Opinion
02-04-1901
ALCORN et al. v. NEWARK & H. TRACTION CO. et al.
John BE Winans, for tire application. R. V. Lindabury and Benjamin G. Demarest, opposed.
Suit by Mary A, Alcorn and others against the Newark & Hackensack Traction Company and others. Application for attachment for contempt Granted.
John BE Winans, for tire application.
R. V. Lindabury and Benjamin G. Demarest, opposed.
EMERY, V. C. Complainants are three of the four equal tenants in common of a farm called "Gott's Farm," in Bergen county, containing about 63 acres, which at the time of filing the bill was occupied by one Outwater under a lease made by complainants and Edgar L. Gott, the other tenant in common, in his lifetime, which lease expires in May, 1901. After Gott's death, the defendant Giles purchased of the executrix of Gott the undivided fourth interest in a strip of land across the premises 80 feet in width, the purchase being made, as charged in the bill, and as appears by the answer, for the purpose of securing a right of way across the farm for the defendant company, which is a traction company organized under the traction laws for the operation of an electric railway, and has the power of condemnation for its right of way. The bill was filed to enjoin the construction of the defendant's railway across the premises without compensation first paid to complainants, and set up that defendants had claimed the right to construct and operate an electric railway over the strip included in the deed from Gott's executrix, without complainants' consent, and without condemnation, by reason of the tenancy in common. Defendants' joint answer denied that they had made this claim, and further denied that it was the intention of the company or Giles to do any of the acts complained of (the construction of the road, etc.) upon the lands of which complainants and Giles were joint owners, or to destroy the value and change the use of the premises so as to deprive the tenant in possession of said premises, or any part thereof, except in so far as might be done under and by virtue of condemnation proceedings which had been commenced by the traction company. The bill further charged that Out water was entitled to compensation front complainants for any denial of possession or the premises, or any part thereof. After hearing upon bill and affidavits and answer and answering affidavits, a preliminary injunction was issued restraining the defendants "from committing any waste upon the premises, or any part thereof," and "from digging up the soil, building, constructing, or creating a railroad, or a way therefor, across said premises, and from laying ties or tracksthereupon, and from erecting poles and stringing wires or other electrical conductors upon said land and premises, or any part thereof, unless and until the company acquired by condemnation proceedings, and tender or payment of compensation in accordance therewith, a right of way for its construction, maintenance, and operation of their railway across the premises." The injunction was duly served on the defendants on June 27, 1900, and replication putting the cause at issue upon the issues and rights set up in the bill and answer was filed on July 5, 1900. The present application is to attach defendants for a violation of the injunction, and upon the affidavits the following facts are disclosed: On September 12th defendant Giles conveyed to the defendant traction company the one-fourth interest in the SO-foot strip which had been conveyed to him by Gott's executrix. On September 20th, Outwater, the tenant in possession of the farm, gave to the traction company his consent to suspending over the farm, where the right of way of the traction company crossed, two feed wires from poles erected at points north and south of the farm boundaries. On October 5th, Outwater assigned his lease to the traction company, and the company, by writing of that date, immediately relet to Outwater the right to use and occupy the farm and buildings, excepting the strip of 80 feet in width. The original lease to Outwater, which was referred to in the affidavits, and has been put in evidence, contained the following clauses relating to trolley railways: "The parties of the first part (the lessors) reserve the rights to grant and permit the right to locate and use such portion of said farm as they may determine for a trolley-railway line at any time during the term of this lease," and "the said parties of the first part agree with the party of the second part that by the sale of said farm or the granting of the trolley-line right of way the said party of the second part be compensated for crops damaged." Under these deeds and leases, the traction company, in its affidavits filed on this motion, now claims a tenancy in common in the fee of the 80-foot strip and tenancy in possession of the whole strip. Before the making of the leases, and on the night of Saturday, September 22, 1900, and on Sunday, September 23d, the company strung and suspended two wires, called "feed wires," across the strip, the poles which suspended the same being outside of the farm boundaries. The wires are used to supply and conduct the electric current for the operation of the company's electric railway, and have been so used since their erection. The electric line of the company is in operation north and south of the Gott farm by means of this current conducted across the farm, but no railway track has been constructed across the farm, and the cars stop at the boundaries of the farm, the passengers transferring from one car to another by walking across the Gott farm, making one continuous journey. Defendants claim that this suspension and use of the wires across the farm is not a violation of the injunction. It is claimed that the restraint "from erecting poles and stringing wires or other electrical conductors upon said land and premises, or any part thereof," is not violated unless the wires are strung from poles erected on the premises, and not elsewhere. This construction cannot be adopted. The object of the injunction, which was interlocutory, was to retain the status quo pending the hearing and until condemnation proceedings, and its purpose was to protect the constitutional right to compensation for use of complainants' property by defendants for their profit. Such profitable use by defendants is secured by the use of the wires for the conveyance of the electric current over complainants' property to operate their railway, and compensation for this and other uses of the railway is the valuable right intended to be secured by the interlocutory injunction. On such injunctions, intended to preserve the status quo, the object and spirit of the injunction is always considered, and courts will not adopt a technical construction of the injunction in favor of an act which is a clear violation of its spirit. Kerr, Inj. par. 640. In Endicott v. Mathis, 9 N. J. Eq. 110, Williamson, Ch., says (page 113): "If the court should allow its process to be disregarded or evaded on mere technical grounds, its powers would be enfeebled, and its usefulness impaired." See West Jersey Traction Co. v. Board of Public Works of City of Camden, 58 N. J. Law, 536, 539, 37 Atl. 578, as to considering the object of the temporary stay by certiorari. The injunction against erecting poles and stringing wires was an injunction against either of the acts, and should be so construed. "Stringing wires upon the land," in view of the nature of the application and injunction, means stringing wires over the land. If, therefore, the sole question as to violation was whether "and" should be construed as disjunctive or conjunctive, the former construction should be held to be correct. This rule of construction was applied in Fischer v. Blank, 81 Hun, 579, 31 N. Y. Supp. 10, affirmed on appeal in 144 N. Y. 700, 39 N. E. 857. In this case an injunction was granted in a trade-mark case against selling in packages and using plaintiff's trade-mark, and it was held to cover selling in packages without using the trade-mark. See, also. Rap. Contempt, par. 41. "Where an injunction is issued to restrain individuals from performing particular acts, the doing of any or either of such acts is a contempt;" citing Taylor v. Hopkins, 40 Ill. 442. But, as it seems to me, these wires, as suspended across the farm, and as used for conducting the motive power of the railway, which is in operation north and south of the farm as a continuous line, are part of the construction of an electric railway across the farm, and.as such construction of an electric railroad, are a clear violation of the injunction against constructing a railroad upon or across the premises without compensation first made.
Defendants, in the second place, insist that under the rights which the company has acquired since the injunction was granted it may now lawfully suspend and use the wires across the property for the purposes of its road. This claim cannot be entertained. Where a suit to determine the rights of the parties is still pending, and a preliminary injunction has been granted after hearing the parties on the rights set up and claimed in the pleadings, upon which the suit must be determined, the defendant enjoined should not be allowed to raise the question as to the effect of a subsequent change of rights upon the continued validity of the injunction pendente lite by a, breach of the injunction. Such supposed change of rights, if it has occurred pending suit, cannot even be introduced on the final hearing of the suit, except by application to amend the record and set up the newly-acquired right for trial, and, unless so amended, the final decree would or might settle the rights of the parties at the time of decree, as based on the unamended record, and, unless expressly excluded, this settlement would finally dispose of the rights of the parties without regard to the subsequently acquired rights. At the hearing of the cause defendants could not introduce their subsequently acquired rights as an issue in the cause without an application to amend the pleadings, upon which application for amendment complainants would have a right to be heard; and, a fortiori, defendants cannot without such amendment, assume to decide for themselves that their subsequently acquired rights terminated the operation of an injunction, which, on the face of it, was expressly valid, until the hearing on the record, or until the court otherwise ordered. The only regular course for the defendants to have pursued, if they supposed the subsequently acquired rights to entitle them to be relieved from the injunction, was to have brought these rights to the notice of the court by an application to file a supplemental answer and to modify the injunction. This is the course pointed out in Traction Co. v. Camden, 58 N. J. Law, 536, 37 Atl. 578, where a certiorari to an ordinance operated as an injunction against the construction of a railway by the defendants, and, without application to the court, the defendants proceeded to construct the road under a claim of right to construct by a resolution previous to the ordinance. Mr. Justice Depue says (page 539): "It was known that the purpose of the writ was to restrain the defendants from putting down its tracks until the conflicting rights of the parties should be determined. If the defendant desired to be quit of the restraining effect of the writ application should have been made to the Justice by whom the writ was allowed to modify its restraining force." Where a final injunction has been issued, and defendant subsequently acquires rights which are claimed to affect the injunction, different considerations may sometimes apply; but as to rights acquired pendente lite after preliminary injunction, which rights must or may be considered on final hearing in the cause, the terms of preliminary injunction must govern until modified. It is apparent that as to defendants' right very serious questions under the deed exist, which should be determined only on final hearing. One is, whether one tenant in common can legally execute a deed for an undivided interest in a portion only, and a specified portion of the land held in common. Some courts hold that this is an attempted partition or severance of the premises by one tenant in common only, and that the deed is void, and conveys no title. Non constat that the grantor will, on partition, ever own this portion in severalty, but that some other co-tenant will. Another question is whether, under the lease to Outwater. the reservations and covenants of the lessors in relation to trolley rights of way, which I have referred to, did not have the effect of excluding the tenant's right to consent to the use of trolley rights, and invalidate the leases made for that purpose. Complainants have the right to have these questions as to the defendants' rights under the leases and consents formally set out on the record for trial; and in the meantime, and until this is done, or until the court shall otherwise order, the interlocutory injunction must be obeyed. Defendants will be adjudged guilty of contempt in violating the injunction, and I will hear parties as to the punishment.