52 A.2d 839 | N.J. | 1947
This is an appeal by complainants from a decree in Chancery, entered on the advice of Vice-Chancellor Bigelow and reported in
The bill sought to establish an easement for ingress and egress over the defendant's lands and to restrain the defendantpendente lite and perpetually for interfering therewith. A rule to show cause why the pendente relief should not be given, carrying ad interim restraint, was allowed ex parte but was discharged on the return. Then the court proceeded to take testimony, determine the facts and dispose of the merits of the case upon the theory that although the question of the existence of an easement of way over the land of another is a question which ordinarily should be determined by a court of law nevertheless Chancery has jurisdiction when both parties consent.
It is settled that jurisdiction may not be conferred by consent or assumed by acquiescence. "Counsel cannot, by mere silence or by express consent, confer upon courts of equity the power to determine litigated matters which, under our judicial system, must be settled in a court of law, or, stated in another way, strip the law courts of jurisdiction conferred upon them under the constitution and transfer it to courts of equity." Moresh
v. O'Regan,
The occasion for the bill was that the defendant was undertaking to erect a structure on its land where the complainant wished to maintain a right of way and the relief sought was an injunctive writ from Chancery to enjoin that or any other interference; but the granting of that relief was fundamentally dependent upon the existence of a right in land which was in substantial dispute and which had to be determined at law; and until that question was settled at law the aid of Chancery could not properly be invoked. Todd v. Staats,
"It is entirely settled by our decisions that where the fundamental right under which the complainant prays equitable relief is based upon the alleged existence of an easement in lands of another, and the existence thereof is in substantial dispute between the parties, the complainant must first establish by a suit at law the validity of his claim in order to justify the interference of a court of equity. Imperial Realty Co. v.West Jersey and Seashore Railroad Co.,
The decisions were learnedly reviewed by Vice-Chancellor Woodruff in Richman v. Schwartz,
The decree below will be reversed and the record remanded to Chancery to the end that the bill be retained and the issue of fact be sent to a law court for trial.
To remand — THE CHIEF-JUSTICE, PARKER, BODINE, DONGES, HEHER, COLIE, WACHENFELD, EASTWOOD, WELLS, RAFFERTY, DILL, FREUND, McLEAN, JJ. 13.