Opinion
05-24-1897
MAYOR, ETC., OF BOROUGH OF BRIGANTINE v. HOLLAND TRUST CO.
Allen B. Endicott, for complainant. W. B. Williams, for defendant.
Bill by the mayor and common council of the borough of Brigantine against the Holland Trust Company for an injunction. Defendant demurs to the bill. Sustained.
Allen B. Endicott, for complainant.
W. B. Williams, for defendant.
EMERY, V. C. The demurrer for want of equity is sustained. The complainant is a municipal corporation, and the bill is filed to compel the removal of water pipes already laid by defendant under the soil of the streets claimed to be under the control of complainant under the borough acts. Complainant's right, therefore, is not a right of property as owner in the soil itself, but a right of possession for the protection of the public easement in the streets. For all the ordinary obstructions of the public easement the remedies given by the courts of law are sufficient, and the settled rule in equity is that, where the public easement or right of travel in the streets or highways is the right to be protected, a court of equity will not interfere unless the continuance of the obstruction will seriously impede public travel. Raritan Tp. v. Port Reading R. Co. (Ch. McGill, 1891) 49 N. J. Eq. 11, 23 Atl. 127, and cases cited on page 16, 49 N. J. Eq., and page 128, 23 Atl. In inhabitants of Woodbridge v. Inslee, 37 N. J. Eq. 397, a demurrer was sustained. The main object of this bill is to compel by mandatory injunction the removal of the pipes already laid down under the soil, and the restoration of the street after this removal. How the pipes already laid under the soil create any such public nuisance as to require the aid of a court of equity by mandatory injunction does not appear by the bill, and the bill, therefore, cannot be sustained for the purpose of protecting the public easement. The cases cited by complainant's counsel, protecting rights of property, or of previous consent granted by express constitutional or statutory provisions against a threatened violation, stand upon different grounds, and are not authorities for holding the present bill. The complainant's bill is not based upon any such express constitutional or statutory provisions, but only on its general control of streets within the borough dedicated to public use. Without examining the other points raised on the demurrer, we conclude that the bill must be dismissed for want of equity in this respect.