85 N.J. Eq. 7 | New York Court of Chancery | 1915
(after statement).
The substantial question of law -to be decided is the right of the complainants and of the defendant land company as against the defendant Crucible company under the agreement of 1901, to access over that portion of Cumberland street east of Fourth street, as laid down on the Gilbert map, to the “strip of land sixty feet in width, an extension of Cumberland street;” dedicated as a road across their respective lands. An objection was made in the answer of the steel company and the Hudson Railroad and Transportation Company, and repeated at the hearing, to the jurisdiction of this court to determine this disputed right, as being purely a legal right to be settled at law, and for the violation of which the remedy was legal and not equitable. The equitable jurisdiction to enforce by injunction the private rights of way arising to grantees from dedications of streets or roads is settled. Lennig v. Ocean City Association (Court of Errors and Appeals, 1886), 41 N. J. Eq. 606; Herold v. Columbia Investment and Real Estate Co. (Court of Errors and Appeals, 1907), 72 N. J. Eq. 857, 861. Injunctions welre granted in these cases on covenants for rights of passage in the streets, implied by reason of conveyances referring to the streets designated on the map. A right arising from a dedication of a street or road by express
As. to this portion of Cumberland street itself, the agreement by its recitals and covenants shows that the parties to the agreement intended that this portion should be considered as a way given by a public street for access to the dedicated strip. The first recital refers to the non-existence of public streets or highways on their several tracts, and the claim by all of the other parties of rights of way over the complainants’ lands embraced in the Preston tract. These private rights of way were claimed as arising partly by reason of the dedications of streets on the Preston tract, by the maps and otherwise, and as existing after
The covenant of dedication following this recital not only did not limit or restrict this declaration of its purpose, but confirmed, and, I think, adopted it, and by the following provisions : Hirst. The dedication was expressed to be “in consideration of the premises,” thereby including and reaffirming the general purpose of the previous recital, as establislmrg a way to the_ properties. Second. The express and formal dedication itself in the
There is in the dedication itself no further express indication of its purpose, but the purposes declared in the recital, in consideration of which the dedication was made, must be considered as operative, and as defining between the parties a special purpose of the dedication, viz., to establish a recognized way to the premises, and the dedication itself “as an extension of Cumberland stréet,” was an express reference to a recognized way, and the only recognized way which led to the premises through which the dedicated strip ran.
I consider that by the dedicating clause, read in connection, as it must be, with the recital, which was the declaration of its purpose, the dedication as made should be taken, so- far as the parties are concerned, as if made in this form, viz.:
“A strip of land sixty feet in width, an extension of Cumberland street easterly across the said lands of the parties hereto, be and the same is hereby dedicated and appropriated as a road (to the end), that some recognized way to and through such properties may be established.” '
The form or place in this agreement in which its purpose appears is immaterial, and where the purpose, as here, plainly appears by recital, the terms of the dedication, whether it be considered a grant of an easement over the land they owned or as a contract, must be construed as affected by it. The references in the agreement to Cumberland street in the description of the strip following the dedication, further confirm this construction of the declaration, and show that for the purposes of the agreement and as between the parties, Cumberland street east of Fourth to the boundary line of the Gilbert and Preston tracts is to be the recognized way to the properties. The strip dedicated begins east of Fourth street at the end of Cumberland street as laid out on the Gilbert map; thence it runs “easterly between the northerly and southerly lines of Cumberland street produced across lands of the parties.” Then, as specially indicating the status of Cumberland street and fixing its lines east of Fourth street for the purposes of the agreement, it is said that
This agreement, in my judgment, estops all the parties dedicating the road over their lands as an extension of Cumberland street with the intention of establishing a recognized way to their lands from Fourth street, from denying that Cumberland street east of Fourth street to the boundary line of the tracts, and for the whole width thereof, is a way to the properties over which the strip was dedicated as an extension.
Should this construction of the agreement, giving rights of way by estoppel over Cumberland street exist to the boundary, not be correct, and should it be considered that the agreement of dedication gave rights only over the dedicated strip, it would still seem that the complainants and the land company are not barred from equitable relief. For it is actionable and a misfeasance for the grantor of an easement to subsequently willfully annul or avoid his own grant by obstructing its use. Godd. Easem. (Bennett’s ed.) 443. The obstruction in this case practically destroys and annuls the dedication of the strip itself. And for obstructions of a way made by others, but with the knowledge and assent of the servient owner, the dominant owner has a remedy against the servient owner. Ibid., citing Dennis v. Sipperly, 17 Hun 69.
“in the north line of Cumberland street as laid out on said (Gilbert) map and mentioned in the agreement of May 17th, 1901, which point was two hundred and forty-five three-hundredths feet measured eastwardly along the northerly line of the said Cumberland street from its intersection with the easterly line of Fourth street.”
These deeds plainly proceed on the basis that, as'between the parties thereto, and for the purposes thereof, Cumberland street is a continuous street from Fourth street to the lands of the steel company included in the agreement of 1901. The grantors manifestly would be estopped from denying that the grantees had the right of way from the premises conveyed over this portion of Cumberland street, and the grantees by the acceptance of the deed with its express references to Cumberland street as a street from Fourth street and over .the lands conveyed, affirmed the agreement of 1901, as intended to make of Cumberland street east from Fourth a public street to be extended. They are also, in my judgment, estopped from denying this effect of the deed and its acceptance, and that Cumberland street east of Fourth street is a public street.
In the absence of a direct covenant that Cumberland street east of Fourth was a public street and should be continued as such, the reference to it, in the agreement or in the deeds, by the recitals or description, as a public street, intended for the purposes of the agreement or deeds to be part of a perpetual continuous recognized way to their lands across which tire strip was dedicated, such mutual covenant by implication cannot be held to have arisen between the parties, making each liable to the other for damages as on a covenant, either on the non-existence or the subsequent vacation of this portion of the street. These references, by -recitals or description, should not be held to operate further tiran as estoppels arising under the agreement and deeds as to all the parties, and those claiming under them, to deny the existence of this portion as a street or way to the dedicated strip, • or in anjr manner interfering to obstruct the other parties to the agreement in the use of it for the purposes
The bill is filed to protect and enforce complainants’ rights arising and claimed under the agreement and deeds, but at the hearing they also claimed a right to a removal of the obstruction, by mandatory injunction, upon the ground that it was the obstruction of a public way from which they suffered special loss or damage, and that although the common nuisance was indictable they were, by reason of this special damage, entitled to remedy by action, including relief by injunction. The New Jersey decisions relied on to support the claim are cases in the law courts in which such actions for special damages were sustained. In Stevens v. Paterson and Newark Railroad Co. (Court of Errors and Appeals, 1870), 34 N. J. Law 532, 553, the access of a riparian owner to a navigable river was obstructed by the construction of a railroad on the shore belonging to the state and without any authority from tire state. In Ryerson v. Morris Canal and Banking Co. (Supreme Court, 1903), 69 N. J. Law 505, the owner of three different farms located at considerable distances from each other, on the same highway, was held, on the facts stated in the declaration, to have sustained a special and peculiar damage in passing from one farm to the others, by the non-repair of a bridge on the highway, and to be entitled to an action for the non-repair if defendants were bound to repair. Mr. Justice Pitney, delivering the opinion of the court, says (at p. 505) that “in order to maintain the action plaintiff
The case is decided solely on the rights of complainants and the land company to injunction under the agreements and deeds, and the form of injunction will be settled.