued on the condition that the aforesaid building be erected in accordance with the plans presented to the Board and that no gas pumps will be placed in operation until such time as said building is complete in all respects; and
“WHEREAS, it further appears that said recommendation was presented to tho Mayor and Council at a meeting held on December 14, 1948, at which time it appeared that Arthur J. O’Connor and Joseph Calo, owners of property within an area of 200 feet of the proposed building, interposed an objection to the granting of said permit; and
“WHEREAS, at said meeting, the Mayor and Council fixed December 21 st, 1948 at 8 P. M., as the time when a hearing would be conducted on said application and recommendations; and
“WHEREAS, it appears that at the heading of said matter, testimony was adduced on behalf of the applicant and on behalf of Arthur J. O’Connor and Joseph Calo, as objectors; and
“WHEREAS, it further appears that the testimony disclosed that the proposed building would be erected at an estimated cost of $60,-000.00, and that it would be used for the sale of new automobiles, auto accessories and gasoline and also to be used for automobile maintenance and repairs; and
“WHEREAS, it further appeared from testimony that several exceptions to the prohibitions contained in the Zoning Ordinance had been previously granted, either by the Board of Adjustment or the Mayor and Council, and that several gasoline stations on Ridge Road were in fact, within 1,000 feet of each other contrary to the terms and provisions of the Zoning Ordinance; and
“WHEREAS, at the conclusion of said hearing, the matter was tabled until December 29, 1948; and
“WHEREAS, the Mayor and Council are of the opinion that special reasons exist why a variance to Section 8, Paragraph (4) of the Zoning Ordinance should be granted; and
“WHEREAS, the Mayor and Council are of the opinion that the granting of said permit would be to the best interests of the Borough of North Arlington;
“NOW, THEREFORE, BE IT RESOLVED, by the Mayor and Council of the Borough of North Arlington that in accordance with the recommendations of the Board of Adjustment of this Borough adopted on Tuesday, December 30, 1948, Cordon Motors be and it is hereby granted a variance to Section 8, Paragraph (4) of the Zoning Ordinance prohibiting the erection of gasoline filling stations within 1,000 feet of each other, and that Cordon Motors, Inc., be and it is hereby granted a permit to erect a building at the Southwest corner of Jauncey Avenue and Ridge Road in accordance with plans presented to the Board of Adjustment and the Mayor and Council, which said building is to be used for the sale of automobiles, auto accessories and gasoline and also to -be used for automobile maintenance and repairs on the condition, however, that no gasoline pumps shall be placed in operation in and upon such premises until such time as the entire building is completed in all respects and used for the purposes hereinabove stated; and
“BE IT FURTHER RESOLVED, that a certified copy of this resolution be forwarded to the building inspector of 'this Borough and that he is hereby authorized and directed to issue a permit in accordance with the intent and purpose of this resolution.”

There was no finding upon evidence before either the board of adjustment or the mayor and council that for special reasons a strict application of the zoning regulations would result in exceptional and undue hardship to the defendant Cordon Motors, Inc. Such a finding is a jurisdictional prerequisite to the adoption of the resolution by the board of adjustment. Brandon v. Montclair, supra; Giordano, Prosecutor, v. The City Commission of the City of Newark et al., 2 N. J. Super. 45 (App. Div.)

The fact that several' variances to the regulations contained in the zoning ordinance had been previously granted either by the board of adjustment or the mayor and council or that gas stations on Ridge Road are within a thousand feet of each other contrary to the ordinance gives no support to the resolutions here challenged. It is not a sufficient ground for a variance that other variances have been permitted. “If that were so, one variation would sustain if it did not compel others, and thus the general regulation would eventually be nullified.” Scaduto v. Bloomfield, 127 N. J. L. 1.

The regulation that there be a thousand feet between gasoline service stations on Ridge Road' is not, in the circumstances, unreasonable. Ridge Road is a segment of State Highway Route 17, one of the main and heavily traveled highways in northern New Jersey. At twenty miles an hour, gasoline stations spaced at a thousand feet are but approximately thirty-three seconds apart.

The resolution of the board of adjustment recommending the variance, and the resolution of the mayor and council approving the recommendation under review are set aside.


author: Wm. J. Brennan, J. A. D.

text:
    ALBERTIS INGLING, PLAINTIFF-RESPONDENT, v. PUBLIC SERVICE ELECTRIC AND GAS COMPANY, A CORPORATION, AND NEW JERSEY BELL TELEPHONE COMPANY, A CORPORATION, DEFENDANTS-APPELLANTS.
    Superior Court of New Jersey-Appellate Division
    Argued October 9, 1950
    Decided October 25, 1950.

      Before Judges McGeetian, Jayne and Wi, J. Beennan, Je.

      Mr. Herman H. Witte, Jr., argued the cause for appellant, Public Service Electric and Gas Company (Mr. Carl T. Freggens, attorney).

      Mr. Sidney P. McCord, Jr., argued the cause for appellant, New Jersey Bell Telephone Company (Messrs. Starr, Summerill & Davis, attorneys).

      Mr. William C. Gotshalk argued the cause for respondent (Mr. Raymond Saltzman, attorney).
   The opinion of the court was delivered by

Wm. J. Brennan, J. A. D.

Plaintiff was injured in the side yard of his Brooklawn, Camden County, home when preparing on a July day in 1946 to water his lawn and his right heel struck a metal shield, called a Bierce protector, on a guy wire anchored'on his lot within a foot from the side of his house.

His back was to the house as he stood on a concrete walk running along its side; he stooped over to pick up a garden hose and his foot raised backward toward the house away from the walk and came into contact “with the edge of that shield over the guy wire.”

The shield ran up the guy wire a distance of 7 feet from its anchor point. It resembled and was about tíre width of a half section of rain pipe, with its rounded surface toward the concrete walk and its two edges facing the house. The guy wire was one of two such wires supporting a pole which bore equipment of both defendants and was located within plaintiff’s fence but just off the rear of his lot; the fence encroached on an alleyway, not part of plaintiff’s property. The guy wire and Bierce cover were installed around 1930 by The Delaware and Atlantic.Telegraph and Telephone Company, predecessor of defendant Telephone Company. The other guy wire was installed in 1919 by Public Service Electric Company, predecessor of defendant Electric and Gas Company; it paralleled the Telephone Company guy wire and was fastened near the ground in the side foundation of plaintiff’s house within a foot of the anchor point of the Telephone Company guy wire.

Plaintiff sued both defendants in the Superior Court, Law Division, Camden County, alleging their joint and several liability for his injury, contending that the installation was a trespass, that the guy wires and Bierce protector had been negligently located, and that the guy wires and protector had been negligently maintained. At the close of plaintiff’s case, the suit was dismissed on defendants’ motions as to the allegations of trespass and negligent maintenance, but motions for dismissal and for judgment at the close of the case were denied as to the allegations of negligent location and there was submitted to the jury “the question of whether or not the defendant companies or either of them, in the exercise of its right to go upon the plaintiff’s land, so constructed its equipment that a reasonably prudent person would have foreseen an injury resulting to the land owner in the legitimate and reasonable use of the property and its appurtenances.” Plaintiff had a j ury verdict against both defendants and they appeal from the judgment entered thereon; plaintiff cross appeals that if the judgment is reversed his complaint as to trespass and negligent maintenance was improperly dismissed.

Plaintiff’s home was one of 488 houses built as part of a housing project developed after the first World War by Noreg Realty Company. That company contracted with Public Service Electric Company by agreement dated February 19, 1919, for the servicing of the houses with electric power, and agreed to “afford full entry to Electric upon the portions of land designed for streets and alleys in said development for the erection of poles, and afford Electric full opportunity and privilege to erect and maintain the same and electric service thereon;” Electric, on its part, agreed to “erect all poles and run all wires, * * *” required to do the work and “at its own cost and expense, to maintain, keep in repair, replace and restore any and all poles, wires * * * installed under this agreement.” The agreement was not recorded, but when Noreg Eealty Company conveyed the entire tract to the United States of America, the deed, recorded July 10, 1923, included a provision “together with the benefits granted and subject to the terms, covenants and conditions imposed by the following agreements, viz., * * * (c) Agreement made the 19th day of February, 1919, between said Noreg Eealty Company and Public Service Electric Company * * *.”

The pole was erected by Public Service Electric Company April 29, 1919, and a guy wire was placed thereon by that company and fastened to the house at that time.

Noreg Eealty Company made an agreement dated July 20, 1920, with Delaware and Atlantic Telegraph and Telephone Company to obtain telephone service for the houses. This agreement was recorded and provided for the use by the Telephone Company of the poles previously erected by the Electric Company and granted the Telephone Company rights “to construct additional guys and anchors for the support of some of the said poles,” as shown on a plan attached to and recorded with the agreement; arrow-shaped symbols on the plan showed the location of the several poles on the tract upon which the Telephone Company was to place its equipment,the pole here being one such, and as to which, and to two other poles, there was also a legend “Tel. Co. anchor guys to be located in front of and in line with present Elec Co. guys.” Plaintiff argues that the symbol identified with the legend points to the house next door and not to his house. The fact is there was no guy wire of Public Service Electric Company from the pole here involved to the house next door; the only guy wire on the pole was that fastened in 1919 to plaintiff’s house. In these circumstances the symbol and legend are plainly to be construed as referring to the guy wire on plaintiff’s house. See Man v. Vockroth, 94 N. J. Eq. 511 (E. A. 1923). The location in which the Telephone Company’s guy wire was to be anchored in plaintiff’s lot was thus fixed by the agreement; it is conceded the wire was located in or before the year 1930 at the spot where it was when plaintiff was injured.

The United States of America conveyed the tract to Brook-lawn Housing Corporation and plaintiff derived his title from the latter by deed recorded July 2, 1937.

In 1940, three years after plaintiff took possession, his wife requested defendant Electric and Gas Company “to remove the guy wires from the house because they were in a dangerous place where they were, where the children were concerned in playing.” She refused to sign a paper which she admitted “had something to do with a poleshe said this was “because they were going to move the pole from one corner of the yard to the other but had no reference to removing the guy wires from the foundation of the home.” A company witness identified the paper as “a pole consent form for her signature, which would allow a change of the location of the pole and the guy wire,” and said no change was made because the pole consent was not signed.

Defendants urge that they were entitled to judgment at the end of the case because the anchoring of the guy wires where they were and had been for 37 and 16 years respectively at the time the plaintiff was injured was as of right under easements granted them by Nioreg Eealty Company, plaintiff’s predecessor in title, that the plaintiff’s lot was the servient tenement and the selection of the places where the guy wires rested was .consented to and acquiesced in by Noreg Eealty Company when the installations were made, that the same were fixed, open and visible to plaintiff when he purchased the property in 1937, and remained so during the nine years thereafter up to the time of the accident; thus, that plaintiff as owner of the servient tenement was concluded by the selection or fixing of locations consented to and acquiesced in by his predecessor in title, and by his own acquiescence in the locations, and had and has no standing to maintain an action against defendants founded on alleged negligent choice of the locations.

"We think it was error to deny defendants’ motions for judgment. The agreements of 1919 and 1930 between NToreg Eealty Company and the respective predecessors of defendants granted easements; the words used in both instruments were appropriate to such purpose. Jaqui v. Johnson, 27 N. J. Eq. 526 (E. & A. 1875); McLaren v. American Telephone & Telegraph Co., 1 N. J. Super. 600 (Law Div. 1948). The real controvert is as to the manner of resting or fixing the easements upon the servient tenement. The choice of the house as the fastening point for the guy wire placed by Public Service Electric Company in 1919 is not explained in the proofs; however, the location was clearly approved and acquiesced in by Uoreg Realty Company in its later 1920 agreement with the Delaware and Atlantic Telegraph and Telephone Company, in which that location was adopted as the guide post fixing the location of the Telephone Company’s guy wire; this was done by the legend requiring the added guy wire “to be located in front of and in line with present Elec. Co. guys;” with the Electric and Gas Company guy wire fixed and open to their observation,, and therefore existing as a practical measure of determining the location for the Telephone Company guy wire, the parties expressed their intention by the legend on the plan and chose and fixed its location. Winslow v. City of Vallejo, 84 P. 191 (Sup. Cal. 1906). The location for both wires having been once established, plaintiff, as successor in title to the servient tenement, had no power, against the objection and without the consent of the defendants, to make any change in the manner of their use and position as fixed by his and the defendants’ predecessors. Manning v. Port Reading Railroad Company, 54 N. J. Eq. 46 (Ch. 1895); 17 Am. Jur., “Easements,” § 87, p. 988. It is the exclusive right of the owner of the dominant tenement to say whether or not the servient ownér 'shall be permitted to change the character and place of the servitude suffering the burden of an easement localized and defined. “* * * [the defendants] may assert and enforce [their rights] to such enjoyment, regardless of any consideration of convenience of the owner of the servient tenement.” Johnson v. Jaqui, 27 N. J. Eq. 552, at 555-556 (E. & A. 1876). And so, the protest of plaintiff’s wife in 1940 had no legal significance; plaintiff conld not compel defendants to accept another location although the latter might be equally convenient with the location originally fixed. Texas Power & Light Co. v. Casey, 138 S. W. 2d 594 (Civil Appeals, Texas, 1940). Piad the offered pole consent been signed by or on behalf of plaintiff, a new agreement might have grown up between the parties; as it was not, their respective rights were not affected. Cf. Johnson v. Jaqui, supra.

Plaintiff contends he had no notice of the Electric Company easement because the agreement of February 19, 1919, was not recorded. This has no merit. His chain of title included the 1923 deed to the United States of America which expressly referred to the agreement by date and names of parties; the Telephone Company grant also referred to it; see William Dahm Realty Corp. v. Cardel, 128 N. J. Eq. 222 (Ch. 1940); in any event he bought the house with the guy wires visibly in place, which itself was sufficient to put him on notice to make an inquiry. McLaren v. American Telephone & Telegraph Co., supra; Central Railroad Co. v. Valentine, 29 N. J. L. 561 (E. & A. 1862); National Silk Dyeing Co. v. Grobart, 117 N. J. Eq. 156 (Ch. 1934); his wife’s inquiry some six years before the accident was made, he said, “in my interest.”

We conclude that plaintiff has no cause of action for negligence in the location of the guy wires and Bierce cover and that the judgment for plaintiff must be reversed; for the same reasons, the dismissal of his action as to the charge of trespass was proper.

The dismissal in respect of negligent maintenance of the guy wires and of the Bierce protector raises different considerations. The defendants stipulated in the pretrial order that at the time of the accident “they jointly maintained said wire and pole;” the defendants entered into agreements dated September 26, 1928, and May 12, 1930, under which the pole and both guy wires came under their joint ownership, maintenance and use. In that manner each became liable to plaintiff with the other for performance of the 1919 and 1920 agreements of their respective predecessors with Foreg Realty Company; the 1919 agreement granted a right of entry “to maintain, keep in repair, replace and restore any and all poles, wires * * * installed under this agreement;” the 1920 agreement obligated them to “maintain * * * wires * * * and other appliances on the poles 'of Electric Company.” Manifestly their joint obligation embraced maintenance of the Bierce protector in good repair.

The plaintiff’s wife testified that “before the accident” the Bierce protector’s “edges were ragged and sharp;” his neighbor next door said she was familiar with the guy wires from frequent visits to the yard and that “immediately before the accident” she observed “it was rusted and it was uneven on the edges,” “it was sharp.” Defendants nevertheless argue there was no proof of knowledge by either of them of this condition or evidence of. its existence so long before the accident that they in the exercise of reasonable care ought to have known of it and to have remedied it, citing Schnatterer v. Bamberger & Co., 81 N. J. L. 558 (E. & A. 1911); and see Sobel v. Lincoln Construction Co., 12 N. J. Misc. 203 (Sup. Ct. 1934).

Defendants’ argument mistakenly assumes that their liability could be predicated solely on the fact of notice. This is not so; the defendants were under an affirmative duty to make reasonable inspections of their easement upon plaintiff’s property and to use due care to keep the guy wires and Bierce protector in good repair. Plaintiff as successor in title to the servient tenement was privy to the covenants binding on defendants which we have quoted; indeed, the covenants only declared defendants’ obligations raised by law from their ownership of the dominant estate. Plaintiff as owner of the servient tenement was not bound, in the absence of his agreement assuming the obligation, to keep the easement in repair or to sustain any expense in maintaining it in proper condition; he could not interfere'with defendants’ enjoyment of it; since it was their property, theirs was the duty of examination and repair and as owners of the dominant estate they had a right of access to and could enter upon the servient estate for the purpose. 17 Am. Jur., “Easements,” § 108, page 1003; Central Railroad Co. v. Valentine, supra; United New Jersey Railroad & Canal Company v. The Crucible Steel Company et al., 85 N. J. Eq. 7, at p. 22 (Ch. 1915); affirmed, 86 N. J. Eq. 258 (E. & A. 1916). And so, “where the easement is of a character that want of repair injuriously affects the owner of the servient land, it becomes not only the right but the duty of the owner of the easement to cause all necessary repairs to be made.” Washburn, The Law of Easements and Servitudes, 4th Ed. (1885), p. 733.

This duty of defendants imposed upon them the same obligations of inspection and repair which are imposed upon a landlord who covenants with his tenant to “examine and repair,” in which case his agreement is construed “as by plain implication creating an obligation on the part of the landlord to use due care, in the interest of the tenant, to examine and repair” to prevent conditions causing injury, which “duty of care normally involves the duty of making reasonable inspection at proper times and of reasonable diligence in making repairs looking to the safety of the premises if such reasonable inspection disclose defective conditions;” where the duty of reasonable inspection obtains, “it follows that negligence could be inferred from lack of such inspection; and if such negligence were the proximate cause of injury to the plaintiff, there would be liability. * * * Hence, a charge that in order to hold defendant * * * he should have actual notice of its danger erroneously limited the scope of inquiry, and to the prejudice of the plaintiffs.” Dulberger v. Radli, 105 N. J. L. 126 (E. & A. 1926).

The Bierce protector had been placed at least 16 years at the time of the accident; when and how the defects occurred does not appear. The defendants’ duty was to make reasonable inspections of it and of the guy wires at proper times and to use reasonable diligence in making repairs when reasonable inspection disclosed defective conditions or when the defects were otherwise known to them. Defendants were not required to station an observer on plaintiff’s premises; their obligation was not that of insurers; if the defined duty was performed and the defect charged was not discoverable from reasonable inspections, or occurred between such inspections, there would be no liability in the absence of proof of actual knowledge of the defect.

The proofs, however, are meagre when and in what manner defendants made inspections; what there is appears in answers to interrogatories in evidence propounded by the plaintiff to defendant Electric & Gas Company as to the occasions and manner - it had entered upon plaintiff’s premises “for the purpose of repairing and maintaining said pole and guy wires from the time of erection thereof up to the present time.” The answers, binding on both' defendants under the stipulation in the pretrial order, are: “Defendant is unable to answer this question as inspections and repairs to its wires and other construction occurred at such times as the situation warranted. No detailed record of such visits * * * was kept by this defendant;” and, “defendant’s employees entered upon said premises at such times as it was necessary to inspect, maintain or repair its wires and equipment affixed to said pole.” Plainly, conflicting inferences may be drawn from these answers whether, if at all, the duty of due inspection was reasonably discharged. The question was for the jury, as is generally the case as to issues of reasonableness. Burr v. Adams Express Co., 71 N. J. L. 263, at 269 (Sup. Ct. 1904); such questions are for the court only when the facts are undisputed and different inferences cannot reasonably be drawn from them. Timlan v. Dilworth, 76 N. J. L. 568 (E. & A. 1908).

The questions of contributory negligence and assumption of risk were on this record properly submitted to the jury for determination. White v. Ellison Realty Corp., 5 N. J. 228 (1950); Bacak v. Hogya, 4 N. J. 417 (1950); Russell v. East Coast Shipyards, Inc., 9 N. J. Super. 1 (App. Div. 1950).

The judgment in plaintiff’s favor is reversed; the dismissal of his suit as to the allegations of trespass is affirmed; the dismissal as to the allegations of negligent maintenance is reversed and the cause is remanded for a new trial in that respect; costs to abide the event.