Summary
In Bonnell v. Meeker, 82 Atl. Rep. 49 (not officially reported), this court held that an owner who brings a bill to establish his right-of-way in an alley, and for an injunction against its obstruction, and who is required by defendant to establish his title in an action at law, pending the bill, is entitled, after establishing his title, and during a continuance of the obstruction, to a perpetual injunction to prevent a recurrence of the obstruction.
Summary of this case from Oddo v. SaibinOpinion
01-04-1912
BONNELL v. MEEKER.
T. L. Raymond (Raymond, Mountain & Van Blarcom, of counsel), for complainant. F. E. Bradner, for defendant.
Bill by Charles I. Bonnell against John L. Meeker, for whom, after his death, William Passmore Meeker was substituted as defendant, to establish a right of way, and for an injunction against its obstruction. Decree establishing plaintiff's title and for an injunction.
T. L. Raymond (Raymond, Mountain & Van Blarcom, of counsel), for complainant.
F. E. Bradner, for defendant.
EMERY, V. C. Complainant is the owner of two adjoining lots on the south side of Market street, Newark, upon which he has erected a seven-story stone and brick office building. The westerly lot fronts 15 feet, and is about 67 feet deep; the easterly lot fronts 27 feet on Market street, and extends back about 86 feet. To the south of his westerly lot is a lot of land 30 feet in width and about 80 feet in depth, and from the southeasterly end of this lot an alleyway 10 feet in width extends southerly about 60 feet to Mechanic street. Complainant's buildings are located on the northeast corner of the 30 by 80 feet lot; the southerly boundary of his westerly lot bounding thereon for its whole width of 15 feet, and the westerly side of his easterly lot bounding on it for a distance of 20 feet. Complainant claims, as appurtenant to both his lots, the use, occupation, and enjoyment of this 30 by SO feet lot for an alley or common gangway, together with other abutters on the lot, and with a right of way thereover to Mechanic street.
John L. Meeker, the original defendant, owned lands abutting on the west side and at the extreme north of the 30 by 80 feet lot, which, for convenience, I will designate as the "Common Lot." Meeker's lot fronts 12 feet 10 inches on the westerly side of the common lot at its northwest corner. He carried on the business of marble worker, and (as the bill claimed) obstructed complainant's right of way over the common lot for access to his buildings by using it for storing materials used in his business, and for dumping his ashes and refuse, piling the same against the doors of complainant's building, and obstructing their use for bringing in coal for use in his buildings; that he erected in the alley timber posts opposite the doors of complainant's building on his easterly lot, so that access thereto by wagon is prevented; and, further, that he had commenced and threatened to erect a structure on the north end of the alley or common lot which would block up the windows of two of the stores in complainant's buildings and the rear entrance to one of them. Complainant further claimed that by defendant's closing up an areaway erected by complainant's grantor at the rear of the building on the westerly lot, extending 16 inches into the alley, covered by a grating, all light and air from the alleyway to the basement of the building was cut off. The bill sought the establishment of complainant's right in the alley, with injunction to protect it, and also a mandatory injunction for the removal of; all the obstructions defendant had placed in the alley.
The defendant by answer denied complainant's right to any use of the alley, except by his permission and license, admitted the use of the alley for purposes of storage for materials used in his business, and the dumping and piling of ashes against complainant's building, obstructing the use of the doorsthereto, and the existence of the timber posts in the alley, opposite the doors. As to the proposed structure directly on the rear of the complainant's building on the westerly lot, he admits the closing of the areaway, and that he has begun to construct a platform for storing monuments and marble, and that he intends to construct a roof over the platform, but the roof, as is alleged, is to be higher than the windows, and would not have obstructed light thereto; and he further expressly claims the right to erect the building. He further claimed the ownership of the northern portion of the common lot lying east of his own property, and being 11 feet 9 inches thereof, extending from the easterly end of his own property across the lot of another abutting owner, and across the rear of complainant's westerly lot to his easterly lot. Application was made for a preliminary injunction, but on this denial of complainant's right, and it. further appearing that the principal question in dispute was one of legal title, the cause was directed to stand over, for the purpose of allowing complainant to establish his title at law. An action of tort was brought by complainant against John L. Meeker for the obstruction of complainant's right of way over the alley and into Mechanic street on foot and for horses and wagons, including the delivery of coal for his building and the removal of ashes therefrom. Besides the plea of not guilty, the defendant pleaded, also, that plaintiff's use of the alley was by leave and license only, and that the obstructions to the use complained of were rightfully made by defendant as on his own property, on which pleas issue was joined. The cause was tried before the court (circuit court, Judge Adams), and, on an elaborate and complete statement and finding as to the facts relating to the title and obstruction, judgment went for the plaintiff, with nominal damages. Judge Adams' opinion has been put in evidence to prove the facts at issue, and found, relating to the titles, and from these it appears: First. That the plaintiff, as claiming under a deed, dated January 1, 1831, from Andrew Kinney and wife and Andrew Rankin and wife to James Turnbull, is entitled to the free and undisturbed right and privilege forever to use, occupy, and enjoy, as and for an alley or common gangway, together with the said grantors and their assigns, the lot above referred to as the common lot. Second. That the said alley or gangway was afterwards continued through to Mechanic street, and that the plaintiff is entitled to its use. Third. That the defendant's title claimed to the common lot is subject to the right of way of the plaintiff over the same. Fourth. That defendant had obstructed plaintiff's way in such manner as to entitle him to damages.
Pending the suit at law, the defendant, John L. Meeker, died, having devised his interest in the premises in question "to such person as would be entitled thereto, had he died intestate." His sole heir at law was his son, William Passmore Meeker, who was also sole executor. He was substituted as party defendant in the suit at law before judgment was entered, and together with the dowress has been made party defendant in this suit on the revivor of the suit.
Proofs were submitted at the hearing as to the continuance until that date of the obstructions originally complained of, or some of them. On the filing of the bill, an ad interim stay had been granted, restraining further erections or obstructions, and this has been continued by mutual consent, pending the trial at law.
It is conceded by defendant's counsel that, in view of the judgment, the defendant cannot deny that complainant has a right of way, established by the judgment, originating in the several conveyances to him and his predecessors in title. It is contended, however, that for several reasons complainant is not entitled to any injunction: First. Because defendant, as appears by his answer, does not intend to put up any building, and there is therefore no reason for any injunction; second, that the obstructions do not interfere with the complainant's present use of the alley for the purposes of his building; and third, that complainant having acquiesced in the situation for many years, and there being no material damage, there should not be a mandatory injunction.
Complainant's right to substantial equitable relief in this case is based on the fact that the obstructions to his right were, at the time of filing the bill, made and maintained under a claim of a right to obstruct, and a denial of any right of way in complainant over the alley in question. This claim of right and denial of complainant's right were formally made in the answer, and by reason thereof complainant was required to establish title at law. This formal claim of right to obstruct and denial of complainant's right still exists on the record, and, not only has no offer been made by defendant to remove the obstructions, but he resists their removal, and insists upon continued suits for damages. After the establishment of his right at law, and its violation, complainant is entitled to a perpetual injunction to prevent the recurrence of the wrong, unless there be something special in the circumstances of the case. Kerr on Injunctions, *42, 190; Imperial Gas Co. v. Broadbent, 7 H. L. C. 600, 609, 612 (1859); Harper, etc., Co. v. Mountain Water Co., 65 N. J. Eq. 479, 490, 56 Atl. 297 (1903). Under the circumstances then existing, the filing of the bill was necessary, in order to prevent the destruction of complainant's right, and, in view of defendant's adverse claim, which he required to be settled at law, complainant is now entitled to a decree formally establishing his rights against defendant. Such declaration can be made only as incidental toand as the basis of some equitable relief, and the only equitable relief is that by injunction. City of Paterson v. East Jersey Water Co., 74 N. J. Eq. 49, 70 Atl. 472. Affirmed on appeal for reasons stated.
A decree will be advised, formally declaring complainant's right, with the directions for an injunction against their future infringement, and a mandatory injunction requiring the removal of obstructions. Whether this should include the removal of the covering of the areaway is a matter upon which I will hear counsel.
The form of the decree will be settled on notice, if not agreed on, and on settlement of decree supplemental bill setting up judgment at law may be presented for filing.