92 N.J. Eq. 627 | N.J. | 1921
The opinion of the court was delivered by
The appeal in this case is taken from an order denying a preliminary injunction restraining the city of Bayonne, the Federal Ship Building Company and the Blast Furnace Products Corporation from proceeding with the execution of certain contracts by the terms of which the city agrees to supply water in specified quantities to the ship building company and the Blast Furnace Products Corporation for a long period of years. The plants of the two corporations to which the water is agreed to be supplied are each of them located within the territorial limits of the town of Kearny; and this municipality bases its claim to the injunction upon the ground that, by force of chapter 265 of the laws of 1907, entitled “An. act in relation to the furnishing, supplying and use of water within the limits of municipalities in this state maintaining or operating a public water supply,” &c., &c. (P. L. p. 676). and of section 16 of the act of March 27th, 1917, entitled “An act concerning municipalities” (P. L. pp. 319, 438), the exclusive right to furnish water to
In reaching the conclusion that the complainant was not entitled to a preliminary injunction, the learned vice-chancellor considered that the existence of the right claimed by the town of Kearny liad been negatived by the decision of this court in the ease of Kearny v. Jersey City, 79 N. J. Law 599; and that, even if the cited case was not conclusive upon the existence of this right, and the question was still an open one, a reading of the statutes referred to demonstrated that they were no bar to the making by the defendants of the contracts the execution of which the complainant sought to enjoin.
In the view which we take of this case, the allowance of a preliminary injunction was rightly refused; and we reach our conclusion -without considering the scope of our decision in Kearny v. Jersey City, and also without considering whether or not the statutes appealed to by the complainant confer upon it the exclusive right claimed. That right, if it exists, is a purely legal one, and whether or not it has been conferred by the legislature is a purely legal question, to be determined primarily by a court of law. Morris and Essex Railroad Co. v. Prudden, 20 N. J. Eq. 530, 539; Stanford v. Lyon, 22 N. J. Eq. 33, 35. If the view of the'vice-chancellor with relation to our earlier decision is sound, then the right asserted by complainant does not exist. If, on the other hand, as the complainant claims, that decision did not determine the question of the existence of the right asserted, then, so far as the case discloses, the question of its existence or non-existence has never been judicially determined in a court of law, and “no rule of equity is better settled than the doctrine that a complainant is not in a position to ask for a preliminary injunction when the right on which he founds his claim is as a matter of law unsettled.” Stevens v. Newark and Paterson Railroad Co., 20 N. J. Eq. 126; Citizens’ Coach Co. v. Camden Horse Railroad Co., 29 N. J. Eq. 299.
The order refusing the injunction is proper for another reason. It appeared in the case that the water distributing system
For the reasons above expressed, we conclude that the order appealed from should be affirmed.