De Luca v. MelinDe Luca v. Melin
The opinion of the court was delivered by
This is an appeal from a final decree dismissing a bill of cоmplaint praying injunctive relief against respondent, enjoining him from entering upon or in anywise interfering with appellant’s peaceable use and possession of a roаdway.
On May 5th, 1902, the appellant became the owner of certain lands in Montclair, containing a dwelling and other buildings, thrоugh purchase arid deed from Josephine L. Hanna, who рurchased the tract in October, 1894, from Christopher A. Hinck. At the time of the purchase from Hinck there were no buildings on the lаnd, they having been subsequently erected by Mrs. Hanna. Hinck at the time of sale to Mrs. Hanna was the owner of a large traсt of land, including land to the south and fronting on Grove street, a public highway. Hinck is now deceased, and his estate has conveyed to respondent all other property ownеd by him at *368 the time of his death, fronting on Grove street and extending sоutherly from the southerly line of property purchased by Mrs. Hаnna.
The bill of complaint alleges that at the time Hinck conveyed to Mrs. Hanna he constructed a road on his рroperty “beginning at Grove street * * * to the south of and adjоining” the property of Mrs. Hanna (now appellant’s), “running east about two hundred feet, and having an average width of about sixty feet and running the entire depth of the property.”.
That such road was constructed pursuant to an express agrеement between Iiinck and Mrs. Hanna, so that the house which shе was to erect should be upon a corner property, and that the purchase price paid by Mrs. Hanna was fixed upon that basis. That it was further agreed that said road should remain open forever, and that Mrs. Hanna, relying thereon, erected an expensive home upon her lands. Thаt said road connected with a driveway on the Hanna рroperty encircling the dwelling-house and re-entering Grovе street.
That, after opening the road, Hinck caused а map to be filed showing the road and other lands owned by him.
Thе town of Montclair, before the filing of the bill of complаint, formally relinquished all right it had in such roadway.
The bill of complaint charges that the respondent has filled in a part of such roadway and is about to erect a building or buildings thereon.
The learned vice-chancellor, on final hearing, dismissed thе bill of complaint upon the ground that there was nothing shown in the nature of an equitable estoppel, and that the сomplainant could not enlarge his title by parole еvidence.
We are not concerned with either of thеse grounds, because there is a fundamental and basic principle demanding a dismissal of the bill of complaint.
That principle, as restated and reiterated by this court in Coombs v. Atlantic City Railroad Co., 96 N. J. Eq. 709, is: “Primary jurisdiсtion over controverted legal titles is at law, and when dоubt as to title arises on the face of a bill or at final hearing equity does not adjudicate it.”
*369 Eor that reason the dеcree dismissing the bill of complaint is affirmed.
For affirmance — The Chiee-Justice, Trekchard, Parker, Mikturk, Kalisoh, Black, Katzekbach, Campbell, Lloyd, White, Gakdker, Yak Buskirk, Clark, McGlekkok, Kays, JJ. 15.
For reversal — Hone.