77 N.J. Eq. 527 | N.J. | 1910
The opinion of the court was delivered by
A very full and accurate statement of the facts in this ease is contained in the opinion of the learned vice-chancellor in the court below, and it is unnecessary to repeat them here. It is enough for present purposes to say that the complainant, by her bill, seeks to restrain the defendant from interfering with an alleged easement of way in a strip of land owned by the defendant, and upon which the property of the complainant abuts. The proofs demonstrated that prior to the year 1889 such an easement existed in favor of the then owner of the complainant’s property. The defence interposed was that this easement had been abandoned by the complainant and her predecessors in title, or one of them, and had ceased to exist prior to the institution of the present suit. A consideration of the proofs led the learned vice-chancellor to the conclusion that this defence had been made out, and he thereupon advised a decree dismissing the complainant’s bill. From the decree entered upon this advice the complainant appeals, and the principal contention made on her behalf before us is that the evidence in the case does not justify the conclusion reached by the court below.
We consider that this matter is not properly before us. The question whether a right of way over the lands of one person exists in favor of another is a purely legal one, and, where the existence of such an easement is in dispute, the proper tribunal in which to settle it is a court of law. It was so declared by this court in the case of Hart v. Leonard, 42 N. J. Eq. (15 Stew.) 416, and again in Todd v. Stoats, 60 N. J. Eq. (15 Dick.) 512. It is true that special circumstances may sometimes exist -which
The decree, dismissing the bill will be reversed in order that the course indicated may be pursued.
For affirmance — None.
For reversal — The Chibe-Justice, Garrison,' Swayze, Trenohard, Parker, Bergen, Yoorhees, Minturn, Bogert, Vredenburgh, Yroom, Gray, Dill, Congdon — 14.