Summary
In Eggers v. Anderson, 63 N.J.Eq. 264, 49 A. 578, 55 L.R.A. 570, the jurisdiction of equity was sustained in a case of fraud, and it was held that the value of goods furnished might be ascertained by a master, but that case falls short of sustaining the jurisdiction to ascertain unliquidated damages for a tort.
Summary of this case from Benton & Holden, Inc. v. Cent. R. Co. of N.J.Opinion
07-06-1901
WEST SHORE R. CO. v. BERGEN TURNPIKE CO.
Albert C. Wall, for complainant William D. Edwards, for defendant.
Original injunction by the West Shore Railroad Company against the Bergen Turnpike Company to restrain the operation of an electric railroad over a certain bridge without reconstructing the bridge. Injunction granted.
Albert C. Wall, for complainant William D. Edwards, for defendant.
PITNEY, V. C. The Bergen Turnpike Company is the owner of a turnpike running from Hoboken to Hackensack. In the village of New Durham, in Bergen county, it is crossed by the tracks of the complainant, the West Shore Railroad Company. The railroad tracks are laid at a grade about 20 feet below the level of the turnpike, and the turnpike travel is carried over the railroad by a bridge built by the predecessor of the complainant company in pursuance of a written contract entered into between the parties on March 18, 1881. By that contract the turnpike company agreed to convey to the railroad company a right of way across its road, the same being described in metes and bounds, for the consideration of $1,500, and a covenant on the part of the railroad company to erect a bridge over the railroad for the use of the turnpike company. The language is this: "When said railway is completed across said lands, the party of the second part agrees to erect and maintain a substantial permanent iron bridge over said railway, which bridge shall be of the full width of the turnpike, namely, sixty feet; and that it will not during the construction of the same interrupt public travel over the turnpike of the party of the first part for a greater length of time than twenty-four hours. The said bridge to have on each side of said turnpike a raised walk for foot passengers, of not less than six feet in width, and separated from the roadway for vehicles by proper curbs or guards. The said bridge to be closely boarded at each end upon the outside thereof, to a sufficient height to entirely exclude from sight locomotives approaching said bridge; and the retaining walls of the cut on both sides of said bridge to be surmounted by close board fences for the same purpose. And the said bridge and fences shall be maintained in good order by the party of the second part perpetually." The railroad was constructed to an excavation as provided for in the agreement, and an iron bridge for the turnpike over the railroad was erected in accordance with the provisions above recited, and in a manner and with a strength satisfactory to the turnpike company. It has so stood and been maintained ever since. Now the turnpike company proposes to install railroad tracks for a trolley line over its bed and across said bridge, and the affidavit of the engineer of the complainant is to the effect that the bridge, while it is sufficiently strong for all ordinary travel by vehicles and foot passengers, is not strong enough to sustain the increased weight due to tracks and trolley cars. The object of the bill is to restrain the turnpike company from using the bridge for the purpose of its trolley road until the turnpike company shall have reconstructed it with sufficient strength to maintain a trolley, or indemnify the complainant against any damage that may result from overloading the bridge. The real question is, which of the parties shall incur the expense of rebuilding the bridge. There is nothing to show that at the time the bridge was built it was in the contemplation of either of the parties that it was to be used for anything else than the then ordinary travel over a turnpike. It was designed and adapted for that purpose, and was accepted by the turnpike company as sufficiently strong. Under these circumstances it seems to me that the burden of increasing its strength is cast upon the turnpike company. A learned argument was addressed to me to sustain the indisputable proposition that the laying of a trolley railroad over the highway was no additional burden upon the land. That proposition, however, has no application to the present case. There is no objection on the part of the railroad company to the laying of the trolley as such. The objection is the casting upon it the burden of rebuilding and maintaining a bridge of a more expensive character than that contemplated by the parties, and practically agreed upon by them at the time of making the contract I think the injunction should go.