39 N.J. Eq. 355 | New York Court of Chancery | 1885
The parties to this suit are the owners of adjoining lots of land in that part of Jersey City known as Greenville. The lots are-each of the dimensions of twenty-five feet front. The complainant, desiring to build an extension to the house on his lot, and wishing to build up to, or nearly up to, the line between his-lot and the defendant’s, employed a competent surveyor to locate-the line. The surveyor located it accordingly, driving stakes to-show where it was. One of these was at the front. The complainant built the extension nearly up to the line. About a year-after it was finished, it was discovered that it occupied a small piece, four or five inches wide, by fifteen feet deep, of the defendant’s lot. The surveyor had made a mistake in fixing the line,, and had located it six and a half inches too far west, and to that extent on the defendant’s land. The defendant brought an action of ejectment in the Supreme Court to recover possession of that strip, and the bill in this cause was filed for, an injunction to restrain him from prosecuting that suit and for other-equitable relief. The fact that the complainant was very care
The complainant’s counsel insists that the principle of the-decision in McKelway v. Armour, 2 Stock. 115, is applicable to-this case. There, McKelway had by mistake built on Armour’slot instead of his own, which adjoined it. Armour supposed McKelway was building on his own property, and did not suspect that he.was, in fact, building on his. It was held thatMcKelway was entitled to relief, and that Armour must buy the improvements at a valuation to be fixed by this court, or convey his lot to McKelway at a valuation to be fixed iu like-manner, or upon receiving a conveyance of another adjoining lot-of the same size, and in fact, more valuable than his. In that case the improvements were a valuable dwelling-house, and. McKelway would, if the court had refused relief, have been-, subjected to a large loss.
Although in that case Armour saw McKelway building on? his land, he did not know or suspect that the building was being-erected on his land, but supposed it was being built on McKelway’s land. The decision seems to have been based on the-ground of mutual mistake. The court, in fact, compelled Armour, who was in nowise in the wrong, to sell his property toMcKelway at a price to be fixed by the court, or to exchange properties with McKelway, or to pay for the improvements-which McKelway had put on his, Armour’s, lot, although they had been so put on that lot, not only without Armour’s knowledge, but without any suspicion on his part that McKelway was-putting them on his, Armour’s, property. The principle of the-case is that where one by mistake puts improvements on another’s land, mistaking it for his own, equity will, in a proper case, compel the latter to sell and convey the land to the former, at a price-to be fixed by the court, unless he will consent to pay for the-improvements. , The exercise of such a judicial power, unless-based upon some actual or implied culpability on the part of the party subjected to it, is a violation of constitutional right. No-tribunal has the power to take private property for private use-The legislature itself cannot do it.
It is true the complainant’s wife testifies that a short time after the survey was made, she showed the stakes to the defendant, saying, “ See what a piece of your ground we take! ” But she says she did not suppose that the stake was over the true line, or that they were encroaching upon the defendant’s land. It is