Opinion
08-10-1888
THOMPSON v. PENNSYLVANIA R. CO.
J W. Wartman and J. J. Crandall, for complainant. P. L. Voorhees, for defendant.
Application for an injunction to restrain a nuisance.
J W. Wartman and J. J. Crandall, for complainant. P. L. Voorhees, for defendant.
BIRD, V. C. The complaint, in this case, is that the defendant so manages the engines, cars, and trains, on its road, opposite the dwelling-house of the complainant, in the city of Camden, as to create a nuisance to the complainant. The allegations in the bill are so similar to, and the testimony so nearly corresponds with, the testimony in the case of Railroad Co. v. Angel, 41 N. J. Eq. 316, 7 Atl. Rep. 432, that I shall be content with calling attention to that case. In that case, the court of errors decided that acts similar to the ones established in this case amounted to a nuisance. And so far as the questions raised in this case are similar to the questions raised and decided in that, as I understand the counsel for defendant, he does not expect me to disregard the law as laid down in that case. It is true that counsel called my attention to the case of Beseman v. Railroad Co., 13 Atl. Rep. 164; and the counsel claims that the supreme court decided in favor of the company, and that the facts on which the judgment was based were, in all respects, similar to the facts in this case. But, unless the questions now before me are quite distinguishable from the Angel Case, I will not be justified in departing from the rule there laid down.
But, as I understand the argument of counsel, beyond the foregoing, it is this: The defendant has the right to use the tracks—any of the tracks—in said city, in the very manner now complained of; and that this right it not only had by grant, but by necessity; and that this right, so coming to it, by necessity has ripened into an easement, by adverse user, for more than 50
As to the right of railroad companies to lay their tracks in the public streets, and the right of abutting owners to compensation, see Railroad Co. v. Bourne, (Colo.) 16 Pac. Rep. 889, and cases cited in note; Wilson v. Railroad Co., 2 N. Y. Supp. 65; Jewett v. Railroad Co., 1 N. Y. Supp. 123.years, or ever since the road was built, in 1833. After a most careful consideration, I am of the opinion that the first two propositions were fully met and disposed of by the Angel Case. What of the right from adverse user? Generally speaking, no right, title, or interest in lands or real estate can be acquired against the true owner, by adverse user, unless such user has been continued for the period of 20 years. Railroad Co. v. McFarlan, 30 N. J. Eq. 180. On this branch of the case, I do not understand that the case was disturbed in the court above. See, also, Shreve v. Voorhees, 3 N. J. Eq. 25; and Baldwin v. Calkins, 10 Wend. 166; Cobb v. Davenport, 32 N. J. Law, 369; and see the cases cited in 1 Stew. Dig. 342, Pl. 80. Without considering the testimony in detail, it will be quite sufficient to say that, although the defendant may have used one or two of its tracks for a longer period than 20 years, and admitting that 20 years' adverse user will, in such case, secure the legal right to the continued adverse enjoyment, it is undisputed that the track on which the acts complained of have been done was only laid in the year 1882. This being so, as I understand the law, the defendant is limited to the manner and extent of its use during the period by which its rights were fixed. It cannot increase or enlarge them, without the consent of the owner of the servient estate. Haskell v. Wright, 23 N. J. Eq. 389; Baldwin v. Calkins, 10 Wend. 166; Martin v. Jett, 12 La. 501, 32 Amer. Dec. 120; Taylor v. Hampton, 4 McCord, 96, 17 Amer. Dec. 710; Crossley v. Lightowler, L. R. 2 Ch. 478, 36 Law J. Ch. 584; Bankart v. Houghton, 5 Jur. (N. S.) 282, 28 Law J. Ch. 473, 32 Law T. 382; Savile v. Kilner, 26 Law T. (N. S.) 277.
I will advise a decree in accordance with these views. The complainant is entitled to costs.