59 N.J. Eq. 366 | New York Court of Chancery | 1900
The substantial question involved in this case upon the pleadings is whether a certain open court-yard, about one hundred and fifty feet long by thirty feet wide, of which complainants are the owners in fee, has been dedicated to the public as a highway or street. Access to the court from the public street is through a twelve-foot alley, which opens into the court on its southerly side and runs from Green street, in the city of Newark, and on the north side of the court, opposite to the entrance from the alley, a row of dwellings (twelve in number) are located, extending from the west side of the court along the whole north side, up to the line of factory buildings which are erected on the north and on the east side of the court. These factory buildings also extend on the south side of the court as far as the east side of the alley and for about thirty feet along
On the application for preliminary injunction, I held that
Upon the evidence offered at the hearing I conclude that there is no such substantial dispute and that complainant is entitled to an injunction without further establishing his legal rights.
In the first place, the precise question in issue is the right of the defendants to use the court as a public highway for access to their property on the west side of the court. This property, up to the time of the removal by the defendants in November, 1898,. of the fence along the boundary line, had been kept shut off from public or other access by a fence, which is proved to have been erected by complainants’ predecessor in title, the owner of the court, as early as 1860, and also by coal-bins erected against the fence as early as 1864, for the use of the tenants of the factory on the east side of the alley. By this enclosure on the west, and also by a similar enclosure on the south of the court, the owner who erected them negatived, as far as it was
The erection of this fence along the west- line and its maintenance until removed by defendants, in 1898, is conclusive in this case, between the owners of the respective lands, as to the intention to dedicate the court as a highway to defendants’ property. The court, not being a thoroughfare, can only be considered dedicated to public use up to the’ line where it was used and not beyond it, and no evidence has been offered sufficient to overcome the effect of this erection or to deprive complainants of its benefit.
Second, the evidence offered by defendants as to the use of the court-yard shows substantially only a use in connection with
Upon the question of the effect of defendants’ evidence, the position of defendants is that the question of dedication is one of intention, which is a mixed question of law and fact, and therefore defendants are entitled to have the question submitted to a jury. If they have not waived the right by failure to set it up in proper time, they might have such right, if upon the whole evidence they show a case, upon which a jury, giving their evidence its full weight, would be entitled to find a dedication. But if the case as to dedication presented by defendant is such that no disputed questions of law are involved and the evidence is such that a court of law would direct a verdict for the plaintiff, or set aside a verdict for defendant, as without evidence, then I think it must be said that no substantial dispute as to the right has been shown, and that this court has jurisdiction to give an injunction without requiring complainants’ title to be established at law. A court of law will direct a nonsuit or set aside a verdict in cases where there is no evidence to warrant a finding of dedication. O’Neill v. Annett, 3 Dutch. 290 (1850).
Third, the injury suffered by complainants in this case is one for which damages at law are not an adequate remedy. The only damage recoverable at law is for the injury to the complainants by the passage across an open court, which complainants are obliged to keep open for the use of the tenants of their dwellings. They cannot in this case protect their property rights from infringement by defendants by closing up the whole court. The damages recoverable at law being based, as they must be, on the