Opinion
01-19-1906
SAVIDGE v. MERRILL et ux.
A. S. Applegate, for complainant
Bill by Reuben L. Savidge against Ella L. Merrill and wife for injunction. Preliminary injunction denied.
A. S. Applegate, for complainant
BERGEN, V. C. The complainant presents his bill duly verified, and applies for a preliminary injunction. The application is based upon an alleged invasion of complainant's rights through the obstruction by the defendant of an alleyway over which the complainant claims he is entitled to pass and repass without any interference. The obstructions, as stated in the bill, are the placing of a fence across the alley, and also the turning of surface waters from an old established waterway into the alley. The bill also charges that this diversion of water may injure the adjoining lands of the complainant in times of heavy rains, but as this allegation has no relation to the obstruction of the alleyway I can only consider so much of this part of the case as bears upon the question of interference with the complainant's use.
The complainant bases his right to the writ of injunction upon the following facts, viz.: In 1867 Josiah Cook and Reuben Savidge entered into a written agreement by the terms of which Cook "doth lease unto the party of the second part [Savidge] forthe term of ninety-nine years, all that certain lot," etc., describing it by metes and bounds with great particularity. This paper writing contained mutual agreements against placing obstructions on the tract "as the meaning of the said road is just to drive in and out for the benefit of both parties."
The bill further shows that after the death of Reuben Savidge the complainant purchased from his executor that portion of the testator's real estate which adjoined the leased strip or road, with its appurtenances, and under it claims the rights which were conferred on his ancestor in title by the agreement or lease, notwithstanding it was not included in the conveyance to him by any description or reference. If we grant to this agreement a construction sufficient to establish an easement in the original grantee, it can be but an easement in gross, for there is no dominant tenement to which it is attachd so far as the bill of complaint shows. As described in the papers, it is not appurtenant to complainant's land, at least the bill of complaint does not make the complainant's title as clear and positive as it should be to justify a preliminary injunction. If, on the other hand, as was held by the Court of Errors and Appeals in Black v. Del. & Rar. Canal Co., 24 N. J. Eq. 455-465, that for all "practical purposes, a lease for 999 years is a conveyance in fee," then the title to this strip of land would not necessarily pass as appurtenant to the adjoining property of the testator. The case made by this bill of complaint does not justify the preliminary writ asked for, but the bill will be held for final hearing, and if upon the coming in of the answer it shall appear that, in order to invoke the aid of this court, the complainant is required to establish his title at law, an opportunity to do so will be afforded him.
The present application is denied, but without prejudice.