12 Barb. 553 | N.Y. Sup. Ct. | 1850
The plaintiffs are corporators under .the plank road act passed May 7,1847, and in the possession of a franchise secured to them by statute, which .they ask to have protected by a perpetual injunction against the defendant, to relieve themselves from a great evil and loss, and the necessity of incessant litigation with travelers. It is an appeal to the extraordinary power of the court, and the plaintiffs are bound to make, out a case showing a clear necessity for its exercise. The power of the court in such a case is undoubted, and has been often exercised to protect persons in the enjoyment of rights thus secured. (Croton Turnpike Co. v. Ryder, 1 John. Ch. 611. Ogden v. Gibbons, 4 Id. 150. Newburgh Turnpike Co. v. Miller, 5 Id. 101 to 110. Story’s Eq. § 927.) Courts interfere upon similar grounds, to prevent irreparable mischief, or to suppress multiplicity of suits and oppressive litigation. It is not denied by the defendant that his road is open and worked in such a manner that travelers may pass over it; nor that they do so daily, and thus avoid paying tolls to the plaintiffs, to their injury, although the extent of such injury is denied, upon belief. The-injury to the plaintiffs is therefore virtually conceded by the defendant in his
That every man must so use his own rights and property as to do no injury to those of his neighbor, is a familiar maxim. But this rule applies to the plaintiffs as well as the defendant. Had the plaintiffs in constructing their road, by excavations or embankments, or any other means, cut off the defendant’s communication between one portion of his property and another, so as to deprive him of its use and enjoyment without incurring great expense or being constantly subject to real and serious inconvenience, they could not complain of his opening such roads and avenues as were necessary to restore to himself the free and convenient use of his property as he had before used and enjoyed it. In such a case an application of this kind would be listened to with little favor. This is evidently the kind of case which the defendant has sought to make out in his answer, but I think he has entirely failed to do so.
It is impossible not to see that grading down so as to leave a bank between the track of the road and the defendant’s barn, of between two and three feet, and at his pasture of between three and four feet, are no such serious obstacles as to render it necessary for him to open a road the whole length of his lot, from his house to the cross road, and keep it open at both ends. Indeed it is not pretended that here were any obstacles which could not be removed so as to render the access to the barn or pasture perfectly easy and convenient, with much less expense and trouble than it required to open and work the defendant’s road. We can not shut our eyes to what is perfectly obvious in the nature of things. The language of the answer is careful and guarded. In regard to the barn it says, the bank renders it “ impracticable to pass from the road to the barn as formerly.” In regard to the pasture, that “ it was rendered impracticable without considerable expense and trouble, to pass the cattle from said plank road to the pasture.” In front of the house the bank is said to he considerable, “ thereby disturbing the communication with the road.” And that for these reasons the defendant removed the fence for the purpose of making a way for himself. Ho neces
^ And although the defendant denies that he has made it con- :, venient for travelers at the end next his house to gain access to his road, he does not deny that they do so without difficulty, and use his road to the damage of the plaintiffs. It is of no consequence whether the defendant intended the injury or not. That is not an essential inquiry, for m civil actions the law does not so much regard the intent of the actor as the loss or damage of f the party suffering. (Broom's Legal Max. 161. 5 John. Ch. 111.) Practically he has established and keeps open a shun-pike, as it is often familiarly termed, whether that was part of his design or not. It may be, as things stand, as alledged in the answer, that the defendants’ road affords the most convenient and practicable mode of carrying on his farming operations. But it is not alledged that those operations could not be carried on quite as conveniently, by suitable repairs or improvements at the house and pasture and barn. Nor is it pretended tnat there is any necessity ..for leaving the road open, and at all times accessible to travelers at the respective terminations north and south. The use of this road by the defendant, is not what is complained of, nor could it be justly objected to. It is the keeping of it open to enable travelers to pass the gate to the plaintiffs’ injury, and driving them to the necessity of burthensome and interminable litigation to maintain their rights, which lies at the foundation of their claim for this relief. The defendant has an unquestionable right to use and enjoy his property in any manner he chooses, so long as such use is not inconsistent with the public wreal, or docs not operate to deprive others of the rights secured to them by law. And he may abandon it entirely if he sees fit to do so ; but so long as he uses it, he must see that such use, or the particular mode of using, does not materially interfere with the rights of others. I have had serious doubts whether the plaintiffs, before asking for this relief, ought not to have shown or alledged, that they had restored the road to its former usefulness, to the defendant, by giving him the
It seems to me, that the exercise of the power invoked in this
Johnson, Justice.]
This decision was affirmed on appeal to the general term, in the seventh .judicial district, June term, 1851.