| N.J. | Jun 18, 1900
The opinion of the court was delivered by
The deed made in 1835 by Ten Eyck to Todd created an easement against each party in favor of the other, with regard to so much of the ten-feet strip as was owned by each. By the subsequent union of title to both the lots in Ten Eyck, that easement became legally merged in his absolute ownership. But, on his conveyance of the westerly lot to Runyon Toms in 1839, the question is presented whether the proper construction of the deed did not create the easement anew by the reference to the Todd deed of 1835, or did not revive the former easement, according to the suggestion made in Thomson v. Waterlow, L. R. 6 Eq. 36, that there is a substantial distinction in this respect between a pre-existing right of way which has become
If by either means the easement came into being, it was merged by the union of both titles in Mercy Toms. But at her death the titles were again separated, and questions like those above stated arise again. The form of her devise of the easterly lot and premises to the complainants also justifies an inquiry whether they did not thereby obtain a right to use and enjoy the ten-feet strip as a way, on the principle applied in Stanford v. Lyon, 8 Vr. 426, and it may likewise be questionable whether the deed made by the executors of Mercy Toms for the westerly lot, and the subsequent deeds down to the defendant, did not convey so much of that lot as lay within the ten-feet strip, subject to its use as part of the lane between the lots.
Even if none of the muniments of title supports the complainants’ claim, the further question is raised, whether the evidence does not establish a right of way in their favor by adverse user.
Every question thus suggested lacks any element of an equitable nature, and is proper to be determined by the courts of law. The right which the determination of any of these questions in favor of the complainants will establish, is fundamental to the relief which they pray from the court of equity, and until that right is settled at law, the aid of the court of equity cannot properly be invoked. For this reason we think the court of chancery erred in attempting to decide whether the complainants really possessed the right of way which they claimed in their bill. In view of the fact that the answer did not deny the jurisdiction of the court, and that one object of the bill is to secure affirmative relief in the form of a mandatory injunction for the restoration of the way to a passable condition, the proper course for the chancellor was, not to dismiss the bill, but to retain it until the complainants had had reasonable opportunity to establish their title at law. Outcalt v. George W. Helme Co., 15 Stew. Eq. 665, 676.
The complainants do not show that, if even they have the right claimed, the defendant’s interference with it will cause
The decree dismissing the bill should be reversed, on the ground and for the purpose above indicated.
For reversal — The Chancellor, Chiee-Justice, Dixon, Garrison, Gummere, Ludlow, Collins, Bogert, Hendrickson, Adams, Vredenburgh, Voorhees — -12.
For affirmance■ — Van Syckel, Lippincott — 2.