
    FRANK WEILAND, PLAINTIFF-APPELLANT, v. JAMES P. TURKELSON AND LILLIAN E. TURKELSON, HIS WIFE, DEFENDANTS-RESPONDENTS.
    Superior Court of New Jersey Appellate Division
    Argued October 31, 1955
    Decided November 9, 1955.
    
      On appeal from a judgment of the Superior Court, Chancery Division, where Judge Sidney Goldmann filed the following opinion:
    “Plaintiff and defendants are the respective owners of 629 and 625 White Horse Pike, Oaklyn, Haddon Township, N. J. Plaintiff seeks an injunction restraining defendants from closing or obstructing an alleged 20' alley or driveway running along the rear of their premises, and a judgment establishing an easement in the strip for the use and benefit of plaintiff and the adjacent property owners at 631-633-635-637 White Horse Pike.
    “Defendants’ property (No. 625) is at the corner of White Horse Pike and Collingswood Avenue; plaintiff’s (No. 629) is immediately to the southeast. Nos. 625 to 639 White Horse Pike run from Collingswood Avenue to Greenwood Avenue; all have a 125' depth and consist of first-floor stores with living quarters above. The 20' strip which plaintiff claims is a driveway runs from Collingswood Avenue across the rear of these properties as far as No. 639, but does not extend through to Greenwood Avenue.
    “Late in 1943 Arthur’s Storage, Inc. purchased No. 629 White Horse Pike; it conveyed to 629, Inc. in 1945, and later that year, on August 17, 1945, that corporation conveyed to plaintiff. The corner property at No. 625 was owned by Penn Mutual Life Ins. Co. which in 1941 conveyed to Harry J. Hunter who, on June 11, 1947, conveyed to defendants. Plaintiff’s deed refers to a '20' wide private alley running parallel with White Horse Pike for the use of premises numbers 629, 631, 633, 635 and 637 White Horse Pike, only.’ Defendants’ deed does not refer to the alley; however, the survey made at the time of their purchase shows, as to the 20' strip, ‘This Area Used as Driveway by Adjoiners to the Southeast.’
    “On April 12, 1954 defendants’ present attorneys wrote plaintiff calling attention to the improper use of the 20' rear strip as a driveway and giving notice that such use would be prohibited and considered a trespass on and after April 26. Plaintiff at once instituted this action, claiming a prescriptive right to use the strip as an alley or driveway by reason of 20 years’ continuous, open and notorious user by the owners of Nos. 629-631-633-635-637 White Horse Pike, their predecessors in title, invitees, etc., without interruption or protest. An order to show cause with ad interim restraint against closing or obstructing the alley issued on the basis of the complaint and annexed affidavits. On the return date the restraint was continued to final hearing.
    “Defendants’ answer denies and disputes the right of plaintiff or anyone to use the rear of their property as a means of ingress or egress from Collingswood Avenue. By way of counterclaim they claim plaintiff is encroaching on their property in the following respects: (1) his building walls extend onto defendants’ lands by .35' in front and .62' in back; (2) his windows also encroach; (3) the rain-pipe in the rear of his property is wrongfully connected to defendants’ underground drain; (4) the capstone atop his wall extends over their property; (5) his television antenna likewise extends over their property. Defendants seek a mandatory injunction requiring plaintiff to remove these offending features. Plaintiff’s answer denies the encroachments and, by way of separate defense, claims they have existed for more than 20 years.
    “Defendants next moved for summary judgment. Affidavits and counter-affidavits were filed. The court then permitted plaintiff to amend his complaint by setting up a second count based on the theory of an easement by estoppel, discussed below. On September 17, 1954 the court granted the pending motion for summary judgment, with prejudice, but as to the first count only (prescriptive right), permitting plaintiff to proceed on the second.
    “Shortly after defendants again moved for summary judgment; it was denied after the filing of an opinion in which, oddly enough, the court speaks of plaintiff seeking to establish a right-of-way over defendants’ lands on the theory of either prescription (a ground already disposed of) or estoppel. However, the case was tried and briefed on the latter theory only, and properly so, for neither the pleadings nor the proofs are of a quality that would establish the 20 years’ continuous, open and notorious user necessary to raise up a right-of-way by prescription.
    “The factual background for the claimed easement by estoppel are these:
    “In 1943 Harry J. Hunter owned the corner property, 625 White Horse Pike, and Arthur’s Storage, Inc., a used furniture and moving concern, owned No. 629. The company decided to build a one-story cinder block addition at the rear of the store. Work began in 1943, was discontinued after a week, and completed in March 1944, at a cost of $1,600 or $1,700. The structure opened out on the 20' strip in question, an overhead garage-type door serving as the entrance. Eurniture had formerly been carried in through the front of the store; thereafter the new structure was used to store furniture and household goods, and Eobert L. Arthur periodically parked his car in the rear. There is testimony as to Arthur’s trucks using the rear strip. Arthur did not ask Hunter’s permission to use the strip, nor did he talk to him about his plans to build the addition; he testified that Hunter never objected to the construction or to its use thereafter. It is contended that the intended use and purpose of the addition must have been obvious to Hunter from its construction. Hunter admits he saw the building going up and knew that Arthur’s trucks used the rear to drop things off and parked there. There is evideuce of the use of the rear strip by Arthur’s Storage, Inc. and plaintiff during Hunter’s occupancy (up to 1947) and defendants’ thereafter.
    “Plaintiff conducts a small bicycle, toy and hobby shop at Ho. 629. He uses the cinder block addition for storage purposes. Deliveries can readily be made, and have been made, through the front of his store. Use of the rear strip is a convenience, not a necessity.
    “This litigation naturally reflects the opposing claims of the parties, neighboring owners at Hos. 631 to 637 White Horse Pike have shown no interest in the action — in fact, affidavits in support of the motion for summary judgment show that the owners of Hos. 635 and 637 do not use the alleged driveway and have no objection to its closing by defendants; Ho. 631 has been vacant for long periods. In any event, plaintiff can only sue in his own right; no neighbor has joined him in his quest for an injunction.
    “Plaintiff claims that by reason of Hunter’s permitting the construction of the addition in the rear of Ho. 629 in 1943 without interposing any objection thereto, defendants, as Hunter’s immediate successor in title, are now estopped to deny plaintiff the right to use the rear 20' of their property as a means of ingress and egress to and from his property by way of Oollingswood Avenue. It is not alleged or contended that at the time Arthur’s built the rear building there existed a right-of-way by grant or easement in plaintiff’s predecessor in title to use the rear 20' of defendants’ property as an alley or driveway. Rather, plaintiff’s contention is that Hunter had a duty to speak at a time when Arthur’s had no legal right to use the 20' strip.
     “The facts here are quite analogous to those in Sanders v. Reid, 131 N. J. Eq. 407 (Ch. 1942). We consider the reasoning and principles of that ease dispositive of the issue before us. In Sanders, one Collins, complainant’s predecessor in title, and defendant used a strip of land running on each side of their common boundary as a driveway for the delivery of coal and wood to the cellar windows in the side and near the rear of their respective homos. Neither party questioned that use. In 1923 Collins built a garage in back of his dwelling and thereafter extended the use of the driveway to reach the garage. There was no proof that he asked permission of defendant to locate the garage where he did, nor that he asked or was given permission to drive over the right-of-way to the garage. Nor was there any evidence to show that he used the strip over which his automobile passed under claim of adverse right. Apparently he simply used it without anything being said about it, both neighbors being entirely friendly. When complainant bought the property he saw the garage and observed that part of the disputed driveway was over defendant’s adjoining property. lie did not testify to any investigation or inquiry as to the nature of the right of user, but simply that he used the right-of-way from the date of purchase. He tore down the old garage in 1926 and built a double garage on about the same location. He continued using the right-of-way until stopped by defendant in 1940 (she had made no objection until then), when she placed four posts along her property line. There, as here, the asserted estoppel was that defendant in 1926 saw complainant go to the expense of erecting a new garage but stood silently by and made no complaint; further, she had continued in her silence from 1926 to December 1940 while he used the driveway. After finding there was no way by necessity — and such is the case here — and noting there was no testimony that defendant expressly consented to or dissented from the erection of the new garage, the court said:
    ‘It lias been held that, standing alone, mere passive consent to the use of a right of way does not ripen into a prescriptive right if the user covers a period of less than 20 years. * * *
    The above rule is subject to the operation of the doctrine of equitable estoppel, and the principle underlying such an estoppel is the maxim “one who is silent when he ought to speak will not be heard to speak when he ought to be silent,” and “to give rise to an estoppel by silence or inaction, there must be * * * an obligation or duty” to speak. 19 Amer. Jur., section 55, pages 663 and 664 and at bottom of page 665:
    
       “Likewise, there is no obligation to disclose matters of which the other party has actual or constructive knowledge or as to which the information or means of acquiring information of the two parties is equal; In general, a person is required to speak only when common honesty and fair dealing demand that he do so, and in order that a party may be estopped by silence, there must be on his part an intent to mislead, or at least a willingness that others should be deceived, together with knowledge or reason to suppose that someone is relying on such silence or inaction and in consequence thereof is acting or is about to act as he would not act otherwise.”
    It must be remembered that this is not a case of a defendant standing by and seeing complainant expend money in the erection of an improvement on defendant’s land and thereby enriching herself by the value of the improvement. The most that is charged by complainant is that defendant stood by and allowed him to make expenditures on his own land. Nor is this a ease where defendant knew of complainant’s intended purchase of his property in reliance on the existence of an apparent right of way which he saw being used. There is no evidence of defendant’s having known of the intended purchase by complainant.
    I fail to see any duty or obligation on the'part of Mrs. Reid to have gone to the complainant when she saw him demolish the old garage and start the erection of the new one and advise him that he had no legal right to the use of the driveway. There is no evidence in the case that she knew of her legal right to close the driveway or that after 20 years user she might be barred from so doing. The defendant had no complaint with the manner in which Collins had used the driveway and was content at the time complainant rebuilt that he should continue to use it, and while she had complained as to its user by tenants of complainant, she did not enforce, nor was she compelled to enforce her rights until the expiration of the 20 years, and this she did in 1940, and then only when a threatened further user of the driveway came to her knowledge.’ (131 N. J. Eq., at pages 411-413.)
    “Plaintiff relies on Sumner v. Seaton, 47 N. J. Eq. 103 (Ch. 1890), and similar cases to support his position. They have no application for they represent situations where the right of estoppel should and does arise; they are cases where, as the court in Sanders v. Reid, 131 N. J. Eq. 407, 412, said, a defendant stands by and sees plaintiff spend money in erecting an improvement on defendant’s land, thereby enriching himself. The Sumner case held (47 N. J. Eq. 103, at page 112), that before the doctrine of estoppel is applicable three factors must appear: (1) the person ex
      pending the money must honestly suppose himself to be the owner of the land; (2) the real owner, who encourages the expenditure by his silence, must know the land belongs to him and not to the other; and (3) that the one making the improvement is acting on an erroneous belief as to ownership. These conditions are not present here.
    “Both parties cite Jarman v. Freeman, 78 N. J. Eq. 464 (Ch. 1911). It provides no real support to plaintiff. In that case defendant owned certain lands on New York Avenue. His chain of title contained a grant of the right to use a 10' alley for the benefit of land on the west side thereof. Thereafter defendant bought lands adjoining the alley but which were not specifically referred to in the grant. He subsequently built a warehouse on these additional lands. The only access to the warehouse was through the alley. Plaintiff knew of the construction of the warehouse and that defendant had a right, by grant, to use the alley on part of the lands he owned. Plaintiff not only remained silent while the warehouse was being built; he actually participated in its construction. The court held he was es-topped to deny defendant’s right to use the alley in connection with his warehouse. The case is clearly distinguishable.
    “It should again be noted that, as in Sanders v. Reid, above, the claimed right-of-way is not the only means of access to plaintiff’s store; he has in the past received, stored and delivered his wares — the largest item is a bicycle — through the front and can continue to do so. He does not, in fact, claim or establish a way by necessity. No matter how relatively convenient vehicular access through the rear of Ms premises may be, plaintiff may not in the factual situation developed by the testimony, obtain it at defendants’ expense. They are not estopped to deny the claimed right.
    “As to the counterclaim, the connecting drain leading from the cinder block addition on plaintiff’s land is less than 20 years old and must he discontinued as an encroachment. The television antenna must be relocated so that it will not extend over defendants’ property. Defendants are not entitled to relief at this late date against either the wall of plaintiff’s main building or its windows. This building was erected more than 20 years ago. The wall of the rear addition extends more than half a foot over on defendants’ lands. No easement by prescription has arisen through lapse of time, but there is one by estoppel since the former owner, Hunter, stood by while the addition was constructed on his land.
    “Judgment will be entered for defendants on the complaint and in accordance with this opinion on their counterclaim.”
    Before Judges Clapp, Jayne and Feancis.
    
      Mr. Leon A. Wingate, Jr., argued the cause for plaintiff-appellant (Messrs. Bennett «& Wingate, attorneys).
    
      Mr. William G. Bischoff argued the cause for defendants-respondents (Messrs. Carroll, Taylor «& Bischoff, attorneys).
   Pee Ctjeiam.

The briefs on the appeal do not deal with the issues raised by the counterclaim. With respect to the remaining issues in the case, the judgment is affirmed for the reasons expressed in the opinion of Judge Goldmann in the Court below.

As Judge Goldmann indicated, when Mr. Hunter saw Arthur’s Storage, Inc. erect the cinder block addition, he was, in the particular circumstances presented here, under no duty to advise it that it did not have an easement in fee in the driveway over the land. The amount spent by Arthur’s Storage, Inc. for the erection of the addition was not a large sum of money; and besides Mr. Hunter and Mr. Arthur of the storage company, who were on “very friendly” terms, could both have reasonably supposed that the corporation would be permitted to continue to use the driveway for its own purposes for some time (and in fact it was permitted to do so as long as it occupied the premises) —whether as licensee or otherwise, we need not consider. But such indifference by Mr. Hunter, under the circumstances related by Judge Goldmann, did not justify the corporation in supposing that it had an easement in fee which it could convey to the plaintiff. Eor conduct to give rise to an estoppel, not only must it have induced a harmful change of position but, more than that, there must have been reasonable grounds to anticipate that it would produce that result. Bendler v. Bendler, 3 N. J. 161, 173 (1949).

Plaintiff cannot establish an interest in real property through an estoppel in pais, unless he clearly and convincingly makes out the several elements of the estoppel. Basak v. Damutz, 105 Conn. 378, 135 A. 453, 455 (Sup. Ct. Err. 1926); Coal Belt Electric R. Co. v. Peabody Coal Co., 230 Ill. 164, 82 N. E. 627, 629, 13 L. R. A., N. S., 1144 (Sup. Ct. 1907); Payne v. Payne, 241 Mich. 547, 217 N. W. 756, 758 (Sup. Ct. 1928); Coke on Littleton 352b.

What circumstances, in addition to those presented here, would suffice to establish an estoppel, we of course need not consider.

In connection with Jarman v. Freeman, 78 N. J. Eq. 464 (Ch. 1911) cited in Judge Goldmann’s opinion, reference might be made to the later opinion rendered in that case, 80 N. J. Eq. 81 (Ch. 1912), reversed 112 N. J. Eq. 308 (E. & A. 1912).  