12 N.J. Eq. 299 | N.J. | 1857
In the year 1835, Cornelius Yan Yorst laid out a large tract of land, adjoining Jersey City, in the county of Hudson, into building lots. Streets were run thi’ough at convenient distances, and public squares laid out on a map designating the property. Among other streets, one called Grand street was designated on the map, and delineated as a street eighty feet wide. This map was filed in the county clerk’s office in the year 1847. These streets are now actually open. The larger portion of them have been paved, graded, curbed, and guttered, with reference to their width, as designated on the Yan Yorst map. Grand street has been opened and used of the width of eighty feet, and actually built upon on that line. It does not appear, however, by the bill, or in any other way in this suit, that any of the streets were actually opened or worked, or any buildings erected, or any lots sold by Cornelius Yan Yorst, previous to the month of April, in the year 1850. In that month, Cornelius Yan Yorst conveyed to the complainant four lots of land on Grand street. This tract of land is now within the boundaries of Jersey City, and the streets and sidewalks are under the municipal regulations of the city. In November, 1852, the complainant caused the street in front of his lots to be curbed and guttered with reference to the street, as eighty feet wide. About December, 1851, the defendants (the Common Council of Jersey City) caused Barron street, which intersects Grand street, to be paved, curbed, and guttered, and when they turned the curb at the intersection of these streets in front of the complainant’s lots, his lots being on the corner of the two streets, they ran it on a line, assuming Grand street to be eighty feet wide, and assessed the complainant’s lots to pay for the work; and the complainant did actually pay for it. Lately the defendants have passed an ordinance directing
The defendants have answered the bill, and upon their answer here moved a dissolution of the injunction. The answer does not materially vary the facts of the case, as the bill states them; but, in addition to those facts, the answer sets up, by way of defence and justification, that, in November, 1846, by virtue of certain proceedings in the Inferior Court of Common Pleas of the county of Hudson, under the act entitled, “An act concerning roads,” a part of Grand street, as it was laid out by Van Vorst, was so vacated and altered as to be made to conform to the width of sixty feet, instead of eighty feet, and that the defendants, by their ordinance, are regulating the street in conformity to this alteration so made by law.
If it is proper, on this motion, to give the defendants the benefit of this defence, and if the court and surveyors had jurisdiction over the matter in question — that is, if under the act entitled, “ An act concerning roads,” a part of Grand street could be narrowed from eighty feet to sixty feet wide — then this injunction must be dissolved.
As far as the defendants and the public are interested in this matter, judging from the case as it has been presented, and the circumstances connected with it, it would not be unsatisfactory to any party in interest or to the public if this court could, with a proper regard for the law, make this injunction perpetual, and thus establish Grand street as eighty feet in width. A glance at the map which is exhibited will show the alteration to be a great blemish to the beauty of the street. It makes the street of two widths. A part of it, and a smaller part of it, and not at either end, it makes sixty feet wide, while it leaves the street at both ends eighty feet wide.
To the motion for dissolution it is objected, that the
The general rule is, that where the answer admits the equity of the bill, but sets up new matter as a defence or in avoidance of the equity, the injunction will not be dissolved. Minturn v. Seymour, 4 J. C. Rep. 497; Allen v. Crocroft, Barnard’s Ch. Rep. 373; 3 Daniel’s Ch. Prac. 1896-7, notes 1, 2.
But this rule has its exceptions, and I think a very prominent one is the following: where the complainant, when he files his bill, has full knowledge of the matter of defence upon which the defendant relies, and it is the substantial matter in controversy between the parties, the complainant cannot, by purposely keeping that out of view in stating his ease, and in order to deprive the defendant of the benefit of a denial, subject his adversary to the application of the rule in question. And further, the rule has. lost very much of its application from the consideration of the change in the practice of the court upon the hearing of motions for dissolution of injunctions. It is one of the rules of this court, that on a motion to dissolve an injunction, the complainant is at liberty to read affidavits in reply to any new matter set up in the answer, and upon which the defendant in any manner relies for the success of his motion. It is true the court ought not to try the case as upon a final hearing on a motion of this kind; but if the defendant sets up new matter, which, if true, constitutes beyond doubt a good defence, the defendant should have the benefit of it, unless the complainant shows to the court that the facts upon which it is founded are controverted, or some reason why it should not avail the defendant on the motion. For instance, the defendant sets up a release of a character to avoid all the complainant’s equity. If there is no controversy about the release, except as to its legal operation,. there can be no good reason why the court should
If, then, this is new matter, such as the general rule contemplates, I do not think the rule should be applied in this case. But I do not think the defence can be justly regarded in the light of new matter, such as it was ever contemplated that the rule, as laid down, should embrace. The bill charges the defendants with unlawfully exercising their municipal authority in regulating Grand street. The defendants admit they are regulating the street, and they set up and show their legal authority for doing it.
The question remains — is their defence a good one ? Had the surveyors legal authority, under the act concerning roads, to alter the width of the street ? If they had no such right, this court may interfere by injunction, and protect a party who is about to be injured against any act under their proceedings.
It is insisted that there is no authority given by the act to alter the width of a public road or street, and that when the act speaks of vacating and altering a public road, it means to shut up the road in toto from either extremity, or from one point in the line of the road to another point in it, or to vary the course of the road.
The second section of the act declares, that when ten
This language is, I think, broad enough to confer the power either to widen or narrow a public road, provided the road shall not be more than four, nor less than two rods wide, as is provided by the first section of the act. And I can see no reason to doubt, from the language used, or in looking at all the various provisions of the road act, but that such an alteration of a public road was in the mind of the law maker at the time the law was made. I believe that this construction has always been given to the road act. I know the authority has frequently been exercised, and without its propriety being questioned. Certainly no good reason can be given why such a power should hot have been conferred. The propriety and necessity of such power being lodged somewhere is manifest, and the proper tribunal is that to which is confided the power, in the language of the act, to lay out, vacate, or alter “thepublic roads of the state.”
It.is also contended, on behalf of the complainant, that this street comes within the' exclusion of the thirty-fourth section of the act,'and that the court and surveyors had no jurisdiction because this was a street in a town.
This section declares “ that nothing in this act contained shall be construed to extend to narrowing, widening, or altering any street in any of the cities, towns, or villages in this state, or to pulling down or removing any dwelling house, market house, or other public building heretofore constructed, and which may encroach on any highway.”
In giving a construction to this section of the act, some difficulty may occur in defining what the act means by a town and village. The word town is not here used as synonymous with township. The whole state is divided into counties, and the counties subdivided into townships, so that if we construe town to mean the township, the whole act would be defeated. It was obviously the intention of the legislature to protect the established streets in the settled towns and villages of the state from the operation of the act.
Certainly no one can contend for a more liberal definition of the term town than that of a collection of two or more inhabited dwelling houses. The mere fact of fifty or a hundred acres of land being mapped out into streets and building lots cannot make a town. Although the complainant’s counsel argued his case upon the assumption that this was a town, such a case is not made out by his pleadings. lie does not allege that at the time the street was altered there was any town. It does not appear, by the case, that there was then a single dwelling erected, or an individual living upon the premises. If the complainant was entitled to the benefit of this section of the act, he should have framed his bill accordingly. He knew the ground upon which the defendants justified the action of which he complained, and should have shown, by his bill, that the public act under which the defendants set up their right and authority is not applicable to the case.
The injunction must be dissolved with costs.
The opinion of the court was delivered by
The case turns upon the question, whether, at the point in controversy, the legal width of
The whole question resolves itself in an inquiry touching the validity of the action of the surveyors. Had the surveyors authority, under the laws of this state, to alter the width of the street ?
I concur entirely in the view of the Chancellor upon both of the points discussed and decided in his opinion, viz. (1) that the road act confers upon the surveyors the power either to widen or narrow a public road; (2) that upon the facts disclosed in the bill, the road was not within a town or village, and did not, therefore, fall within the prohibition of the thirty-fourth section of the act.
But another and more serious difficulty is urged upon the attention of this court, which does not seem to have been presented to the Chancellor, viz. that the road in question had never been laid out, and was not a public
In the year 1835, Cornelius Van Vorst, being the owner of a tract of land in the then township of Bergen, caused a map of it to be made, and the land laid out into public streets, docks, and lots, including, among others, the street in question. In 1847, he caused the said map to be filed in the clerk’s office of the county of Hudson. In the year 1846, the street in question was altered by the surveyors. The bill avers that this map was considered by Van Vorst as a dedication of the streets therein delineated to public use, and that it has been so regarded by the public generally, and that the greater part of Grand street has been opened and used by the public to the width of eighty feet. The answer states, that at the time of the making of the said map, and for many years subsequently, the lands therein described, including the squares and public streets SO' laid out, continued to be occupied by Van Vorst and others for farming and gardening purposes; that the streets were from time to time partially opened, and that for about ten years after the making of the map, the property included in the farm remained enclosed as a farm, except a very few parts of streets that were opened as aforesaid. It does not appear affirmatively, either from the bill or answer, that the street in question had been opened or used by the public as a street prior to the time of its alteration by the surveyors of the highways. If the street had been merely laid out on paper as an act of dedication, and had never been opened or used by the public, it will not be contended that the road was laid out within the meaning of the act. But admitting that the road had been opened and used by the public, was it accepted by the township, or in any way ratified as a public highway ? It is not insisted that, to constitute a laid out road within the meaning of the act, it must have been laid out according to
In Underwood v. Stuyvesant, 19 Johns. R. 186, Platt, J., delivering the opinion of the court, said — “ The original survey and map show that Petrus Stuyvesant formed a plan for laying out streets over his land in 1796, but we must intend that every person knew that those streets could not be established as public streets of the city, unless they were sanctioned by the corporation or other public agents having such powers. The plan was considered as a proposition, which the corporation would undoubtedly adopt and sanction as the city gradually extended.’’ It is true that, by an act of the legislature, no streets in the city of New York laid out by individuals could be established as public streets until they were ap
Nor can it be urged that the acceptance by the public, or the existence of a highway, will be presumed from the action of the court in the appointment of surveyors. The question is, whether the township in which the road lies had accepted it as a public highway; and it is clear that there could have been by law no such acceptance at the time the surveyors were appointed. No highway laid out in this state since the act of 1799 (Pat. 387) can be more than four rods wide. Now, to bring this road within the control of the surveyors of the highways, it must be deemed a laid out road within the meaning of the act. But this road, until the surveyors narrowed it, was more than four rods wide. Such a road could neither be laid out by the surveyors, nor could it be accepted by the township as a public highway. It exceeded the limits prescribed by law. I am of opinion, therefore, that the pro
The decree of the Chancellor should be reversed, and the injunction continued without costs.
I have with some reluctance expressed an opinion upon the merits of the ease, and with much difficulty assented to the conclusion that there is in this bill any ground of equitable relief. It is a bill to restrain a municipal corporation, in the exercise of its powers, from regulating a street and setting the curbstones on a proposed line. I find in it no recognised ground of equitable relief. There is no averment of irreparable injury, and the case made by the bill shows that, in the nature of things, the injury cannot be irreparable. There is no charge of fraud —nothing, in short, but the fact, that the city is not setting- the curbstones on the true line, by which the complainant will be put to expense, and his property, as he alleges, be of less value. And the point upon which the whole case turns is a mere question of law. I do not see why, upon the broad frame of this bill, every act , of a municipal corporation by which the property of a citizen is affected, whether it be the opening, paving, or grading of streets, the regulation of buildings, the removal of nuisances, or the assessment of taxes, may not be the subject of injunction, and the legal light be drawn in question in a court of equity. The courts of New York appear to have denied the jurisdiction of equity in a much stronger case. And the fact, that in this case the city has been enjoined for five years against proceeding
For affirmance — None.
For reversal — Chibe Justice, Judges Abbowsmith, Haines, Potts, Valentine, Cobnelison, Swain, Bisley, Vbedenbubgh, Ogden, Ryerson, Wood.