Atlantic City v. New Auditorium Pier Co. The covenant dated April 30th, 1896, which was executed by Loper and wife and other beach front owners, contained several clauses which affect the present controversy. Among others, the covenantors, Loper and others, promised and agreed, for themselves, their heirs and assigns, that they "shall not and will not erect or allow to be placed or erected on the lands hereby granted, or on the oceanside thereof any building or structure except as provided by ordinance," &c. Also the following clause: "3. It is further hereby covenanted and agreed that the present elevated boardwalk may remain until the new steel walk is built by the said city on the line of the new street as hereby located and described, and until such new walk is built; that no structure or improvements will be made between the said walk, as now located, and the westerly and northerly line of said street. And it is further covenanted and agreed by and between said parties, except for the purpose of maintaining the said boardwalk now constructed as herein provided, that whenever and as soon as the said city, by a resolution or ordinance passed by its council for that purpose, shall accept this conveyance and cause the same to be recorded there, thereupon and thereafter, all the right, title and interest, possession and right of possession (except for the purpose of maintaining the said boardwalk now constructed as before expressed) of, in and to all lands lying westerly and northerly of the said westerly and northerly line of the said street as herein described and located shall immediately cease and determine and revert to the grantors of said lands, their heirs and assigns. And the said city hereby agrees to vacate the said street or such part or parts thereof as lie westerly and northerly of said line without expense to the said owners, their heirs or assigns, they also hereby covenanting and agreeing to waive all allowances for damages (if any accrued by such vacation). "Provided, however, that the within grantors shall not be prohibited from building a pier in front of their property and connecting the same to the new walk about to be erected, and upon the further condition that the said pier shall be of at least one thousand feet in length extending into the ocean beyond the present sixty-feet wide strip, and constructed of iron or steel, and shall not permit the sale of any commodity upon the same and be confined to charging only an entrance fee; and provided further, that the City Council of Atlantic City shall not grant a right of way to any railroad company or street railway company now incorporated or to be hereafter incorporated over and along the same." On the 6th day of June, 1896, Loper and wife made a deed to the Mary A. Riddle Company and Joseph A. Brady. This Atlantic City v. New Auditorium Pier Co. deed conveyed to the grantees the portion of the premises which Evans had conveyed to Loper, by the deed of July 22d, 1895, which bordered on high-water mark for one hundred and fifty feet and for a distance of three hundred and sixty-two feet on Pennsylvania avenue. This territory is all to the landward of high-water mark, and includes the site of the old boardwalk, and also that of the new boardwalk, but did not include the place where the defendant company is driving the pilings. This deed contained the following recital: "Subject, nevertheless, to the condition that there shall not be erected upon the said premises any house or other building nearer the line of Pennsylvania avenue than twenty-seven feet of the property line as set forth in the deed above recited. Under and subject also to the easement or right of way of the city of Atlantic City over the portion of said property granted to said city of Atlantic City for the boardwalk, as granted by Charles Evans and wife by indenture dated January 2d, 1890, and recorded in the clerk's office of Atlantic county, aforesaid in book 2 of Assignments, page 237, &c., and in book 173 of Deeds, page 11," &c. This deed was acknowledged on the 6th and recorded on the 10th day of June, 1896. On the same 6th day of June, 1896, Loper and wife made another deed to the Mary A. Riddle Company and Joseph A. Brady. This deed conveyed to the grantees the same premises which the riparian commissioners for the State of New Jersey had, on the 29th day of August, 1895, conveyed to Loper. The territory conveyed by this deed lies in front of that conveyed by the last-recited deed and to the oceanward of high-water mark. It is within the lands conveyed by his deed that the locus in quo is situated. The defendant is driving pilings on a part of the submerged lands conveyed by this deed, possession of which it has acquired by lease. This deed contained no reference to any restriction of any sort whatever imposed upon the lands conveyed. It also was acknowledged on the 6th and recorded on the 10th day of June, 1896. These dates are of significance, because they are the basis of the claim made by the defendant company that the deed of covenant, dated April 30th, 1896, made by Loper and other beach front owners to Atlantic City, was ineffectual to charge that Atlantic City v. New Auditorium Pier Co. portion of Loper's lands which was conveyed to the Riddle company and Brady, by these deeds of June 6th, 1896, with the special covenants set forth in that deed, because, the defendant alleges, the deed of covenant to the city was not accepted by Atlantic City, and recorded, until after Loper and wife had conveyed the above-mentioned premises to the Riddle company and Brady. It will be noted, on looking at the diagram, that the old boardwalk (which preceded the present boardwalk, built in 1896) laid further inland than does the present structure. It was this old boardwalk (erected under the Evans' deed of January 2d, 1890) which the covenant deed of April 30th, 1896, provided should remain until the new steel boardwalk (the present structure) should be built. The new steel boardwalk has been so built, under the covenant of April 30th, 1896. The owners of the ocean front, and among others Mr. Loper or his assigns, have received back again, and have taken possession of, the site of the old boardwalk, in exchange for which they gave the right of way on which the new boardwalk is located. The bill of complaint alleges that Atlantic City took possession of the sixty-foot strip conveyed by the covenant deed of April 30th, 1896, acknowledged by Loper and wife, as above stated, on May 9th, 1896, and erected upon that, the portion of the sixty-foot strip which crossed the Loper land, the elevated boardwalk which is presently located thereon; that, after the city had so taken possession, Loper and wife, by the deed dated the 6th day of June, conveyed the premises in question to the Riddle company and Brady, but that neither the Riddle company nor Brady, nor any other person, ever challenged said possession of Atlantic City. The bill further alleges that the defendant George C. Tilyou, and, by amendment, that the defendant the New Auditorium Pier Company, has, by intermediate conveyances, come to be the lessee of part of the Loper lot to the oceanward of the boardwalk; that recently, upon a portion of the property owned by Loper when he made the covenant of 1896, and oceanward of the boardwalk, the defendant has begun driving wooden piles preparatory to the erection of some structure thereon; that said ட Atlantic City v. New Auditorium Pier Co. piles are not less than eight feet in height above the surface of the beach; that large numbers of such piles are lying on the premises, and a large force of men is engaged in driving them, and that the defendant gives out and declares that it proposes to erect a structure or building of some character upon the pilings so driven and to be driven. The complainant insists that the defendant has no right to drive such pilings on the oceanward side of the boardwalk, or to erect thereon any structure whatever, and that defendant has been notified that it has no such right, and that it insists upon so doing, without any right whatever. The complainant charges that the driving of the wooden pilings to the oceanward of the boardwalk, and the erection of any structure of any kind whatever thereon, is a breach of the covenant entered into between the beach front owners, in the dedication agreement of January 2d, 1890, and that of April 30th, 1896, and is likewise a violation of the general scheme entered into between the several owners of the ocean front for its improvement; that the erection of the structures mentioned, if permitted, will be an obstruction to the use of the lands to the oceanward of the boardwalk, by the complainant and the public generally, in the manner contemplated by the provisions of the said covenants. The complainant prays for an injunction restraining the defendant from proceeding with the driving of the said wooden piling, and from building any structure whatever upon them, at any point on lands oceanward of the boardwalk, and further, that the defendant may be commanded to remove from those premises such wooden piling and constructions as have already been erected thereon. To the complainant's bill of complaint is annexed a copy of the deed from Loper and wife and others to Atlantic City, dated April 30th, 1896; also a copy of the city ordinance approved May 6th, 1896, relocating and providing for the building of the new steel boardwalk (the present structure); also affidavits as to the time and manner of its construction. The affidavit of the mayor of the city, which shows that, at the time of the conveyance by the several beach front owners to the city, by the Atlantic City v. New Auditorium Pier Co. deed dated April 30th, 1896, and at the time Loper and wife conveyed to the Mary A. Riddle Company and Brady, the first or original boardwalk or promenade had been constructed and extended across the entire width or front of Loper's land, and was in actual use by the public, and had been for a long time before, "and that the new or present boardwalk under the dedication deed dated April 30th, 1896, had actually been located and the erection of the same begun, on and across the lands described in the said deed from Loper to the Mary A. Riddle Company and Brady, as described in the complainant's bill." An order to show cause why an injunction should not be issued pursuant to the prayer of the bill of complaint was allowed. Upon the coming in of the order, efforts were made between the parties to arrive at some settlement of the dispute. These appeared to be ineffectual. At a much later date the order to show cause was brought up for argument. It then appeared that the named and served defendant, George C. Tilyou, was the president of a corporation, designated the "New Auditorium Pier Company," which held a lease for the locus in quo the wooden pilings in question were being driven, on which some sort of structure was about to be erected. The bill of complaint was thereupon, by consent, amended, as above stated, by striking out the name of George C. Tilyou, wherever the same occurred, and inserting instead thereof the name of the New Auditorium Pier Company (which company was, in fact, the actual defendant, represented by the appearing counsel), and by correcting the description of the locus in quo, so that the place where the new piling complained of is being driven should be located as indicated on the above diagram. The complainant further amended its bill by setting out the provisions of an act of the legislature of this state entitled "An act to enable cities in this state located on or near the ocean, and embracing within their limits and jurisdiction any beach or ocean front, to open and lay out a public park or place for public resort or recreation, on and along the beach or ocean front of said city, and to purchase or condemn lands, property and |