Opinion
10-04-1921
NAVATIER et al. v. A. G. CONST. CO.
Reed & Reynolds, of Newark, for complainants. Frank E. Bradner, of Newark, for defendant.
Suit by Adolph C. Navatier and others against the A. G. Construction Company. On application for a temporary injunction. Temporary injunction advised.
Reed & Reynolds, of Newark, for complainants.
Frank E. Bradner, of Newark, for defendant.
FOSTER, V. C. Application is made in this cause for a temporary injunction to restrain defendant from building on the northwesterly part of its property a wall, as part of its garage building, that will obstruct or interfere with the light and air received in the southerly end of complainants' building through a door and five windows on the ground floor. From the bill and affidavits, it appears that from 1890 until 1902 one Peter Hayden was the owner of complainants' property, and also of that portion of defendant's property on which the wall in question is to be built.
The building of complainants was erected about 1853, and in 1878 Hayden, who then owned it, unsuccessfully sought in this court to enjoin one Dutcher, the then owner of the defendant's property, from erecting a wall that would Interfere with his enjoyment of light and air through the windows now in suit, and through other windows in the upper stories of the building. Hayden failed in that proceeding, because he based his claim for relief on a prescriptive grant which was not recognized in this state.
Some time later a wall about six or eight feet in height was erected, but it did not obstruct the light and air through the windows in question. In 1890 Hayden's executors purchased the Dutcher lot, and thus merged the title to both properties in his estate, and since 1900 the titles to the lots now owned by complainants and defendant have been in different parties.
Complainants contend that by reason of these facts they have acquired an easement of light and air through the abovementioned windows and door, which is, and for years has been, apparent, continuous, and necessary for the proper use and enjoyment of their building.
Defendant's affidavits, while formally disputing complainants' rights to the easement, also deny its necessity, asserting that complainants can obtain light and air from other sources; and it insists that complainants must first establish their right to the easement claimed by an action at law, before this court will grant relief.
The only case in point, on an application for preliminary restraint, which I find in our reports is that of Robeson & Maxwell v. Pittenger, 2 N. J. Eq. 57, 32 Am. Dec. 412, decided by Chancellor Pennington in 1838, on a motion to vacate a temporary injunction which he had allowed to prevent the erection of the wall of a building that would obstruct ancient lights, and in denying the motion, he held that this court, if a proper case be described, will interfere by injunction to prevent the obstruction of ancient lights, but it must be a strong and mischievous case, of pressing necessity, or the right must have been previously established by law to entitle the party to call to his aid the jurisdiction of this court; and he stated that, whether this court will interfere by injunction to prevent the nuisance or leave the party to establish his right at law must depend upon the particular circumstances of each case.
The authority of this court to grant permanent restraint in cases of this kind, without compelling the complainant to first establish his right at law, has been frequently exercised and recognized in reported cases in this court and in the Court of Errors and Appeals; and this authority has generally been regarded as included in the third class of cases mentioned in Hart v. Leonard, 42 N. J. Eq. 416, 7 Atl. 865, e. g., where the legal right, though formally disputed, as it is here, is yet clear from the facts establishedby the affidavits and the well-settled legal rules applicable thereto.
The affidavits having clearly established in complainants the easement claimed as apparent, continuous, and necessary for the proper enjoyment of their property, and having further established that the loss of this easement, even temporarily, by the erection of the wall in question, pending the final determination of the questions in controversy between the parties, would cause complainants irreparable injury, I will advise the temporary restraint prayed for.