Atlantic City v. New Auditorium Pier Co. On bill and affidavits. On order to show cause and defendant's affidavits, and motion for preliminary injunction. The bill of complaint in this case was originally filed against George C. Tilyou as sole defendant. Subsequently, on the coming in of an order to show cause, it was, by consent, amended by substituting the New Auditorium Pier Company, a corporation of this state, as sole defendant, Mr. Tilyou being president of that company, and the parties appearing by the same counsel. The bill is filed by Atlantic City to enforce certain covenants contained in two deeds, whereby it is claimed certain lands lying to the oceanward of the present Atlantic City boardwalk were to remain without being built upon, unless by the erection of an iron or steel pier having certain characteristics hereinafter mentioned. For a number of years previous to the making of either of these deeds Atlantic City had maintained a public boardwalk, at the edge of the ocean, as an attractive public promenade. The power to lay out and construct boardwalks along the ocean front was given to such cities by an act of the legislature (P. L. of 1889 p. 206), with authority to condemn lands for that purpose. By a supplement to this act (P. L. of 1890 р. 159) authority was given to construct elevated boardwalks, and to accept dedications of lands or rights for making improvements of like character. In 1896 a further supplement (P. L. of 1896 p. 18) authorized the relocation of such walks, and the issue of bonds for the purpose of renewing, repairing and maintaining such public walks. This legislation was followed, so far as it applied to Atlantic City, by several ordinances, passed by that city, arranging for the building and relocation of the boardwalk along the ocean front of the city. The latest of these ordinances, approved May 6th, 1896, providing for the relocation and building of the present boardwalk, may be found annexed to the bill of complaint in this cause. As the number of visitors to the seaside increased, it became desirable to afford greater accommodations for their entertainment. The owners of the ocean front were in sympathy with Atlantic City v. New Auditorium Pier Co. this object, and some of them, in disposing of their lots, inserted in their deeds covenants protecting the use of the boardwalk by the public, and prohibiting the erection of buildings to the oceanward of it, for the purpose of preserving a continuous ocean view from the boardwalk. The first deed of this character exhibited in this cause was that made by Charles Evans and others to Atlantic City, dated January 2d, 1890. In consideration that the city would erect a boardwalk, it conveyed an easement or right of way for that purpose over a strip of land, sixty feet wide, at the ocean edge, describing the territory in which the right of way was by exact metes and bounds. The deed contained this clause: "And the said parties of the first part, for themselves, their heirs, executors, administrators and assigns, do hereby covenant, promise and agree to and with the said party of the second part, its successors and assigns, that they, and each of them, the said parties of the first part, their heirs, executors, administrators and assigns, shall not and will not put or erect or allow to be placed or erected on the lands hereby granted, or on the oceanside thereof, any building or structure, except as above provided." The only provision in the deed which dealt with the erection of any structure on the oceanward side of the boardwalk strip was the one declaring that nothing in the agreement should be construed to prevent any of the grantors from sinking such piling or placing such seawalls on the ocean front as might be necessary to protect his property from the encroachment of the sea; and another clause which excepted such open pavilions as city council might, upon application, allow. After the deed of Evans and others of January 2d, 1890, had been made and recorded, Evans, on July 22d, 1895, conveyed to Richard F. Loper a lot fronting on the westerly side of Pennsylvania avenue for six hundred feet and having a depth westwardly from that avenue of one hundred and fifty feet. This lot bounded on the "ordinary high-water line of the Atlantic ocean." The territory conveyed included the lands on which both the old boardwalk, existing antecedent to 1896, and the new steel boardwalk, built in the latter year, were located. The Atlantic City v. New Auditorium Pier Co. deed conveyed to Mr. Loper, the grantee, the riparian right to purchase the state's lands to the oceanward of the ordinary highwater line. It contained the following recital: "Subject, nevertheless, and this conveyance is granted and accepted accordingly to the following covenant and conditions, viz., the said grantee, for himself, his heirs, executors and administrators and assigns, covenants and agrees to and with the said grantors, their heirs and assigns, that he, the said grantee, his heirs and assigns, shall never erect upon the said premises any house or other building, nearer the line of the above mentioned Pennsylvania avenue, than twenty-seven feet of the property line. Subject, also, to the easement or right of way over sixty feet of the above described land granted by the said Charles Evans and wife to the city of Atlantic City by indenture dated January 2d, 1890, and recorded in the clerk's office of said Atlantic county in book No. 2 of Assignments, page 237, &c., and in book No. 173 of Deeds, page 11," &c. After receiving the above conveyance from Evans, which carried the riparian right, Loper, on the 29th day of August, 1895, received from the riparian commissioners of this state a grant of the state's right in the lands lying to the oceanward of the high-water line. The lot of land thus granted was one hundred and fifty feet in width at the high-water line, and extended, of that width from that line, four hundred and twenty-eight feet in a southeasterly direction to the commissioners' exterior wharf line. Its first course runs "southerly along the easterly line of Pennsylvania avenue, extended in a straight line, four hundred and twenty-eight feet, more or less, to the exterior line," &c. By reason of the greatly increased use of the boardwalk, it appears to have been found necessary to further enlarge its width and length. The act of the legislature passed in 1896 (see P. L. of 1896 p. 71), above referred to, enabled cities located on the Atlantic ocean to lay out, construct and enlarge street boardwalks, &c., and to condemn lands for that purpose. Under this statute the ordinance of the 6th day of May, 1896 (a copy of which is annexed to the bill of complaint), was passed. This ordinance, by describing an inland line, laid out a street, sixty feet wide, along the ocean front of Atlantic City, and provided for the erection in said street of an elevated boardwalk, which Atlantic City v. New Auditorium Pier Co. should be of the width of forty feet between certain avenues and twenty feet between certain other avenues. At the place where the present dispute has arisen the boardwalk is of the width of forty feet. The other twenty feet of the width of the street lies along the oceanward front of the constructed boardwalk. While the ordinance providing for the new boardwalk was under consideration, the owners of the beach front, desiring to avoid a condemnation of their lands, agreed to dedicate to the public use the strip sixty feet wide lying along the ocean front. This was manifested by a covenant, in the form of a deed (copy of which is annexed to the bill), which is dated the 30th day of April, 1896. The description of the premises affected by this covenant is of the entire length and width of the proposed street in which the boardwalk has been placed. The particular portions owned by each grantor are not separately described. This covenant was executed by Richard F. Loper, as owner of lands lying on the ocean front, his wife joining in the deed. The certificate of acknowledgment annexed to the covenant certifies that Richard F. Loper and Mary, his wife, executed and acknowledged it on the 9th day of May, 1896. On the 30th day of April, 1896, when the above covenant is dated, and on the 9th day of May, 1896, when it is certified to have been made, delivered and acknowledged by Richard F. Loper, he was the owner of the lot of land one hundred and fifty feet wide, or deep, lying on the westerly side of Pennsylvania avenue, which was conveyed to him by Evans. The new boardwalk, constructed under the ordinance of 1896, crosses this lot. Loper was also, on April 30th, 1896, and on May 9th, 1896, the owner of the lot lying to the oceanward of the Evans lot beyond high-water mark, which had been conveyed to him by the riparian commissioners in August, 1895. It is on a portion of this latter-described lot, to the oceanward of the boardwalk, that Loper's ultimate grantee, the defendant, the New Auditorium Pier Company, is in the act of erecting the structure the right to build which is challenged by this suit. The following diagram, exhibited on the argument, will show the lay of the land: |