Wakeman v. New York, Lake Erie & Western Railroad

35 N.J. Eq. 496 | N.J. | 1882

The opinion of the court was delivered by

Beasley, C. J.

The application for an interlocutory injunction was very properly rejected by the vice-chancellor in this case, for not the slightest ground for such an equity is laid in the bill. Its statements are substantially these: That the complainant was the owner of a tract of land situated in the city of Newark, extending from Passaic street to the Passaic river, and that in the year 1872 the Erie Railway Company desired to have a strip of this tract and of certain lands belonging to one Sandford, for the use of its railroad, and that the complainant conveyed such strip to a person acting in behalf of the said company, and which deed contained the following clause, to wit:

“ But the party of the first part expressly excepts and reserves to himself and to Peter Sandford, their heirs and assigns, together with their servants, ■agents and other persons whom they may designate, the right of way to pass over the tracts hereby conveyed 'to and from all portions of their respective tracts of land or wharves forever, with’horses, wagons and other vehicles.’’

It is then alleged that the rights and obligations inherent in this conveyance have passed from the original grantee to the •defendant.

The wrongful acts charged are in substance these: First, in the language of the bill:

“ That the said lands, being near the Newark freight and passenger stations of the said company, are used, and since the construction of said tracks across it, have been used by the said company as a storage-yard for its freight cars which are not in use, and that so long as your orator has not needed, either for himself or his tenants, any right of way and passage over and across the said lands, he has allowed the said railroad company to store its cars on the said strip of land without complaint, but that he has never released or in any wise given up his right which he reserved in his deed.”

The second and remaining wrong complained of is, that the complainant, 'having rented a portion of the land which he alleges is entitled to the easement of right of passage over the railroad track, the defendant, on the application of such tenant, “ refused to make a crossing at that point,” alleging that the complainant had a right only to one crossing, and that such crossing had been made for him.

Upon such a statement of facts as this, upon what imaginable principle is it that a court of equity can be called upon to interfere in a summary way at the threshold of the cause ? With regard to the storage of the cars on this part of the railroad track, the complainant does not show that on any single occasion he or his tenants have suffered so much as an inconvenience. To' what extent the cars have been stored is not disclosed, and although the complainant says that he himself allowed it to be done without complaint, he does not aver even that he has ever requested their removal. Even on the admission that the respondent’s acts in this matter have, been wrongful, it plainly does not follow that a preliminary injunction is to be issued. The wrong warranting such judicial action must be of a character which threatens to work an injury, which, in the view of equity, will be irreparable. It is the pressing necessity of the juncture which only will justify the use of what the books call the extraordinary power of the court. Construing the facts connected with this branch of the case most unfavorably to the respondent, they simply show that this company has technically invaded the rights of the complainant. This lays no ground for the application which was rejected by the vice-chancellor.

With regard to the other charge of wrong-doing, consisting of the allegation that the respondent refused to build or make a way over its track for the use of the tenant of the complainant, as such refusal was a mere nonfeasance, even if such conduct was unjustifiable in a legal sense, it cannot be reasonably claimed that it will serve as a foundation for the summary process in question. Obviously, the circumstances are not such as to make the use of a mandatory injunction proper. And independently of this preventive, there are other obstructions to the granting of the order in question, for it would be altogether extravagant to assert that it is clear that this covenant or reservation imposes on the original grantee of the complainant the obligation to build these ways over its road, and also that such obligation ran as a burthen with the land so as to be a charge on this respondent. The injunctive power cannot be called for in order to protect a doubtful right.

The decree should be affirmed.

Decree unanimously affirmed.