101 N.J. Eq. 192 | New York Court of Chancery | 1927
The bill is filed to compel the defendants to provide, or restore for the benefit and use of complainant, a suitable wagomvay or crossing over defendants’ railroad where it intersects complainant’s lands. The matter is now before the court on the 'return of an order requiring the defendants to show cause why a preliminary mandatory injunction should not issue to compel the defendants to restore a wagon- ’
Briefly stated, the bill alleges that on and prior to September 22d, 1846, one Jabez L. Estell owned certain farm lands in the township of Roekaway, Morris county, New Jersey; that on or about said date Morris and Essex Railroad Company, under the authority of its charter (P. L. 1885 p. 29), by appropriate proceedings condemned a right of way for a railroad across a portion of said lands, and thereafter erected a railroad thereon; that the lands thus acquired by said company are described in a report of commissioners bearing date September 22d, 1846; that by deed dated February 25th, 1847, Jabez L. Estell conveyed to said company a certain strip or parcel of land therein described for a right of way for its railroad, said deed purporting to grant to the grantee substantially the same right, liberty and privilege of entering upon and making use of the land therein mentioned as was acquired by said grantee by the award in condemnation proceedings in and to the lands acquired thereby (there is a variance in the description of the parcel of land acquired through the condemnation proceeding and that acquired by the deed, and the deed is —“upon the condition that said railroad company shall, at the time of making the said road, construct and build good and sufficient cattle-guards where the said road enters upon and leaves said Estell’s land, not exceeding two such cattle-guards in number, and shall keep such cattle-guards in good form. The said Estell to fence said road at his own expense”); that said company leased, under legislative sanction, all its rights, powers and privileges to Delaware, Lackawanna and Western Railroad Company, and the latter company assumed all the obligations of the former company in the operation of the railroad, which, as laid out, intersected the lands of Estell; that the portion of the Estell lands
Defendants, by their answer, admit most of the allegations of the bill, but say that the wagonway over their railroad, which existed at the time of the acquisition of the aforesaid lands by complainant, was such as constructed and maintained by the International High Speed Steel Company, complainant’s immediate predecessor in title, under a license agreement, dated May 3d, 1915, between said steel company and Delaware, Lackawanna and Western Railroad Company, which latter company, under the terms of said agreement, was not obliged to provide and keep said wagonway or crossing in repair, and reserved the right to revoke such license upon sixty days’ notice to the licensee, in which event the licensee was to promptly remove such wagonway or crossing; that on February 1st, 1927, in accordance with such agree
Complainant, by its affidavits, which outweigh, in my opinion, the affidavits submitted on behalf of the defendants, show that there had been a wagonway or crossing at the place in questioh for upwards of fifty years which had been used by complainant’s predecessors in title for the carting óf hay, timber, &c., and by complainant as a means of access to its manufacturing establishment, and that such wagonway or crossing was kept in repair by the defendants.
Defendants, .by their affidavits (the affiants being principally employes of the defendants), disclaim the existence of any wagonway or crossing at the place in question other than the one constructed in the year 1915, under the license agreement aforesaid.
Of the affidavits submitted on behalf of the complainant, those of Absalom Crampton and George E. Crampton refer to conditions existing for' a period of upwards of forty-five years. They say that the land on either side of defendants’ railroad, at and about the location of the wagonway or crossing in question, was owned, at various times during the aforesaid period, by their grandfather, their father, them
The defendants contend that if it be assumed that the complainant, by virtue of the provisions of section 9 of the charter of Morris and Essex Railroad Company be regarded as entitled to a wagonway over their tracks, the aforesaid deed by Jabez L. Estell to Morris and Essex Railroad Company exonerates them from complying with such statutory obligation, and that said deed subjects them only to the conditions contained therein, to wit, the construction and maintenance of cattle-guards where the railroad enters upon and leaves the lands formerly of Estell.
It is manifest, from the bill, answer and affidavits, that the easement claimed by the complainant is disputed by defendants. In view thereof, the respective rights of the parties should be determined at law. I am of the opinion, however, that until the rights of the respective parties may be so determined, a preliminar}'- mandatory injunction should issue to compel the restoration of the wagonway or crossing which I find from the proofs submitted existed, and the use
In High. Inj. (IRh ed.) § IS, the author says:
“Where the legal right is not sufficiently clear to enable a court of equity to form an opinion, it will generally be governed in deciding an application for preliminary injunction by considerations of the relative convenience and inconvenience which may result to the parties from granting or withholding' the writ. And where, upon balancing such considerations, it is apparent that the act complained of is likely to result in irreparable injury to the complainant, and the balance of inconvenience preponderates in his favor, the injunction will be granted
and, in the same section, the author says:
“Indeed, the consideration of relative convenience and inconvenience to the parties is one of the principal guides which govern courts of equity in the matter of granting or withholding relief by interlocutory injunction.”
Section 2 of the same authority asserts a like principle is applicable to the grant of mandatory injunctions.
Defendants do not, by= their answer or otherwise, challenge the jurisdiction of this court. They appear to be content to deny the complainant’s right to the easement in question. The proper practice of the court, under such circumstances, appears to be to retain the bill until the complainant has had a reasonable opportunity to establish its title, to the easement, at law. Mason v. Ross, supra. If
The deed relied upon by the defendants as an exoneration of the obligation imposed by section 9 of the -charter of Morris and Essex Railroad Company to provide suitable wagonways for the use of a party whose lands intersect the railroad, does not contain an express waiver of the grantor’s statutory right to a wagonway. Defendants contend that the condition in said deed requiring the grantee to provide and maintain cattle-guards impliedly limits its obligation accordingly. In 33 Cyc. 304, 305, it is said (citing cases in note 86) that statutory requirements (similar to that imposed by section 9 of the charter of Morris and Essex Railroad Company) apply whether the railroad acquires its right of way by purchase or condemnation. The charter (section 9) of Morris and Essex Railroad Company providing that it shall be the duty of said company, where its railroad intersects any farm or lands of any individual, to provide and keep in repair suitable wagonways over and under said road, so that he may pass the same, imposes a continuing duty; and even though at the time the railroad was constructed, no wagonway was deemed necessary, or provided for the benefit of the landowner, but such be now necessary, it is the duty of the defendants to provide it. 33 Cyc. 306, bottom; Palmyra v. Pennsylvania Railroad Co., 62 N. J. Eq. 601, (at p. 609); affirmed, 63 N. J. Eq. 799; Central Railroad Co. ads. State, 82 N. J. Law 224.
The Estell deed (if description of property, condition as to requirement for construction and maintenance of cattle-guards, and circumstances under which the deed was obtained, be disregarded) contains wording as to rights and privileges granted thereunder, similar in many respects (though not identical) with the sixth section of the charter of the Morris and Essex Railroad Company, and a deed made by Thomas Green to said company, which latter deed was con
In Perry v. Pennsylvania Railroad Co., supra, the supreme court says: “In Brearley v. Delaware and Raritan Canal Co., supra, it was decided by this court that the section in question [referring to section 16 of the charter of the canal company, which provides that fwhen its canal or feeder shall intersect the farm or land of any individual, it shall be the duty of the company to provide and keep in repair a suitable bridge or bridges over the canal or feeder, so that the owner or owners and others may pass the same’] did not apply where the company had acquired the land for the construction of its canal by a deed from the owner. The principle on which this decision was founded is that the company, by it' charter, was empowered to take1 lands by condemnation only in case where such lands could not be obtained by agreement with the owner, and that the sixteenth section of its charter applied only when the lands acquired were obtained by condemnation; and that where the company acquired title by agreement with the owner, the liability of the company in relation thereto depends, as was said by Mr. Justice Whitehead, not upon the provisions of the charter but upon the contract between the parties.” Mr. Justice Depue, in distinguishing the decisions of the Green Case and the Brearley Case, supra (at p. 186), says: “The difference between the language of the deed involved in the case in 2 Beas. [Green Case on appeal], and the language of the usual conveyance of land, makes that decision [Green Case] in every aspect irrelevant to conveyances such as that whicli was the foundation of the decision in the Brearley Case.”
I am of the opinion that the deed obtained bjr Morris and Essex Railroad Company from Estell, and the legal effect thereof, is distinguishable from the Brearley and Green deeds aforesaid.
In Bailey v. Schnitzius, 45 N. J. Eq. 178, which appears to be an accepted authority, it is said that a preliminary mandatory injunction will be ordered only in cases of extreme necessity; and in Rogers Locomotive Works v. Erie
I will advise an order that the bill in this cause be retained, with liberty to the complainants to promptly institute .a suit at law against the defendants for a determination of the right of easement claimed by it, and that a preliminary mandatory injunction issue requiring the defendants to immediately restore or provide and keep in repair pending such .suit a suitable wagonway or crossing over defendants’ railroad, substantially as same existed on and prior to February 1st, 1927, reserving all further directions until after the determination of such suit. But in case the complainant .shall not promptly institute such suit at law, and diligently prosecute same to finality, the defendants may apply to this court for a dissolution of the injunction aforesaid and dismissal of the bill of complaint.