Opinion
November Term, 1902.
Order reversed, with ten dollars costs and disbursements.
Unless the plaintiff is the owner of the land upon which the defendant seeks to place the pole in question he is not entitled to any injunction against the defendant's doing so. There is no pretense that such pole, so placed, would interfere with his full enjoyment of light, air or access to his adjoining lands. It would not be an unlawful obstruction to the highway, because it has the sanction of the Legislature of the State and of the village authorities. Unless it is an unlawful invasion or trespass upon his own lands, it is clear that the plaintiff is not entitled to injunctive relief. I do not consider the question whether, even if it were such a trespass, he would be entitled to such relief, nor the further question whether such a company may not in an incorporated and populous village maintain such a pole in the street without acquiring the rights of an adjacent owner therein, because I am of the opinion that the threatened action of the defendant in this case would not invade any of the plaintiff's rights. It would not be a trespass upon his lands, because he does not own the place upon which the pole is to be located. The plaintiff's deed from Russ, his immediate grantor, bounds the lot in question on the "east by Main street." If Russ owned to the center of Main street, then such a description would transfer the land to the center. But if Russ did not then own any further east than the west side of Main street then the plaintiff could not acquire from Russ the ownership of any land east of such west line. Now, it appears from the abstract of title used as one of the moving papers in the court below, that the conveyance by which Russ acquired his title to this lot bounded it on the east by the "west side of Main street," and that same description is contained in the seven successive conveyances by which the title has been transferred to Russ from Erastus Beach, who appears to have owned the premises in 1817. Thus it appears very clearly that the lot which Russ conveyed to the plaintiff as being bounded east by Main street, did not extend to the center of the street, because the title through which he acquired it extended no further than the west side of that street. In other words, the plaintiff, although an adjacent owner, does not own any further east than the west line of Main street, and hence the placing of the pole would not be any encroachment whatever upon his lands. The plaintiff's counsel upon the argument suggests that it does not appear where the west line of Main street was in 1817, nor by whom the street itself was owned, and he insists that such question should not be determined upon this motion; that the plaintiff was in possession of the spot where the defendant seeks to place the pole, and that by this preliminary injunction he is but seeking to preserve the situation in statu quo, and the question of ownership should not be tried on affidavits. That claim, however, is not precisely accurate. When the plaintiff took title to his lot the defendant had its pole upon the place in question and had maintained it there for some years. Also for some five years thereafter, and up to June 4, 1902, it had possession of such place. The plaintiff then cut off the pole and for the first time took possession to himself. Now when the defendant seeks to regain that possession, the plaintiff asks the aid of a court of equity to maintain the status quo. The defendant's equity, so far as that question is concerned, is certainly the better one. From the record before us, it seems that the plaintiff has neither title nor right of possession to the place from which he removed the pole. Had he brought ejectment in court instead of obtaining it by force, he would have failed upon such a title as this record shows. This injunction should not be maintained upon the possibility that he had a better title. It is unnecessary to examine the other questions raised by the appellant's attorney. For the reasons above stated the order appealed from must be reversed and the injunction vacated. All concurred.