61 N.J. Eq. 141 | New York Court of Chancery | 1901
Complainant, who is the owner of a farm in Randolph township, Morris county, containing about eight acres, files her bill to quiet title to the lands, against the defendant, who is the owner of a' tract of land adjoining the complainant’s lands. Complainant’s bill contains the allegations necessary to give jurisdiction under the • act to quiet title, viz., that she is in peaceable possession of the premises; that the defendant claims some interest in the lands, and that no suit of action is pending to test the validity of the defendant’s claim. Defendant’s answer admits the complainant’s possession of her lands, except so far as it is encumbered by defendant’s estate, claims title and interest to a part thereof, as subject to an easement of a water course over complainant’s lands, which conveys part of the waters of Cory brook, a natural water course, through complain
The sole question at issue is the existence of this easement in favor of the defendant over complainant’s lands, and complainant denies the existence of any easement to any extent whatever in defendant’s favor.
■ The case, therefore, is not one where the existence of an easement to some extent is already established at law or admitted by the complainant, and the bill is filed to have the extent of the easement finally declared and settled by a court of equity under its general equitable jurisdiction. It is, on the contrary, a •case where the entire question of the existence of the right to an •easement, which is a purely legal right, is brought for decision in the first instance to a court of equity. The act to quiet title confers upon the court of equity jurisdiction to settle a question ■of legal title, without a previous settlement of the title at law, ’.but only under the exceptional conditions specified in the act, which conditions are fixed for the purpose of requiring, as preliminary to the equitable jurisdiction, the existence of a ■state of facts, under which the question of the legal right claimed by the defendant cannot be brought by the complainant before the legal tribunals. These preliminary conditions are, first, that the complainant’s possession is peaceable, and second, that no action is pending to test the validity of the defendant’s title, and satisfactory proof of such peaceable possession must be made by the complainant before the court of equity can proceed to settle the question of legal title. Sheppard v. Nixon, 16 Stew. Eq. 627 (Errors and Appeals, 1887); Allaire v. Ketcham, 10 Dick. Ch. Rep. 169 (1896), and cases there cited (at p. 901).
By peaceable possession under this act is meant peaceable, as
In the present case the proofs show that defendant, or persons acting by his authority, have entered on the complainant’s premises for the purpose of cleaning and repairing the water course, without complainant’s consent and under claim of right, and that the defendant has also, within twenty years, claimed and exercised the right to control, to a certain extent, the flowage •of the water above complainant’s premises from the brook across an intervening owner and on to complainant’s lands. Defendant himself says that he has had men to repair the ditch all through complainant’s property, and that he has had the men. cleaning it out every spring since he moved there (about 1879). Wilson Bell, one of the defendant’s witnesses, swears that he did work all the way along the ditch for defendant for the past twenty-one years. Complainant herself says that she has seen several of the defendant’s people on the property and near her house fixing the ditch, as she supposed, but that it was not by her •consent 'or permission. Her husband, who has had charge of the place for her since her purchase, says also that persons had been on the property during his absence repairing the ditch, but without his consent or permission; that he noticed this a number of times since 1884 and up to the spring of 1900- On one •occasion (1883) he directed two men who were digging in the ■ditch, and whom he presumed were working for Bryant, to .leave his premises. On the 28th of March, 1900, this witness, for the purpose of lessening the flow of the water through the complainant’s property, put a gate or frame into the ditch at the upper end of her property, where the water enters her property and just inside of her fence line. The defendant entered the complainant’s propertj, took out the gate and threw it away, .and in a day or two commenced suit in a justice’s court against