Opinion
06-23-1890
FELL & THROP CO. v. PENNSYLVANIA R. CO.
Vroom & Lanning, for complainants. W. S. Gummere, for defendant.
On bill for injunction.
Vroom & Lanning, for complainants. W. S. Gummere, for defendant.
BIRD, V. C. The bill in this cause is filed to restrain the defendant company from entering upon the lands mentioned in the bill of complaint, and digging up and removing the soil therefrom, and destroying and removing the buildings therefrom. The complainant claims title by deed and by adverse possession in itself and its grantors, or those in privity with it, for over 20 years. The defendant insists that the deeds under which the complainant claims do not include the land in question, and, so far as the possession is to be considered, it is, and has been for all the period named, permissive or by license, and not adverse. Upon the filing of the bill, an order to show cause why a preliminary injunction shouldnot be granted was allowed. The question, therefore, is whether such a case has been made by the proofs as will justify the interference of the court at this time. The complainant is the owner of an extensive pottery plant, and portions of the buildings comprising such plant stand upon the land in dispute. The defendant, now having two tracks over which it runs its trains, desires the land in question for the purpose of making two additional tracks for the purpose of carrying on its business. I think the pleadings and proofs develop two grounds upon which courts of equity interfere preliminarily, viz., the destruction of the inheritance, and irreparable injury to the complainant. To these may be added that of estoppel, which, although not formally pleaded, may be considered of no little weight in the determination of the question now under consideration.
I do not think the complainant has succeeded in its efforts to show a paper title to the lands which it claims; but, as the testimony stands before me, I am bound to conclude that such title is in the defendant. All of the lands owned by the complainant and by the defendant were in 1836 owned in fee by the same person. Subsequent to that time, and by the year 1841, the lessors and grantors of the defendant took their title. By all of the conveyances under which the defendant holds, the lands are described by metes and bounds. The surveyor produced by the defendant swears that he had no difficulty in ascertaining the line bounding the land of the defendant. It was after the title was so conveyed to the defendant's grantors that the lands were first conveyed to those under whom the complainant claims, and through whom it established its title. Two of the lots so purchased by the complainant (and the true location of these is the most material at this time) are bounded in a similar manner in the title-deeds. The description of the one first mentioned in the bill is as follows, viz.: "Beginning at the southwest corner of Mercer street, and running thence (1) westerly along Taylor street two hundred feet to Jackson street; thence (2) along Jackson street southerly to the line of Camden and Amboy Railroad Company; thence (3) along their line eastwardly to Mercer street; thence (4) along Mercer street northwardly to the place of beginning." It does not appear that, in any of the conveyances, there was any effort made to extend the paper title beyond the line bounding the defendant's land as given above. It is in evidence, however, that a portion of the lands of the defendant was inclosed by a fence built over 30 years ago by those through whom the complainant claims, which fence has been maintained during all that period by the owners of the title which the complainant now has by its deed. The fact that those under whom the complainant claims have for so long a period maintained this fence, and enjoyed the possession of the land thus inclosed in connection with its own, is insisted upon by the complainant as being of the greatest importance in the consideration of the question before the court. This I think is so, but only in connection with other circumstances to be adverted to hereafter. I think it may well be doubted whether it can be safely relied upon as settled law to hold that, where title in one parcel of land is conveyed, and the grantor has possession of another parcel adjoining, his grantee takes possession of both, and holds adversely to the true owner, and may claim the benefit of the period of time during which his grantor had the possession or not. The negative of the proposition was declared in the case of Jenkins v. Trager, 40 Fed. Rep. 726. In every such case the purchaser has notice of the extent or limit of his title by his deed. But, as the case is presented to me, this particular question need not be decided; for other elements enter into it which cannot be overlooked.
The complainant's grantors erected buildings for the manufacture of pottery upon the two lots first described in its bill, and carried on its business of the manufacture of pottery ware for a number of years. They afterwards desired to extend their business, and in doing so needed more room than they were supposed to have upon the lands lying contiguous to the lands of the defendant. In the year 1860, after the fence above mentioned had been standing a number of years, they proceeded to erect kilns, and to inclose them with sheds. If I am right as to the true location of the land of the complainant, a portion of those buildings are upon the lands now owned by the defendant. Thus the complainant, when they purchased, came into the possession of an extensive pottery plant, a portion of which was upon the lands of the defendant. Has the defendant the right to insist upon the removal of so much of these buildings as is so erected upon its lands? It is not for me, at this stage, to decide this question. I am only to determine now whether or not the facts presented would justify the court in granting a preliminary injunction. Before such buildings were erected the then owners of the pottery plat had an interview with certain of the directors of the railroad company respecting the purchase of lands from the latter, or the permission to erect such buildings upon the railroad company's lands. They obtained such permission, as appears by the testimony of Mr. Hillman and Mr. Price. But, according to the testimony of Mr. Price, the then owners of the pottery plant concluded that they would not erect their buildings upon the lands of the railroad company, for it was uncertain how soon such company might require their lands for their own purposes. His testimony upon this point is very emphatic, and there is nothing to show that the owners of the pottery plant changed their minds with respect to the location of these buildings. But the testimony of other witnesses offered by the defendant shows that, when these kilns and sheds were afterwards erected, they intended to locate them upon their own lands, and instructed the persons employed for that purpose to be careful so to locate them, calling their attention to stones and other monuments to guide them in that direction. These facts make it very plain that, when such buildings were erected, theowners of the pottery plant, if they are guilty of any trespass, were entirely innocent. They built upon lands which they claimed to be their own, and thus asserted what they claimed to be their rights in the face of the railroad company. I think the testimony shows that the agent of the railroad company knew of the erection of these buildings, and that they were upon the lands of the railroad company. At least there is enough in the case to satisfy me that the railroad company had such knowledge, and upon such knowledge so acquiesced as to justify the court in preventing it from disturbing the complainant in its possession until a further hearing. Evidently, if the persons owning the pottery plant honestly thought they were erecting these buildings on their own ground, and the defendant, or those under whom it claims, had knowledge of the erection of these buildings upon the railroad company's lands, the defendant would be, under all rules governing courts of equity, estopped from asserting the rights which it now claims.
But, if this doctrine of estoppel cannot be called in to aid in sustaining the claim of adverse possession, it strikes me that, notwithstanding the views expressed in the case of Jenkins v. Trager,—and which I think must, as a general rule, be acquiesced in,—the fact that the principal thing sold and transferred by the conveyances to the complainant, and those in privity with it, was the pottery plant, rather than the land itself, shows that this case is not within such general rule, and that the purchaser in such case may properly be regarded as having such color of title as will justify him in claiming the benefit of the statute of limitations to the extent of its possession by such buildings as have covered the lands of the defendant.
I will advise an order for an injunction restraining the defendant from in any wise disturbing the said buildings, and from entering upon the lands upon which the said buildings are located, and from removing any of the soil necessary for the support of the said buildings. But I cannot see my way clear to extend the operation of the injunction beyond the protection of such buildings. As before indicated, the testimony before me makes it very plain that the line between the lands of these parties is where the defendant claims it to be. In addition to this, the leases which have been entered into between the owners of the pottery plant and the railroad company from time to time, in order to secure to the owners of the pottery plant the benefit of a turn-out for the delivery of coal to the owners of the former, show such a compromise of the rights now claimed by the complainant as to remove all ground of equitable interference. In those leases, while it is said that the lands are in the possession of the owners of the pottery plant, yet said owners agreed to surrender and to deliver up the possession thereof at the times named, and under the circumstances mentioned, in the leases. The first of these leases is dated in March, 1875. The next one is dated in the year 1884, and by it the railroad company leased to Davis, the then owner of the pottery plant, the said track or turn-out, in these words: "A certain side track or turn-out situate on Taylor street, in the city of Trenton, N. J., being the premises now occupied by the said Isaac Davis, to hold the same unto the said lessee as tenant at will of the said lessors. * * * That the said lessors hereby reserve the right to determine this agreement and the said tenancy, and to take possession of and reenter upon the said premises at any time hereafter after having given to the said lessee, or left upon said premises, thirty days' notice in writing." In 1887 a lease of similar import was executed by and between the said railroad company and the Davis & Dowd Pottery Company, the then owners of the said plant; and in 1889 the present complainant and defendant entered into a lease of similar import. The fact that these leases had been thus executed was not mentioned in the bill of complaint, nor has their execution been explained so as to deprive the defendant of the legal effect thereof.
I ought to advert to the fact that Mr. Bowles, who had charge of the work for the defendant, swears that he was instructed, when directed to proceed with the work complained of, not to interfere with the buildings of the complainant, and that he did not intend to interfere therewith. Because of this, counsel for defendant insisted that an injunction should not issue. I do not find any testimony in the case showing that these instructions and this intention were ever communicated to the complainant. There is no doubt upon the proof but that the defendant had its line surveyed and located, and marked by stakes and monuments, and asserted its right to the possession up to such line up to the time of the filing of the bill. This, if I am right in principle, does not overcome the just demand for an injunction; and since the filing of the bill, and upon the argument of the cause, while counsel for defendant called attention to the testimony of Mr. Bowles, he asserted the rights of the defendant up to the line indicated, and declared to the effect that, the contest having been begun, it should continue to assert and maintain its rights in the courts until they are judicially determined. This natural and justifiable assertion of counsel at this stage of the case is not sufficient, when the very aggressive acts of the agents and employes of the company are considered, to allay the just apprehensions of the complainant, nor to protect them from harm during the pendency of the controversy. These things being so, I think the injunction should go to the extent above mentioned.