Opinion
04-21-1897
THOMPSON v. OCEAN CITY R. CO.
Henry M. Snyder and Samuel H. Grey, for complainant. Robert H. McCarter, for defendant.
Action by Lewis Thompson against the Ocean City Railroad Company. Heard on rule to show cause why an injunction should not be allowed restraining defendant from constructing its road along Haven avenue, in Ocean City, in front of complainant's property abutting on said street. Rule discharged.
The bill sets out that the Ocean City Improvement Company became seised of a tract of land, including the locus in quo, and plotted the same into streets and lots upon a map which is filed in the Cape May county clerk's office; that one of these streets was named "Haven Avenue," and is GO feet in width, and runs from Great Egg Harbor inlet, which was the northerly limit of the company's land, southerly a long distance; that Haven avenue is crossed by parallel streets numbered consecutively from First street, near the inlet, to Fifty-Ninth street, at the other end of Haven avenue; that certain lots were conveyed by the improvement company to one Wheaton, four of which lots were conveyed by Wheaton to one Gleason on June 10. 1896, who conveyed the same lots to the complainant on June 27. 1896; that these lots were conveyed by reference to the plan of lots upon the said map, and two of the lots were particularly described as lying on the northwesterly side of Haven avenue with a frontage of 80 feet on the avenue, and the other two were described as lying upon the southeasterly side of Haven avenue, with also 80 feet frontage upon the same. In 1892 the borough of Ocean City was created, and included within its territory the lands of the improvement company. The Ocean City Railroad Company was incorporated June 8, 1896, under the general railroad act. The bill charges that the borough of Ocean City passed an ordinance purporting to confer on the railroad company the right to lay its tracks longitudinally along Haven avenue, that this ordinance was vacated by the supreme court upon certiorari, and that this company is about to construct its road through the said avenue in front of complainant's tract. The only important affidavit annexed to the injunction bill is that of Isaac E. McClain. He deposes that he has had read to him the bill of complaint, and knows the contents thereof, and that the same is true so far as the acts and deeds relate to the said complainant, and he believes them to be true so far as they relate to the acts and deeds of others. Especially is it true that Lewis Thompson is the owner of the premises in the said bill described, and in the possession thereof, and that he became seised thereof by virtue of the deed therein recited, and that the ordinance passed by the mayor and common council of Ocean City, authorizing the Ocean City Railroad Company to lay its tracks longitudinally in and along Havenavenue, was taken to the supreme court of the state of New Jersey by writ of certiorari duly allowed; that judgment has been entered setting aside the said ordinance; that the said Lewis Thompson has not at any time, to deponent's knowledge, consented to the building and construction of the railroad along Haven avenue within the borough of Ocean City, and that the same is now being constructed against his wishes, objections, and consent; that the said Ocean City Railroad Company has commenced to build and construct its railroad in the said avenue, running thereon at or near Fifty-Second street; that deponent believes that it is the intention of the said company to push its work to completion unless restrained by an order of this court; that the route of the said railroad, as appears by the map on file in the office of the secretary of state, as said railroad places it, is on said Haven avenue, from First street to and including the point where they are now at work; that deponent believes that, if the said railroad is allowed to proceed with its work, said Thompson will suffer irreparable wrong and injury; that his property will be greatly depreciated by reason of such railroad; and further deposes that Thompson is temporarily absent from his place of residence, and will be for several days, and that deponent has full authority to act for him in the premises. The remaining affidavit is by Michael Gleason, who conveyed the premises to Lewis Thompson, and says that he never gave any consent to the railroad company to lay its tracks along Haven avenue. On this bill and the affidavits annexed, a rule to show cause was allowed. Upon return to the rule no answering affidavits are produced, but the defendant's counsel rests his objections against making the rule absolute, and allowing a preliminary injunction, entirely upon the ground that the special affidavits to the bill are insufficient to support such an allowance.
Henry M. Snyder and Samuel H. Grey, for complainant.
Robert H. McCarter, for defendant.
REED, V.C. (after stating the facts). It is first objected that the affidavit is defective in its failure to show that Thompson is the owner of the four abutting lots. It is secondly objected that it fails to show that such a street as Haven avenue was ever dedicated in the manner charged in the bill, namely, by the plotting of lots and streets upon a map, and by a sale of some of the lots by reference thereto. It is thirdly objected that there is no proof that the route of the railroad runs along the alleged Haven avenue. It is fourthly objected that there is no legal proof of the acceptance of an avenue, if dedicated, or of the existence of an ordinance granting privileges to the railroad company, or of the vacation of such ordinance by the supreme court.
It is an established principle in this court, in matters of injunction, that all the facts necessary to sustain the injunction must be verified by positive proofs. Perkins v. Collins, 3 N.J.Eq. 482; Youngblood v. Schamp, 15 N.J.Eq. 42; Holdrege v. Gwynne, 18 N.J.Eq. 26. The rule laid down in Reboul's Heirs v. Behrens, 5 La. 79, is that the affidavit must be such as to submit the party to the penalty of perjury if the facts sworn to appear to be otherwise. This obvious rule was reiterated in Catland v. McDonald, 13 La. Ann. 44. In Nusbaum v. Stein, 12 Md. 315, a party had sworn that a debt was due to him on four promissory notes, which notes were in his possession, and it was held, following the case of Bank v. Poultney, 8 Gill & J. 332, that, the deponent making no exhibition of the notes, his affidavit could not be regarded as proof of the debt. Campbell v. Morrison, 7 Paige, 158, was a case decided by Chancellor Walworth on appeal from the vice chancellor, from whom an injunction was asked by a judgment defendant to restrain proceedings against him upon the judgment. The injunction was asked for on the ground of newly-discovered facts that showed usury in the transaction out of which the judgment had sprung. The chancellor held that the existence of the judgment and execution need not, in that case, be sworn to positively, because they were records to which both complainant and defendant were parties, but that this was an exception to the general rule that when an injunction was asked for against third parties, if the complainant did not know personally the facts constituting the ground of complainant's case against such third persons, he should annex to the bill the affidavit of those from whom the information was derived. There was no assertion by Chancellor Walworth that certified copies of the record of the judgment and execution should be annexed to the affidavit; but, if the rules of evidence pertaining to the trial of causes are to be Spplied to affidavits to injunction bills, it would seem that nothing short of an examined or certified copy of such record would be adequate proof of its existence. It would seem that the same rule must be applied to distinguish between testimony that is admissible and testimony that is nonevidential, whether such testimony is found in affidavits to be used as a ground for obtaining an injunction, or the testimony is produced in open court by the examination of witnesses to support any litigated fact in Railroad Co. v. Stewart, 19 N.J.Eq. 343-349, there was an exception taken to a schedule annexed to the bill, which schedule contained the depositions of a witness taken in another suit The object of the affidavit was to support a bill for an injunction. Chancellor Zabriskie struck the schedule out, because it was not shown that the testimony was taken in a suit which was pending, and also because a certified or sworn copy of the deposition was the best evidence. On appeal this view was affirmed,the chief Justice remarking: "I am not aware that there is any relaxation of the rules of evidence with respect to affidavits annexed to injunction bills."
But it can be urged with force that, if this degree of strictness is to be exacted with every application for a preliminary injunction, it will destroy in many instances the efficacy of the injunctive power, the exercise of which, if not summary, is often useless. In respect to such insistence the remarks of Chancellor Walworth in Campbell v. Morrison, 7 Paige, 158, are pertinent: "in such cases, upon a bill, sworn to by the complainant, charging the facts upon his information and belief, and showing why it is impossible to procure the affidavit of the person from whom he derived his information and who knew the facts charged, the injunction master, instead of allowing a general injunction, should give the defendant an opportunity to be heard by directing an order to show cause as authorized by rule 32. In cases of emergency, where serious injury would probably be done to the complainant before a reasonable time to show cause would expire, the master, upon a bill thus framed, may allow a temporary injunction in the meantime." Under the rules of this court, particularly rule 122 respecting rules to show cause in injunction matters, this, I think, has been the practice in this state. It is proper, in emergent cases, to grant such rules upon testimony which seems the best that can be obtained at the moment, where a condition of affairs appears which demands an ad interim stay to prevent probable irreparable mischief until strictly legal and plenary testimony can be produced at an early day. Such a rule was granted in this case. But, as already remarked, on the return of the rule, the complainant stands upon the affidavits originally annexed to the bill, and the defendant puts its case upon the insufficiency of those affidavits. The rule to show cause, therefore, must be dealt with according to the position so assumed by the respective parties. The sole affidavit having any importance whatever is that of McClain. Now, it is to be observed that the complainant's right to an injunction rests upon the fact that the complainant owns land abutting upon a street known as "Haven Avenue." The existence of this street, according to the charges in the bill, arose from the plotting of certain lots and of Haven avenue upon a certain map made by the improvement company, the predecessors in title of the complainant, and by a sale of the lots by reference to said map. It is obvious, therefore, that the existence of this map at some time is an essential fact in the proof of the existence of this street, or of the existence of an easement over the locus in quo attached to the complainant's lot. Now, there is not the slightest allusion to this map in the affidavit of McClain. It is perceived, therefore, that it is not a question whether the map can be proved otherwise than by the production of the map itself or by a sworn copy. There is no attempt to prove it at all. The bill, it is true, states the plotting upon the map and the filing of the map in the Cape May county clerk's office; but in respect to the general charges of the bill McClain generally deposes that the same are true so far as the acts and deeds relate to the complainant. This general affidavit does not touch the acts of the predecessors in title of the complainant, and it is their acts upon which the complainant relies for his right in any property outside the descriptive limits of his grant. So there is, in my judgment, no evidence of the existence of Haven avt nue, or of the existence of any easement over land adjoining that of the complainant.
But, if the creation of the map had been proven, there are other obstacles standing in the way of an injunction. There is no legal evidence that the borough of Ocean City ever recognized the existence of a street called "Haven Avenue" in a way that implies an acceptance of the same as a street. The acceptance of the street is alleged to spring out of the passage of an ordinance conferring upon the defendant the right to run its railroad longitudinally along that street. Now, in regard to the existence of such an ordinance, this is what McClain has to say in his affidavit: "The ordinance passed by the mayor and common council of Ocean City, authorizing the Ocean City Railroad Company to lay its tracks longitudinally in and along Haven avenue, was taken up to the supreme court of New Jersey by a writ of certiorari, and judgment has been entered in said court vacating and setting aside the said ordinance." There is no copy, either certified or examined, of the ordinance produced, and its existence is alluded to only by way of recital. There is, therefore, no evidence that such an ordinance ever existed. Concerning the judgment of the supreme court setting aside said ordinance, it is to be observed that it stands in the same attitude in respect to insufficiency of proof as the ordinance itself. But, if the ordinance had been proved, this defect of proof in regard to the judgment would not matter, for this court would itself judge of the validity of the ordinance as a question arising in connection with the other equitable relief prayed.
But, further, if the ordinance and the judgment of the supreme court had been proved, I am of the opinion that its passage would not have been an act of acceptance by the borough of Haven avenue as a street. It may be conceded that, when the mayor and members of the common council voted for or approved the ordinance, each had in mind the existence of a street known as "Haven Avenue." But the individual recognition of the existence of a street by members of a common council cannot be regarded as a municipal acceptance of that street While it is true that an acceptance need not be evidenced in any formal way, yet, if the act reliedupon as constituting the acceptance is a legislative act, it must be evidenced with legislative formality. It must be either by ordinance or resolution passed at a legal meeting of the members of the legislative body. Now, the act of the borough legislature in this instance was a complete nullity. It was extra vires. It has no legislative quality whatever. The mere fact, therefore, that the members intended to do something which, if they had had the power to do, would have implied that Haven avenue existed as a street, can amount to no more than that each individual had this in mind, but that they, as a legislative body, failed to express it. Now, it is true that without an acceptance, assuming the proof of dedication to be complete, the complainant would have an easement still in the locus in quo, and easements of this kind, under certain conditions, equity will protect against invasion. But where it does not appear that the easement is seriously impaired by obstructions put in the way of access to complainant's land, courts of equity, particularly as against public or quasi public enterprises, hesitate to interfere. Wakeman v. Railroad Co., 35 N.J.Eq. 496; Booraem v. Railroad Co., 40 N.J.Eq. 557, 5 Atl. 106; Dodge v. Railroad Co., 43 N.J.Eq. 351, 11 Atl. 751. Indeed, where the trespass is upon an accepted street, an injunction will not be granted, where the injury is slight compared to the inconvenience of the public, or where there is left a complete remedy at law. Higbee v. Transportation Co., 20 N.J.Eq. 435; Railroad Co. v. Prudden, Id. 530. But whether, if the existence of a street in front of complainant's property was proven, an injunction should issue, under the conditions displayed by the affidavits in this case, need not now be decided. Upon the other grounds stated, the rule to show cause must be discharged, and the writ refused.