Manning v. Port Reading Railroad, 54 N.J. Eq. 46

Manning v. Port Reading Railroad

54 N.J. Eq. 46 | New York Court of Chancery | 1895

The Chancellor.

Two questions present themselves — -first, whether the existence of the right of way claimed by the complainant is established by the pleadings, taking the answer as true; and second, whether the defendant can require the complainant to accept the substitute it offers for the complainant’s original crossing over the strip conveyed to it by Brewster.

*49First. We have, in the bill and answer, this posture of allegation : The complainant asserts an easement in the private way in himself and the defendant denies it. The complainant adds that in 1893 he sued at law in tort for damages because of the obstruction to the identical easement claimed and, upon issue raised by the defendant’s plea of not guilty, he recovered damages. The defendant admits this to be true.

To so recover the complainant had to show (1) the existence of a right to himself in the easement, and (2) the obstruction of the easement. Failing in either particular, the judgment must have been against him. I think that his recovery in that action against the virtual owner of the land establishes the existence of his right to the easement at the time when that suit was brought, and is prima facie evidence of the continuance thereof. Parker v. Standish, 3 Pick. 288.

blow, the answer avers that if the complainant ever had the easement he has lost it by non-user, the specification of which manner of loss impliedly excluding claim of loss in any other way. If the complainant had the easement in 1893, as his recovery establishes, his loss by non-user must have occurred since that time. , It is not alleged that circumstances indicative of an intention to abandon the easement accompanied the nonuser, so that a presumption of release arises, exist. The allegation is of mere cesser of use, which could not have continued more than two years. The easement cannot be thus easily lost. Godd. Easem. 466. So understanding the allegations of the answer, I think that the complainant’s right is in effect admitted.

Second. I am also satisfied that the defendant is without power to change the location of the complainant’s right of way and substitute another way for it. Jennison v. Walker, 11 Gray 423; Bannon v. Angier, 2 Allen 128; Smith v. Lee, 14 Gray 473; Chandler v. Jamaica Pond Aqueduct, 125 Mass. 550.

Third. In determining what relief the court should afford the complainant, it is considered that he stood by while the defendant, so far as appears, without knowledge of his right, erected its railway embankment and built its railroad thereon, permitting it to make expenditures which a timely assertion of his *50right might have enabled it to save, and, on the other hand, that his right is established, and unless this court shall interfere, it is apparent that repeated lawsuits must be resorted to in order to secure him from time to time compensation for the damages which he will continually suffer. Under the circumstances it will be equitable, I think, to allow the defendant six months within which to condemn the complainant’s right of way, and if within that time or within such further time as, upon its application, the court may think proper to allow, the right of way shall not be condemned, it will be decreed that the defendant shall remove the obstruction.