Jarman v. Freeman
80 N.J. Eq. 81
N.J. Ct. of Ch.
1912
Check Treatment
Leaming, V. C.

The facts of this case, as they appeared at the return of the order to show cause for a preliminary injunction, are set forth in 78 N. J. Eq. (8 Buch.) 464. A preliminary injunction was denied because it was then thought that complainant’s conduct had induced defendant to erect his’ warehouse at the ‍​​​​​​​​​​‌​‌​​‌​‌‌​‌‌​‌​​‌​‌‌‌‌‌‌‌‌‌‌​​‌​‌‌​‌‌‌‍end of a certain alley in the belief that he would be permitted by complainant to use the alley, which use the bill sought to restrain. But *82for that aspect of the ease a preliminary injunction would have been, issued at that time.

At final hearing it has been established as'a fact that defendant erected his warehouse with full knowledge that complainant- ‍​​​​​​​​​​‌​‌​​‌​‌‌​‌‌​‌​​‌​‌‌‌‌‌‌‌‌‌‌​​‌​‌‌​‌‌‌‍would contest any effort upon defendant’s part to use the alley for the purpose of hauling goods to and from that building.

A further examination of the views expressed by me at thе preliminary hearing touching the rights of the parties, in the absence of the equitable bar referred to, confirms the views then expressed. My conclusion then was thаt the owner of the servient tenement could not, against the owner of the dominant tenement, extend the use of the way to lands other than those for which the way was established hy, the terms of the grant, when such added use should be operative to intеrfere with the full enjoyment of the easement in behalf of the dominant tenement or to increase the burden of repair which accompanied the eаsement.

It is now manifest that the continued use of the alley by defendant for the purрose of hauling goods to and from his warehouse will not only interfere with the full enjoyment by complainant of the easement as contemplated by the grant, but will alsо necessarily increase his burden of- repair. The grant to complainant vеsts in him the right to use the alley as a way for the benefit-of his adjacent land at any time;' this right is in common with, and is to be exercised in connectipn with, a similar right of ‍​​​​​​​​​​‌​‌​​‌​‌‌​‌‌​‌​​‌​‌‌‌‌‌‌‌‌‌‌​​‌​‌‌​‌‌‌‍use of chе alley by the owner of the fee for the benefit of his adjacent land. It follows that the right of use of the alley thus vested 'in complainant is only restricted by the similar right of the owner of the-fee, and any extension of the use of the alley hy the owner оf the fee for the benefit of other lands is necessarily operative as a restriction of complainant’s privileges coextensive with the magnitude of thе extension, and the burden of repair is in like manner increased by the extended usе.

Complainant’s legal title to the easement is not denied, and the nature or еxtent of the rights incident to such an easement is not in substantial dispute. The answer assеrts as a defence acquiescence on the part of complаinant and avers that the use *83' of the alley by defendant will not interfere with its use by comрlainant or add to the burden'of its maintenance. The evidence offered tо sustain- the defence of acquiescence fails to disclose any aсquiescence in the use of the alley for any such purposes as the samе is now being used by defendant. The claim that defendant’s use of the alley will not disturb comрlainant’s use or add to the burden of maintenance also fails. It is clearly unnecessary for the evidence to disclose any specific instance in which defendant has excluded ‍​​​​​​​​​​‌​‌​​‌​‌‌​‌‌​‌​​‌​‌‌‌‌‌‌‌‌‌‌​​‌​‌‌​‌‌‌‍complainant from the, use of the alley at a time whеn complainant has desired to use it. The evidence discloses that the use which defendant has been making of the alley, and whieh he proposes to cоntinue to make of it, is under claim, of right to use it in such manner and at such times as Ms convеnience and business needs shall occasion for the purpose of hauling goods to and from Ms warehouse. Such use is a continuous use and will in time ripen into a рrescriptive right. This class of invasions or threatened invasions of & clear legаl property right calls for the exercise of the preventive powers оf this court.

I will advise that an injunction issue restraining defendant from using the alley ‍​​​​​​​​​​‌​‌​​‌​‌‌​‌‌​‌​​‌​‌‌‌‌‌‌‌‌‌‌​​‌​‌‌​‌‌‌‍in question for the purpose of hauling goods to and from his warehouse.