197 A. 47 | N.J. | 1938
The appeal is from a judgment in favor of the plaintiff entered pursuant to the order of the Circuit Court striking the answer of the defendant now appellant. The action was brought as in case for the disturbance of an easement. 1 Chit. Pl. 162, 163;Osborne v. Butcher,
The court below, in reliance upon the case of Ehren RealtyCo. v. Magna Charta Building and Loan Association,
Appellant points to section 49 of the Tax act in question (4Comp. Stat., p. 5129), to the effect that the lien for unpaid taxes is paramount to all prior or subsequent alienations and descents of the land or encumbrances thereon, except subsequent taxes. But as was pointed out in Ehren Realty Co. v. MagnaCharta Building and Loan Association, supra, the assessor no doubt included the value of the easement when assessing the dominant tenement, and conversely in assessing the servient tenement omitted the value, and hence the value of the servient tenement was valued subject to the easement. In no other way could true value be determined, and in the absence of more explicit language in the act it is not to be assumed that the legislature intended that by a sale of the servient tenement an easement of record attached to the dominant tenement should be wiped off by a sale of the servient tenement. *519
The judgment under review will, therefore, be affirmed, with costs.
For affirmance — THE CHANCELLOR, CHIEF JUSTICE, PARKER, LLOYD, CASE, BODINE, DONGES, HEHER, PERSKIE, HETFIELD, DEAR, WELLS, WOLFSKEIL, RAFFERTY, WALKER, JJ. 15.
For reversal — None.