author: Stevens, V. C.

text:
    The State, ex rel. The Board of Health of the State of New Jersey, v. The Diamond Mills Paper Company.
    [Filed March 29th, 1902.]
    1. The act of 1899 (P. L. of 1899 p. 73) prohibiting sewage, factory refuse or other polluting matter being discharged or placed in any stream from which cities, towns, boroughs, townships, or other municipalities receive a water-supply for domestic use, above the point where such water is taken, and fixing a penalty for a violation thereof, and authorizing the state board of health-to enjoin the continuance thereof by suit in the chancery court, is embraced within its title, which recites that it is “An act to secure the purity of the public supplies of potable waters in this state.”
    2. The statute is not subject to the objection that it is special and local, and therefore unconstitutional, as being a regulation of the internal affairs of towns and counties.
    3. The statute is not in violation of the constitutional provision prohibiting special or local laws granting any corporation any exclusive privilege, immunity or franchise, as that provision only applies to private corporations.

      4. The statute, though it includes a provision exempting from its operation municipalities discharging their sewage into rivers and streams, is not special and local legislation, though not applying to all municipalities, or to water in which sewage was lawfully flowing at the time of the act, the potability of the water being a sufficient basis of classification; and therefore the statute is valid, though passed without the giving of the public notice required by the constitution before the passage of special or local laws.
    5. The statute authorizing the board of health to maintain a suit in the chancery court to enjoin a violation of the act, is not invalid, as being an attempt to confer on the chancery court a jurisdiction which the legislature cannot confer on such court.
    ' 6. The statute is violated, so as to authorize an injunction at the suit of the board of health, if refuse placed in a river above the point where a city takes its water-supply pollutes the water at the place where it is placed in the river, though it does not pollute the water where the city water-supply is obtained.

      Mr. William M. Lanning, for the complainant.

      Mr. John 0. Ii. Pitney, for the defendant.
   Stevens, V. C.

‘This is a bill filed in the name of the state, on the relation of the state board of health, for an injunction to prohibit the defendant from discharging its factory refuse into the Rahway river. The bill is filed under the fourth section of the act of 1899 (P. L. of 1899 ¶. 78) entitled “An act to secure the purity of the public supplies of potable waters in this state.” The first section of the act-provides as follows:

“No sewage, drainage, domestic or factory .refuse, excremental or other polluting matters of any kind whatsoever', which either by itself or in connection with other matter, will corrupt or impair or tend to corrupt and impair the quality-of the water of any river, brook, stream or any tributary or branch thereof or of any lake, pond, well, spring or other reservoir from which is taken or may be taken any public supply of water for domestic use in any city, town, borough, township or other municipality of this state, or which will render or tend to render such water injurious to health, shall be pla.ced in or discharged into the waters * * * of any such river, brook, stream or any tributary or branch thereof or of any lake, pond, well, spring or other reservoir, above the point from which any city, town, borough, township, or other municipality shall or may obtain its supply of water for domestic use.”

The proviso is that the section quoted shall not be held to apply to any municipality

“which at the date of the passage of this act has a public sewer or system of sewers, drains or system of drains, legally constructed under municipal or township authority discharging its drainage or sewage into such river,,r &c.

The act further provides that any penalty for a violation of the act (fixed at $100 for each offence) may be recovered before a justice of the peace in a summary proceeding in the name of the state or local board of health, or that the state board may institute in the court of chancery the injunction proceeding here under consideration.

Two things are conceded—first, that the defendant does discharge factory refuse into the Rahway river above the point from which the city of Rahway obtains its supply of water; second, that at the point where such supply is taken there is no visible or appreciable deterioration of the water, in so far as observation or chemical analysis can detect it. The distance between this point and the point where the refuse is discharged is six or eight miles.

It is contended that the act is unconstitutional—first, because its title is defective; second, because it is special and local, and third, because it attempts to confer upon the court of chancery a jurisdiction which it cannot exercise.

First. Giving the word “secure” the meaning of “guard” or “protect,” which is one of its ordinary meanings, it seems to me that the title accurately expresses the object. The case is so obviously within the decision of the court of errors in Johnson v. Asbury Park, 31 Vr. 427, that discussion is unnecessary.

Second. It is next contended that the act regulates the internal affairs of towns and counties and is special and local in that regard. .The law is not open to this objection. So far as I have to deal with it, it does not, through the instrumentality of municipal authority, regulate the internal affairs of towns and counties. The prohibition against impairing the waters of the state is imposed by the legislature itself and not by the municipalities. The subject-matter of the act concerns all the people of the state. Its execution is entrusted to a state board. It is true, as pointed out in Bingham v. Camden, 11 Vr. 156, and Alexander v. Elizabeth, 27 Vr. 72, that there is often conferred upon municipalities the power to legislate locally with respect to like subjects, and if the legislation were of this character it would have to conform to the constitutional provision under consideration; but if, as in the case in hand, the legislature chooses to exercise the power itself, it is not, at least, fettered by this restriction.

' It is further insisted that the act violates that provision of the fundamental law which declares that the legislature shall not ¡Dass special or local laws granting to any corporation, association or individual any exclusive privilege,'immunity or franchise. This provision, as I understand the decisions, applies only to private corporations. Pell v. Newark, 11 Vr. 76, 77.

The constitution provides that no private, special or local bill shall be passed unless public notice of the intention to apply therefor and of the general object thereof shall have been previously given. As to this provision, the legislature, in conformity with the power expressly conferred upon it, has declared (Rev. Sial. ¶. 3197 § 50)

■“that the publication of any law in the pamphlet laws published by the state shall be prima facie evidence'that the notice required by the constitution has been duly granted.”

This law has been so published, and there is no proof that notice was not given. Freeholders v. Stevenson, 17 Vr. 173.

But aside from this objection, I think the law is neither special nor local within the meaning of this clause. The subject dealt with is the maintenance of the purity of the now existing supplies of potable waters. It is urged that the act is objectionable because it exempts from penalty municipalities which, at the date of its passage, have legally constructed sewers discharging their sewage into rivers and streams; that it is, therefore, special because its prohibitions act upon some municipalities and not upon others, and local because it exempts from its operation parts of some streams, viz., those into which sewage is now flowing. The argument, of course, goes to this extent, that the legislature has no power, except by private, local or special bill, of which notice is given, to preserve the waters of the state in their present condition of purity, without exacting the impossible requirement that all water courses from their source to their mouth shall be hereafter kept pure and potable.' I think that waters which either are or, under existing law, ought to be pure and potable, may properly be put into'a class by themselves. I think further that, having regard to the geography of the state and the shortness of its water courses, the potable waters of the state-may be properly classified as those which are above the points of lawful sewage discharge and the non-po table as those which are below such points. There is always a possibility that the germs of disease and epidemic may be present in streams and waters of the'latter class, however much the sewage and drainage may be diluted, and it is reasonably certain that even if in some cases conditions may be improved, the waters below the points of present discharge will never regain their original purity. As to the class of potable waters, the prohibition binds all alike.

On the principle on which the courts have heretofore acted it •would seem therefore that the potable waters of the state may be classified together as a proper object of legislation. Their marked characteristics is their potability, and the legislation has reference to this characteristic and tends to perpetuate it. The legislation is within the long line of cases in which' it is held that where the classification is founded upon a substantial difference it is good. Benson v. Bloomfield, 29 Vr. 497.

It is next contended that the legislature cannot vest this court with jurisdiction over this matter. All it has done is to give an alternative remedy by injunction. That the legislature may direct the exercise of the injunction power by this court in a new class of cases, to which the remedy is appropriate, seems to me clear. The legislature not infrequently extends the jurisdiction of courts both of law and of equity to new cases, and it assigns them to the one court or the other, in conformity with the remedy each is accustomed to administer. Extensions of the remedy given by the Mechanics’ Lien and Attachment acts afford familiar illustrations of new cases brought under the jurisdiction of the supreme and circuit courts, and the acts to secure the payment of laborers employed upon works of public improvement (Delafield Construction Co. v. Sayre, 31 Vr. 449) ; the act to compel the determination of claims to estates in remainder (Haley v. Goodheart, 13 Dick. Ch. Rep. 368; affirmed on appeal), and the act of 1896 giving the attorney-general the right to apply for an injunction against delinquent corporations to aid the state in collecting' its taxes (American Surety Co. v. Great White Spirit Co., 13 Dick. Ch. Rep. 526) are instances of an added jurisdiction conferred upon the court of chancery. In the case in hand it must be conceded that the exercise of the injunction power is an appropriate remedy to attain the end in view, viz., the prevention of the pollution of potable waters.

It is true that' heretofore the rule in equity has been not to exercise its jurisdiction to restrain nuisances unless a serious public injury has been shown to exist—an injury not remediable in the ordinary tribunals. Grey v. Greenville and Hudson Railroad Co., 14. Dick. Ch. Rep. 387. The reason is that the remedy at law has been found adequate. Here, however, we are dealing, not with the jurisdiction ordinarily exercised by this court, but with a jurisdiction "conferred by statute. To deny the eonstitu-. tional validity.of the act is to assert that the legislature cannot afford what is undoubtedly an appropriate remedy for a new and threatening wrong; that it may indeed punish, but that it cannot prevent. The line of cases to which I have referred seems to me to be a complete answer to this contention. It is no uncommon thing for the court, at the instance of the attorney-general (public interests being affected), to restrain corporations from exceeding their powers, even though no actual injury is shown. Grey v. Greenville and Hudson Railroad Co., 14. Dick. Ch. Rep. 387; affirmed on appeal on this point in 17 Dick. Ch. Rep. 768; Attorney-General v. Cockermouth Local Board, L. R. 18 Eq. Cas. 172; Attorney-General v. Shrewsbury Bridge Co., 21 Ch. Div. 752. These cases prove that where the state is concerned the presence of actual injury is not an essential element of chancery jurisdiction-—an element without whose presence the court is powerless to act. If this be true in one class of cases, I see no reason why in an analogous class, requiring a like remedjr, the legislature may mot provide it. I take it that whether the representative of the state shall be the attorney-general ór the state board of health is a matter for the determination of the legislature alone.

The case of State v. Wheeler, 15 Vr. 88, is an express authority to the effect that legislation like this is not within the constitutional prohibition against taking private property for public use without compensation.

Tlie next question is whether the defendant has, in fact, violated the provision of the act. What does the act prohibit? It is first to be noted that what is prohibited may be something' less than a nuisance ordinarily so called. The provision is that

“no * * * factory refuse * . * * which, either by itself or in connection with other matter, will corrupt or impair or tend to corrupt or impair the quality of the water of any river * * * from which is taken or may be taken any public supply of water for domestic use in any city * * * or which render or tend to render such water injurious to health shall he placed in the waters of any such river * * * above the point from which any city * * * shall or may obtain its supply of water for domestic use.”

The language here used is plain and unambiguous. The prohibition is against placing in the water of the river anywhere above the point from which the city obtains its supply any factory refuse which will either impair or tend to impair its quality.

If, at the place of discharge, the factory refuse put into the river impairs it, or even tends to impair it, the prohibited act is done. On this branch of the case, also, State v. Wheeler, 15 Vr. 88, seems to be directly in point. The defendant was indicted for polluting the waters of a brook used to supply a reservoir. The act under which the indictment was framed provided that if any person should throw or cause or permit to be thrown into any reservoir or into the waters of any creek, pond or brook, the waters of which were used to supply any reservoir, any offal or offensive matter whatever calculated to render said waters impure, he should be guilty of a misdemeanor. Mr. Justice Magie said: “The question turns on the meaning and relation of this clause, viz., ‘calculated to render said waters impure/ What waters are thereby intended—those of the reservoir, where waters are collected for distribution for public use, or those of the creek, pond or brook which supply such reservoir. The grammatical connection of the clause is only consistent with the latter meaning. * * * • The whole act plainly shows a design to protect from pollution the waters of creeks used as the feeders for reservoirs for public use without any reference to whether such pollution appreciably affects the waters when arrived at the reservoir.” The act now under consideration is quite as explicit on this head.

I do not understand that there is any question made by defendant that the purity and potability of the waters of the river are impaired at the point of discharge. It is contended that the solids held in suspension in the water, as it passes out of the raceway into the river, soon sink to the bottom, leaving the water as pure as it was when it entered the mill; but it is not seriously pretended that the waste water, at the point of discharge, is either pure or potable. The bottled samples demonstrate that it is not.

It would seem plain, then, that an injunction should issue. The city of Rahway is not shown to have been injured, but this is a bill filed, not by the city of Rahway, which is not a party, but by the state board of health. I cannot better state the design of such a statute as that under which the board of health is proceeding than by quoting from Sir George Jessel, master of the rolls, in Attorney-General v. Cockermouth Local Board, L. R. 18 Eq. Gas. 172, a case to which I have already referred: “The defendants are a public' body authorized by act of parliament to construct sewage works so that they shall not be a nuisance. Under the powers originally conferred on them they could not make outfall works outside their district, but a subsequent act of parliament authorized them to go outside. They may now take people’s lands. * * * But these powers are subject to this proviso: Provided always, that nothing herein contained shall give or be construed to give powers to any local board to construct or use any outfall, drain or sewer for the purpose of conveying sewage or filthy water into any natural water course or stream until such sewage or filthy or refuse water be freed from all excrementitious or other foul or noxious matter such as would affect or deteriorate the purity and quality of the water in such stream or water course. I' do not mean to say that clause might not, by possibility,-have been better drawn, but I think the meaning is pretty plain.and it means this: ‘You shall not send your sewage into a natural stream until you have made it wholesome water—until you have got rid of all the noxious matter in it.’ That, I think, is the effect of the clause, and, if that is the meaning, the next point is, what water is it that is not to be affected or deteriorated ? You are not to affect or deteriorate the water in the river; what portion of the water? I cannot accede to the argument of the defendants that it merely means that yon must not poison the whole river. For a river may be hundreds of miles long. I think it must mean that you are not to affect or deteriorate the water in the river at the point where the outfall is; and that if you, at that point, pollute the water, you shall not enjoy the privilege given you by the act of parliament of making an outfall outside of your district. * * * Then this is an information by the attorney-general against a public body to enforce the terms of a public act of parliament. Now, if I understand the law upon this subject, it is not necessary for the attorney-general to show any injury at all. The legislature is of the opinion that certain acts will produce injury and that is enough. The case I have already referred to of the Attorney-General v. Oxford, Worcester and Woolverhampton R. W. Co., 2 W. R. 333, is in point. There the attorney-general would not even answer the affidavits of defendants to show there was no injury caused by the proceedings they were adopting. The legislature is of opinion that it is desirable to preserve our streams in at least their present state of purity. It therefore has said you shall not affect or deteriorate the water at all, and that the court must assume that the deterioration of the water is an injury which is prohibited for good and sufficient cause. Again, if I look at the evidence in the case, I can see very good reason for the course adopted by the legislature. We had the evidence of scientific men to this effect, that there is always a probability of danger when sewage matter is thrown into a stream, because people may drink of that stream, and if an epidemic disease is prevalent in a town from which the sewage matter proceeds, that disease may be communicated to the inhabitants of another. Well, that alone would be sufficient justification for the legislature, if it entertained that opinion, inserting this enactment in the act of parliament. That being so, I think I am bound, as regards the information, to grant an injunction to restrain the defendants infringing the provisions of the act of parliament.”

I am of opinion that the board of health is entitled to an injunction.


source: Caselaw Access Project

author: Stevens, Y. C.

license: Public Domain

text:
    The Borough of Madison v. The Morristown Gaslight Company.
    [Filed May 7th, 1902.]
    1. P. L. of 1855 p. 74 .§ 1 provides that the Morristown Gaslight Company shall have power to make and sell gas for the purpose of lighting the streets, &c., of Morristown “and its vicinity.” Section 2 gives it power to lay its gas pipes and erect posts, &e., in the streets of Morristown “and its vicinity.”-—Held, that under this act the corporation was given power to lay its gas pipes in the streets of the borough of Madison, the outer limits of which at that time were not more than a mile distant from Morristown, and nearer than any other of the neighboring villages, it being included in the term “in its vicinity.”
    2. This authority was not repealed by Gen. Stat. p. 1613 §§ 30, 31, authorizing gas companies to extend their main pipes to any neighboring municipality, provided the common council thereof grant permission.
    3. The Borough act of 1897, which provides that the borough council may prescribe the manner in which corporations or individuals may exercise any privilege granted to them in the use of any street, authorizes the regulation, but not the prohibition, of such privileges; and an ordinance giving the street committee of a borough arbitrary power to refuse a permit to tear up the streets for the purposes of laying gas pipes is invalid.

      Mr. Charles A. Rathbun, for the complainant.

      Mr. Willard W. Cutter and Mr. Joseph Cross, for the defendant.
   Stevens, Y. C.

The bill is filed to enjoin the defendant company from laying its gas pipes in the streets of the borough of Madison. The gas company claims the right to do so under its charter. P. L. of 1355 p. 74. The first section of the act provides that the corporation

“shall have power to make and sell gas * * * for the purpose of lighting the streets, buildings, manufactories and other places situated in Morristown ancl its vicinity.”

The second section provides that

“the said corporation shall be empowered to lay down their gas pipes and to erect gas posts, burners and reflectors in the streets, alleys, lanes, avenues and public grounds of Morristown and its vicinity, and the dwellings, stores and other places situated therein.”

The question is whether the company has, under these two sections, authority to lay its pipes in the streets of Madison.

At the time of the passage of'the act Morristown was unincorporated, as was also Madison. The former lay in Morris township and the latter in the adjoining township of Chatham. By reference to the census of 1850, found in the appendix to the pamphlet laws of 1852, it appears that Morris township then had a population of four thousand nine hundred and ninety-two and Chatham township a population'of two thousand four hundred and sixty-nine. Morris township then, as now, covered a comparatively small area, not much more than six miles in its widest part, and Morristown was not far from its centre, but nearer to its eastern boundary line which abutted on Chatham township. At the present time, if we disregard corporate lines, it may be said that the town reaches out nearly to this boundary. In 1855 it did not reach so far, but the limits of the somewhat spread out village must have approached to within a mile of it. The centre of Madison, on the other hand, was less than two •miles east of the division line between the two townships and its westerly boundary must have been not more than a mile and a half from the township division line, so that the westerly limits of Chatham could not have been more than two and a half miles from the easterly limits of Morristown. The distance between the two places was less than the distance between Morristown and any other of the neighboring villages. Now it seems to me that this being the situation, the legislature must have intended to include in the term “vicinity” a place situated as Madison was. It is true that any ambiguity in the terms of a grant must operate against the corporation and in favor of the public, and that the corporation can claim nothing that is not clearly given. Pennsylvania Railroad Co. v. National Railroad Co., 8 C. E. Gr. 455. But in the grant of power words must receive their ordinary and proper meaning, and if, giving them this meaning, the power is in terms conferred, the court has no right to cut it down.

Giving to the language found in its act of incorporation a reasonable interpretation, it seems clear that the company has authority to lay its pipes in the streets of Madison. The word "vicinity," if we give it any meaning at all, must refer either to the farming district around Morristown or to one or more of the surrounding villages. In- terms, it plainly refers to the latter, for it speaks in its first section of the streets, buildings and manufactories in Morristown and in its vicinity. A vicinity which contains streets, buildings and manufactories is not a farming district. So in the second section the same idea is even more apparent. The company is authorized to lay down pipes in the streets, alleys, lanes, avenues and public grounds, not only of Morristown—that is, of all Morristown—but of the vicinity of Morristown and in the dwellings, stores and other places situated therein. A vicinity containing these things is at least a village. This interpretation of the language used accords not only with the literal meaning of the sentence, but with the probable intention. It is not to be supposed that the legislature thought it possible that a gas company, organized for gain, would desire or be able to lay its pipes along the country roads (not mentioned in the act) radiating from Morristown, for the mere purpose of supplying isolated farm houses.

Vicinity is defined by Webster as "that which is near or not remote.” Certainly to a legislature speaking from Trenton, sixty miles distant, Madison would be understood as being in the vicinity of—near—not remote from Morristown. In Jacob’s law dictionary the term "vicinetum” is defined as "locus quern vicini habitant,” and in Burrill’s law dictionary it is said to have been anciently understood of the same vill or the parts adjacent, but in later law of the same county.

In Crabb’s synonyms “neighborhood” is said to signify the place which is nigh, that is nigh to one’s habitation; vicinity, from vicus a village, to signify the place which does not exceed in distance the extent of a village. Under any of these definitions Madison is in the vicinity of Morristown. When the act itself tells us that this vicinity may contain streets, alleys and lanes, dwellings and stores, it would seem as if all reasonable doubt was removed.

So far as decided cases may be thought to illustrate this subject, they indicate the correctness of my conclusion. In Jersey City v. Hudson, 2 Beas. 420, the act which enabled Jersey City to obtain water authorized the mayor and common council to take and convey unto Jersey City and places adjacent thereto such portion of the-water of the Passaic as might be needed. Hoboken was supplied and no intimation is found in the case that this action was questioned. Hoboken was then a village separated by an almost impassable marsh from Jersey City. In Timmerman v. Dever, 52 Mich. 36, one physician covenanted with another that he would not practice in the city of Hastings or its vicinity. The court thought that the word “vicinity” might reasonably be construed as embracing the surrounding territory for a distance of ten miles from the corporate boundaries. In Langley v. Barnstead, 63 N. H. 246, it was held, on the construction of a statute providing for a division of the expense of highways, that towns might be situated in the vicinity of each other though not adjacent.

I think, therefore, that the charter of the gas company authorizes it to lay its pipes in Madison.

It is argued, however, that if it did -so originally the authority is by implication repealed by the act of 1879. Gen. Stal. p. 1613 §§ 30, 31. This is an enabling act authorizing gas companies to extend their main pipes to any neighboring municipality, provided the common council thereof grant permission. The act does not conflict with the provision of the charter and does not contain any repealer. It is settled law that a general statute will not supersede or repeal a statute conferring special privileges unless there be clear language expressive of such an intent. North Hudson County Railway v. Hoboken, 12 Vr. 78. No such intent is discernible here. The two acts can well stand together.

It is further urged that the borough has passed an ordinance which forbids the tearing up of its roads without a permit in writing approved by two members of the street committee, and that such a permit has not been obtained by the gas company. The Borough act of 1897 authorizes the borough council to prescribe the manner in which corporations or individuals may exorcise any privilege granted to them in the use of any street. This statute plainly authorizes regulation, not prohibition. Consequently an ordinance authorizing the street committee arbitrarily to refuse a permit is invalid. North Hudson County Railway v. Hoboken, 12 Vr. 75; Allen v. Jersey City, 24. Vr. 523; Summit Township v. New York and New Jersey Telegraph Co., 12 Hick. Ch. Rep. 124.

The injunction should be denied.


author: Grey, V. C.

text:
    Annie Vandegrift v. John A. Vandegrift.
    [Filed July 5th, 1901.]
    Provision in agreement for separation that the husband would pay the wife $G per week for maintenance and support cannot be avoided merely because of subsequent financial troubles of the husband.
    On bill, answer and proofs.

      Mr. Ernest Watts, for the complainant.

      Mr. Franklin C. Woolman, for the defendant.
   Grey, V. C.

The bill of complaint in this case is based upon a written agreement for separation and support, entered into between the complainant and defendant, who are husband and wife. The complainant wife alleges the performance by her of those portions of the contract which required performance on her part, and that the defendant husband has not, since October 13th, 1900, paid to her the $6 per week which, by the terms of the agreement, he contracted to do. She prays that the defendant may be decreed in all things specifically tó perform the article of agreement in so far and no farther as the same provides for the payment of the sum of $6 per week for her maintenance and support.

The undisputed proofs sustain the allegations of the bill.

I am unable to see any distinction between the case here stated and proved and the case of Aspinwall v. Aspinwall, reported in 4 Dick. Ch. Rep. 304. The court of appeals in thát case unanimously held that stipulations of this character for the support of the wife have always been regarded as enforceable in a court of equity in this state, and affirmed a decree adjudging that the moneys stipulated for should bo paid by the husband for the use of the wife, together with her costs.

The defendant sets up the defence of a hard bargain, and objects that a court of equity will not specifically enforce such a contract. Such a defence was rejected by the court of appeals in Buttlar v. Buttlar, 12 Dick. Ch. Rep. 645, where the wife sought to enforce a like contract for her support. In the present case defendant, by his answer, admits facts which show that the contract, when made, was neither hard nor unconscionable in the obligations it imposed upon the -husband. lie seeks to avoid it by showing, that after the making of the contract and performance of it for several years, he has, because of business competition and misfortune, become financially incapable of continuing its performance. The offer was overruled as no defence.

Following the rule laid down in the Aspinwall, Case, I will advise a decree in favor of the complainant.


author: Grey, Y. C.

text:
    Cornelia A. Slack v. Augustus F. John.
    [Filed February 4th, 1902.]
    1. A mortgage was made, delivered and recorded for present value passed. In a suit begun two years after, to which the mortgagee was not a party, the mortgagor was decreed to have obtained the title to the mortgaged premises by fraud and undue influence.—Held, the decree in the suit to which the mortgagee was not a party is of no binding effect against her, and is ineffectual as a defence to her suit to foreclose the mortgage.
    2. The title of the party who recovered the mortgaged premises by setting aside the deed fraudulently obtained by the mortgagor, is not adverse and hostile to the mortgagee. Her vested rights are in no way affected by a subsequent suit in which she is not joined as a party.
    On bill, answer and proofs.
    The bill of complaint in this cause is filed to foreclose a mortgage made by Augustus E. John to Cornelia E. Slack, the complainant, to secure the payment of $500, with interest, upon a lot of land at the southeast corner of Mechanic and Third streets, in the city of Camden, the title to which is stated in the bill of complaint to have vested in the mortgagor, Augustus E'. John, by a deed made to him by Annie Burns, dated March 29th, 1897.
    The mortgage is dated the 1st day of July, 1897, and was recorded in Camden county register of deeds office on the day of its date.
    The contest in this cause arises upon the dispute between the complainant and the defendant Bernard Holland. The bill of complaint alleges that Holland filed a lis pendens notice in Camden county register’s office, on the 15th day of March, 1899, which set forth that he (Holland) was complainant in a suit pending in the court of chancery of New Jersey, wherein Angustus F. John (the mortgagor) was defendant, and that the general object of that suit was to set aside three conveyances made by Annie Burns to Augustus F. John and to have the same declared fraudulent and void. The complainant in this suit alleges that one of the tracts described in that lis pendens notice is the mortgaged premises in this foreclosure suit, and she charges that the notice of lis pendens was filed subsequently to the recording of complainant’s mortgage, herein sought to be foreclosed, and that any interest or estate in or lien on the mortgaged premises, which Holland has, or can recover by that suit, is subject to the lien of the complainant’s mortgage herein sought to be foreclosed, and she prays for foreclosure and sale of the mortgaged premises.
    The defendant Holland files his answer in support of his claim under the suit referred to in the Us pendens notice. He admits the execution and delivery of the mortgage set out in the bill that the interest came to be due and is unpaid and that the principal sum is also due. He admits that he filed a Us pendens notice referred to in the complainant’s bill and that the object of the suit in this court mentioned in the Us pendens notice, wherein he (Holland) is complainant, was to set aside and have declared void a deed for the mortgaged premises made by Annie Burns in her lifetime to Augustus F. John, which deed is dated March 29th, 1897, and ho alleges that such proceedings were had in that cause that on the 6th day of June, 1899, a final decree was entered therein, according said deed to be null and void. The defendant Holland thereupon avers that by reason of the premises, the said Augustus F. John was not the owner of said mortgaged premises on July 1st, 1897, the time when he made and executed the complainant’s indenture of mortgage, and had no right to mortgage said premises, and that as against him (Holland) the complainant’s mortgage is void, and not a lien upon the mortgaged premises.
    The cause has come to hearing on issue joined.

      Mr. John Meirs, for the complainant.

      Mr. John F. Earned, for the defendant.
   Grey, Y. C.

The sole .matter here in dispute is the claim of the defendant Holland that he has, in another suit, obtained a decree of this court that the deed from Annie Burns to the mortgagor, Augustus E. John, conveying the mortgaged premises, was void because obtained to be made by undue influence exercised by John over the grantor, Annie Burns. Holland v. John, 15 Dick. Ch. Rep. 435. Because of this decree Holland claims that John, the mortgagor, was not the owner of the mortgaged premises when he executed the complainant’s mortgage, and that the complainant’s mortgage is therefore a- nullity. The defendant Holland further insists that he claims by a title which is hostile and adverse to the complainant’s mortgage, and that such an issue cannot be tried in a foreclosure suit, and he contends he must be dismissed in this suit, with costs, under the rulings in Wilkins v. Kirkbride, 12 C. E. Gr. 93, and cases there cited. .

The settlement of this claim of the defendant Holland involves an inquiry into the title to the mortgaged premises which John, the mortgagor, held at the time he made the mortgage, and into the effect of the suit of Holland upon that title. The premises were conveyed by Annie Burns to John by deed dated March 29th, 1897. The mortgage was made by him to the complainant on July 1st, 1897, and was recorded the same day. At the latter date there was nothing on the face of the record of the title which in any way warned the complainant that John’s title to the mortgaged premises was impeachable. Nothing is alleged charging that the complainant participated in any acts of undue influence whereby Annie Burns was induced to convey the title to John, the mortgagor, nor is it charged or contended that the complainant, when she took her mortgage from John, had any notice of any undue influence or of any fraudulent acts oh John’s part whereby he obtained the title. Nor is there any dispute that the complainant mortgagee did in fact pay the mortgage money ($500) to the mortgagor, John. It is admitted to be still owing with interest.

There is in fact no issue raised by the pleadings in this suit, challenging the validity of the complainant’s mortgage because its acceptance was a part of any scheme of undue influence. All that is charged is that in the previous suit between the present defendant Holland and the mortgagor, John, a decree lias been made declaring the deed whereby John received title to be void, because obtained by undue influence exerted by him over Annie Burns, the previous holder of the title. No proof has been offered here to show that there was any such undue influence exerted, or to indicate that the complainant participated in it or knew of it.

The defendant Holland relies wholly on the decree- in the previous case of Holland v. John, as conclusively establishing the total nullity of John’s holding of title to the mortgaged premises, not only in favor of his claim as heir-at-law of Annie Burns, the unduly influenced grantor, but that the deed to Burns so obtained, is by that decree made void ab initio, and that all John’s acts as owner of the property, and especially his mortgage to Mrs. Slack, are by the same decree made null and void.

The decision of this cause must therefore depend upon the effect of the decree in the above-cited case of Holland v. John upon the complainant as the holder of her mortgage.

Mrs. Slade’s mortgage was received by her and recorded on July 1st, 1897. The suit of Holland v. John was begun in March, 1899, nearly two years afterwards. That suit was between Holland as complainant and John as defendant. Mrs. Slack was not made a party. It determined, as between Holland and John, that the deed whereby John received the title to the mortgaged premises was obtained by undue influence exerted by John over Annie Burns, who conveyed to him. It adjudged nothing as to Mrs. Slack’s rights. She never had her day in court, giving her an opportunity to deny and refute Holland’s allegations of undue influence and fraud. She is in no way bound by the determination in that suit. This is plainly apparent as an essential principle in the administration of justice, and has been declared by the highest authority. Haughwout v. Murphy, 7 C. E. Gr. 531 (Court of Appeals).

In the absence of any force in the proceedings and decree in Holland v. John to affect Mrs. Slack’s mortgage, there is nothing in the pleadings or proofs here submitted on the part of the defendant which offers any defence to this suit for the foreclosure of that mortgage. Every element of the defence is dependent upon the claim that Mrs. Slack’s mortgage is a nullity because of the decree against her mortgagor, John. That decree bound Mr. John but not Mrs. Slack. As against her there has been no determination that the deed from Annie Burns to John was obtained by undue influence. As to Mrs.,Slack that deed must in this suit stand unimpeached. John, for the purpose of this suit, had the right to make Mrs. Slack’s mortgage.

- The claim that Holland’s title is hostile to the mortgage is controlled by the same circumstances and need not be considered.

The interesting question of the position of a bona fide mortgagee for value presently passed, who innocently takes a mortgage from a mortgagor, who has obtained title by a fraud, is not presented in this case. The only attempt to show fraud or undue influence is the presentation of the proceedings and decree referred to, which, as above shown, are -in no way binding on Mrs. Slack, who was not a party to them’.

A decree will be advised in accordance with the views above expressed.


text:
    J. Haines Lippincott, trustee, v. Kate Baker Williams et al.
    [Filed February 19th, 1902.]
    1. A trust deed authorized the trustee, his heirs or assigns, and the beneficiary, at any time during the latter’s life, by joining in a deed, to revoke, alter or make void all or any of the uses or estates limited in the trust lands, and, by such indenture, or by any other indenture, to convey the land in fee-simple or in mortgage, or any less estate, freed and discharged from any trust or limitation whatsoever, or by such indenture to appoint and declare any new or other uses of the said land, and the moneys arising from such sale or loan to invest in other real estate, &c., subject to the same uses and trusts and under the same provisions as before declared concerning the trust land. Afterwards the trustee and the beneficiary joined in a conveyance of the property.—Held, the proceeds of the sale belong to the trustee as part of the trust estate. The trustee and beneficiary have power, under the terms of the deed, to revoke or alter the trust as to the uses and estates in the proceeds of the sale in the same manner that, the deed gave them power to revoke or alter it as to the uses and estates in the land.
    2. A mere notice served on the trustee by the beneficiary that, under the powers vested in her, she revoked and made void the trust, is !nsufficient to terminate it. The terms of the deed require that the revocation shall be by indenture, both the trustee and the beneficiary joining therein.
    On bill for construction of trust deed and answer.
    The bill in this case is filed by J. Haines Lippincott, trustee, under a deed dated June 5th, 18^5, made by .Victor Gillou and others to Peter W. Baker, conveying lands at the southeasterly corner of Atlantic and Pennsylvania avenues, in Atlantic City.
    The deed in question directs that the trustee shall let the property, recover the rents and pay them into the hands of Kate Baker, daughter of Peter W. Baker, or to her appointee, or, at her option, shall suffer her to let or to occupy and enjoy the premises and receive the rents during the term of her natural life, for her own separate benefit, without liability for the debts of her husband, if any she should have, paying taxes and expenses of repair, &c., her receipt, whether she be covert or sole, to be a valid discharge. After her death, in further trust, for the use of such children of Kate Baker as should be living at the time of her death, and the issue of such children as should then be deceased, in equal shares, as tenants in common, the issue of any deceased children to take only their parents’ share, and in case Kate Baker should depart this life without leaving surviving child or the issue of a deceased child, then the whole of the said premises to be in further trust for the use and benefit of the right heirg^it-law of said Kate Baker. Then follows in the trust deed this proviso:
    “Provided always, nevertheless, and it is hereby expressly agreed and declared by and between the parties hereto, that it shall ana may be lawful for the said Peter W. Baker, his heirs or assigns, at any time or times during the life of the said Kate Baker, by indenture or indentures, well and sufficiently executed by and with the consent of the said Kate Baker, testified by her becoming a party to and signing and sealing the same, to revoke, alter, change, modify or make void all and every of the uses and estates hereinbefore limited and declared and appointed of and concerning the said messuage, lot of land and premises, and by such indenture and indentures or by any other indenture or indentures well and sufficiently executed as aforesaid, to bargain, sell, grant and convey the said messuage, lot of land and premises, or any part thereof, to any person or persons, in fee-simple, or in mortgage, for any less estate, freed and discharged from any trust or limitation whatever, and without any liability whatever on the part of any purchaser or purchasers, mortgagee or mortgagees as to the application, non-application or misapplication of the purchase or mortgage moneys; or by such other indenture or indentures to appoint and declare any new or other uses of the said messuage, lot of land or premises, and the moneys arising from such sale or loan, obtained by mortgage of the premises to invest, in other real estate, in mortgage, stock or other securities, subject to the like and same uses and trusts, and under the same provisions, conditions and limitations as are hereinbefore declared of and concerning the said messuage, lot of land and premises hereby granted, anything herein-before contained to the contrary thereof, in anywise notwithstanding.” *
    The bill of complaint further narrates that the trustee, Peter W. Baker, died, leaving him surviving as his only issue the said Kate Baker, who married one Williams, and since his decease remains his widow, Kate Baker Williams; that Emma Gaul Miller (formerly Williams) is the only issue of that marriage, and that there are no deceased children of Kate Baker Williams, and that Emma Gaul Miller (formerly Williams) has had no children.
    The bill further states that in March, 1901, Kate Baker Williams, Emma Gaul Miller and Wirt D. Miller, her husband, petitioned this court for the appointment of a trustee in the place of said Peter W. Baker, who had departed this life, and that on April 8th, 1901, J. Iiaines Lippincott, the complainant in this cause, was appointed trustee in the stead of said Peter W. Baker, to perform the trusts set forth in said deed; that in execution of said trusts the said J. Iiaines Lippincott, trustee as aforesaid, has conveyed the premises described in the trust deed to Samuel W. Moore and others for $65,000, in which conveyance said Kate Baker Williams, Emma Gaul Miller and Wirt D. Miller joined as approving and assenting thereto; that the purchase-money for said conveyance was partly in cash and partly secured by mortgage to the said trustee, who now holds the said mortgage and also the cash proceeds of said sale.
    The bill further narrates that about July 1st, 1901, the said Kate Baker Williams served notice upon the complainant trustee as above stated; that, under the powers vested in ber by the above-quoted proviso of the trust deed, she revoked and made void “all and every the trust, uses and estates limited, declared and appointed of and concerning the said premises,” and demanded of the trustee that lie should turn over to her all moneys in his hands, cash proceeds of said sale, less expenses and fees attending the same, and should assign and set over to her, absolutely, the mortgage received by him securing part of the purchase-money of said conveyance.
    The complainant further states that the defendant Kate Baker Williams insists that she has a right, under the terms of the said deed, to revoke the trusts named and to appoint herself as the recipient of said trust funds, and thereby to become the owner of the proceeds of sale of said trust property, free from the trusts expressed in said deed, and that she insists that she has so revoked said trusts and that she is presently entitled to have said cash proceeds of sale and said purchase-money mortgage transferred to her absolutely. The complainant alleges that he has no special interest in the premises, or in the proceeds of said sale, and is entirely willing to turn over the same to Kate Baker Williams, if, with safety to himself, as trustee under the terms of said trust, he can do so; that he is in doubt as to the proper construction of the revoking clauses in said trust deed, and prays the aid of this court as to their true interpretation and meaning, and that he may be instructed whether or not he still holds the proceeds of said sale and said mortgage upon the same uses and trusts set forth in said trust deed.
    The defendants, Kate Baker Williams, Emma Gaul Miller and Wirt D. Miller, join in an answer admitting, in substance, all of the facts stated in the complainant’s bill of complaint,- but they insist that, by the true construction of the terms of the trust deed, the said Kate Baker Williams had power to revoke the uses and trusts therein expressed, and to make the proceeds of the sale of said premises absolutely payable to herself, freed and discharged from any other uses and trusts named in the said deed, and that, under the circumstances narrated in said bill of complaint, she has so revoked those uses and trusts, and that the cash proceeds of the sale of the said premises are payable to her, and the said mortgage securing part of the same is assignable to her, freed and clear of any and all trusts expressed in the said’ trust deed.
    The cause was set down for hearing on bill and answer, the only matter argued being the question above indicated, the construction of the clauses in the trust deed giving to the defendant Kate Baker Williams a power of revocation of the trusts created by the deed.

      Mr. Clarence L. Cole, and Mr. A. M. Palmer (of the Pennsylvania bar), for the defendants, no one appearing for the complainant.
   Grey, V. C.

This cause has been argued ex parte, the complainant submitting the case upon the pleadings and the defendants’ counsel presenting that construction of the trust deed for which she has contended in her answer.

The proviso of the trust deed contains the clauses which define by whom, and the mode in and extent to which, the powers of revocation and alteration of the trusts expressed in the deed may be exercised. Upon careful reading it will be found that several powers are granted which are distinctly different. The first authorizes the trustee and his heirs and assigns and Mrs. Kate Baker Williams, at any time during her life, by joining in a deed, either wholly to revoke all or any of the uses and estates limited in the trust lands, or to change or modify them. The second enables the trustee and Mrs. Kate Baker Williams, in the same manner, to sell or to mortgage the trust lands, discharged of the trust, and relieves the purchaser from liability to see to the application of the purchase-money. The third empowers the trustee and Mrs. Williams, in the same manner, to appoint and declare new or other uses of the lands, and to invest the money arising from any sales or mortgage of the premises in other real estate or mortgage, or in stocks or other securities, subject to the same uses and trusts and under the same provisions, conditions and limitations as are by the trust deed declared concerning the trust lands.

It is quite apparent that the first power might readily be so used as to wholly terminate the trust. If the trustee and Mrs. Williams have, in the manner required by the proviso, revoked the trust expressed in the deed as they are authorized to do by the first clause, and have altered it by appointing the lands to the absolute use and enjoyment of Mrs. Williams, the object of the trust has been fulfilled and its life has come to an end. In that case, the trust lands having already been disposed of, there would be no occasion for the exercise of the second power to sell or to mortgage them, or of the third to appoint new or other uses of them, or to invest the moneys arising from their sale subject to the same trusts as are expressed in the deed.

The same result attends upon the trust property when, after a sale, it constitutes either a cash fund or an invested security. It is true that the third clause, in authorizing the trustee and Mrs. Williams to appoint the trust lands to new or other uses, directs that the money arising from a sale or mortgage be invested subject to like uses and trusts as are expressed in the deed. But the same clause also declares that the purchase or mortgage moneys shall be subject to the “same provisions, conditions and limitations as are hereinbefore declared of and concerning the said messuage, lot of land/’ &c. These words subject the purchase-money and its investment to the same conditions and limitations which the trust deed imposes upon the lands. They bring the purchase-money and the securities which represent it under the operation of the powers of revocation and modification given by the first clause of the proviso of the deed.

The settler intended, and has expressed his purpose, that the land and the proceeds of its sale or mortgage, in whatever form they might be secured, should be and remain, subject to the trusts expressed in the deed, until the trustee and Mrs. Kate Baker Williams, in the manner in the deed directed, should revoke, change or modify them and appoint to other uses, and that, when they should so revoke and appoint, the trust lands or the proceeds of their sale should pass to the other uses so by them appointed.

The trustee complainant not only prays that he may be instructed as to the true meaning of the trust deed, but he asks that he may be advised whether or not he holds the cash proceeds of sale and the mortgage securing part of the purchase-money upon the same uses and trusts as are set forth in the deed to Peter W. Baker.

The true construction of the trust deed upon the point submitted has been hereinbefore declared. As to the remaining question whether the trustee now holds the proceeds of sale subject to the same uses declared by the trust deed, he must be advised that at the present time, so far as the facts are disclosed by the bill and answer, he does.

The trust deed provides that the trustee, “by indenture well and sufficiently executed by and with the consent of the said Kate Baker, testified by her becoming a party to and signing and sealing the same,” may revoke, &c. The only allegation in the bill or answer of any act of revocation is the statement in the bill of the service of a notice by Mrs. Kate Baker Williams upon the trustee. If the deed conveying the premises, in which both the trustee and Mrs. Williams joined as grantors, contained a revocation of the trust, it is not so alleged in the pleadings. The revocation has not been accomplished by the mere notice served upon the trustee by Mrs. Williams. The trustee must revoke by his indenture, Mrs. Williams consenting by becoming a party thereto, as prescribed in the trust deed.

A decree will be advised according to the views above expressed.


text:
    Louis B. Humphreys v. James R. Eastlack.
    [Filed March 6th, 1902.]
    1. A private citizen cannot sustain a bill in equity to abate a public nuisance unless because thereof, he suffers, either in his person or his property, some special injury which is peculiar to himself, and nor as one of the public.

      2. A complainant who by his pleadings and issues joined thereon and proofs submitted in support of those issues, has presented certain and definite grounds for relief, cannot, after the case has closed, without suggestion of amendment, present by argument only, entirely different and new grounds for relief and have decree made on those grounds.
    3. It is declared in Salter v. Jonas, 10 Vr.Jf69, that a deed conveying a lot of land which describes its boundary as running along the side of a street will, by legal presumption (in the absence of words excluding the street), be held to embrace the lands lying in the street, to the centre line. This declaration is based upon the assumption that there has been some showing that the grantor in the deed had title to the centre line of the street. If there be no proof that the grantor had title to the centre line of the street, no presumption arises that he intended to convey to that centre line.
    On bill, answer and proofs.
    Tbe bill filed by complainant claims that he is the owner of a lot of land, the houses on which are Nos. 230 and 232 Market street, in the city of Camden. This lot lies adjacent to the southwest corner of Market and Third streets. The bill alleges that four lots lying at the four corners of Third and Market streets, each thirty feet on Third street and forty feet on Market street, were (at some unnamed day) conveyed to the city of Camden “to be used as a public mart or highway and for the public use;” that for more than forty years said lots have been used by the city of Camden as a public highway and for public use as part of its public street, and that the corner adjacent to complainant’s lot has been used by complainant as an entrance or highway to his land bordering on said Market place or street.
    These four lots are recessed corners, and are designated “Market square” in some of the deeds and as “Market place” in later ones.
    The bill alleges that the defendant erected a building on his lot, adjoining complainant’s lot, and that some five years before the filing of the bill of complaint, the defendant constructed along the east line of his building a metal awning extending for twenty feet from his east wall out upon Market place in front of the complainant’s property, the awning being fifteen feet high and having five awning poles on' said Market place, to sustain it; that at the same time that the defendant erected the awning, &e., he placed a cellarway in the east side of his building, extending out upon Market place a distance of six feet; that he continually keeps a number of boxes and barrels in said Market place upon the land in front of complainant’s property; that he has built in the east line of his property a bulk window, which extends beyond his building line for two feet out upon said Market place in front of the property of complainant.
    The complainant charges that said Market place, by the erection of the awning, eellarway, bulk window and the placing of boxes, barrels, &c., is, and must necessarily and unavoidably be, much obstructed as a public highway or for the public use; that Market place is thereby rendered much less- convenient to the complainant and his tenants; that he is deprived of its use and enjoyment as an entrance to his land bordering thereon, as a highway, and that his outlook, light and air and vision over Market place in front of his land is hampered, cut off and destroyed, detracting from the value of his property to his damage and injury.
    The complainant prays that the defendant may, by decree, be forbidden to continue his alleged obstruction of Market place and from entering or placing any of the obstructions named in, upon or across said Market place and from preventing the complainant in his enjoyment of said Market place.
    The defendant has answered the bill. He admits the complainant’s ownership of the lot of land at the southwest corner of Third and Market streets. He denies the alleged conveyance of the four corner lots to the city of Camden to be used as a public highway, but admits that for the last forty years they have been so used by the city of Camden as part of its public street. He denies that the complainant has used them as an entrance or highway to his land bordering on said lots, and avers that the complainant has had no special use of the' lots in front of his property different or distinct from the public use.
    He also denies that he erected the building on his lot, as is alleged in the bill, and says that the building was erected by a former owner, Elizabeth E. Smith, in the same manner as buildings are lawfully erected along the line of public streets of tlie city of Camden, and that it was so erected with the full consent and approbation of Evaline E. Humphreys, sister of said Elizabeth F. Smith, and then owner of the lot now owned by the complainant. The defendant also alleges that Market place, named in complainant’s bill, is part of a public street of the city of Camden; that by the amended charter of that city, the exclusive control of the streets of the city is vested in city council, and in pursuance of that power, the city council has, by ordinance, regulated the use of the streets of the city, including said Market place, and has provided for the erection of awnings, stoops, show and bulk or store windows.
    The defendant denies that he erected the metal awning alleged in the bill and avers that it was built by the said Elizabeth F. Smith in 1879, with the full consent of the said Evaline E. Humphreys, in accordance with the ordinances of the city of Camden, but admits that in 1889 the defendant caused the awning to be repaired. The defendant further denies that he placed the cellarway at the time of the repairing of his awning, and says that the cellarway was built prior to 1879, while the property owned by defendant was owned by said Elizabeth F. Smith, and that it was located with the full consent of Evaline E. Humphreys, then owner of the complainant’s property; that it extends out a distance not of six feet, but only four feet nine .inches, into said Market place.
    The defendant denies that he continually has barrels and boxes in said Market place as is alleged in the bill, and says that such barrels and boxes are only occasionally in said Market place, while waiting to bo stored in defendant’s building or to be hauled away, and that they are used in connection with the retail grocery business of the defendant. The defendant alleges that he has erected a bulk window on the east side of his property, denies that it extends two feet beyond his line and says that it extends but eleven inches and is built in accordance with the ordinances of the city of Camden.
    The defendant denies that the erection of the awning, cellar-way, bulk window and the placing of boxes and barrels in Market place, are any obstruction of the public highway for public use, and further denies that Market place is thereby rendered less convenient to the complainant and the tenants of his land, and that they hamper or destroy the outlook, light, air and vision of the complainant over said Market place.
    The defendant insists that the complainant’s bill exhibits no injury special to himself, distinct from that sustained by the general public; that it shows no equity and he prays the same advantage of this, as if he had demurred to the bill.
    The following is a copy of a plan exhibited at the hearing, showing the locus in quo and the several alleged obstructions of the highway, of which complaint is made. The recessed corner lot, referred to in the bill as “Market place,” is indicated by a red line and dotted blue line. (See notes below.)

      Mr. Martin V. Bergen, Jr., and Mr. Martin V. Bergen, fox tbe complainant.

      Mr. Thomas B. French, for the defendant.
   Grey, Y. C.

There are several incidents in the bill of complaint in this cause which should be noted in order to have a clear understanding of the issues, to which the parties directed their attention at the hearing.

First. The bill shows that all the alleged obstructions occur on the lot which is the recessed corner of Third and Market streets, which lies adjacent 'to both the complainant’s and the defendant’s lots. This recessed corner lot is sometimes called “Market square” and sometimes “Market place.” (See diagram.)

Second. The bill of complaint distinctly alleges that this recessed corner lot was conveyed to the city of Camden, “to be used as a public mart or highway and for the public use.”

Third. Nowhere in the bill is there any allegation that it was in any way conveyed to the complainant, or that he has any estate in fee in it.

Fourth. All the injuries complained of are stated to be obstructions of the highway, whereby the public and the complainant are injured in their use and enjoyment of the highway, and none are stated to be the imposing of servitudes in addition to and different from the public way upon any estate in fee held by the complainant in the lands upon which the alleged intrusive structures are placed.

The allegations in the bill of complaint that the space upon which the defendant’s several structures have been placed is a part of the highway was not in any way proven in the cause by evidence. No proof of any significance was offered on that point. It was assumed that the defendant’s admission in his answer that the space in question had by user become part of a highway sufficiently established the complainant’s allegation. The admission is not that the space has always been a part of a highway, nor that it was dedicated as a highway by any owner of that space and accepted by the public. It simply admits that by user for forty years it had, when the complainant filed his bill of complaint, become a highway.

Two ancient deeds and a copy of an old map were offered by complainant, and these, it was argued, showed a dedication of the recessed corner in front of complainant’s property as a highway. Nothing in the deeds declares a dedication of the space in question. One of these deeds, in describing the lots they conveyed, refers to the space in question, which lies adjacent to those lots, as “Market square.” But there is no proof that the grantor in those deeds ever had any title to the space called “Market square” upon which any presumption of a dedication might be based. The old map is supported by no proof whatever. Neither the deed nor the map, disconnected, as they are, from any supporting lino of proof joining them with a proved owner of the space in question, called “Market square” or Market place,” has any probative force to establish the claim that “Market square or “Market place” was ever dedicated as a highway.

The existence of a highway over the space in question (the southwestern recessed corner of Third and Market streets), must therefore in this cause depend entirely upon the defendant’s admission in his answer, that by user for forty years that space has become a part of a highway.

The evidence presented was addressed to the showing that the defendant has unlawfully, by the construction of the awning, the bulk window and the cellarway, and by the piling up-of boxes and barrels, so obstructed the space in question (Market place), a public highway, that both the public and the complainant were deprived of their full and unimpeded use of that space as a highway. On the case stated by the bill of complaint, and attempted, to be proved, the acts charged, if unlawful, clearly amounted to a public, nuisance, as obstruction of a public highway.

A long line of decisions in this state declares that a private citizen cannot sustain a bill to abate a public nuisance, unless he suffers in himself or his property some special injury peculiar to himself, and not as one of the public. Van Wagenen v. Cooney, 18 Stew. Eq. 25, and. cases there cited. The defendant’s answer in this cause challenges the complainant’s right as a private citizen to file this bill for the causes alleged. The court of appeals lias declared that a court of equity will not enjoin an offence against the public at the instance of an individual, unless he suffers some private, direct and material damage beyond the public at large, as well as damage otherwise irreparable. Morris and Essex Railroad Co. v. Prudden, 5 C. E. Gr. 537.

Examining the cáse here presented in the light of these expositions of the law, it appears that the first awning was built in 1878 or 1879 by Mrs. Jesse Smith (Emeline Smith), a prior owner of defendant’s store. The present awning was rebuilt in substantially the same place (perhaps a little wider) by the defendant in 1889. It consists of a corrugated iron roof, leaning from the defendant’s building to and supported at four iron posts. It is not closed in at the sides. The roof is about eleven feet from the ground at the posts and fourteen feet at the defendant’s building. The only obstruction to the view caused by this awning is occasioned by the iron posts, about three inches in diameter, and the edge of the corrugated iron roof. The nearest point of the structure to the complainant’s property is fourteen feet, and this feature marks the one point wherein this awning differs from awnings in use in front of hundreds of other stores. It is fourteen feet further away from the front of complainant’s building than the usual awning structure is from the next building. This, of course, makes it interfere less with the complainant’s property than the next building awning does.

No objection'appears to have been made to the first awning which stood without the objection from 1879 to 1889. In the latter year the defendant took the old one down to replace it by the new one, and the complainant (apparently for the first time) objected, not to any difference- between the old and the new one, but to the erection of any awning by the defendant. No suit was brought to restrain the construction of the new awning and it has remained unchallenged until the present action, which asks a mandatory injunction for its removal.

There is no showing that the awning is any material injury to the complainant as distinguished from the general public, nor is it shown that its presence causes him irreparable injury. If this awning is a private and special injury to the complainant, as an adjoining owner, beyond the injury to the public, then every awning erected in front of a store is a private nuisance to the adjoining owner. Nothing in the proofs indicates that this structure has any peculiarity which so interferes with the complainant in the enjoyment of his property as to amount to a private nuisance. This appears not only in the exhibition of the physical character of the structure and its relation to the complainant's property, but in the fact that the previous owners of the property from 1879 to 1889 are not shown to have made any objection to it, and the complainant himself, while objecting in 1889, took no legal steps until he began this suit to redress his supposed wrongs. It is quite apparent that the inconvenience to the complainant was. and is of trifling character, quite unworthy of the dignity sought to be given it by this suit. The cases all hold that the remedy by injunction, in cases of this sort, where the offence charged, if it exists, is a public nuisance, must be applied with the utmost caution and only when necessity requires it, if invoked by a private person alleging the same offence to be specially injurious to him. Morris and Essex Railroad Co. v. Prudden, 5 C. E. Gr. 536; Van Wagenen v. Cooney, 18 Stew. Eq. 25; Township of Raritan v. Port Reading Railroad Co., 4 Dick. Ch. Rep. 16.

The next complaint is about the bulk window, which extends out from the defendant's store building line for thirteen inches, and is the usual show window with a cornice at the top which reaches out somewhat further. The window itself is well within the sixteen inches to which, by Camden city ordinance, it is permitted to extend a bulk window beyond the building line. The cornice of the bulk window does extend beyond that distance. There is no showing that this cornice works any injury to the complainant beyond this slight intrusion upon the highway. He complains of the window, which is within the ordinance line, but never specially mentions the cornice. Neither the bulk window nor its cornice inflict any special damage upon com'plainant’s property. They are in fact more than thirty feet from the front line of his building, and cannot possibly be any substantial injury to him in the enjoyment of the highway. As intrusions on the highway, they are clearly within the same class as the awning and governed by the principles hereinbefore stated.

The cellarway complained of extends from the defendant’s store building for about four feet nine inches on its easterly side and has a stone edging, flush with the pavement, reaching about six inches further. It is used to receive from the street the barrels, boxes and larger parcels of the defendant’s stock of groceries. It has been in its present location without objection at least since 1889, and was preceded by another of similar size, in almost the same place, perhaps a little nearer Market street, which had been in the old building at least since 1863. Neither eellarway, per se, appears to have been objected to, but the leaving of barrels and boxes opposite its entrance had been occasionally, previous to three years before this suit, a matter of complaint. Neither the structure nor its location has any peculiarity which differentiates it from the usual cellar entrance to stores. Its nearest point is twenty-two feet from the front of complainant’s building. As has been said of the awning, if this is a private nuisance to the complainant, every other cellar-way must be a private nuisance to the next-door neighbor.

The next and last item mentioned in the bill of complaint as an interference with complainant’s enjoyment of the highway, is that the defendant continually has a number of barrels and boxes in Market place upon the land in front of complainant’s property, thus obstructing the complainant’s use of the public highway. The proof is that previous to three years ago there was some ground for this complaint, arising apparently because barrels and boxes for or from the defendant’s store were not removed within reasonable time. There were two occasions when they especially interfered with the business of the complainant’s tenants. These happened when drunken drivers put the barrels, &c., in front of the tenant’s door. He.notified the defendant, who in a couple of hours had them removed. The defendant claims no right to use this space as a place for storage. He explicitly declares that goods which come and any empty boxes, &c., which go, are now permitted to remain on the space in question only such reasonable time as is required for their removal in the ordinary conduct of business. There is here no showing of sufficient cause for an injunction. The only wrong proven had long ceased to exist before suit brought. No right to do the thing complained of is claimed. No renewal is threatened. The writ should not go to prevent a non-existent and merely possible wrong, which no one presently intends to inflict.

On the whole case, as alleged in the pleadings and proven, the complainant has failed to show any right to equitable relief.

In presenting this cause on the argument the complainant’s junior counsel has submitted an elaborate and ingenious brief in which he puts forward what is substantially a new- and different case from that alleged in the bill.

He now contends that the complainant is the owner of' an estate in fee in the recessed corner of Market and Third streets, referred to as “Market square,’’ sometimes as “Market place.” He further insists that the several alleged intrusions of the defendant upon this space are not uses of a highway, but the imposition of additional servitudes, adding to the burden of the public highway, wdiich the complainant as owner of the fee is entitled to have removed by the mandatory decree of this court.

■ This, it must be observéd, is a clear departure from the complaint to wdiich the defendant was invited to respond, and seeks to argue the cause upon lines outside of the allégala and probata. This course of procedure has always been received with disfavor. Even clear proof of matters not alleged as ground for relief in the pleadings will not be noticed by the court. Van Sciver v. Bryan, 2 Beas. 434 (Chancellor Green). Where a party has presented his case by his bill and failed to sustain it by evidence, he cannot change his position and base his claim for relief on matters incidentally disclosed by the proofs. Pasman v. Montague, 3 Stew. Eq. 393. In Midmer v. Midmer, 12 C. E. Gr. 548, the court of appeals unanimously refused, on an allegation of a trust arising between parties by express agreement, and mentioning no other trust, to allowr proof to be made of a resulting trust in another person.

In order, however, to consider the whole case submitted, the argument of the complainant’s counsel has been entertained.

It proceeds upon the assumption that the whole recessed (southwest) corner at Market and Third streets, called "Market square” in the two old deeds and "Market place” in the Fetters partition (hereinafter referred to) is a part of Market street on which complainant’s buildings directly front, and is no part of Third street upon which the defendant’s building has a side front (see preceding diagram, where this space is indicated by a red line and a dotted blue line); that the complainant is the owner of the fee to the middle of Market street, including the whole of the recessed corner lying in front of his lots.

This argument is directly contrary to one of the opening allegations of the bill of eoinplaint which states the conveyance to the city of Camden of those

“four lots or pieces of land situate * * * at .the corner. of Market street and Third street * * * to be used as a public mart or highway, and for the public use.”

The Market place is one of these lots. This allegation is entirely inconsistent with the complainant’s argument that he has an estate in fee in the premises in question, for it asserts that the lot of land was itself conveyed to the city for a named use, thus conveying the fee in the land, not that a right of way in it was conveyed, thus passing only an easement and leaving the fee in the grantor.

The complainant bases his claim to the ownership of the fee of the recessed corner in front of his lots upon the doctrine declared in the case of Salter v. Jonas, 10 Vr. 469, and the line of cases following it. lie insists that under these rulings his fee-simple title must be held to run to the middle of Market street, taking in the whole recessed corner and leaving no part of it to the complainant’s lot, which also bounds on it, on the east, and ho argues that on this ownership of the fee in this recessed corner, he may, in this suit, claim as fee owner to have relief against the defendant for the intrusions set forth in the bill of complaint.

Salter v. Jonas declared that unless these be words of exclusion of a street, a deed for a lot of land describing it as running along the side of a street, will, by legal presumption, be held to embrace the lands lying in the street to its centre line. This exposition must rest upon the assumption that there has been some showing that the grantor in the deed on which the presumption is to arise had title to the centre line of the street.

No proof has been submitted in this cause which would support a judgment that any grantor, under whom the complainant claims, ever had title to the lands lying -within the space in dispute known as “Market square” or “Market place.” Nothing was offered to show that Jacob Cooper, who made both the two old deeds, conveying the lots now respectively held by the complainant and the defendant, ever had any title in the space in question. Nothing has been offered to show that Richard Fetters, under whose partition both parties claim, ever had any title to the space in question. Consequently there is in this case no grantor, owner' of the title to the lands in dispute, whose deed conveying lands bounding on Market street can,, by legal presumption be held to embrace the lands lying in the street to the centre line.

In Salter v. Jonas the dispute as to the lands lying in the street arose between the plaintiff and the defendant who was his remote subsequent grantee. The plaintiff’s original title to the lands in the street was not questioned. The only matter in dispute was whether his deed, bounding along the street, operated to convey the lands lying within it to the centre line. In the present case neither party claims by deed, directly or remotely, from the other.

The lots of both the complainant and the defendant were held at the time of his death by Richard Fetters in fee-simple. The easterly line of the house (now owned by the defendant) was the westerly line of the space called in the partition Market place. The northerly line of lots Nos. 230 and 232 (now owned by complainant) was the southerly line of Market place. Neither property at the time of the partition had any dominant right in “Market place” as against the 'other. The confirmation deed ratified the partition by the commissioners. By the same acts, at the same time, title to their several lots passed to each of the grantors of the respective parties to this suit. If any superior right in so-called “Market place” vested in one over the other, it must be by virtue of the partition.

But even if Richard Fetters had been proven to have held title to the lands in question, the partition and deed for the complainant's lots could not be held to be -within the rule laid down in Salter v. Jonas. The lands in question are in this cause admitted to have become a highway by user, but it is quite evident that in the'partition, where, for the first time, they are called “Market place,” they were not dealt with as part of Market street. The complainant's lot is by the partition and confirmation deed not bounded on Market street, it bounds on “Market place.” This is clearly shown in the boundaries of the lots partitioned. In the description of defendant’s lot No. 3 (set off to Elizabeth F. Smith), Market street and “Market place,” are recited as separate localities which corner on each other. In the description of complainant's lot (No. 3, set off to Evaline E. Humphreys), “Market place” (not Market street) and Third street corner on each other. “Market place” was not Market street according to the expressed intent of the partition and confirmation deed.

The admission in the answer that the space called in the bill “Market place” is a public highway, must be considered with the allegation in the bill and that is that it has become such by user by the public for a highway for forty years. There is no admission that it had become a highway in 1867-1873, when the partition was made and confirmed. Nor is there any proof that this space was then a part of any street or highway, whereby a description created at that date, bounding on it, might be presumed to carry title to the middle of the highway.

The complainant has shown no evidence that his deed for his lots Nos. 230 and 232, bounds on Market street or on a public highway, on which he can claim rights of a fee-simple owner by construction of law, in the space used as highway in front of his property.

Furthermore, the reasoning of Salter v. Jonas, and like cases, does not apply to the situation under examination. On the contrail, if presumptions are to be raised in the absence of expressions of the parties at the time o'f the severance of the title by the partition, they should be against the complainant’s contention of exclusive ownership of -the space in question.

The complainant’s property at the time of the partition had a direct frontage on “Market place.” The defendant’s property had a side frontage on “Market place.” Each property had windows and doors opening out of its buildings on its frontage. Here was an open and visible use of the space in question, of the most notorious character, manifestly continuous and permanent, by each property. Each property was dependent upon its use of the space designated as “Market place,” not only for its own beneficial use, but as a valuable appurtenance to the land and buildings on each lot, without which the most reasonable and convenient method of enjoying the property could not be had. The properties were severed by the partition and confirmation deed. These were coincident acts affecting both parties. No words, excluding either from the beneficial enjoyment of the space called “Market place” were inserted in the partition descriptions. It would, under such circumstances, be entirely unreasonable to presume that one property was given the exclusive ownership of the fee in the whole of this adjoining space the beneficial use of which, along the line of the lot given to each, was essentially necessary to each severed lot.

■It is not necessary that in this cause it should be determined who does own the fee of the space in question. The complainant has failed to show that he owns it, either by proof of ownership or of facts which might raise a presumption of ownership, and he cannot base any claim for redress for his alleged injuries upon any such ownership.

As there has been no showing that the complainant holds any estate in fee in the space lying in front of his lots, which both parties admit is now charged with a public highway easement, there is no occasion to. examine into his further claim that the structures built by the defendant on the recessed space in question are servitudes, not within the easement of a public highway, but additional thereto, and unlawfully imposed by the defendant upon the complainant’s estate in fee.

This point touching the complainant’s rights as owner of the fee in the disputed space has been considered and passed upon only because it has been most urgently presented in the complainant’s brief. The frame of the bill of complaint would not, in any view of the case, justify a decree in favor of the complainant, based upon his supposed rights as owner of the fee of the premises upon which he claims the defendant has unlawfully intruded.

Upon the whole case the complainant has shown no right to the relief which he claims. I will advise that his bill be dismissed, with costs.