71 N.J. Eq. 109 | New York Court of Chancery | 1906
The complainants are the lessees and the owners of a summer hotel at Avon-by-the-Sea, and the object of the bill is to restrain the defendant, a water company, from cutting off the water-supply to- the hotel. Defendant claims the right to cut off the water because of the failure of a previous owner of the property (the grantor of the owners named in the bill) to pay the arrears
The plain issue in the whole case, therefore, so far as the owners are concerned, is whether the defendant has the right to turn oil the water from the premises because of the failure of a
Defendant insists that a court of equity has no jurisdiction, and that the proper and only remedy is by mandamus. No decision granting' a mandamus has, however, been cited, and this court has in several cases exercised the jurisdiction. Dayton v. Quigley, 29 N. J. Eq. (2 Stew.) 77 (Chancellor Runyon, 1875); Coe v. Railway Company, 30 N. J. Eq. (3 Stew.) 440 (1879). Tn neither of these cases does the question of the exercise, of equitable jurisdiction appear to have been specially raised or considered, but in a later case—Johnston v. Belmar, 58 N. J. Eq. (13 Dick.) 354 (1899)—the point was considered and decided, and 1 concluded that a right of this character involved the reasonable and comfortable enjoyment of a home or residence for the owner and his tenants, and that the only effective method of protecting complainant’s right in that case was by-injunction. Tn Johnson v. Atlantic City Water Co., 65 N. J. Eq. (20 Dick.) 129 (1903), Vice-Chancellor Eeecl, in a case heard on demurrer to a bill, held that equitable relief by way of injunction should not be extended to require the furnishing of gas by a gas company, because this could be compelled by manda-, mus, if the company were under a public duty to furnish it. This related, however, to the relief upon final decree, and it was expressly stated in his opinion that no facts were disclosed in the bill which made the relief by mandamus inadequate. Inasmuch as the previous cases exercising the jurisdiction to require a supply of water were not cited or referred to, it must be as
Cutting oil the supply of water for domestic purposes is damage of that grievous nature which falls within the principle of the decisions of the court of chancery as to irreparable damage. Hayward v. East London Water Works Co., L. R. 28 Ch. Div. 138; 54 L. J. Ch. 523, 527 (Justice Chitiy, 1885). And before the Judicature acts, it was tire constant practice of the chancery court, in England, to intervene by injunction in proper cases for the protection of the plaintiff, pending the trial of the legal right and until that right could be determined at law. Hayward v. East London Water Works Co., L. R. 28 Ch. Div. 138; 54 L. J. Ch. 523, 527 (Justice Chitty, 1885). Ordinarily, this temporary protection is adequate for the enforcement of complainant’s rights, but where the remedy at law is inadequate it may be necessary, for the full protection of all rights, that tire court of chancery settle the disputed question, either of law or fact, as incident to such protection. In Hart v. Leonard, 42 N. J. Eq. (15 Stew.) 416 (Court of Errors and Appeals, 1886), it was said that the protection of one’s dwelling-house from wrongs which render its occupancy uncomfortable has always been recognized as an occasion for equitable jurisdiction relating to title to lands, and the cases cited (at p. 420) show that this protection is either temporary or final, as the circumstances of the case seem to require. In the present case relief by mandamus would have been ineffective, as tire original complainants, the lessees, would not have been able, in the regular course of procedure, to obtain an adjudication on their right to relief until after the expiration of their lease. It is a case, therefore, where, for the further protection of both parties, the question of right, as incidental to tire question of necessary temporary protection, should be disposed of on final hearing, and with this necessity in view the bond above referred to was required to be conditioned for the payment of the arrears, if the bill should be dismissed. This course was taken in McEntee v. Kingston Water Co., 165 N. Y. 27, 32 (1900), where the amount of the bill for arrears was fairly disputed, and an injunction was granted against cutting off the supply, pending final hearing as
On the merits of the case my opinion is, that in the absence of any statute expressly authorizing it, or making the arrearages a lien on-the lands, the water company has no right to cut off the supply to complainants’ premises unless and until the arrears due from a former owner are paid. Many charters- or statutes providing for a water-supply by municipalities give this right expressly or create the lien, and in these cases subsequent purchasers acquire the land subject to the burden or penalty, and in the absence of circumstances creating special equities the legal right to enforce the penalty or to collect the debt from the land charged will not be interfered with.
The basis on which the right is rested in the present case is the right to make reasonable rules and regulations, under which authority two rules or regulations applicable to the case are claimed to have been adopted by the company. One is rule 16, that if water rents remain unpaid at the expiration of ten days from the time they are due the water may be stopped off the premises; and the other, rule 11, that where the water has been turned off for non-payjnent of water rent, it shall not be turned on again until the expense of turning off and on again of the water, together with the rent, are paid. The formal adoption of these rules and regulations by the company has not
These regulations of a company are not matters of public record, but are private transactions, ascertainable ultimately only from the company’s records or books, which are also the source of information as to the amount of arrearages due or claimed to be due. As liens on the property of the consumer, the arrearages clearly have no standing in the purchaser’s hands, nor should the transfers or contracts for transfer of real estate be embarrassed by the necessity of an inquiry as to liens, except such as are required by the statutes creating liens. And if the arrearages-are not liens, and the property may, under the transfer acts, be conveyed without their burden, it is not reasonable, in my opinion, that the subsequent beneficial use of the property should be impaired in the purchaser’s hands by conditions or penalties which require the performance of obligations resting on the former owner. The enforcement of such conditions or penalties against the purchaser amount substantially and practically to making the property, or its convenient use, subject to liens for the prior owner’s debt, and in the absence of statutory authority the regulation or condition must be held to be unreasonable. The defendant will therefore be enjoined from'cutting off the 'water-supply by reason of the non-payment of these arrears.