78 N.J. Eq. 464 | New York Court of Chancery | 1911
From the above statement of facts it will be observed that the deed from Kelly to complainant’s devisor was operative to create an easement of way and drainage appurtenant to the land conveyed. The terms of the grant sufficiently define the character, extent and purpose of the easement; these terms unmistakably disclose that it was intended as a private way for travel and 'drainage for the benefit of the land laterally adjacent to the alley, with the burden of maintenance equally imposed upon the owners of the lands on either side of the way. The grantor retained the fee of the land over which the way was to pass. The grantee, as owner of the dominant tenement, thus became entitled to the enjoyment of the easement for the benefit of his land, subject to an equal right of enjoyment in behalf of the adjacent land of the grantor. These rights of the grantee have passed to complainant by the devise of the dominant tenement to him.
Under the conditions stated, little doubt can be said to exist touching the respective rights of the owners and the privileges
In the present case, I think it reasonably manifest that the extension of the privilege of use of the way in question to the property now owned 'by defendant is operative to interfere with the full enjoyment by complainant of the easement which is appurtenant to his land; while the injury may be but slight, it, nevertheless, seems apparent that to extend the use of the way for the benefit of the land in question will tend to interfere with the full exercise by complainant of the rights vested in him under his grant, and will also increase his burden of repair. In this view it follows that the reservation in behalf of Kelly’s newly acquired land, contained in the deed from Kelly to the
But I think it here unnecessary to positively determine whether the use of the way by defendant will materially interfere with the full enjoyment by complainant of his easement, for the evidence now before this court discloses sufficient doubt to exist, touching complainant’s right to equitable relief, to necessitate the refusal of a preliminary writ.
It is a familiar equitable maxim that where a man has been silent when in conscience he ought to have spoken, he shall be debarred from speaking when conscience requires him to be silent. In Summer v. Seaton, 47 N. J. Eq. (2 Dick.) 103, 111, Vice-Chancellor Pitney, quoting from Chancellor Kent, applies this maxim as follows:
“There is no principle better established’ in this court, nor one founded on more solid foundations of equity and public utility, than that which declares that if one man, knowingly, though he does it passively, by looking on, suffers another to purchase ox expend money on land, under an erroneous opinion of title, without making known his claim, he shall not afterwards be permitted to exercise his legal right against such person. It would be an act of fraud and injustice, and his conscience is bound by this equitable estoppel.”
In the present case it is manifest that defendant erected his warehouse in the full belief that he would be privileged
Under such circumstances it was clearly his conscientious duty to apprise defendant of his objection to the use of the alley, and his failure to do so should be operative to deny to him the relief now sought from a court of conscience for the protection of the legal right, the invasion of which his passive acquiescence necessarily encouraged. This passive acquiescence upon the part of complainant in the expenditures so made by defendant, with special reference to the use of the alley, has undoubtedly been measurably instrumental in the' consummation of the present conditions, and in that view it is not in accordance with equitable principles to now extend to complainant the aid of this court in the enforcement against defendant of the legal rights here asserted. It is entirely immaterial that the expenditures were being made by defendant on his own land; the warehouse which defendant was erecting 'was being erected in a manner that made it apparent to anyone that its contemplated use was through the alley in question. Complainant remained silent when duty, candor and fairness required him to speak, and his silence appropriately and necessarily gave encouragement to defendant in the course he was pursuing; complainant not only remained silent but actively contributed to defendant’s expenditures by performing labor upon the building, at a time when the building was so far advanced in its construction that complainant could not fail to fully appreciate that the building was being constructed for the special purpose of utilizing the alley as a means, of access to New York avenue. The acquiescence of complainant in the use of the alley by defendant for several years prior to the time the warehouse was erected, also naturally tended to lead defendant to the belief, which he clearty entertained, that the alley could be used by him.
I will advise an order denying equitable relief.