108 N.J. Eq. 622 | N.J. Ct. of Ch. | 1931
The history of this litigation is written in
The reservation by the Weequahic Land Company, which had subdivided its tract into lots, of the right to maintain *623
a pole on the rear of the lot of the complainants, upon which to sustain telephone and electric light wires, intended to be made in all deeds but omitted from many, was not a neighborhood scheme, but a plan of the company to keep its streets free of poles by licensing public utilities to use the private right of way. The reservation lacks the necessary elements to constitute a neighborhood scheme as laid down by our court of errors and appeals in Scull v. Eilenberg,
The right of way intended to be established by the reservation of the right to erect a pole on the rear of each lot and to string wires thereon, did not appertain to lot ownership, albeit, that the use may have incidentally served to make the tract more attractive for the sale of lots. The easement was not appurtenant to lots conveyed by nor to any remaining in the company; nor was it, as a right of way, appurtenant to the franchise of the company, for it had not the franchise of a public utility (seeMitchell v. D'Olier,
The defendant pleads that he should not at this late day be held to his contract because since he purchased, the value of the property has seriously depreciated, due to the present depression. That might have an appeal were it not that the defendant is the one responsible for the delay. He set up the invalid defense of encumbrance of the easement that has given so much trouble and unduly prolonged the litigation, and it doesn't lie in him to protest that the complainants, rather than he, should suffer the consequences.
The motion to be relieved of complying with the decree of specific performance is denied.
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