Opinion
02-18-1896
LEWIS v. PENNSYLVANIA R. CO.
J. J. Crandall, for complainant. J. H. Gaskill, for defendant.
(Syllabus by the Court.)
Bill by Griffith Lewis against the Pennsylvania Railroad Company, wherein an order issued to show cause why a preliminary injunction should not be granted. Order made absolute.
J. J. Crandall, for complainant.
J. H. Gaskill, for defendant.
BIRD, V. C. The bill in this case states that the complainant, Lewis, is the owner of a lot of land in the city of Burlington facing upon Broad street; that he is in the possession of his said lot by his tenant; that the defendant has for many years had the possession of the center of said Broad street by its tracks, upon which it has run its engines and cars; that said company has commenced to lay a second track upon said Broad street, along its present track, and on the side thereof next to the lot and dwelling house of Lewis; and threatens, without leave of Lewis, and without condemnation of the rights and interests of Lewis, to proceed and make excavations and lay its said second track upon his land in front of and opposite his said dwelling. To prevent this invasion of what he claims to be his rights he asks an injunction restraining the defendant from proceeding with the construction of such second track.
By way of defense, among other things, it is insisted that the bill is radically defective, in that it does not show any ownership or title to the premises in question in Lewis. The language of the bill is that he "is the owner and occupier by his tenant of all that certain lot of land, with dwelling house situate thereon, being in the said city of Burlington," following with the description by courses and distances. This makes it necessary to decide whether or not good pleading in a court of equity requires the complainant who seeks to establish his rights against a supposed trespasser or intruder to set forth in his bill the instruments of conveyance, under and by virtue of which he is possessed of the title. Unless more certainty in this regard be required than in actions of ejectment, the bill of complaint in this respect is sufficient. In actions of ejectment only such certainty is required as will "apprise the defendant of their description and situation, so that from such description possession thereof may be delivered." See Revision, p. 326, § 5; Id., p. 327, § 10. Reason would seem to dictate that, if nothing more be required when the absolute possession of land is claimed by a litigant, the like description would suffice when the person in possession seeks protection against a trespasser. The general doctrine is that certainty to a common intent is sufficient, and that averments in a bill of complaint need not be more precise than declarations in actions at law. Paterson & H. R. R. Co. v. Mayor, etc., of Jersey City, 9 N. J. Eq. 434, 437. Indeed, the rules of pleading in a court of equity, it has been said, are not so technical and precise as in courts of law. Marselis v. Canal & Banking Co., 1 N. J. Eq. 31; Cornelius v. Halsey, 11 N. J. Eq. 28. In Johnson v. Vail, 14 N. J. Eq. 423, it was held: "But when the bill contains an express averment that the title to the real estate now occupied by the complainant is in her, and that the purchase money was paid out of her separate estate, the bill is not wanting in equity merely because it does not show with legal precision how the land originally became her separate estate." It would seem, therefore, that the claim of the complainant is set forth with sufficient certainty in the respect indicated.
But another objection was raised to the allegations in the bill of a like nature. The threatened invasion is in the public highway, over land to which the complainant claims title. The insistment is that there is a lack of certainty or comprehensiveness in the allegations of the bill in this particular, since the metes and bounds given do not include that portion of the territory which is included in the public street. The object of the bill and the nature of the controversy being so palpable, if the expressions used do not comprehend the entire tract, there is no reason why there should not be an amendment, which will remove all appearance of doubt. An amendment equally broad was adopted at the instance of this defendant in the case of Pennsylvania R. Co. v. United States Pipe-Line Co. (during the present term) 33 Atl. 809. Taking the allegations of the bill, sustained as they are by proof, as true, will any rights of the complainant be invaded in case the threatened action of the defendant should be carried out? This depends upon the extent of his title. The claim is that his title extends to the middle of the street. If this be so, it is practically admitted that the construction of the additional track will cover a portion of the land so claimed. In the case of Higbee v. Transportation Co., 20 N. J. Eq. 435, 437, it appears that Chancellor Zabriskie had a similar question before him for consideration, in which it was objected that the title to Broad street was in the municipal authorities or in the public at large, and that consequently the owners of adjacent properties could not possibly take title to any portion of the street. This view of the case was considered by the chancellor, and rejected by him for reasons which are presented in his opinion. From a consideration of the case referred to and all the other authorities upon the subject in this state, I conclude that whenever land is dedicated to the public use for a street or highway, whether by public authorities or by an individual, and the lands adjacent thereto are owned and retained by the public or by such individual, and afterwards conveyed, such conveyance includes and carries with it the title to the middle of the street, unless excluded by express words or necessary implication. The expressions of the courts in thecase of Salter v. Jonas, 39 N. J. Law, 469, and in Ayres v. Railroad Co., 48 N. J. Law, 44, 46, 48, 3 Atl. 885; Id., in the court of errors and appeals, 50 N. J. Law, 663, 14 Atl. 901; Id., 52 N. J. Law, 405, 411, 20 Atl. 54—prevent all further agitation of this question. In the latter case there was an expressed or unequivocal dedication of the lands to the public for street or highway purposes, the grantor owning and retaining the adjacent lands aftwards conveyed. The complainant had taken title from the same grantor to a lot adjoining such street. The conveyance described it as bounded on such street, but contained no expressions excluding the title to the fee of the street. The rule established in these cases has been relied upon and approved in many others. Freeman v. Sayre, 48 N. J. Law, 39, 46, 2 Atl. 650; Weller v. McCormick, 52 N. J. Law, 470, 473, 19 Atl. 1101; Perkins v. Turnpike Co., 48 N. J. Eq. 499, 501, 22 Atl. 180; National Docks, etc., Ry. Co. v. United New Jersey Railroad & Canal Co., 52 N. J. Eq. 377, 28 Atl. 673; National Docks, etc., Ry. Co. v. Pennsylvania R. Co., 52 N. J. Eq. 552, 30 Atl. 581; Board of Selectmen of Jersey City v. Dummer, 20 N. J. Law, 86; Board of Com'rs v. Johnson, 36 N. J. Eq. 211, 214; Dodge v. Railroad Co., 43 N. J. Eq. 351, 357, 11 Atl. 751.
The views expressed by the chancellor in the case of Higbee v. Transportation Co., supra, as to the devolution of the title to the lands of Broad street and the lands adjacent thereto are fully sustained or corroborated by the explicit declarations of the defendant in its answer in this case. The answer shows that the entire body of land, including the street and adjacent properties, was owned by the lords proprietors, or that they had authority, or assumed to have, to make disposition of the same. (It states that the said proprietors first dedicated or devoted certain portions of the said lands to the authorities of Burlington for the use of streets and highways, and that afterwards they conveyed the title to the premises, a part of which is now owned by Lewis, to one Biddle.) The theory of the answer and the result arrived at thereby will sufficiently appear from the following abbreviation thereof and quotation therefrom: It is said that the site of the city of Burlington is that of the first town located in West Jersey. On the 2d day of March, 1676, the proprietors granted to four persons authority "to select and lay out a town, and they selected Burlington." Then caused a map of said town to be made, "designating the streets thereon, including what is now Broad street." That on the 3d of March, 1676, said proprietors granted "convenient portions of land for highways and streets not under 100 feet in breadth, in cities, towns, and villages," and declared that they should be exempt from all charges whatever. In May, 1682, the assembly, with the approbation of the governor, declared that Burlington should be the chief town in the province. That in March, 1683, it was enacted that said town, as laid out by one Emley, "should stand and remain for the use of the freeholders and inhabitants of said town." In October, 1693, it was enacted that, in order to prevent vexatious disputes respecting the land and soil of said town, a survey should be made, in which it was declared that the streets of said town "should be laid out as formerly, and no other, to the end that the quantity of the whole, and the quantity of the public streets deducted out of the whole, being known and ascertained, every proprietor and person interested in proprieties might know the exact proportion and quantity which they respectively should enjoy out of the remainder." And that a survey and map was made of the city in 1696, in which Broad street appears as it now exists; and that hence the soil of the streets of the city are in the municipal corporation. I can discover nothing in all this which conveys, or by any implication whatsoever may be supposed to have been intended to convey, any title whatsoever to the municipal authorities of Burlington in the fee of the said highways. It only secured to the public the use of the streets and highways, and defines their location. It is true, the answer states: "To the end that the quantity of the whole, and the quantity of the public streets deducted out of the whole, being known and ascertained, every proprietor and person interested in proprieties might know the exact proportion and quantity which they respectively should enjoy out of the remainder." It will be seen by what appears hereafter that this was 20 years after the town had first been laid out and the streets designated by the said commissioners, and also several years after the conveyance of the lands adjoining Broad street, as it then existed, to one Biddle. The object of the authorities in 1696 was to fix with certainty the bounds of the streets or highways already laid out, and to limit the extent of the use thereof, and that that was all which was in fact accomplished. The fee of the soil, if it had not already been conveyed to adjoining proprietors or others interested, remained in the proprietors. Concluding, as I must, from the facts as stated in the answer, in case the adjacent property had not been conveyed before 1696, carrying the fee to the center of the street, as it undoubtedly would according to the case of Salter v. Jonas, supra, when such adjacent property should afterwards be conveyed by a description similar to the one now under consideration it seems to me that the legal title to the fee to the center of the adjacent street would have most clearly passed. But the answer proceeds as follows: "That the lands described in said bill of complaint as the property of the said complainant are a portion of the lands originally granted by the lords proprietors to one William Biddle in the year 1676, after the grant of the soil of Broad street to the inhabitants of the town of Burlington as a public highway; and that, at the time of saidgrant, this defendant avers that the title to the soil of said Broad street has been, as a result of the said several proceedings hereinabove stated, and was in the inhabitants of the town of Burlington, where it has ever since been; and that no grant or conveyance of the lands abutting upon said Broad street, and described in said complainant's bill of complaint, since the year 1696, aforesaid, has passed any title beyond the abutting line into said Broad street, or the center thereof;" and then avers that the fee of the soil of said street is in the inhabitants of the city of Burlington.
I do not think the facts thus pleaded by the defendant in any just sense warrant the conclusion by it arrived at. The first and principal fact is totally disregarded. The defendant proceeds upon the notion that the first steps taken towards locating the town and designating its streets were taken in 1696, whereas in truth they were actually taken in 1676. By a review of the above it will appear that the commissioners who were appointed on the 2d day of March, 1676, to select and lay out a town, selected the present location of Burlington, and caused a map of said town to be made, designating the streets thereon, including what is now Broad street, the very street upon the north" side of which is located the complainant's premises; and that on the 3d day of March, 1676, said proprietors granted convenient portions of land for highways and streets, not under 100 feet in breadth in cities, towns, and villages; and that in October, 1693, it was enacted that a survey of the soil of said town should be made, in which it was declared that the streets of said town should be laid out as formerly, and no other. It thus indubitably appears that the said commissioners laid out the town, making a map thereof, and designating the streets. It also appears that the proprietors made a general grant of streets, roads, and highways, and that afterwards the assembly, in its proceedings respecting said town, referred to said streets and highways "as laid out as formerly, and no other." Therefore it seems to me to be placed beyond the possibility of contention that the action of the commissioners and of the proprietors was nothing more nor less than the delineation and establishment of streets and highways in the ordinary acceptation of the terms. There is nothing whatever to lead to the conclusion that there was anything more than a simple dedication or devotion of the lands included in such streets and highways to public use. This view is fully supported by the observations of Chancellor Zabriskie in the Higbee Case, 20 N. J. Eq. 436.
This being so, the next inquiry is, when was title to the adjacent land, a part of which is the premises of the complainant, first conveyed by the proprietors? The foregoing statements from the answer place that beyond controversy. It was after the year 1676 and before the year 1696. It was after the map of the town and the location of the street in question, and before the time when it is insisted that the lords proprietors, by a simple declaration, passed the fee of the soil to the authorities of Burlington. It was after Broad street had an actual existence as a street or highway, both in fact and in law, and, as already intimated, before the lords proprietors undertook the action which it is claimed passed the fee of the soil in the streets to the authorities of Burlington. This being so, the supposed action of the proprietors, whatever they attempted in the way of conveying title to the fee, was a nullity, because they undertook to convey that which in legal contemplation had passed beyond their reach; the fee of the soil of the street having previously passed to said Biddle by virtue of the conveyance to him, as is stated in the answer, after the delineation of such street, and before the attempted conveyance of such fee to the town authorities. Neither can I discover anything upon the record which exhibits anything more upon the part of the lords proprietors or the assembly than a distinct recognition of the streets as they existed at the time of the action taken by one or the other, and a more perfect or complete devotion or dedication of such streets to the public use. The sole object of every act was to define or limit the extent of such dedication and of such use. I conclude, therefore, that no act of the said commissioners, nor of the lords proprietors, nor of the assembly, was intended to accomplish anything more than an absolute devotion or dedication of a definite portion of lands to public use, and that the fee thereof remained in the lords proprietors until the conveyance to said Biddle; and that by such conveyance the title to said fee, to the middle of the street, passed to said Biddle. The authorities very plainly sustain this view. As already suggested, Chancellor Zabriskie was of this opinion. In Higbee v. Transportation Co., supra, he had many, if not all, of these very questions under consideration. As I understand his opinion, having granted a preliminary injunction, on final hearing he did not make it perpetual, because in the meantime the case of Railroad Co. v. Prudden, 20 N. J. Eq. 530, had been decided in the court of errors and appeals, which resulted in a reversal of the opinion of the chancellor, because a legal question was involved which had not yet been determined in this state by the courts of law. At the time of the deliverance in the Higbee Case it had not been definitely settled that a conveyance of lands adjacent to a public street or highway, the grantor's title extending to the center of said street, would carry the title of the grantee to the center of said street or highway when the description given in the conveyance extended only to and along the side of such street. It had, however, been decided that in case the ownerof land dedicated any portion of it to public use, as for streets or parks, the fee remained in the owner. Board of Selectmen of Jersey City v. Dummer, 20 N. J. Law, 86; Mayor, etc., of Jersey City v. Morris Canal & Banking Co., 12 N. J. Eq. 562; Trustees of M. E. Church v. City of Hoboken, 33 N. J. Law, 13; Halsey v. Railway Co., 47 N. J. Eq. 380, 20 Atl. 859; Ayres v. Railroad Co., 48 N. J. Law, 44, 3 Atl. 885; Id., 50 N. J. Law, 660, 14 Atl. 901; City and County of San Francisco v. Calderwood, 31 Cal. 585; Schurmeier v. Railroad Co., 10 Minn. 82 (Gil. 59); Wilder v. De Cou, 26 Minn. 16, 1 N. W. 48. But, as the case of Board of Selectmen of Jersey City v. Dummer, supra, was decided at the February term, 1843, holding that the fee in such case remained in the owner, Railroad Co. v. Prudden, supra, holding that rights of adjacent owners and alleged trespassers in such cases must first be settled at law before courts of equity can interfere was decided in March term, 1869; and the Case of Higbee, by the chancellor, in which he was governed by the doctrine laid down in Railroad Co. v. Prudden, refused a permanent injunction,—the legal question not having been disposed of,—after which, and in the June term, 1877, the court of errors and appeals decided the case of Salter v. Jonas, supra, which finally disposed of the legal principle involved in the case by holding that the owner of lands adjacent to a public street, owns the street to the middle thereof, and that his conveyance of such adjacent land will pass the title to the middle of such street, although the adjacent land is only described by courses and distances, which begin and end in the side of the street, and run along the line thereof, without including any portion of the street within the bounds of such courses and distances. The courts of law having been thus sustained by the court of errors and appeals in their declaration of the legal rights of the parties in similar cases, the court of chancery has thus been given a standard for its guidance which has ever since directed its course, and which for me to disregard understandingly would be the veriest presumption. Vice Chancellor Van Fleet in Board of Com'rs v. Johnson, supra, and in National Docks, etc., Ry. Co. v. United New Jersey Railroad & Canal Co., supra, recognized the propriety of proceeding in courts of equity in such cases, as did also Vice Chancellor Green in the case of Perkins v. Turnpike Co., supra. Nor can I find any room to doubt but that Chancellor Zabriskie would have decreed a perpetual injunction in the Higbee Case had it come on for final adjudication after the case of Salter v. Jonas, supra.
The facts and circumstances presented and brought under discussion in this case, relating as they do to the very first transactions of those who claimed and exercised the right to deal with the lands and titles thereto in question, justify me in saying that the principle laid down in Salter v. Jonas, supra, and the other cases cited, prevails where the state or sovereign, or those representing either, make conveyances of lands bordering on highways or nonnavigable streams, and in many cases even where such streams are navigable above tide water, the public only having the use of the waters of the stream for navigation. Arnold v. Mundy, 6 N. J. Law, 1; Cold Spring Iron Works v. Inhabitants of Tollond, 9 Cush. 492, 495; Luce v. Carley, 24 Wend. 451; Canal Com'rs v. People, 5 Wend. 444; Lunt v. Holland, 14 Mass. 149; 3 Kent, Comm. marg. pp. 432, 434. The views of Chancellor Kent are cited with approbation in the cases of Railroad Co. v. Schurmeier, 7 Wall. 272, at page 287; Ice Co. v. Shortall, 101 Ill. 46; Schurmeier v. Railroad Co., 10 Minn. 82 (Gil. 59); Jones v. Soulard, 24 How. 41. In the Higbee Case, 20 N. J. Eq. 438, Chancellor Zabriskie said: "The preliminary injunction in this case was granted on the assumption that, if the legal right of the complainant seemed clear to the chancellor, it was his duty to protect it." In Weller v. McCormick, 52 N. J. Law, 473, 19 Atl. 1101, the supreme court in speaking of the liabilities of a defendant for injuries resulting from a limb falling from a tree which stood within the street limits, said: "It appeared, however, that he was in actual occupation as owner of the premises abutting upon the street where the tree stood, and his title and possession presumably extended to the middle of the street, subject only to the public rights;" citing Salter v. Jonas, supra.
According to the authorities thus referred to, in such case as is before me for consideration the legal presumption is that the conveyance carries the title to the middle of the street. That presumption has not been shaken by any allegation of facts in the answer, but, on the contrary, supported by the facts therein stated. The right insisted upon by the defendant under an agreement with the authorities of the city of Burlington cannot prevail against the complainant in this case if his title extends to the middle of the street, as I think it does. If the complainant is the owner of the fee to the center of the street, as has been claimed, it is not denied but that he is entitled to compensation. I will advise that the order to show cause be made absolute. Let the costs abide the final result.