author: Kentz, P. J. J. & D. R.

text:
    STATE IN THE INTEREST OF G. C.
    Juvenile and Domestic Relations Court — Union County
    Decided October 6, 1972.

      Mr. Victor J. Freda for respondent (Messrs. Sheldon & Freda, attorneys).

      Mr. Charles Daly, Assistant Prosecutor, for the State of New Jersey. (Mr. Michael H. Kessler, Assistant Prosecutor, on the brief; Mr. Karl Asch, Union County Prosecutor, attorney).
   Kentz, P. J. J. & D. R.

A complaint was filed in this court pursuant to R. 5:8-1 alleging that a 16-year-old juvenile possessed and sold amphetamine tablets in violation of N. J. S. A. 2A:4-14. The juvenile, sometimes otherwise herein referred to as G. C., was accused of having illegally approximately 90 pills in a plastic container which she offered for sale to eighth grade students at a price of three pills for one dollar.

On the motion of the prosecutor and with the consent of the complainant, the complaint was amended to eliminate the charge of sale of a dangerous drug so that only the allegation of possession remained.

The complaint was listed on the formal calendar as provided by R. 5:9-1(c) and the juvenile was represented by retained counsel. The county prosecutor was requested to appear and prosecute the complaint in accordance with B. §:3-3 (c).

The juvenile denied the complaint as amended and moved to suppress certain evidence on the ground that it was the product of an unlawful search and seizure in violation of the Fourth Amendment to the Constitution of the United States. R. 5:8-9 permits an aggrieved juvenile to make a motion to suppress evidence in the Juvenile and Domestic-Relations Court. See State in the Interest of L. B., 99 N. J. Super. 589 (J. & D. R. Ct. 1968), and State v Lowry, 95 N. J. Super. 307 (Law Div. 1967).

The pertinent facts are as follows: On February 7, 1972 the principal of the public high school that G. C. attended received a telephone call from an unidentified person. The caller reported that G. C. had been selling pills that morning in the girls room. The following morning, a student approached one of the teachers at the school and informed her that the juvenile had a partially filled plastic container of white pills and was trying to sell them to other students. The teacher reported this to the principal who then had G. C. brought into his office. Upon her arrival she was informed of the charges made against her, and the principal stated that it was his duty to investigate the reports in order to protect the student body and her reputation. G. C. denied the allegations and agreed to cooperate in a search of her person.

A female teacher was then summoned to the office in order to carry out the search. The juvenile emptied her pockets and, upon the principal’s request, she permitted the female teacher to feel her pockets to make certain that they were empty. G. G. was next asked to empty her purse. She agreed and dumped the contents of the purse onto the principal’s desk. He asked if she would consent to Ms looking into the purse. Without further comment, she unzipped a compartment in her purse and tossed a partially filled container of white pills onto the desk. The juvenile was then asked if she would reveal the names of any students that she had sold pills to, or at least the names of those students who might take an overdose. G. C. responded with the name of one student.

The principal then sent for a police officer to ascertain the nature of the pills discovered. An officer arrived and after conducting a field examination stated that the pills appeared to be amphetamines. A subsequent laboratory analysis confirmed this.

The juvenile’s parents were summoned to the school. When they arrived the principal informed them of G. C.’s conduct and that she would be suspended for ten school days.

The admissibility of evidence secured by a school administrator from a student seems to be a question of first impression in onr State. At issue are the conflicting interests of a student’s right to privacy and a school official’s "affirmative obligation of the school authorities to investigate any charge that a student is using or possessing narcotics * * *." People v. Overton, 20 N. Y. 2d 360, 362-363, 283 N. Y. S. 2d, 22, 24-25, 229 N. E. 2d 596, 597-598 (Ct. App. 1967); Moore v. Student Affairs Committee 284 F. Supp. 725, 729-730. (M. D. Ala. 1968).

The starting point for analyzing a juvenile’s assertion of constitutional rights is found in the case of In re Gault, 387 U. S. 1, 87 S. Ct. 1428, 18 L. Ed. 2d 527 (1967), wherein it was held that “neither the Fourteenth Amendment nor the Bill of Rights is for adults alone.” Children are also entitled to the constitutional rights and safeguards of due process of law. Building upon the Gault foundation, the United States Supreme Court emphasized, in Tinker v. Des Moines Independent School District, 393 U. S. 503, 89 S. Ct. 733, 21 L. Ed. 2d 731 (1969), that a juvenile does not leave his constitutional protection at the school house door. The Tinker case involved a nondisruptive wearing of black armbands in silent protest against the Vietnam war. Thus at stake were the “preferred” First Amendment liberties of freedom of expression and speech, rights that traditionally have enjoyed superior status in court interpretations of the United States Constitution. Kovacs v. Cooper, 336 U. S. 77, 69 S. Ct. 448, 93 L. Ed. 513 (1949). It would seem extremely unlikely that student rights under the United States Constitution extend to the point that actual disruption would be permitted in the classroom.

The precise applicability of the Fourth Amendment to disciplinary proceedings in an institutional environment is unresolved. It certainly goes without saying that the suppression rule, as enunciated in Mapp v. Ohio, 367 U. S. 643, 81 S. Ct. 1684, 6 L. Ed. 2d 1081 (1961), is not present in the principal-student confrontation. Chief Justice Weintraub suggests, in State v. Bisaccia, 58 N. J. 586, 591 (1971), that “It is puzzling that the suppression rule was not anchored to the reason for its creation. The evil sought to be ended was insolence in office.”

It is well established that the Fourth Amendment protects the people against an unreasonable search and seizure. State v. Campbell, 53 N. J. 230 (1969); State v. Fioravanii, 46 N. J. 109, 122 (1965). Whether a high school administrator is acting “insolently” in investigating allegations that one of the students is selling dangerous drugs is a fact question that goes to the overall reasonableness of the search. It is well to remember that when incriminating evidence is found on a suspect and that evidence is then suppressed, “the pain of suppression is felt, not by the inanimate State or by some penitent policeman, bnt by the offender’s next victims * * *.” See Bisaccia, supra, at 590.

I have indicated that juveniles are entitled to due process of law under Gault, supra, and that their constitutional rights accompany them into the classroom, Tinker, supra. The question remains whether or not the student has all the protections of the Fourth Amendment when under interrogation by his public high school principal or some other school official. The Fourth Amendment only restrains the actions of a so-called “governmental official.” State v. Frank, 112 N. J. Super. 592 (App. Div. 1971); Del Presto v. Del Presto, 97 N. J. Super. 446 (App. Div. 1967). It has no applicability if the school official is acting as a private citizen. Cf. State v. Kelly, 61 N. J. 283 (1972).

In Frank, supra, the court said:

* * * The security provided by the Fourth Amendment against unreasonable searches and seizures extends only to governmental action. Evidence of criminal activity discovered by a civilian, not acting as a government agent or in concert with government agents, may be reported or surrendered to the police without violating Fourth Amendment rights * * * [112 N. J. Super. at 594]

The status of a school administrator as either a government official or private citizen has been debated recently in the courts. Some jurisdictions have held that a public school officer is not a government official subject to the restraints of the Fourth Amendment. See People v. Stewart, 63 Misc. 2d 601, 313 N. Y. S. 2d 253 (Crim. Ct. N. Y. C. 1970); Moore v. Student Affairs Committee of Troy State University, 284 F. Supp. 725 (M. D. Ala. 1968); cf. Piazzola v. Watkins, 316 F. Supp. 624 (M. D. Ala. 1970).

Several other jurisdictions have accepted the opposite proposition that a public school administrator is a government official. State v. Baccino, 282 A. 2d 869 (Del. Super. 1971); West Virginia State Board of Education v. Barnette, 319 U. S. 624, 63 S. Ct. 1178, 87 L. Ed. 1628 (1943); Tinker v. Des Moines, supra; Burnside v. Byars, 363 F. 2d 744 (5 Cir. 1966); Ferrell v. Dallas Independent School District, 392 F. 2d 697 (5 Cir. 1968); People v. Jackson, 65 Misc. 2d 909, 319 N. Y. S. 2d 731 (App. Div. 1971).

New Jersey has adopted the latter position and considered public school authorities to be government officers. Durgin v. Brown, 37 N. J. 189 (1962); Kaveny v. Board of Commissioners, Montclair, 69 N. J. Super. 94 (Law Div. 1961), aff’d 71 N. J. Super. 244 (App. Div. 1962).

Generally the actions of a government official who is performing his assigned duties should be subject to the restraints of the Bill of Rights and especially to the inhibitions of the Fourth Amendment. The right of privacy that the Mapp rule enforces must be preserved against the unmitigated zeal and “insolence” of government officers at all levels. See State v. Bisaccia, supra.

The question that remains involves the circumstances, if any, that will permit public school administrators to nevertheless encroach on student rights. Phrased differently, the issue may be stated thusly: Is the danger of illegal drug possession and sale by a student sufficient to justify an administrative search upon grounds of reasonable suspicion in order to safeguard student health and maintain an orderly academic environment?

If one freely and knowingly consents to a search he cannot later challenge the fruits of that search as having been obtained unlawfully. State v. King, 44 N. J. 346 (1965); Schaffer v. State, 5 Storey 115, 184 A. 2d 689 (Del. Super. 1962), cert. den. 374 U. S. 834; People v. Fahrner, 213 Cal. App. 2d 535, 28 Cal. Rptr. 926 (D Ct. App. 1963). The facts strongly suggest that such a consent was given l>3r the juvenile in this case. However, in the absence of sufficient evidence before me on this issue, I make no finding at this time as to whether a valid consent was given by the juvenile. Accordingly, my ultimate decision herein is not based on the so-called consent theory, but rather is grounded on other principles of law.

A review of the facts in the instant case leads me to the conslusion that the investigation by the school authorities was carried out with the utmost fairness and consideration, without force or other improper influence, mental or physical, and in accordance with the highest standards of due process. State in the interest of R. W., 115 N. J. Super. 286 (App. Dir. 1971), aff’d 61 N. J. 118 (1972)

The privacy rights of public school students must give way to the overriding governmental interest in investigating reasonable suspicions of illegal drug use by such students even though there is an admitted incursion onto constitutionally protected rights — rights that are no less precious because they are possessed by juveniles. I find that the gravity of the evil is sufficiently great, both to the suspected individual and to those who might be victimized by drugs that the suspect makes available. In People v. Overton, supra, the court said:

The school authorities have an obligation to maintain discipline over the students. It is recognized that, when large numbers of teenagers are gathered together * * * their inexperience and lack of mature judgment can often create hazards to each other. Parents, who surrender their children to this type of environment, in order that they may continue developing both intellectually and socially, have a right to expect certain safeguards.
It is in the high school years particularly that parents are justifiably concerned that their children not become accustomed to antisocial behavior, such as the use of illegal drugs. The susceptibility to suggestion of students of high school age increases the danger. [283 N. Y. S. 2d at 24, 229 N. E. 2d at 597]

This emphasis on the responsibility of school officials to maintain school discipline in order to protect immature students from their irresponsible peers is no more than a restatement of the time-honored in loco parentis concept. Such procedure is fundamental to the maintenance of an educational atmosphere and indeed antedates the Fourth Amendment by a good many years. Blackstone described it as follows:

He [the parent] may also delegate part of his parental authority during his life to the tutor or schoolmaster of his child; who is then in loeo parentis and has such a portion of the power of the parent committed to his charge, viz, that of restraint and correction, as may be necessary to answer the purposes for which he is employed. [1 Blackstone, Commentaries 453]

A more recent conceptualization was set forth in People v. Jaclcson, supra, where the court paraphrased the Overton decision in the following manner:

While a student has the right to be free of unreasonable search and seizure, school authorities, in view of the “distinct relationship” between them and their students and the right of parents to expect that certain safeguards will be taken, have “the affirmative obligation ... to investigate any charge that a student is using or possessing narcotics”, which “becomes a duty when suspicion arises.” [319 N. Y. S. 2d at 733]

Many other jurisidictions have adopted the in loco parentis theory in permitting school authorities acting on reasonable suspicion to search students and to seize dangerous instrumentalities and narcotic drugs. People v. Jackson, supra; Mercer v. State, 450 S. W. 2d 715 (Tex. Civ. App. 1970); In Re Donaldson, 269 Cal. App. 2d 509, 75 Cal. Rptr. 220 (D. Ct. App. 1969); People v. Stewart, 63 Misc. 2d 601, 313 N. Y. S. 2d 253 (Crim. Ct. N. Y. C. 1970); State v Baccino, 282 A. 2d 869 (Del. Super. 1971); State v. Stein, 203 Kan. 638, 456 P. 2d 1 (Sup. Ct. 1968); In Re G., 11 Cal. App. 3d 1193, 90 Cal. Rptr. 361 (D. Ct. App. 1969).

Our Supreme Court said in Bisaccia, supra:

* * * On a motion to suppress we deal with evidence of guilt, and the purpose of the litigant is to conceal that evidence to the end that he will escape conviction notwithstanding his guilt. * * * To justify so serious an insult to the judicial process, some compensating gain should be incontestable. [58 N. J. at 589]

I find no such compensating gain in this case The school authorities are duty-bound to investigate reasonable suspicion of student criminality. There is no evidence here that the principal acted on a whim or capriciously in interrogating G. C., but rather that he acted responsibly and diligently under the circumstances. Indeed, a school administrator or teacher would be derelict in his duty if such an investigation were not carried out.

I hold that in light of the reasonable suspicion that G. C. was illegally in possession of and selling dangerous drugs and in view of the overall fairness of the investigation and search that the public school principal, acting as a governmental officer and under the in loco parentis authority, made a reasonable search and seizure which was not violative of the Fourth Amendment.

Motion denied.


source: Caselaw Access Project

author: Carton, J. A. D. Per Curiam.

license: Public Domain

text:
    ARTHUR BALIAN, ET AL., PLAINTIFFS-APPELLANTS, v. GENERAL MOTORS, ETC. AND GARY ALLEN CHEVROLET, ETC., DEFENDANTS-RESPONDENTS, AND LOU WEISHUPT, DEFENDANT.
    Superior Court of New Jersey Appellate Division
    Argued April 10, 1972
    Decided June 1, 1972.
    Rehearing Denied October 20, 1972.

      Mr. Howard M. Kaplan argued the cause for appellants (Mr. Alan R. Kaplan, attorney).

      Mr. Carroll A. Morley argued the cause for respondent General Motors Corp. (Messrs. Lamb, Blake, Hutchinson & Dunne, attorneys; Mr. William J. Cleary, on the brief).

      Mr. Allen C. Mathias argued the cause for respondent Gary-Alien Chevrolet Company (Messrs. Stevens & Mathias, attorneys; Mr. Frank Fink, of counsel and on the brief).
    Before Judges Sullivan, Leonard and Carton.
   The opinion of the court was delivered by

Carton, J. A. D.

This is a product liability ease. Plaintiff Louise Balian and other members of her family sustained injuries when a 1965 Chevrolet Impala she was driving on the New York Thruway veered off the side of the road and struck a pole.

There is no real dispute as to the pertinent facts. Plaintiff, Arthur Balian, purchased the 1965 Chevrolet Impala new on December 4, 1964. At various times between that date and the occurrence of the accident the car was serviced by the dealer, who also made repairs and adjustments pursuant to the driver’s manual supplied by the manufacturer. Three days before the accident and prior to a planned trip to Montreal, the owner had the automobile’s brakes relined, the car tuned up and greased and a tire replaced.

On July 31, 1967 plaintiffs left their home in Teaneck, New Jersey, picked up another passenger in New Milford, drove to Route 17, and then proceeded to the New York Stale Thruway. Plaintiff, Louise Balian, who had received her New Jersey driver’s license about two months before, was driving.

They had traveled about ten miles on the Thruway when the accident occurred. According to plaintiffs’ proofs, at that time the car was going about 50-55 miles per hour. The occupants of the car heard a “bang”, “clang” or some other noise coming from under the front of the car. It was described as sounding like metal was striking metal. At this point the driver lost her ability to control the car. Despite her attempt to turn the steering wheel and direct the car in another direction, it headed towards the shoulder of the road, striking a metal pole supporting an overhead sign.

Immediately after the accident Trooper McDonnell of the New York State Police arrived on the scene. After questioning plaintiff, he lifted the hood and examined the steering mechanism. His examination revealed that a rivet was missing from the steering coupler and the fibrous wafer separating the two parts of the coupler was torn.

The steering coupler connects two sections of the steering column. It consists of metal flanges located on the ends of the steering column sections which face each other. The flanges are separatd by a fibrous wafer. One of the metal flanges is attached to the wafer by two metal nuts and bolts. The corresponding flange attached to the opposite section of the column is connected to the same wafer by two rivets. The function of the coupler is to hold the two parts of the steering column together while allowing sufficient flexibility to absorb road shock.

Plaintiffs brought this action against defendant General Motors Corporation and others, claiming that the accident resulted from displacement of a rivet in the steering coupler, which in turn tore the fibrous wafer, making the ear unsteerable and causing the driver to lose control.

■ The jury returned a verdict in favor of defendants. We are concerned here only with plaintiffs’ appeal from the judgment in favor of defendant General Motors, the manufacturer of the automobile.

The trial, although a lengthy one, was limited as to liability only and devoted largely to technical testimony of expert witnesses concerning the design and function of the coupler and related parts of the automobile steering mechanism, whether it was defectively designed, and whether the defective condition resulted from the accident.

Plaintiffs’ expert expressed the opinion that the coupler was improperly designed. Defendant’s expert denied this. In the latter’s opinion, the damage to the coupler was attributable to the impact of the accident. Furthermore, he contended that the accident could not have happened in the manner indicated by plaintiffs’ expert.

The main basis of plaintiffs’ appeal is that the trial court, over objection, improperly admitted into evidence motion pictures taken during the course of the trial. These pictures showed the operation of a 1965 Impala in a test at defendant’s proving grounds. The film was made at the direction of defendant’s expert for the purpose of confirming his contention expressed in his testimony that the automobile was still steerable even if the rivet was missing and the wafer torn. Thus he maintained the accident could not have occurred in the manner described by plaintiff’s expert.

Eesolution of the issue involved requires a more detailed examination of the expert testimony.

In November 1967, at plaintiffs’ request, a Mr. Daniel Eivehouse, an automotive and front-end expert, examined the car. He testified that the rivet described by Trooper McDonnell was missing at that time and that the fibrous wafer was torn. He said that the two parts of the steering coupler were no longer symmetrical. He was of the opinion that when the fibrous wafer was torn and the rivet missing there would be no steering control.

Plaintiffs also produced Huxley Madeheim, an expert in mechanical engineering and in the design and function of the steering coupler. He expressed the opinion that a rivet holding the steering coupler came out, causing the flanges to lose contact and symmetry. The car then became unsteerable, resulting in the driver losing control. It was his opinion that this condition had existed prior to and not as a result of the force of the car striking the pole. This witness, a full professor of engineering at City University of New York, was also of the opinion that the coupler was improperly designed for the reason that it should have been made with four nuts and bolts rather than two nuts and bolts and two rivets, and that had the coupler been so constructed the accident would not have occurred.

Charles Spalding, an expert engineer in the field of steering apparatus and employed in a division of General Motors which manufactures steering gear and other accessories for automobiles, was the only witness called by defendant General Motors. Pie described in considerable detail the function and operation of the coupler in the automobile, using numerous drawings and designs for this purpose. Defendant also produced for inspection by the court and jury a replica of the steering coupler said to be the type used in 1965 Impalas. The actual coupler involved in the accident was not produced in court.

Spalding expressed the opinion that the coupler which he had helped design was properly designed. He believed that the damage found by Trooper McDonnell and the witness Eivehouse resulted solely from the force of the impact. He stated that such a condition did not cause and could not cause the car to go out of control and that the automobile would be steerable without the missing rivet and with the wafer torn. He also described the first of the two tests conducted at defendant’s proving grounds during the course of the trial. He stated that during the test he drove a 1965 Impala under conditions allegedly comparable to those at the time of the accident. He made this test for the purpose of demonstrating the correctness of his contention that notwithstanding the absence of the rivet in the coupler and the existence of the torn fibrous wafer the automobile was steerable. He stated that he was, in fact, able to drive the car without- any loss of steering ability. He further testified that motion pictures were taken of this test.

The judge and counsel viewed the movie in chambers. The court ultimately ruled that such motion pictures were inadmissible because defendant had failed to establish that the conditions were comparable. The court then instructed the jury to disregard all testimony concerning the preparation of the experiment and the motion picture taken of it.

This ruling was made while defendant’s expert Spalding was still on the witness stand. At the point when the court recessed for the weekend, cross-examination of this witness had been almost completed. Over that weekend Spalding and defendant’s trial attorney again went to defendant’s proving grounds at Detroit, Michigan and conducted another test of a 1965 Impala. When the court reconvened the following Monday, cross-examination of Spalding was interrupted and he was permitted to describe the second test conducted on the previous Saturday. He repeated his testimony that the automobile was maneuverable although the rivet was missing and the wafer torn. Ruling that defendant had remedied the deficiencies present in the previous test, the court decided that the conditions were comparable. Therefore the court held that the second set of motion pictures could properly be shown to the jury for consideration in determining the issue of defendant’s liability. The motion pictures of that test were then exhibited to the jury.

We are confronted here with three evidential concepts: the admissibility of motion pictures; the admissibility of evidence of experiments; and the admissibility of motion pictures of experiments.

It is well settled that relevant motion pictures are generally admissible if properly authenticated. See 62 A. L. R. 2d 686, 688 (1958) where the cases are collected. Although no New Jersey ease has articulated the basis or requirements for their admissibility, the courts of this State have on numerous occasions permitted their use apparently on the same rationale. Eor example, in a personal injury case motion pictures depicting a claimant engaged in various physical activities have been received in evidence to show on the one hand the extent of disability and on the other to demonstrate that the injuries are neither permanent nor as extensive as claimed. See 62 A. L. R. 2d 686 (1958).

Authentication of motion pictures ordinarily includes (1) evidence as to the circumstances surrounding the taking of the film; (2) the manner and circumstances surrounding the development of the film; (3) evidence in regard to the projection of the film; and (4) testimony by a person present at the time the motion pictures were taken that the pictures accurately depict the events as he saw them when they occurred. See 62 A. L. R. 2d 686, 692 (1958).

Here the court made a finding that the film was properly authenticated and although not all the points above mentioned are clearly manifested in the record, technical objections to the film appear to have been waived. Defendant’s expert was present in court. The record indicates he was in charge of the making of the film and that he was cross-examined by plaintiffs’ counsel concerning the making of the film.

So far as experiments or tests are concerned, admissibility of evidence concerning them would appear to be within the area of judicial discretion and turns on whether the experiment was conducted under conditions and circumstances similar to those actually existing in the case. State v. Harris, 1 N. J. Misc. 526 (Sup. Ct. 1923), aff’d o.b. 100 N. J. L. 184 (E. & A. 1924). See Utz, “Use of Moving Pictures in Out-of-Court Experiments,” 8 Defense L. J. 71, 74 (1960), which describes a number of factual situations in which such evidence has been considered. See also Price v. Buckingham Manufacturing Co., Inc., 110 N. J. Super. 462 (App. Div. 1970), where the court held that it was not an abuse of discretion to refuse to admit proof of a simulated reenactment of an accident. The court in this case specifically found that a similarity of conditions and circumstances existed.

The leading case of St. Paul Fire & Marine Ins. Co. v. Baltimore & O. R. Co., 195 N. E. 861 (Ohio Sup. Ct. 1935), which is concerned with motion pictures of experiments, sets out factors which should guide the trial court’s discretion in this area. That case has been approved by some commentators. See e. g., Utz, “Use of Moving Pictures in Out-of-Court Experiments,” 8 Defense L. J. 71 (1960); 62 A. L. R. 2d at 695. The court stated:

* * * Such evidence is usually held competent if there is a substantial similarity between the conditions existing at the time of the occurrence complained of and when the experiments are made. The existence of identical conditions is not necessary; dissimilarity, when not so marked as to confuse and mislead the jury, going to the weight rather than the admissibility of the evidence. In the very nature of things, much must be left to the discretion of the tidal judge, and when such discretion has not been abused reviewing courts will not interfere. * * * [at 864]

See also Streit v. Kestel, 161 N. E. 2d 409 (Ohio Ct. App. 1959).

We perceive no inherent objection to the admissibility of motion pictures of an experiment. Such evidence, in our opinion, is entirely proper when relevant and its probative value is not offset by undue prejudice, unfair surprise, undue consumption of trial time, or possible confusion of issues due to the introduction of collateral matters. See Rule 4, New Jersey Rules of Evidence. The applicable policy-expressed in Rule 4 is well stated in Stoelting v. Hauck, 32 N. J. 87 (1960), where Justice Proctor commented:

There is no doubt that it is generally within the discretion of the trial court to exclude remotely relevant evidence whose probative value is offset by the danger of undue prejudice, unfair surprise, undue consumption of trial time, or the possible confusion of issues attendant on the introduction of collateral matters. * * * [at 103]

The film in question was generally relevant inasmuch as it tended to negate plaintiffs’ contention and to support that of defendant. Its relevance was to be tested by its probative value with respect to the points in issue. Miller v. Trans Oil Co., 18 N. J. 407 (1955). Proximate cause was clearly an issue. The testimony of plaintiffs’ expert Madeheim tended to establish that a certain defect was the cause of the accident. He testified:

* * * [I]t appears that one rivet came loose which thus put the only contact between one segment of the coupler and the wafer on one rivet. This means under a condition like that that when you attempt to turn the wheel you no longer get 100% cooperation from the coupler. And the net result was that eventually the one remaining rivet tore the lamination which, by the way just for the sake of clarity, they call it a wafer, the laminated material in between the flanges.

Here the degree of relevancy of the motion pictures presents a more difficult problem. There is support in the record for the trial court’s finding that the experiment was substantially similar to the actual facts surrounding the accident. That finding does not negate the fact that a motion picture of an artificial reconstruction of an occurrence may be very weak evidence. In this case the motion picture did not portray the actual automobile involved in the accident; nor did it show plaintiffs’ actual operation. Indeed, it may be virtually impossible to recreate a particular automobile which has suffered a variety of different and unknown stresses and strains or perhaps enjoyed meticulous care. As Wigmore points out, a movie of such recreation is made up of

* * * a complex series of movements and erections, usually involving several actors, each of them the paid agent of the party and acting under his direction. Hence, its reliability, as identical with the original scene, is decreased and may be minimized to the point of worthlessness. [3 Wigmore, Evidence (Chadbourn rev. 1970), § 798a]

Thus any movie is a manufactured, self-serving piece of evidence. It is true, of course, that all evidence may be said in one sense to be self-serving. However, not all evidence is a staged production whose finale is not only hoped for but very much a part of the script.

Although these considerations do not serve to render this evidence inadmissible, they emphasize the importance of the off-setting factors referred to in Stoelting v. Hauck, supra. We now consider the impact of those factors in this case.

The danger of undue prejudice as a result of the jury’s placing inordinate weight on the moving pictures is always present in light of the tremendous dramatic impact of motion pictures. See Paradis, “The Celluloid Witness,” 37 U. Colo. L. Rev. 235 (1965). Undeserved emphasis by the jury is also understandable in that presentation of the motion picture is cumulative. The requirement for authentication inevitably adds some degree of cumulative impact on the fact-finder. That impact is considerably increased in this case since the moving pictures were not only concededly designed to lend strength and support to defendant’s version of how the accident happened. They were also cumulative to defendant’s expert’s expressed opinion as to the cause of the accident and his description of the two sets of tests which had been filmed. See Schneiderman v. Strelecki, 107 N. J. Super. 113 (App. Div. 1969), certif. den. 55 N. J. 163 (1969).

Although the procedures attendant upon the presentation of films often involve questions of the allocation of trial time, we do not deem this element of significance in this case.

We also consider that the jury might have been confused by collateral issues presented in the film. The theme of defendant’s offer of the proof was that it tended to demonstrate the correctness of defendant’s expert’s contention that the automobile was operable notwithstanding the loss of the rivet and the existence of a torn wafer. The offer thereby tended to refute the hypothesis expounded by plaintiffs’ expert. The film seems to go beyond this. The first sequence showed a 1965 Impala being operated with a rivet missing from a steering coupler and its wafer torn. The third showed a 1965 Impala operating with a steering coupler whose rivet and wafer were missing. The first did not embrace both elements of the alleged defect. The third went beyond the conditions upon which plaintiffs’ expert’s hypothesis was founded. As such, the motion pictures tended to present collateral issues which might have confused the jury.

The strongest counter-factor militating against the admission of these movies is the element of unfair surprise which was engendered by the manner in which the movies were prepared and presented. Plaintiffs had no prior knowledge of the first experiment or of the motion picture taken of it. It is evident that they had no suspicion that during the weekend, after the results of the first test liad been held inadmissible, defendant’s expert, along with defendant’s lawyer, would journey to defendant’s proving grounds in order to repeat the experiment. Plaintiffs can. hardly be criticized for assuming that this issue was at rest. One would normally not expect an adversary to be able to present such evidence in an effort to reopen the question, or if able to do so, to proceed with its preparation without apprising his adversaries that such was his intention.

Significantly, in the case at bar plaintiffs procured an order requiring defendants to submit to plaintiffs, within five days of the date set for trial, a copy of their expert’s reports. Defendant’s position at the trial and here is that the movies were not reports and not therefore covered by the order. Such an interpretation appears extremely narrow. The movie reflected the expert’s opinion in refutation of plaintiffs’ theory of the case. Plaintiffs apparently made their motion pursuant to R. 4:17—1. This rule allows a party to obtain “* * * a copy of a paper, including the report * * * of any expert * * A strict interpretation lends some support to defendant’s argument. Nevertheless, we deem it incongruous in the circumstances of this case to permit defendant to avoid the spirit if not the strict letter of the court’s order in this fashion. Parenthetically, we note that Rule 1(13) (of the Rules of-Evidence treats writing to include every means of recording, including photography. Perhaps plaintiffs’ request more properly should have been made under the companion rule, 4:18-1. The rules should probably be clarified in this respect. Since use of motion picture equipment is becoming commonplace, consideration should also be given to the desirability of adopting rules of wider application in discovery and relating to use and admissibility of motion pictures of reconstructed or simulated events such as those involved in the present case.

We are not impressed with defendant’s further argument that even if the films were considered experts reports, the order could not literally be complied with because the film was not in existence before the trial, nor with its assertion that it could not make the movie before trial because it was not aware of the precise theory upon which plaintiffs were proceeding until their expert, Madeheim, testified.

These arguments ignore the spirit of the order which was entered just before the trial and place a premium on technicalities. Defendant knew or could readily have known plaintiffs’ theory of the accident through available discovery proceedings. Indeed, it is inconceivable to ns that in a ease of this magnitude defendant would not be fully aware of the basis of plaintiffs’ claim.

Defendant knew from the outset that plaintiffs claimed the accident resulted from a malfunction in the steering mechanism. It had in its possession a copy of Trooper McDonnell’s report of the accident which contained a statement that the “operator lost control due to malfunction of the steering mechanism.” It had also received a copy of the report of plaintiffs’ witness Eivehouse in which reference was made to the steering coupler. With such knowledge we see no reason why it could not have prepared the movie before trial and offered plaintiffs an opportunity to see it. By waiting until tlie eleventh hour it was thus able to prepare the movie without the knowledge of its adversaries and without giving them any opportunity to prepare a rebuttal. We cannot sanction such trial tactics, more reminiscent of the days before the present liberal discovery rules.

A motion picture in the eyes of the jury is one of most spectacular forms of evidence. It is cumulative in nature. There are inherent dangers in its preparation and presentation. Effective rebuttal can only be had if opposing counsel and his expert are given an adequate opportunity to meet such evidence. We do not consider that cross-examination alone would ordinarily provide a sufficient avenue of rebuttal to the adverse party. Consequently, as a prerequisite to the admission into evidence of motion pictures of a reconstructed event or a posed demonstration taken during the pendency of an action, fundamental fairness dictates that the party proposing to offer such evidence give notice thereof and an opportunity to his adversary to monitor the experiment and the taking .of the film.

This is especially true in this case. Even if it be assumed that emergency preparation during the course of the trial was unavoidable, plaintiffs should have been given notice and an opportunity for their expert to monitor the preparation of the movie. Viewing the movie on the following trial day hardly provided a sufficient opportunity to prepare a rebuttal. See Paradis, “The Celluloid Witness,” 37 U. Colo. L. Rev. 235, 251 (1965); Gulf Life Ins. Co. v. Stossel, 131 Fla. 268, 175 So. 804 (Sup. Ct. 1937), mod. 131 Fla. 127, 179 So. 163 (Sup. Ct. 1938). In this case defendant significantly gave no notice to plaintiffs of its intention to conduct the first experiment and to take moving pictures of it, nor of its subsequent plan to conduct another test in order to remedy deficiencies in the first one and to exhibit motion pictures of that test in conjunction with Spalding’s already completed direct testimony.

In light of all the circumstances, we conclude that the motion pictures should have been excluded from exhibition to the jury and from admission into evidence, and that the failure to do so requires a reversal. In the event of any retrial of this case, the admissibility of any motion pictures of experiments should be determined in accordance with the principles expressed in this opinion.

The judgment in favor of defendant General Motors Corporation and against plaintiffs is reversed. The judgment in favor of Gary Allen Chevrolet is affirmed since on oral argument plaintiffs abandoned any claim against that defendant.

ON PETITION EOR REHEARING

Per Curiam.

After the entry on June 1, 1972 of the judgment of this court, defendant General Motors Corporation submitted a petition supported by affidavits for a rehearing and recall of the judgment. Defendant claims that there was no factual support for the Appellate Division’s conclusion that General Motors neither gave plaintiffs notice of its intention to conduct an experiment nor an opportunity to monitor the filming thereof.

The asserted basis of this application was that on January 30, 1970 defendant’s counsel had in fact “irrevocably indicated to all concerned his intention to once again film the experiment * * * in order to cure the deficiencies found by the court to exist in the first film,” and in fact had “invited plaintiff’s counsel to observe the conduct and film of these tests.” These statements were allegedly made after the trial court had ruled the first films inadmissible.

We observe that defendant had not at any time previously advanced any contention of this nature. Defendant’s initial position was basically that a notification of the tests and an opportunity to monitor the filming of the tests were not prerequisites to the film’s admission into evidence.

The attorney who originally represented defendant died after the trial. The attorney appearing for defendant on the appeal indicated that he did not become aware of the circumstances giving rise to this aspect of the appeal until after the decision was handed down by this court.

In view of this unusual development, we directed plaintiffs’ counsel to file answering affidavits and agreed to hear further oral argument. We thereafter remanded the matter to the trial court to make a factual determination on this issue. The judge who presided over the original trial disqualified himself because of the possibility he might be called as a witness. The matter was then assigned to another judge who conducted a hearing. Seven witnesses, including the trial judge, testified.

The remand judge made extensive written findings of fact. He noted, as we have done, that the trial transcript revealed no relevant conversations made in open court or in chambers. He went on to indicate that certain conversations related by defendant’s witnesses had taken place on January 30, 1970 in the court’s chambers and in the courtroom later that day. However, the remand judge remarked that:

It is another question as to whether or not Mr. Glaser and Mr. Kaplan [plaintiffs’ trial attorneys] were parties to these conversations, heard the conversations, and understood that they were genuine offers affording them an opportunity to be present in Detroit for the filming of the second experiment.

The judge noted that the trial judge had no recollection of any such offer being made in his chambers or in open court. Additionally, he found specifically that the trial judge was not a party to any conversations in chambers where an offer was made to plaintiffs’ counsel to come to Detroit for the purpose of observing the experiment. Furthermore, the trial judge testified that be believed no such offer had been made. The remand judge concluded that, although some conversations took place, he was unable to find that an understanding was arrived at by the respective counsel which would indicate that defendant’s counsel had “informed plaintiffs of his intention to conduct a certain experiment and to take motion pictures thereof for the purpose of introducing said films into evidence.” He added: “Nor can I find that defendant, General Motors, afforded plaintiffs an opportunity to monitor such experiment and the making of the film.”

We have carefully reviewed the evidence taken on the remand and the findings and conclusions of the court thereon. We are satisfied that they are fully supported by the record. We are not persuaded by defendant’s argument that the court’s conclusions are against the weight of the evidence or inconsistent with its findings.

We have considered the additional points raised by defendant and we preceive no reversible error in any of them.

Petition for rehearing and recall of judgment denied.


author: Per Curiam.

text:
    JOHN J. O’CONNOR, ROBERT C. BOTTI AND JOSEPH CAPUANO, PLAINTIFFS-RESPONDENTS, v. HARRY M. CALANDRILLO, JR., PAUL J. LOMBARDO AND JAMES E. LAGOMARSINO, JOINTLY, SEVERALLY AND AS MEMBERS OF THE BOARD OF COMMISSIONERS OF THE CITY OF UNION CITY IN THE COUNTY OF HUDSON, DEFENDANTS-APPELLANTS, AND FRANK X. CLARK, WILLIAM J. MEEHAN, LAWRENCE P. PARACHINI AND HARRISON C. HULTMAN, DEFENDANTS.
    Superior Court of New Jersey Appellate Division
    Argued October 2, 1972
    Decided October 31, 1972.

      Before Judges Lewis, Carton and Mintz.

      Mr. Vidor P. Mullica argued the cause for appellants.

      Mr. George J. Kaplan argued the cause for respondents.
   Per Curiam.

Plaintiffs, as residents and taxpayers of the City of Union City, a municipality governed by a board of commissioners, initiated in lieu proceedings challenging the right of defendants Harry Calandrillo, Paul Lombardo and J ames Lagomarsino, elected commissioners, each receiving an annual salary of $7500, to hold additional paid appointed positions in the municipal government. The basic facts are undisputed, and it was stipulated that the court should consider the matter as if presented on cross-motions for summary judgment.

The Law Division declared the appointments void because of their incompatibility with the elective offices, ousted defendants from such appointed dualistic positions and ordered defendants to repay to the municipality all compensation they had received incident to the appointed positions. Defendants appeal.

We affirm essentially for the reasons set forth in the opinion of Judge Larner for the Law Division reported in O’Connor v. Calandrillo, 117 N. J. Super. 586 (Law Div. 1971).

The judgment of ouster is not only sustainable under the rationale of De Feo v. Smith, 17 N. J. 183 (1955), followed by the Law Division, but could also be sustained under the stricter test applied in Reilly v. Ozzard, 33 N. J. 529 (1960).

The trial judge concluded that defendants did not act in their respective appointed positions in good faith. Ordinarily such a conclusion would be difficult to sustain on a motion for summary judgment. R. 4:46-2; Judson v. Peoples Bank & Trust Co. of Westfield, 17 N. J. 67 (1954). However, the boldness and the shuffling pattern on the part of these elected officials to secure for themselves, from in-lodge fellow-commissioners, appointed positions within the municipal government and thus substantially augment their respective salaries, and a continuance thereof after notice of incompatibility was received from the Civil Service Department, demonstrate palpably that plaintiffs and the City of Union City were entitled to the summary judgment entered.

Affirmed.


author: Kolovsky, J. A. D.

text:
    JACK GOLD AND IRWIN GOLDSTEIN, t/a THE FRAZIER MARKET, PLAINTIFFS-APPELLANTS, v. THE CITY COUNCIL OF THE CITY OF TRENTON, A MUNICIPAL CORP. OF NEW JERSEY, DEFENDANT-RESPONDENT. AND JOHN F. FUNDIN, PLAINTIFF-APPELLANT, v. THE TOWNSHIP COMMITTEE OF THE TOWNSHIP OF LAWRENCE, A MUNICIPAL CORP. OF THE STATE OF NEW JERSEY, DEFENDANT-RESPONDENT.
    Superior Court of New Jersey Appellate Division
    Submitted October 17, 1972
    Decided October 31, 1973.

      Before Judges Labrecque, Kolovsky and Matthews.

      Messrs. Schragger, Schragger & Lavine, attorneys for appellants (Messrs. Frederic J. Schragger and Raymond L. Nagy, on the brief).

      Mr. Robert A. Gladstone, attorney for respondent City Council of the City of Trenton.

      Messrs. Jamieson, Walsh, McCardle, Moore & Peskin, attorneys for respondent Township Committee of the Township of Lawrence (Mr. Raymond B. Demski, on the brief).
   The opinion of the court was delivered by

Kolovsky, J. A. D.

Plaintiffs appeal from judgments sustaining the validity of ordinances adopted by defendant municipalities which provide in pertinent part that it shall be unlawful for any food dealer in the respective municipality

* * * to sell or offer or expose for sale, at retail any sealed, prepackaged, unprocessed or untreated fresh or frozen cut meat or fowl unless the package is colorless and transparent on all sides, exclusive of labeling which shall not exceed five (5) square inches of one side of the package * * *.

Plaintiffs urge three reasons in support of their contentions that the ordinances are invalid. All were rejected by the trial court but are repeated here. We find none of them to be meritorious.

Plaintiffs first contend that the State, by enactment of L. 1968, c. 428, now N. J. S. A. 24:15A—3 and 4, has preerupted the held and that therefore the municipalities had no power to adopt the ordinances in question. The cited statute reads as follows:

1. No prepackaged unprocessed or untreated fresh or frozen meat shall be sold or exposed for sale at retail on the same premises where packaged, unless such package is colorless and transparent on at least one of the sides with the largest exposed surface area, exclusive of labeling which shall not occupy more than 10% of such side or 5 square inches, whichever is greater.
2. The provisions of this act shall be applicable throughout the State and shall be enforced by the State Department of Health and local boards of health.

The trial court noted that in the statement issued by Governor Hughes when he signed the bill which became L. 1968, c. 438, he said:

I feel that with the enactment of this legislation we have established a basic minimum necessary to protect the consumer from the small minority of unscrupulous persons who would conceal the true quality of the meats that they sold * * * [and that]
[The legislation] would not, however, prohibit a municipality from adopting an ordinance requiring that both sides of a package be transparent as in fact some municipalities have already done.

The trial court concurred with the Governor’s observations. It ruled that the language of the statute did not evince an intent to bar municipalities from adopting more restrictive regulations requiring that both sides of the package be transparent.

We agree with the trial court’s ruling. Apposite is what was said in Kennedy v. Newark, 29 N. J. 178 (1959):

Had the Legislature intended to restrain local action, the more likely course would have been to express that purpose. Before it can be said that the police power delegated to local government must remain inert, it must be clear that the Legislature intended to occupy the field or declared a policy at war with the decision made by local government. The delegated power may not be restrained upon the basis of speculation or dubious inference. The Constitution enjoins a liberal construction of legislation in favor of local authority. Article IV, §7, par. 11. [At 187]

See also State v. Ulesky, 54 N. J. 26, 29 (1969).

Plaintiffs also argue that the ordinances are void “because the subject inherently requires statewide treatment,” saying:

The prevention of consumer fraud and the promotion of public health are state-wide concerns, and do not depend upon the local scene.

While it is true that prevention of consumer fraud and the promotion of public health concern both the State and its several municipalities, it does not follow that municipalities are barred from attempting to more effectively accomplish those objectives by adopting regulations more restrictive than those fixed by the Legislature as the minimum standards applicable throughout the entire State.

Indeed, in matters of public health, the Legislature has expressly provided otherwise. N. J. S. A. 26:1A-9 authorizes a local board of health to adopt “ordinances, rules and regulations, * * * more restrictive than the provisions of the State Sanitary Code” if such ordinances, rules and regulations “in its opinion, [are] necessary for the particular locality under its jurisdiction.” See also Bd. of Health, Weehawken Tp. v. N. Y. Central R. Co., 4 N. J. 293, 299 (1950)

Finally, the record furnishes no support for plaintiffs’ contention that the ordinances are “capricious, arbitrary and unreasonable.” The wisdom of a municipal ordinance is not a matter of judicial concern. The court “may act only if the presumption in favor of the validity of the ordinance is overcome by an affirmative showing that it is unreasonable or arbitrary.” Vickers v. Tp. Comm., Gloucester Tp., 37 N. J. 232, 242 (1962). We agree with the trial court that no such showing was made here.

The judgments are affirmed.


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

text:
    ARTHUR J. CALE, JR. AND CLAIRE CALE, HIS WIFE, PLAINTIFFS, v. JOHN R. WANAMAKER, JR. AND LOUISE DeKOVEN WANAMAKER, HIS WIFE, DEFENDANTS.
    Superior Court of New Jersey Chancery Division
    Decided October 30, 1972.

      Mr. Anthony G. Meola for plaintiffs (Messrs. Dunn and Pykon, attorneys).

      Mr. William I. Riker for Defendants (Messrs. Riker, Danzig, Scherer and Brown, attorneys).
   Martino, A. J. S. C.

This is an action for a declaratory judgment to determine whether plaintiffs have a right of way over defendants’ land on which is a house and a detached garage, either by way of necessity or by an implied grant of a gwasLeasement.

The parties are in agreement that in 1881 the Seashore Company was the common owner of a large tract of undeveloped land in the Borough of Mantoloking, which extended from the Atlantic Ocean to Barnegat Bay. The tract included lands presently owned by plaintiffs and defendants, as well as other lands lying between Princeton Street on the north and Albertson Street on the south and intersected by Ocean Avenue.

By deed of 1881 Seashore Company conveyed a railroad right of way which divided lengthwise the property lying west of Ocean Avenue. The railroad right of way was abandoned in 1947 and was purchased by A. Gordon Adams. Lots 8, 9 and 10 in Block 38 are bordered on their easterly side by the former right of way. Until 1956 this right of way was used as an access to Lot 8 in Block 38. This use was successfully restrained by Adams in a previous suit which found that no legal right of way existed over the former railroad right of way as an access to Lot 8. Adams v. Cale, 48 N. J. Super. 119 (App. Div. 1958). Plaintiffs’ lands are bounded on the north and east by the lands of others, on the south by defendants’ lands, and on the west by the waters of Barnegat Bay.

It is not disputed that by deeds dated May 27, 1889 Seashore Company conveyed Lot 8 in Block 38 to Benjamin Albertson and Lots 9 and 10 in Block 38 to Jennie Albertson. On March 11, 1901 the Albertsons conveyed these lands to William E. Albertson. On May 5, 1904 the lots were conveyed to J. Otto Ehome who, on the same day conveyed them to Anna L. Albertson. By this deed Anna L. Albertson became the common owner of Lots 8, 9 and 10 in Block 38 which includes plaintiffs’ Barnegat Bay front lot and the two lots presently owned by defendants, Lots 9 and 10, lying between Lot 8 and the northerly side of Albertson Street.

By deed of May 10, .1922 Anna L. Albertson conveyed to Curies J. Hulse and Ollie M. Hulse Lots 8, 9 and 10 in Block 38. The description in the deed specifically refers to Albertson Street as a boundary line of the lots.

On March 25, 1924 Curies J. Hulse conveyed to the Beacon Hotel Company only Lot 8 in Block 38, resulting in an isolation of Lot 8 from any street. On August 17, 1925 Hulse conveyed Lots 9 and 10 in Block 38 to Jessie H. Sea-bury who, in 1950, conveyed these lots to the present defendants, John E. Wanamaker et al. Lot 10 is bounded on its southerly side by Albertson Street.

The diagram of the chain of title which is appended hereto has been examined by all parties and they have agreed that it accurately represents the passage of title of the lots in question.

Plaintiffs contend that since the conveyance of Lot 8 by the grantors Curios J. Hulse et al. to the Beacon Hotel Company in 1924, and the conveyance of Lots 9 and 10 by the same grantors to Jessie II. Seabury shortly thereafter, the only practicable means of reaching Lot 8 would be over Lots 9 and 10, which lots eventually became vested in defendants. As indicated earlier, plaintiffs had used as access to Lot 8 the lands of a former railroad right-of-way, but that use was restrained by the present owner of the former railroad right-of-way. Adams v. Cale, supra. At present the only lawful means of access to the plaintiffs’ lot is by way of the water of Barnegat Bay. Plaintiffs allege that Lot 8 will become valueless because of its inaccessability by land, and they seek a means of egress and ingress in order to make use of it.

An implied grant of a gwasi-easement did not arise out of the conveyance by Hulse, the common owner, in 1924.

Where, during unity of ownership, a part of the land is utilized for the benefit of another part, a quasi-easement exists. When, upon conveyance, an easement corresponding to the preexisting quasi-easement arises for the benefit of the part conveyed as against the part retained by the grantor, it is called an “implied grant.” A. J. & J. O. Pilar, Inc. v. Lister Corp., 38 N. J. Super. 488, 496 (App. Div. 1956).

For an implied grant of a gmsi-easement to arise upon conveyance or severance of ownership, a permanent and obvious servitude must have been imposed on one part of the estate in favor of another part. The servitude must have been in use at the time of severance and have been necessary for the reasonable enjoyment of the other part. 25 Am. Jur. 2d, Easements, § 27, at 440 (1966).

As of 1924, when the common ownership was severed by the conveyance of Lot 8, no such obvious and permanent servitude was imposed upon Lots 9 and 10 for the benefit of Lot 8. The railroad right-of-way had been conveyed in 1881 and was not part of the land owned by Hulse in 1924. Also, the use of this railroad right-of-way as a means of access was declared to have been an unlawful use by the court in 1957. Adams v. Cale, supra. No evidence supports an implication that an apparent, continuous, permanent and necessary quasi-easement existed prior to and at the time of the 1924 conveyance on Lots 9 and 10 for the benefit of Lot 8. In light of the circumstances surrounding the 1924 conveyance, an implied grant of a quasi-easement did not arise.

A way of necessity across Lots 9 and 10 to Albertson Street grew out of the 1924 conveyance because it was a necessary incident to the grant.

An implied grant of a quasi-easemont is to be distinguished from a way of necessity. Questions in respect of the permanency, apparency and continuity of the servitude, which are applicable in connection with, easements implied on severance of the property, are not applicable to the way of necessity. A way of necessity does not rest on a pre-existing use but on the need for a way across the grantor’s property. 25 Am. Jur. 2d, Easements, § 28 at 441 (1966); Adams v. Cale, supra, at 131.

A way of necessity can only be established where there has been a unity of ownership, because no one can have a right-of-way over a stranger’s land. A way of necessity grows out of some grant or change of ownership, to which it is attached by construction as a necessary incident. Poulos v. Dover Boiler & Plate Fabrications, 5 N. J. 580, 587 (1950).

Prior to the conveyance in 1924 a unity of title in Lots 8, 9 and 10 in Block 38 existed in the Hulses. It is out of the 1924 conveyance that plaintiffs seek to establish their right to a way of necessity. If, at one time, there has been a unity of title, the right to a way of necessity may lie dormant through several transfers of title and pass with each transfer and be exercised at any time. Adams v. Cale, supra, at 133.

Plaintiffs have stated that Lot 8 has been left undeveloped and not used because it is inaccessible and that they now seek a way of necessity over defendants’ lands to make use of it. If a way of necessity arose out of the conveyance of 1924, plaintiffs can now exercise their right to it.

A way of necessity arises where there is a conveyance of a part of a tract of land which is wholly surrounded by lands which the grantor retains, or by the grantor’s land and lands of strangers. In such cases, the way is a necessary incident to the grant, for without it the grant would be useless because the grant is necessarily for the beneficial use of the grantee and the way is necessary to its use. Higbee Fishing Glub v. Atlantic City Electric Company, 78 N. J. Eq. 434, 435 (Ch. 1911).

The conveyance in 1924 left Lot 8 surrounded by lands retained by the grantor (Lots 9 and 10), lands of strangers, and Barnegat Bay. The need for an access to Lot 8 had been satisfied by the unlawful use of the railroad right-of-way which must be classified as lands of a stranger in the 1924 conveyance. If the use of Barnegat Bay as an access to Lot 8 is found not to be a sufficiently practicable means of access, a way of necessity must have arisen over Lots 9 and 10 to Albertson Street for the benefit of Lot 8.

Although some courts have held that access to a piece of property by navigable waters negates the “necessity” required for a way of necessity, the trend since the 1920’s has been toward a more liberal attitude in allowing easements despite access by water, reflecting a recognition that most people today think in terms of “driving” rather than “rowing” to work or home. 9 A. L. R. 3d 600, 603 (1966). Parenthetically, it should be noted here that no evidence appears to indicate that access by boat over water would be reasonable or practicable.

The “modern attitude” was reflected in a 1965 Florida case where the plaintiff wanted to construct a dwelling on .his land, but his land was inaccessible except over the defendant’s land or by the waters of the Homosasa River. Redman v. Kidwell, 180 So. 2d 682, 684 (Fla. App. Ct. 1965). The court reversed an order which had dismissed the landowner’s complaint for a way of necessity, stating that for centuries rivers, lakes, seas and oceans provided the principal means of transportation. However, with the development of efficient means of overland transportation by -railroad and by automobile, means of ingress and egress by water have become less necessary and desirable. The Florida court went on to state that in applying common law principles to present day problems, the court must take into account changing conditions to the extent that today access to a parcel of land by boat over water, although reasonable and practicable a century ago, is not so today.

This “modern trend” was also reflected in a 1964 Maryland case, Hancock v. Henderson, 236 Md. 98, 202 A. 2d 599, 602 (Ct. App. 1964). In relation to access by navigable water, the court stated that the more modern view, for sound policy reasons, is that a way of necessity may exist over the land of the grantor even though the grantee’s land borders on a waterway if the water route is not available or suitable to meet the requirements of the uses to which the property would reasonably be put. This view is in line with the public policy underlying a way of necessity which favors the full utilization of land and the presumption that the parties do not intend the land conveyed be rendered unfit for occupancy.

In Cookston v. Box, 109 Ohio App. 531, 160 N. E. 2d 327, 334 (Ohio Ct. App. 1959), the court held that egress and ingress by water was no valid argument, where no facilities or transportation whatever was available for carrying on the ordinary and necessary activities of life from and to the land in question by water.

The circumstances surrounding the conveyance of Lot 8 in 1924 indicate that an overland access to Lot 8 was intended. The parties mistakenly believed that the railroad right-of-way would provide such an access.

Without the railroad right-of-way, the only access, besides Barnegat Bay, to Lot 8 would be across Lots 9 and 10 to Albertson Street. Therefore, the necessity for a land access to Lot 8 can reasonably be implied from the conveyance in 1924, and it must cross Lots 9 and 10, presently owned by the defendants.

To allow a way for plaintiffs to have access to the public highway by necessity raises the question as to the extent of the roadway for that purpose and the location of the area to be so used.

In Camp v. Whitman, 51 N. J. Eq. 467, 475 (Ch. 1893), it appeared that it was contemplated that the use of the access was by vehicle, and in that case the court so provided for a vehicular passageway. In this case it is difficult to determine the extent of the passageway contemplated when the conveyance was made. Nothing before the court suggests what would be an adequate right-of-way which would be fair to all concerned. It may be possible that the parties might themselves agree on the location of a way to permit ingress and egress. If not, then the court may, after hearing evidence directed to that sphere of the ease, decide where and what area should exist to grant the plaintiffs the relief they seek. See Hancock v. Henderson, supra, at 603.

APPENDIX