90 N.J. Eq. 148 | New York Court of Chancery | 1919
The bill prays for a determination of the rights of the parties in certain private ways or roads. It is impossible to comprehend the exact situation without reference to a sketch annexed to this opinion, viz.:
By deed dated October 22d, 1881, George TV". Allen, who was at the time the owner of all of the property marked on the sketch as plots 1, 2, 3, 4, 5 and 6, conveyed to John P. Allen the property marked plot 1. The deed contained the following provision:
“The above described premises are conveyed expressly subject to a perpetual right of way over so much of the same as is included in the alley or driveway of twelve feet in width surrounding the said premises on all sides save the front on New England avenue, the boundary lines of which said premises as above set forth constitute the middle line of said alley or driveway, said alley or driveway to be common to all and every the owners and occupants of the premises lying adjacent to and abutting on said alley or driveway. And the party of the first part (Allen) hereby conveys to the party of the second part his heirs and assigns a perpetual right of way from and to said New England avenue through and over the said alley or driveway in common with the said' owners and occupants.”
Jolm P. Allen, on April 17th, 1883, conveyed the last-mentioned premises, referred to as plot 1, to Julia Booth Hay, subject to the same conditions. On June 30th, 1885, George W. Allen conveyed plots marked 3 and 4 on the sketch to Ophelia G. Riley; the deed containing the following clause:
*150 “The above described premises are conveyed expressly subject to a perpetual right of way over so much of the same as is included in the said carriage roads, the same being twelve feet in width surrounding the said premises on all sides save the front on New England avenue, the boundary line of which said premises as above set forth, except on New England avenue, constitute the middle lines of said carriage roads; said carriage road to be common to all and every the owners and occupants of the premises lying adjacent to and abutting on said carriage roads respectively, and the parties of the first part hereby grant and convey to the party of the second part, her heirs and assigns a perpetual right of way from and to said New England avenue through and over the said carriage roads in common with .said respective owners or occupants.”
Ophelia G. Riley, on April 10th, 1890, conveyed the property marked plot-4 to John Elliott Sergeant, who died, leaving his property to his widow, Caroline II. Sergeant, who, on March 26th, 1910, conveyed to complainant. This deed contains the following provision:
“It being intended hereby to convey a lot ninety feet in width of the southerly part of the premises which were conveyed to Ophelia G. Riley by George W. Allen and wife by deed dated June 30th, 1885, * * * together with the right of way mentioned in and granted by the aforesaid deed to Ophelia G. Riley.”
The ninety feet took the land to the middle of the way between plots 4 on one side and 5 and 6 on the other. By deed dated February 15th,- 1896, Ophelia G. Bilev conveyed to Julia Booth Hay the plot marked 3. The deed contains the following provision:
“The above described premises are conveyed expressly subject to a perpetual right of way, over so much of the same as is included in the said carriage roads, the same being twelve feet in width, on two sides of said premises, the boundary lines of which said premises as above set forth, except on New England avenue, constitute the middle lines of said carriage roads, said carriage roads to be common to 'all and every the owners and occupants' of the premises lying adjacent to and abutting on said carriage road respectively; and the party of the first part hereby grants and conveys to the said party of the second part, her heirs and assigns, a perpetual right of way from and to said New England avenue, through and over the said carriage roads in common with the said respective owners or occupants.”
By deed dated March 31stj 1884, George W. Allen conveyed to John S. Porter in trust the property marked plot 6. The deed contains the following provision:
*151 “And the said parties of the first part and second part hereto for themselves, their heirs, executors and assigns hereby covenant and agree that a carriage road of the width of ten feet and extending five feet on each side of the westerly boundary line of the lot hereby conveyed and of the width of twelve feet and extending six feet on each side of the northerly boundary line of said lot shall 'be kept open and used in common as a private carriage way for the owner or owners for the time being of the lot hereby conveyed and of the owner or owners of the lots of land adjoining on the westerly and northerly sides thereof, and this covenant shall run with the land and be a perpetual easement in favor of such respective owners.”
Title to this plot finally became vested in 1911 in complainant, Renwick, the deed by which he acquired title containing the following:
“Together with the right to use both of said carriage roads, one of which is ten feet in width and the other twelve feet in width, and both of which are established by covenants creating perpetual easements in common with the other owners of land abutting on the same and subject to the rights of such other owners to the common use of the whole of said roads, and also togther with the right, title and interest of the party of the first part in the northerly half of Springfield avenue to the middle thereof where it' bounds the lands described.”
By deed dated February 17th, 1886, Allen conveyed to-the New York Wall Paper Company the lands marked plot 2, together also with other lands. Title to this plot marked 2 finally, became vested, by deed from the New York Wall Paper Company in 1886, in Julia Booth Hay. It therefore appears that Julia Booth Hay owns plots 1, 2 and 3; complainant, Renwick, plots 4 and 6.
It is the contention of complainant that he and the abutting-property owners have the right to use the carriage way between plot 4 on one side and 5 and 6 on the other, and the carriage way extending from Springfield avenue to a point in the middle line of the carriage way between plot 4 on one side and plots 5 and 6 on the other, to the exclusion of defendant, Julia Booth Haj, and that defendant, Julia Booth Ha), has the right to irse the carriage way surrounding plot 1 and between plots 2 and 3 to the exclusion of complainant, and that the carriage way between plots 2 and 4 should he closed, the owner of plot 4, complainant, being entitled to possession of that por
It is well settled that a substantial legal dispute over a private right of way in land is not ordinarily cognizable in a court of equity and that the rights of parties in private ways both as to the existence of the right and its extent, must be settled at law before a court of equity can intervene. Hart v. Leonard, 42 N. J. Eq. 416; Todd v. Staats, 60 N. J. Eq. 507; Mason v. Ross, 77 N. J. Eq. 527; Imperial Realty Co. v. West Jersey and Seashore Railroad Co., 79 N. J. Eq. 168, all cases in the court of errors and appeals and all reversing this court. In Hart v. Leonard, Mr. Justice Dixon, writing the opinion for the court of errors and appeals; said: “Ho doubt many cases arise in which courts of equity may, by decree and injunction, protect and enforce legal rights in real estate. So.far as they are exemplified in our chancery practice, these cases can, I think, be classified under the following heads/’ and he then classifies nine distinct heads. I do not 'conceive that there may not be cases, cognizable in equity, which do not fall strictly within any one of'the nine classes mentioned by Mr. Justice Dixon. The reason given by Mr. Justice Dixon for the lack of jurisdiction in equity,
The point actually decided by the court of errors and appeals in Hart v. Leonard, supra, was that this court would not interfere by injunction to restrain a defendant from obstructing an alleged private way over land, prior to the legal right being settled at law, it appearing that there was no difficulty in having the legal light determined at law. Mr. Justice Dixon, then, after recognizing that there are many cases in which courts of .equity may, by decree and injunction, protect and enforce legal rights in real estate, classified such cases as “are exemplified in our chancery practice” under nine heads. This remark then follows : “Outside of these classes there is no jurisdiction in a court of equity over the invasion of mere private legal rights in lands. The appropriate remedy is by suit at law.” That case may be considered as authority for the proposition actually decided that this court cannot, where there appeal’s to be no difficulty in settling the legal right at law, proceed to enjoin a defendant from obstructing an alleged' private way over his lands, and that cases coming within the nine classes referred to by Mr. Justice Dixon, where the protection of private rights in lands are involved, are within the jurisdiction of the court. It cannot, as I conceive it, be considered as authority that there are
The want of 'a precedent will not prevent this court from entertáining jurisdiction. Earle v. American Sugar Refining Co., 74 N. J. Eq. 756 (at p. 761); Palmer v. Palmer, 95 Atl. Rep. 241 (at p. 243); Allen v. Distilling Co. of America, supra.
I think the bill also may be maintained under the provisions of the Chancery act of 1915. Section 7 of that act provides:
“Subject to rules, any person claiming a right cognizable in a court of equity, under a deed, will, or other written instrument, may apply for the determination of any question of construction thereof, in so far as the same effects such right, and for a declaration of the rights of the persons interested.”
This section of the-statute was considered by the chancellor in Re Ungaro, 88 N. J. Eq. 25. The chancellor drew attention to the fact that the statute provides that it should be liberally construed, and that what the legislature meant by “a right cognizable in a court of equity,” in his judgment, was a right over which, in and of itself, the court had jurisdiction and that it was intended that the jurisdiction should be exercisable where the right was present, although an accompanying circumstance, the presence of .which theretofore alone permitted the right to be declared, was absent. The section was also considered by Vice-Chancellor Backes in Trenton Trust and Safe Deposit Co. v. Cook, 88 N. J. Eq. 516. The right asserted by complainant is, I think, one cognizable in equitjr within the meaning of the statute. Equity has jurisdiction to settle conflicting rights in common easements. Public Service Railroad Co. v. Frazer, supra; Van Horn v. Clark, supra. It likewise has jurisdiction to settle title, and to ascertain the extent of a legal right and enforce or protect it, in a manner not obtainable by legal procedure. In Todd v. Staats, 60 N. J. Eq. 507, the court of errors and appeals reversed the decree of the chancellor dismissing the bill, and held that the proper course for the chancellor to pursue was to retain the bill until the complainants had reasonable opportunity to establish their title at law. If defendant, Hay, had prevented the use by complainant of the ways, the right to use which is claimed
“Any question ordinarily determinable at law, arising in a suit of which the court of chancery has jurisdiction, other than a question requiring a jury trial, * * * shall be determined" by the court of chancery in that suit.”
The ultimate relief asked for by complainant in this suit can be obtained only in this court. If, before this court can act, there must be a jury trial, then adequate provision is made therefor in section 8. In the instant case, although, proceedings cannot be brought 'at law to settle the title because the facts which" would warrant such an action are not present, yet, under the provisions of section 8, notwithstanding the absence of the facts which would give a court of law original jurisdiction, an issue may be made up and sent to law for determination, and upon the coming in of the judgment at law, upon the issue made up in this court, this court may proceed to give the equitable relief appropriate.- I am not determining that this case is one requiring
In any event, I think there is equity in the bill and the motion to dismiss will be denied.