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    William Bridgewater v. The Ocean City Railroad Company and Atlantic City Railroad Company.
    [Filed July 18th, 1901.]
    1. Where a general scheme of land improvement is announced to invited purchasers of lots, and part of the promulgated scheme is the declaration that a named portion of the lands within the general plan shall be devoted to special purposes, which are held out to be advantageous to all the lots to be sold, an implied covenant is thereby entered into by the owner with the lot purchasers that the named portion shall be devoted to the announced uses.
    2. Each purchaser of a lot and his grantees may enforce this covenant against the grantor or his grantees who purchased with notice of this implied covenant.
    3. He may also enforce it against the donee of the covenantor, who accepts as a gift a conveyance of part of the lands charged by the covenant. Such a-grantee simply stands in the place of the donor. All the notice which the donor had at the date of the gift is imputed to his grantee who-pays nothing for his deed.

      On bill, answer and proofs.
    The complainant is .the owner of two lots of land in Ocean City, Nos. 474 and 475, on the northwesterly side of Asbury avenue, between Ninth and Tenth streets, by purchase through an intermediate grantee from the Ocean City Association. There is a dwelling-house on the lots, in which the complainant resides, with his family. He filed his bill of complaint against the Ocean .City Railroad Company and the Atlantic City Railroad Company, who are subsequent grantees of the Ocean City Association of a strip of land lying at the southeast side of Haven avenue, between Fifth and Sixth streets, alleging that the strip so conveyed to the defendants is a part of a certain tract of land which, by an implied covenant of the Ocean City Association with the complainant and other purchasers of its lots, has been devoted to be used as a camp ground and park, and that the defendant companies are erecting a passenger station thereon, in violation of that covenant, to the injury of the complainant and other purchasers of lots under the said covenant, destroying the attractiveness of the camp-meeting ground and making it less desirable as a place of recreation and place of religious instruction, interfering with the circulation of air, and with the view over the park and camp ground.
    The complainant also refers to the decree of the court of appeals, in the ease of Lennig v. Ocean City Association, lb Stew. Eq. 606, declaring the validity of the covenant now in question, in favor of Lennig as a lotholder, and restraining the association from leasing the camp ground for a term of years with the privilege of erecting cottages thereon.
    The complainant prays that it may be decreed that the tract of land between Fifth and Sixth streets has been dedicated as a park and camp-meeting ground, to be kept open and free from all buildings and other obstructions except the auditorium, and that the complainant is entitled to have them kept open and free from such buildings, and that the defendants may be restrained from further prosecuting the work of building the passenger depot and other buildings, and may be decreed to remove .the obstructions thereon erected by them. Annexed to the complainant’s bill are copies of the association’s maps, as filed in Cape May comity clerk’s office.
    The defendant railroad companies file their joint answer, denying knowledge or notice of any devotion of the land between Fifth and Sixth streets to camp ground and park purposes, by either publication, filing of maps, public declaration or by recitals in conveyances. They admit that they have been advised of the Lennig decree since this suit was begun, raising a covenant in favor of the complainant, Lennig, “who was the owner of a lot or tract of land immediately abutting the said tract between Fifth and Sixth streets,” but they deny that the opinion in that case affects their rights or is res adjudicóla as to them. They deny that the Ocean City Railroad Company took title under the deed of May 20th, 1899, set out in the bill of complaint, conveying a twenty-foot strip at Haven avenue and Fifth and Sixth streets, and say that the railroad company received its title on December 29th, 1896, by deed from the association, conveying a strip one hundred and fifteen feet wide, at the same location, to be used for railroad purposes only, and not for freight purposes; and they deny that their conveyance was subject to the uses of the camp-ground tract set out in the bill. They allege that they had nearly completed their station when the bill in this cause was filed, restraining their occupation of their lot because it is part of the camp ground, and that the complainant had notice of that fact, and made no suggestion that he objected. They deny that the erection of their passenger station is a violation of the covenant of the association set out in the bill, and aver that it is a benefit to the community that the defendants should use such a passenger station to receive and discharge passengers to. and from Ocean City. They allege that the rights under the covenant, if any there be, are subject to the rights of the defendant railroad companies, under the General Railroad act of April 2d, 1873, and its supplements, under which the defendant companies were incorporated, to take and condemn lands, &c. They allege that map section A was first filed, and they insist that this map, if any binding plan was adopted, was exclusive of any other, and that section A extends only tó West avenue, and does not include Haven avenue, where their station. is located. They insist that if anyone can set up a covenant, it is only those purchasers whose lots abut on the camp ground; and they charge bad faith on the complainant, and that he is a mere instrument of the West Jersey and Seashore, a competing railroad company, to prevent the defendants from giving the public a more efficient service.
    An injunction was allowed on the filing of the bill. After the answer was filed, a motion was made to dissolve it, which was refused, and the cause has come to final hearing on the bill, answer and proofs.
    The testimony, oral and documentary, exhibits the following circumstances: The lots of the complainant and defendants and the camp ground and park, above mentioned, together with a larger tract of other land, now constituting Ocean City, in Cape May county, New Jersey, were owned in one tract by the Ocean City Association, a corporation of this state, organized October 20th, 1879, by the Eev. W. B. Wood and others, the declared object of which was “the establishment of a summer seaside resort founded on Christian principles, and affording religious privileges as well as healthful recreations.” Its certificate was filed in the secretary of state’s office on February 25th, 1880, and it began its conduct of business very shortly thereafter. The Ocean City Association, in pursuance of this declared object, offered its lots for sale, and published maps on which were exhibited plans of the lots and streets, dividing the property into parcels for private purchase.
    On May 25ih, 1880, the association made its first public sale of lots. It had previously advertised this sale by a publication called “The Ocean City Journal,” a copy of which is produced in evidence. It sets forth the names of the officers of the association. The whole first page is devoted to the advertisement of the proposed sale and a description of the property, its advantages and attractions. It refers to the camp ground in the following language:
    “The space allotted to the encampment is 500 feet wide, from the thoroughfare to the ocean, with plenty of tenting ground. It is contemplated to have all the appointments desirable to render the camp meeting a real feast to the thousands who may congregate there for Christian worship.
    “Those coming to tent with them will have every possible facility that will contribute to their comfort. Besides the regular services of the encampment, there will be temperance conventions, anniversaries and other Christian and philanthropic convocations, fully occupying the season and making it memorable in interest and profit.
    “No pains will be spared to give to Ocean City a series of religious privileges equal to other resorts of kindred character.”
    Maps and plottings were exhibited to purchasers at the sale, showing the camp ground open from the bay to the ocean.
    At the sale attention was called to these advantages of the open space for camp ground, &c., as an inducement to buyers, and lots were purchased upon these assurances then given. On June 9th, 1880, the association recorded the map called “Section A Ocean Oity” in Cape May clerk’s office. The map is dated May 22d, 1880, and shows an open space between Fifth and Sixth streets, marked “camp ground,” in the centre block, with the other sides of Fifth and Sixth streets plotted for sale as town lots. In 1881 the association issued a pamphlet, called the “Ocean City Annual,” which contained the first annual report of its president. It thus refers to the camp ground, under the heading “Work Done:” “The camp-ground blocks, extending from the meadow to the ocean and from Fifth to Sixth streets, have been cleared of underbrush, drained and some of the hills leveled.”
    It also refers to the map of section A, comprising nine hundred and ninety-five lots, “besides the camp ground, tenting ground and parks;” to the laying out of streets and the construction of boardwalks; to the building of a wharf on the bay front. This annual repeated the publication of the above-quoted exploitation of the camp ground, beginning, “The space allotted to the encampment is 500 feet wide from the thoroughfare to the ocean.” This publication was scattered broadcast in the most public manner, as ah invitation to the purchase of lots.
    In the succeeding year (1882) the association again published its “Ocean City Annual,” referring to its previous publication above quoted, and stating the additional attractions and advantages which had been provided by the association since the former publication. -It contained a special paragraph as to the campground park, under these words:
    “The Camp ground Park, extending from Fifth to Sixth street, and from Asbury to Wesley avenues, has been fully graded. It has also been laid out into plots formed by a system of converging walks, suitable to the formation of the park and the location of the auditorium. The walks are fifteen feet wide and have all been nicely graveled. Over 400 trees have been planted in and around the camp tract, and they are all doing well. It has been decided to beautify and ornament the park and make it the center of attraction. When our plans for ornamentation have been complied with, it will be ‘a thing of beauty,’ and, we trust, ‘a joy forever.’ That part of our camp ground lying between Wesley avenue and the ocean has been graded, and preparations made for opening a gravel walk from the auditorium to the ocean front, where the surf meetings are held. The part lying between Asbury avenue and the bay has also been cleared and graded.”
    Then follows a printed plan of a portion of the camp-ground park referred to; on this plan are printed'the words “park,” “auditorium”' and “grov.e,” with the converging walks above mentioned.
    On April 17th, 1883, the association filed another map in Cape May county clerk’s office, showing section A, B and 0 of the tract. On this map the space between Fifth and Sixth streets is indicated to be open from the thoroughfare to the ocean, making seven blocks. The laid-out streets cross this open space. All the blocks on Fifth and Sixth streets are plotted in town lots, except the seven blocks of camp ground, park, &c., which are not so plotted. Two of the blocks within this open space are marked “park,” one of them is marked “grove” and the block between Wesley and Asbury avenues and Fifth and Sixth streets has the words “auditorium” and “camp ground.” The other three blocks, between West avenue and Bay avenue, are indicated as open spaces, but with no words upon them.
    The following diagram of the map of section A, B and C, filed by the association in the county clerk’s office on April 19th, 1883,' is a reduced copy'of the open space indicated on that map:

    The lots owned by Lennig when he filed his bill in Lennicj v. Ocean City Associa lion, 14 Stem. Eq. 606, are indicated by the Nos. 69S, 700, 702.
    The lots sold to the defendant railroad company are at Iiaven avenue, Fifth and
    Sixth streets, and are indicated by the mark -0- at each corner.

      The lots described in the bill of complaint, now held by the complainant, were originally conveyed by the association to one Charles S. Pryor, by a deed in an especial form of the association grantor, referring to the lots conveyed as those lots, &c., “numbered 474 and 475, in section C on the plan of lots of the said Ocean City Association.” This deed is dated July 7th, 1891. The complainant received title to his lot by conveyance from Pryor in 1896, subject to the reservations and restrictions of the association’s deed to Pryor. The complainant is also the owner of about two hundred lots in Ocean City. The Ocean City Association, on December 29th, 1896, conveyed to the defendant the Ocean City Railroad Company twelve lots, Nos. 433 to 444, inclusive, in section B “on the plan of lots of the Ocean City Association.” The same deed conveyed lots Nos. 265 and 266 on section C “on the plan of lots of the said association.” The lots Nos. 433 to 444 are all within the open camp-ground space.
    On the 20th day of May, 1899, the Ocean City Association, for a nominal consideration, conveyed to the defendant the Ocean City Railroad Company a strip twenty feet wide on the southeasterly side of Haven avenue, running from Fifth street to Sixth street, “on the plan of lots of the said Ocean City Association,” subject to the condition that the said premises shall be used for passenger depot purposes only, and is not to be used for other purposes;” and also another strip on Haven avenue, on the opposite side of the way, twenty feet wide and three hundred and thirty feet long, subject to the condition that the above-described properties “shall be used for railroad purposes onty,” and to the further condition that the properties above described shall never be owned by any other railroad operated thereon, or by any person or company owning or operating the railroad on West avenue, and that the properties herein described must be owned, and the railroad thereon must be owned, and the. railroad thereon must be operated by a competing person or company. Other conditions and restrictions are contained in the deed, which are of similar character to those' expressed in the association’s form of deed, including one obligating the grantee to observe the regulations of the association which it might thereafter make, which it might be “necessary to insure the original intention and purpose of the party of the first part in securing the whole island as a Christian resort.”
    All of the deeds made to the railroad company are proven by the testimony of defendants’ witnesses to have been made as gifts and without consideration paid.
    Shortly after receiving this deed, the defendant railroad company began to construct a passenger station on the strip of land lying at the southeast side of Haven avenue, between Fifth and Sixth streets, being the park and camp ground above named.
    The station is a one-story building, fifty-four feet long and twenty-one feet wide, with an open shed attached of about forty feet length, and is twenty feet high to the peak of the roof. It is located on Haven avenue, about midway between Fifth and Sixth streets. The platform along the station-house on Haven street, for a width of some six feet and a length of some ninety feet, is located within the lines of that street.

      Mr. John .G. Sims, Jr., and Mr. Marie Ii. Sooy, for the complainant.

      Mr. David J. Pancoasi, Mr. Clarence L. Cole, and Messrs. Charles Ileebner & Robert Alexander (of the Philadelphia bar), for the defendants.
   Grey, Y. C.

The defendant railroad companies contend, in the first place, that neither by action nor speech of a binding character did the Ocean City Association devote, the lands lying between Fifth and Sixth streets on its plan of lots, from the thoroughfare to the ocean, to use as an open space for camp ground and park purposes, and that no implication of a covenant by the association to that effect should be raised. The foregoing recital of the evidence on this point, parol and documentary, throws light upon the plan of the association and the reservation of the camp ground, &c.

The general scheme for the use of the lands of the Ocean City Association was part of its original organization as a corporation. Its detailed development is indicated at every step in its progress. The association invited purchasers to buy lots because-of the supposed attractions of the general scheme. Its very first advertisement of public sales of its lots, quoted above at length, promised to purchasers that the space five hundred feet wide, from the thoroughfare to the ocean, with plenty of tenting ground, should be allotted to the encampment. In making the two public sales the officers of the association renewed the assurances and distributed maps indicating the lay of the land. Reports of sales were made to the association by its officers who had conducted them, reciting the attractions of the camp and park ground. Detailed maps were filed by the association, showing open spaces where the camp and park ground was located and a plan of streets on which were numbered 'town lots. None were indicated on the camp-ground space. The large map, containing sections A, B and C of the association’s tract, delineates the camp ground and park as open space from the bay to the ocean, with all the blocks on the adjoining side lines of Fifth and Sixth streets plotted into town lots. This map was-filed and recorded April 19th, 1883, in Cape May county clerk’s office. Four blocks of the seven which constitute this open space are specially marked. Two are designated “park,” one double block is marked “camp ground,” and in the centre of this square “auditorium,” and the next block is marked “grove.” The other three blocks are plotted as open space, without special marking.

The actual situation on the locality between Fifth and Sixth streets accords with the declarations and documentary proofs. The camp ground and park remained open blocks, while lots bordering on it were sold off for general building purposes.

After all these acts and declarations of the association touching the devotion of the space between Fifth and Sixth streets to this special purpose had been completed for a number of years, the complainant’s grantor took his deed from the association in 1891,'and the defendant company took its dqeds,- one in 1896- and the latér one in 1899.

An attempt was made to show, by some of the officers of the Ocean City Association, that there was no announcement at their first and second sales of lots in 1880 to the effect that the camp-meeting ground should remain an open space from the thoroughfare to the ocean. It cannot be ignored, in the consideration of this cause, that the Ocean City Association (whose officers now throw doubt upon the reservation of the camp ground) is weightily interested in securing the discharge of those lands from the implied covenant to leave open, from the bay to the ocean, the space between Fifth and Sixth streets. That tract must now be very much more valuable than it was when the general scheme was proclaimed to lot purchasers at the inception of the proposed improvement. It includes seven blocks of desirable land lying nearly in the centre of the city. If these could be sold off by the association in town lots, at the present increased values, given to them by the many houses built on adjoining lots by purchasers, it would be a very profitable result for the association. This explains its activity in trying to secure from fronting lotowners releases of the camp ground and park privilege, except between Fifth and Sixth streets and Wesley and Asbury avenues, which, if it were effectually accomplished, would enable the association to sell six of those blocks, reserving only the auditorium block for camp ground and park. The association is interested in minimizing, if not in wholly defeating, the reservation of the camp ground and park. Its officers’ testimony must be considered with relation to this interest. Their statements denying their oral declarations at the sales are credibly contradicted, not only by the complainant’s witnesses, but, to a considerable extent, by the defendants’ witnesses. All the documentary proofs oppose them. Some of the reports of sales, contained in the publications of the association, which recognize the reservation of the camp ground and park, were made by the very officer's who now testify that at the sales they did not announce the reservations. The many and expensive publications and maps issued, circulated and filed by the Ocean City Association all uniformly refer to the open-space camp ground. They support the statement that these advantages were proclaimed at the sales of lots, and are corroborated, as stated, by the actual fact that this central and valuable location was left open and used only as camp ground and park, and was not dealt with as town lots in any of its seven blocks from 1880 to 1897, though the adjoining lands were so rrsed. Three years ago, evidently by arrangement of the association, the covenantor, two or tnree cottages were located on camp-ground blocks. It is straining credulity too far to ask that, in the face of all the proofs here offered, it be believed that there was, in truth, no devotion of the lands between Fifth 'and Sixth streets, from the bay to the ocean, to the purposes of camp ground and park.

In 1886 the case of Lennig v. Ocean City Association, 14 Stew. Eq. 606, was decided by the court of appeals. In that case it appeared that Lennig owned several lots, purchased from the Ocean City Association, one at the corner of Sixth street and Wesley avenue, fronting on the camp ground, and two adjoining lots fronting on Wesley avenue. The association had announced its purpose to lease the camp ground in lots for the erection of small cottages for terms of ten years. Lennig, in his bill, declared that the excution of this scheme would be in derogation of his property rights, and would materially interfere with the enjoyment of his dwelling. The court of appeals sustained his right to an injunction on both grounds. It declared that the filing of the maps and the publications of the association, considered with relation to the avowed objects of the association in its articles of incorporation, indicated the adoption of a general plan of improvement, laying out lots, streets, parks and squares, and conveying the lots with relation thereto, and thus obtaining greater prices from the purchasers of the lots. Such conduct, the court held, operated, without express covenant, to bind the grantor not to use the portions devoted to the common advantage otherwise than was indicated in the plans and publications which induced the purchase of the lots. The court declared that the character of the use to which the Ocean City Association devoted the camp ground was “a camp for the purposes of a religious camp meeting, where sojourners could remain a short time under the shelter of tents or other temporary structures.”

This exposition of the doctrine of implied covenants by the court of last resort, made in relation to the very transaction involved in the present case, must be accepted as controlling, unless the facts here shown vary, in some essential particular, from those submitted for adjudication in the Lennig Case. But the truth is that substantially all the facts there proven are here again presented, and several additional incidents are here introduced to show that the association influenced purchasers of lots by holding out as an inducement, in the most public way, its declaration that the space between Fifth and Sixth streets, from the thoroughfare to the ocean, should be kept open for camp meeting and park purposes.

The defendant railroad companies set up several other grounds, which they insist should lead this court to disregard the declaration of the court of appeals in the Lennig Case. They say that Lennig succeeded in enforcing an implied covenant because his lots fronted oar, and were adjacent to, the camp ground, and received especial beaaefit from having that space left unoccupied by buildings, whereas, they say, the complainant's lots are at Tenth street and Asbury avenue, some four blocks away froaaa the camp ground, and will receive little, if aaay, injury because of the constructioaa of the defendants’ station. The declarations at the sales, the publications of the association, its filed maps and •its deeds eoaaveying its lands, will be searched in vain for any iaadieatioai that the canap ground and park were to remain an open space for the benefit of the adjoining or fronting lots. All lots were sold with the assurance of that open space; all were to participate in its benefits. The Lennig decision contains rao suggestion that the implied covenant was raised because Lennig owned a lot fronting on the camp ground. The basis of that decision is that the associatioai had plotted its laaads upoaa anaps designating streets to be opened and blocks to be used as parks or the like, and had conveyed its lots to purchasers with reference to these designations, iaa modes teaadiaag to secure additional values for its lots because of these inviting incidents. Such transactions raise an implied covenant by the grantor that he will devote the specially designated lands to the beoaeficial uses, the declaration of which enabled him to sell his lots. A court of equity eaiforces such covenants, in order to secure to purchasers of lots the beaaefits the promise of which induced them to buy. Neither the acts arad declaratioaas of the association nor the principle as stated by the court of appeals liaaaited the benefits of the covenaaat, or the right to eaaforce it, to the owners of lots which fronted upoaa or adjoined the space declared to be devoted to use for camp ground and parks. The space between Fifth and Sixth streets was to be kept open for use as a camp ground and park for religious services, affording a place where large congregations could be assembled in the open air, and protected in tents or temporary structures, with abundant access of light, air and view. Lots, whether near to or remote from the camp ground, were purchased in the expectation that this space should be devoted to the declared use. All purchasers thus acquired a right to have that space used as they had been assured it would be used, for no other than the named purposes. The implied covenant arises for the benefit of all the lots, without regard to their particular locality, in relation to the tract impliedly agreed to be specially kept as an open space. The principle upon which such covenants are enforced is luminously discussed in De Gray v. Monmouth Beach Club, 5 Dick. Ch. Rep. 329, and in Mulligan v. Jordon, 5 Dick. Ch. Rep. 363 (Vice-Chancellor Green).

In point of fact, Mr. Lennig, in the reported ease of Lennig v. Ocean City Association, was not enforcing the covenant solely for the benefit of a lot fronting on the camp ground. He asserted his right because of his ownership of three lots, Nos. 698, 700 and 702. An examination of the association’s maps will show that No. 698, alone of these three lots, fronts on the camp ground; Nos. 700 and 702 both front on Wesley avenue. See diagram above.

The defendants also insist that the complainant’s interest in the performance of the contract is so minute that this court ought not to enforce it; that, in fact, the erection of the defendants’ passenger station will confer an actual benefit upon the lotowners.. It has already been determined that the act of the defendant is in breach of the implied covenant. Every grantee, mediate or immediate, of the Ocean City Association, the promulgator of the general plan under which all bought, may enforce the covenant made with all. De Gray v. Monmouth Beach Club, 5 Dick. Ch. Rep. 329. The very object of the courts in raising such implied covenants, and permitting, their enforcement by any purchasers under the general plan, is to secure, not damages to the actor in the enforcement, nor an ascertainment of the proportion of injury done to him, but the specific observanee of the general plan, for the benefit of all who-have purchased, the right of that observance. In the Lennig Case there was, in fact, no more showing of special injury to Lennig than there is in this case of particular damage to the complainant, but the court granted relief bjr injunction. In these cases damages afford no adequate relief. What the purchaser loses is the continuous enjoyment of the pledged open space for the uses to which it has been devoted by his grantor, and the growing value of his lands because thereof. No judgment for damages can give him for this the benefit he will receive from the specific performance of the agreement. Rogers Locomotive Works v. Erie Railroad Co., 5 C. E. Gr. 379.

With regard to the claim that the building of the proposed station upon the camp ground is, in fact, beneficial to the community, the complainant and other covenantees are not required to givfe up their property rights in the camp ground for the benefit of the public. The suggestion that it is beneficial to the value of the complainant’s lot is of the same sort. The thing proposed is in breach of a covenant which the complainant has a right to enforce. The choice of enforcing it lies with him. It is no answer to his suit to restrain the proposed breach to say that it will be, in fact, beneficial to him, that there should be a breach.

The defendants deny that the erection of their passenger station is a violation of the covenant of the association that the camp ground and park shall be kept an open space from the thoroughfare to the ocean.

The evidence shows that the station in question is a substantial building of fixed character, fifty-four feet long and twenty feet high at the peak of its roof, with a shed attached which is forty feet long. It thus interposes in nearly the centre of the space which the association agreed should be kept open a permanent structure, which cuts off the view of the ocean and thoroughfare and free passage of air through the length of the camp ground and park from either side of it. Practically it destroys the unity of the plan for a continuous camp ground and park running from the thoroughfare to the ocean, as was assured in the original scheme.

The consistency of such a permanent structure with the special uses to which, it was covenanted the lands between Fifth and Sixth streets should be devoted, has already been passed upon unfavorably to this defence by the court of appeals. In the Lennig Gase the proposed structures were small, neat cottages to be erected on leases for ten-year terms. These cottages were obviously, by the announcement of the association, to' take the place of the temporary canvas tents used by the tenters who come to camp meeting (see Lennig Case, 14 Stew. Eq. 608), and were plainly a convenient substitute for the tents. The harboring in tents, erected upon the camp ground, of those who came to attend services, &c., was in entire accordance with the .general plan. The essence of Lennig’s complaint was not the use of the ground to shelter such attenders, but the proposed .accomplishment of that object by erecting on the camp ground permanent structures, which would remain alter the camp meeting had ended and interfere with the declared purpose to devote "those blocks as open spaces for camp and park purposes. The court of appeals made this perfectly clear in its definition of the ■disadvantages which such permanent structures would bring to lotowners by reason of their interference with the view and with the free passage of air, &c. See Lennig Case, 14 Stew. Eq. 610. In effect, that decision holds that one of the very objects for which the camp ground and park were specially reserved must not be accomplished by the erection of buildings which permanently cut off the breezes and the view, thus destroying the use of the camp .ground and park, for another object within the special reservation. The railroad station which the defendant companies are building is a permanent structure, having precisely the effect condemned by the court of appeals in the Lennig Gase as offensive to the implied covenant.

The defendant companies insist that they had almost completed their structure when the complainant filed his bill, and that he had notice that they were building and made no objection. The proof is that the complainant did not go over into that part of the town much, and that the station was nearly half way up before he was aware that the defendants had commenced building it. They began building on June 21st, 1899. The bill was filed August 3d, 1899, and injunction was served August 4th, 1899, these transactions covering a period of forty-four days. The process of construction appears to have been unusually rapid. Assuming that the progress towards completion was regular, the complainant first knew of the defendants’ action about the 13th day of July, and filed his bill in this case within twenty-oné day« thereafter. Substantially all the disadvantages which the defendants suffer by reason of having their building stopped in course of its erection had happened to them before the complainant knew it was being built. It was then half way up. The complainant filed his bill within a reasonable time after he knew the defendants were building.

The defence that the complainant stood by and suffered the defendants to spend their money is dependent upon another incident, and that is, that the defendants must, in order to avail themselves of that defence, have acted in ignorance of the complainant’s rights upon which they intruded. If a party has notice that he is building on another’s lands, or in derogation of another’s rights, he proceeds at his own peril. In such cases it does not lie with him to complain that the other did not object. The deed of December 29th, 1896, under which, by their answer, the defendants claim title, describes the land on which they are constructing their station as in section B “on plan of lots of the Ocean City Association,” and two other lots on section C “on plan of lots of the said Ocean City Association.” The plan of lots on which sections A and B appear is the map recorded April 17th, 1883, showing the open space for camp ground and park at the very place on section B where the defendants are building their station, so that the plan called for by the deed under which they claim notified them of the special reservation of the lots conveyed to them. Again, on the ground at the place where the railroad station is being built there were physical evidences quite sufficient to put the railroad companies upon warning that those lands were devoted to some use calling for an open space. The uniform use of the side lines of Fifth and Sixth streets for town lots and the leaving the squares between Fifth and Sixth streets as open blocks, nearly in the centre of the city, was an indication that they were devoted to some special purpose. Slight inquiry by the defendants would have disclosed to them what their use was, if they were, in fact, at any time ignorant of it. The defendants were fairly notified, by all these circumstances, of the outstanding covenant, and were bound by it as was the original covenantor. Richards v. Revitt, 7 Ch. Div. 226. They also stand in the same place as the covenantor, the Ocean City Association, because they hold by gift and not by purchase for consideration paid.

The defendant companies also contend that the complainant cannot set up the implied covenant against their right to condemn lands, &c., under the General Railroad act and its several supplements. Nothing in those acts authorizes a railroad company to take property for railroad uses in derogation of the rights of owners and without compensation, and without even an attempt to obtain, by previous agreement, a conveyance from the holders in the manner required by the condemnation sections of those statutes. The right of the complainant and other lotholders in the lands in question to have them devoted to the agreed use to which they were promised is a property right, purchased and paid for by them as part of their contract with the association. This right is protected by the constitutional mandate that private property shall not be taken until compensation be first made. This secures the citizen, not only those rights of property of which actual tangible possession may be had, but also in those which render possession enjoyable and valuable. Pennsylvania Railroad Co. v. Angel, 14 Stew. Eq. 329 (Court of Appeals.).

It has been assumed by the defendant companies that the Ocean City Association might convey the lots in question to them, in disregard of the right of the lotowners to have those blocks from the thoroughfare to the ocean kept open. This is a mistaken assumption. The defendants are voluntary grantees of their lots. They acquired no higher right by their conveyance than the Ocean City Association possessed. The lots conveyed to the defendant company were parts of blocks which were charged, while in the holding of the Ocean City Association, with the implied covenant that they be kept open for the uses declared by the court of appeals. The property right of the lotholders in the lands charged by this covenant did not pass by the association's' deed to the defendant company freed from this equity. On the contrary, the lands still remain charged in the holding of the defendants, the voluntary grantees of the association, in the same manner as if the association yet held them. The defendants are in no sense purchasers for value, without notice.

The defendants also contend that the map section A was the first filed, and thus became the exclusive plan designating the general scheme, and they say that this map did not include the locus in quo. But this theory does not accord with the proofs. The general scheme did not originate with the map of section A. This and other maps are illustrative and expository of the plan, but they did not create it. All the evidence goes to show that the plan had its creation in the original organization of the association. In carrying it into effect, in May, 1880, before any map was filed, and before any lot was sold, the association invited purchasers, by public advertisement, to buy its lots on its assurances that there was a general scheme, in following which they declared: “No pains will be spared to give to Ocean City a series of religious privileges equal to other resorts of kindred character.” One of these expressly-mentioned privileges was that ■“'the space allotted to encampments is 500 feet wide from thoroughfare to the ocean, with plenty of tenting ground.” See the advertisement first above quoted. Every subsequent act, map and publication of the association was consistently in furtherance of this plan. Map of section A, filed in June, 1880, contained nothing inconsistent with the original declaration. It showed both the ocean and the thoroughfare, and while it did not plot all of the blocks between Fifth and Sixth streets and mark them “camp ground,” it left them as open spaces, as purchasers had previously been assured they would be left. The fact that the first-filed map containing the lands within section A did not show a complete plotting of all the lands from the thoroughfare to the ocean, in no way lessens the evidential force of its second-filed map as an admission of the camp-ground reservation. This showed not only section A, but also sections B and C, with the seven blocks between Fifth and Sixth streets fully plotted and marked as “camp ground,” “grove,” “park” or left as open space. See diagram above.

But even if map A were deemed to be the first plotting showing the open camp ground, and did not extend to include the locus in quo, it cannot be held to have deprived the association of the power to add to its original proffer and to hold out greater inducements to bidders for lots. If this theory be accepted, the association’s filing, on April 17th, 1883, of the map showing sections A, B and C (which both plots and marks the camp ground and park) must be taken as an additional assurance to subsequent purchasers. The complainant’s grantor was such a purchaser. The defendant company took its first deed in 1896, after the filing and recording of this map and by description referring to it,' and is bound by it, both by notice and by accepting a voluntary deed. The defendants cannot endow themselves with the rights of a bona ficle purchaser without paying consideration for their- purchase.

Both the filed maps and all the publications of the association declaring the special use of this space preceded the making by the association of its deeds to the complainant’s grantor and to the defendant company. The evidence is entirely satisfactory to show that the defendants, when they took their deeds, had notice of the outstanding implied covenant, if any notice were necessary to those who merely took the covenantor’s place, by accepting a voluntary conveyance of the land charged by the covenant.

The claim that the complainant has lost all right to enforce the covenant because the association has, within the past three years, wrongfully permitted several buildings to be put on the camp ground, is no excuse'for the defendants. No such acquiescence of the complainant is proven as charges him with any liability for the association’s breaches of the covenant; nor can the defendants, donees of the association, set up the wrongdoing of their donor to protect them against the enforcement of the donor’s implied covenant.

The charge that the complainant had filed his bill in this cause and was prosecuting his suit in bad faith, in the interest of rivals of the defendants, and to prevent the latter from successfully carrying on their business, was conclusively refuted as a matter of fact. It is therefore unnecessary to consider its legal significance.

Npon the whole case, the complainant is entitled to a decree according to the prayer of his bill of complaint, with costs.


source: Caselaw Access Project

author: Gruy, Y. C.

license: Public Domain

text:
    The Point Pleasant Electric Light and Power Company v. The Borough of Bayhead et al.
    [Filed July 29th, 1901.]
    1. Electric light companies organized under the General Corporation act of this state have authority to erect poles and to string and maintain wires in the public highways • upon first obtaining the consent of the owners of the soil.
    2. The proviso of the act of 1896 (P. L. of 1896 p. 822) declaring that no poles shall be erected in any city or town without first obtaining a designation of the street in which the same may be placed, and the manner of placing the same, does not extend to boroughs.
    3. The Borough act (P. L. of 1897 p. 296), empowering borough councils by ordinance to regulate the streets of the borough, to remove obstructions and nuisances therefrom, and to prescribe the manner in which corporations or individuals shall exercise any privilege granted to them in the use of the streets, confers a power which can only be exercised by the passing of an ordinance.
    4. Until the borough council does pass an ordinance regulating the use of the borough streets or prescribing the manner in which electric light companies shall exercise their street privileges, an electric light company which has obtained the consent of the owners of the soil, may string its wires in the public streets of the borough.
    5. The borough, and its officers, who claim the right to cut such wires because strung in the borough streets without the previous action of the borough council, will be restrained by preliminary injunction from such cutting. The injury to the complainant company is continuous and threatened to be repeated, and is not one for which adequate damages can be recovered at law.
    On bill for injunction and affidavits, answer and affidavits.
    •The complainant is a corporation of this state, incorporated under the General Corporation act, approved April 7th, 1875, and the supplements thereto. By its certificate it is stated, among other things, that its object was the construction and operation of a plant for supplying and distributing electricity for electric lights, &c. The principal part of its business was transacted at the borough of Point Pleasant Beach, in Ocean county. It constructed its poles, wires and equipment within that borough, and desiring to extend its lighting system into the adjoining borough of Bayhead, with a view of supplying its inhabitants with electric lighting, it applied to the mayor and council of Bayhead, in May, 1901, to pass an ordinance designating streets in the borough upon which its poles might be placed, and presented a petition of property-owners and residents praying the passage of such ordinance. The bill states that the present counsel of the complainant company has advised, that it was unnecessary to obtain such designation. The complainant company, in this situation, attempted to supply the Grenville Arms Hotel, situate in Bayhead, with electric lighting, and erected such poles as were necessary outside of the streets of that borough upon private property, by permission of the owners, and strung its wires on these poles and on fourteen other poles belonging to the Delaware and. Atlantic Telephone Company, on Osborne and Lake avenues,' in Bayhead, by the consent of that company. It thus connected its wires with the Grenville Arms Hotel. Where the wires cross the streets of Bayhead they have an elevation of about twenty-five feet, and the complainant claims they in no way interfere with travel over those streets, and it proffers itself willing to conform its occupation of the streets by its wires to such regulations as may be imposed by the municipal authorities of Bayhead. The complainant company’s connection with the hotel, which had been fitted up at considerable expense for electric lighting, was completely made. On June 16th, 1901, the council of Bayhead instructed the officers of the borough to cut the complainant’s lines of wires overhanging the streets of the borough. The bill states that, on that day, the officers cut the wires which hung over the streets, broke the supporting insulators and attempted to cut down the poles which had been erected on private property; and later in the day entered on private property, where complainant’s wires and poles were set up, and cut the service there, broke the insulators and brackets and destroyed the connection with the hotel, with a threat to cut the wires again if the complainant restored them.

      The bill makes defendants the borough of Bayhead and its officers who cut the wires. It prays
    “that they may be perpetually restrained from cutting down the poles placed by complainant on private property in Bayhead, or the wires connected with the said poles and with the poles of the Delaware and Atlantic Telephone Company; * * * from destroying the insulators or other electric appliances of the complainant, and from preventing the complain-' ant from restoring the connection with its electric lighting system with the Grenville Arms Hotel, and from interfering with its system of electric lighting so long as it is conducted in the manner set forth in its bill.”
    An order to show cause why an injunction should not issue according to the prayer of the bill was, on the filing of the bill, allowed, with a restraining order, prohibiting defendants meanwhile from doing the acts of alleged injury set forth in the bill.
    On the showing of cause, the defendants filed their joint and several answers, with supporting affidavits, setting forth, in detail, the complainant’s application to the mayor and council for a designation of streets in which it might erect its poles and suspend its wires, &e.) with a copy of the ordinance suggested to be passed by the complainant company. The answer further states that, after full consideration, there was a refusal to designate streets for the purpose requested and the complainant was so notified. The defendants insist that the complainant had no franchise or authority to furnish light in the borough or to place its wires over or upon any of the streets; that on Sunday, the 16th day of June, 1901, between midnight and morning, the complainant company, without any permission from the mayor and council of the borough, strung its wires over the streets of the borough, on the poles erected in the streets by the Delaware and Atlantic Telephone Company, which company had no authority to allow the use of its poles for that purpose; that the ordinance authorizing them (the telephone company) to put up poles in the streets of the borough expressly declares that the telephone company-may place and maintain wires thereon for the purpose of transmitting messages “by telegraph or telephone only.” The answer further states that on June 22d, 1901, the employes of the complainant company again began work stringing wires on poles, and were resisted by the officers of the borough, who were arrested because of their resistance, and while they were under arrest the complainant company’s workmen completed the connecting of its wires with the Grenville Arms Hotel and began supplying that hotel with electric light. The defendants aver that the placing of the wires as stated over and above the streets of the borough was, and is, without authority from the mayor and council of the borough and is without warrant of law. They expressly deny the right of the complainant company to place or construct wires on the poles within the borough without first obtaining from the borough permission there to carry on and conduct the business of the company, and assert that an ordinance granting such permission is a prerequisite to the rights of the complainant company to exercise in that borough any of the powers given by its incorporation. They further deny that the Delaware and Atlantic Telephone Company could, under any ordinance of the borough, grant to the complainant the right to erect wires on its poles without first obtaining from the mayor and council an ordinance therefor. The defendants aver that they gave no assurance to the complainant company or to the proprietor of the Grenville Arms Hotel that any privilege of extending its wires in the borough would be granted, and they say the complainant company and the proprietor of the hotel are alone responsible for any loss which may have been incurred. The defendants admit that, acting under the authority of the borough, after the complainant company had been requested not to erect its wires, and had defied the officers of the borough, they cut the wires leading across the streets to the Grenville Arms Hotel, and they insist that they had a lawful right so to do.
    The defendants expressly aver that the complainant company is not conducting a general system of electric lighting in the borough of Bayhead, and is not supplying either light or power either to the municipality or to any person adjacent to that borough; that the wire cut by the defendants was no part of a general system connecting distant points, but was a single wire connecting 'one hotel, stopping there, and affecting that one private interest only, and not interfering with any public business.

      Mr. John B. Humphreys and Mr. Peter Baches, for the complainant.

      Mr. David Harvey, Jr., and Mr. Isaac W. Garmichael, for the defendants.
   Gruy, Y. C.

There is very little, if any, dispute between the affidavits annexed to the bill of complaint and those appended to the answer as to the facts in this ease. The argument made was almost wholly upon questions of law.

The complainant company claims that, under the statute of April 21st, 1896 (P. L. of 1896 p. 322), it has received directly from the legislature full power to use the highways of the state for the purpose of erecting poles to sustain wires, &c., upon first obtaining, the consent, in writing, of the owners of the soil. That statute enacts that

“any corporation organized * * * by virtue of the act entitled * * * ‘An act concerning corporations,’ for the purpose of constructing, maintaining and operating works for the supply and distribution of electricity for electric lights, * * ::= shall have full power to use the public * * * highways * * * in this state for the purposes of erecting posts or poles on the same to sustain the necessary wires and fixtures, upon first obtaining the consent in writing of the owners of the soil; provided, however, no posts or poles shall be erected in any street of any incorporated city or town without first obtaining from the incorporated city or town a designation of the street in which the same may be placed and the manner of placing the same,” &c.

In the case of Suburban Electric Light Co. v. Inhabitants of East Orange, 14 Dick. Ch. Rep. 563, a bill was filed seeking to enjoin the township of East Orange from cutting down the light company’s wires attached to poles of a telephone company in a street of that township. The above statute was cited as the authority of the light company to string its wires on the telephone company’s poles. Both in this court and in the court of appeals the case was dealt with as involving the right of the electric light company to string wires in the public streets. An injunction was allowed. An appeal was taken, and the court of appeals sustained the decree for injunction, upon the single ground that, upon the true construction of the act of 1896, the power conferred by it upon electric light companies “was not limited by any requirement that permission should be first obtained from a township within which the power was exercised.” The opinion declares that the legislature, when it prescribed that in “cities and towns no poles should be erected without first obtaining from the municipality a designation of streets, &c., and the manner of placing, intended to require the permission to be obtained only from cities and towns eo nomine,” and concluded with this summation of the whole case: “The result is that the respondent [the electric light company] was possessed of sufficient authority to string and maintain the wires in question in the public streets, and whether it originally acquired or afterwards retained the permission of the township authorities was immaterial.”

The defendants (the borough of Bayhead and its officers) do not deny that the statute of 1896 vests in the complainant company the power to erect poles to sustain wires in the public streets, nor does it claim that a borough is, within the proviso of that act, a city or town in which permission to erect poles shall first be obtained. Their contention is that the Borough act of 1897 authorizes the council of the borough to “regulate the use” of the streets and roads of the borough and to prescribe the manner in which corporations shall exercise any privilege granted to them in the use of any street. They insist that the pre-existing right of the complainant company to use the streets of the borough can be exercised only after the borough council has prescribed the manner in which the complainant shall exercise it.

There is no claim that the wires of the complainant company, as they cross the borough streets, are obstructive of passage in the street, nor that they are in any other way a nuisance. The defendants stand upon their assertion of a right to prevent the stringing of any wires across the borough streets until the .borough council shall have first prescribed the manner in which the complainant company should exercise such a privilege. The Borough act of 1897, which is invoked to sustain this claim (P. L. of 1897 p. 296 § 28), under the heading “Powers of Council,” declares:

“The council of said borough shall have power: 1. To pass, alter or repeal ordinances to take effect within the limits of the said borough for the following purpose: * * * to establish * * * the boundaries of the streets and roads in said borough and to regulate the use thereof; to prevent and remove all obstructions, encroachments, intrusion and nuisances in and upon any street; to prescribe the manner in which corporations or individuals shall exercise any privilege granted to them in the use of any street.”

Whether the stringing of a single wire across a public highway, at such a height as not in any way to interfere with any use of the street, is the exercise of a street privilege (see Brigantine v. Holland Trust Co., 35 Atl. Rep. 345), need not be here determined. If it is not a street privilege, the defendant borough has no control over the matter. If it is a street privilege, then the defendant borough has, by the terms of the Borough act of 1891/, a right to prescribe the manner in which it shall be exercised.

Assuming that the act done by .the complainant company in stringing its wire across the .street of Bayhead was the exercise of a street privilege, must the complainant company await the previous action of the borough council before exercising it ?

The statute of 1896 operated as a direct grant of power to the complainant company to do the act in question. The statutory grant is so expressed that the privilege given may be completely used by the complainant company, without further definition as to the manner or locality of its exercise. The statute conclusively deals with the obligation of the companies to whom the powers are given to obtain from the local authorities, before using them, a designation of place and manner of use. In incorporated cities and towns previous designation of place and manner of using is expressly required. In other places, such as townships and boroughs, there is no such requirement. In the latter municipalities the powers (given in terms which make them capable of complete exercise by the receiving corporations) may be used without first obtaining such designation from the local authorities. The court of appeals seems to have finally settled this when it declared that, under the terms of the statute of 18.96, an electric light company is “possessed of sufficient authority to string and maintain the wires in question in the public streets, and whether it originally

obtained or afterwards retained the permission of the town authorities is immaterial.” Suburban Electric Co. v. East Orange, 14 Dick. Ch. Rep. 563.

The Borough act of 1897 does not require that the exercise of street privileges by corporations having such powers shall await the action of the borough authorities. Had the legislature intended this, it could readily have expressed it in the statutory grant of power in the act of 1896. The legislature then considered and dealt with the subject, prescribing certain classes of municipalities within which designations of place and manner for the use of the powers must first be obtained, and leaving them to be exercised in all other municipalities without such previous designation. A contrary purpose should not be ascribed to the legislature by mere construction of another statute, which may have it's full expressed effect without such incongruous interpretation.

It must also be noted that the Borough act directs that the authority there given shall be exercised by ordinance. Here is an original statutory grant of power, coupled with the prescription of a mode in which it shall be exercised. In such cases the observance of the prescribed mode is necessary to the exercise of the power. The authority given to boroughs by the act of 1897 is not self-operating to prevent the use of street privileges until action be taken. The terms used show that they are regulative of privileges already given. Hntil regulative action be taken in the mode prescribed by the Borough act, any existing street privilege, capable of complete exercise, may be used by any party having the right to use it. In this case there is no pretence that the borough of Bayhead has, at any time, passed any ordinance touching the exercise of such street privileges. The borough is here, however, by answer and proofs, insisting that its officers may, by physical force, prevent the exercise of street privileges, without any ordinance on the subject.

In American Mutual Telegraph Co. v. Town of Harrison, 4 Stew. Eq. 631, the poles of a telegraph company were erected outside the lines of the street on private property. The wires overhung the street at a height of twenty-five feet, and were not an obstruction to the use of it. The town authorities threatened to cut them down—first, because the statute under which the defendant company was organized gave it the right to use public highways for erecting poles, upon first obtaining consent of owners of the soil and a designation of streets and manner of placing the same, and no such designation had been obtained; and secondly, because the statute declared that the use of the streets by companies organized under it should be subject to such regulations and restrictions as might he imposed by the municipal authorities. Vice-Chancellor Van Fleet held the provision as to first obtaining designation from the town authorities of streets and manner of placing poles to be inapplicable to the ease before him, because the complainant’s poles were, in fact, erected on private property, and not in the public highway; and the second justification to be of no force to prevent the stringing of wires in public streets, because the town authorities had never adopted any regulations or restrictions as to the use of the streets. He declared that when the municipality had, by appropriate proceedings, prescribed regulations, the complainants would be obliged to conform to them, but in the meantime they cannot compel the complainants to desist from further construction of their work; that the complainants had done nothing but what they had an unquestionable legal right to do, and that the defendants should be enjoined from cutting the wires or otherwise interfering with them. In the case of Inhabitants of Summit v. New York and New Jersey Telegraph Co., 12 Dick. Ch. Rep. 126, this case was declared to be controlling upon the point whether, in the absence of a regulation by the municipality, a telegraph company has the right to string wires across a street, at a proper elevation, from poles placed outside the street.

The defendants contend that the case of Benton v. Elizabeth, 32 Vr. 415 (Supreme Court), must be accepted as controlling the matter now under consideration, and to prescribe thát the admitted pre-existing right of the electric light company to the use of the borough streets cannot be-exercised until the borough council shall first have designated the place and manner of use. In that case an oil piping company was assumed to have the power to lay pipes for the transmission of oil. The charter of the city of Elizabeth gave its council power, by ordinance, to prescribe tlie manner in which the corporation should exercise any privilege granted to them in using the city streets. The city council did pass such an ordinance. An owner adjoining the proposed pipe line took a certiorari removing the ordinance. In discussing the questions involved the learned judge who delivered the opinion suggested, obiter, that the right of a party having a privilege to use a street is imperfect until the council indicates in what manner it may be exercised; that the preexisting right is one to be exercised only as the council permits. The learned judge does not, in terms, declare that a legislative grant of power, capable of complete exercise'by the recipient of the power, which is subject to regulation by the designation of place and manner of using by local authorities, cannot be used until the latter shall first have designated. The learned judge probably referred to such legislative grants of power as, by the express terms of the statute, depend for their exercise upon the previous action of the local council. Benton v. Elizabeth, 32 Vr. 694, was taken to the court of errors and was there (in 1898) affirmed, upon the opinion delivered in the supreme court. If that case is to be considered as an authoritative declaration of a general principle that in any municipality having power to regulate, the use of streets there can be no exercise of street privileges received by direct legislative grant until the local authorities have first designated the place and manner of their exercise, then that decision is certainly antagonized by that delivered by the court of appeals (in 1899) in Suburban Electric Light Co. v. East Orange, ubi supra, when, construing the very statute in question in this cause (the act of 1896), it declared that, under that act, electric light companies (outside of cities and towns) have sufficient authority to string wires in the streets, and that the permission of the town authorities is immaterial.

The case of Meyers v. Hudson County Electric Co., 34 Vr. 573 (Court of Errors and Appeals), is also cited as declaring that the designation of streets and manner of placing by the Ideal authorities must first be made. That case is inapplicable to the cause sub judice, for the reason that the matter there decided was the validity of an ordinance of the city of Bayonne. The court declared that the permission of the city authorities was a prerequisite to the right of the electric light company to enter the street. The statute of 1896, in terms, so declares as to cities and towns. The question in the present case is whether borough authorities, without such legislative declaration requiring their previous action, may, under a general power to regulate streets and to designate the manner of using street privileges, exclude the corporation having defined street privileges from using them until such designation is made.

The right of the complainant company to string its wires in the manner stated in its bill in the borough of Bayhead must be held to be established.

The defendants contend that the threatened injury is limited to the cutting of but a single wire, serving light to the Grenville Arms Hotel, and that this is not such an irreparable injury as to justify the issuing of an injunction. But this is not a fair' statement of the controversy. The pleadings and proofs show that the complainant company had a right to string wires in the streets of the borough of Ba3>-head, and was proceeding to exercise it, when the individual defendants, in behalf of that borough, which has since adopted their actions as its own, denying the complainant’s right, cut the complainant’s wires in the streets of the borough and destro3red its appliances. The defendant borough asserts, by its answer, its right to do this, and it is entirely apparent that it will do it, unless restrained by this court. The defendant’s contention is not limited to an assertion of its right and purpose to cut the Grenville Arms Hotel wire, but to cut any wires which the complainant may string in the streets of the borough of Ba3diead. That is its claim in its answer; that is the argument of its counsel. For such threatened continuing and repeated injuries no adequate damages can be recovered at law.

An order for an injunction will be advised according to the views above expressed.


author: Grey, Y. C.

text:
    Harry L. Campbell et al. v. The John W. Taylor Manufacturing Company.
    [Filed July 29th, 1901.]
    1. The eighth section of the Mechanics’ Lien statute prescribed that “fixed machinery * ,* * for manufacturing purposes shall be considered a building for the purposes of this act.” In order that machinery shall be considered to be a building, it must have a fixed, and not an adjustable and changeable, character.
    2. The things furnished in this case are shown, by the proofs, to have been five separate machine tools, finished and completed before shipment, taken apart for that purpose, brought on the premises in their component parts for re-assembling. They took the places of previously-used machine tools of like character and will be succeeded by like machines when they may be worn out. Several were in separate pieces, in boxes, unpacked. One was in actual use. Those which were in place were not built into, or made part of, the building, but were merely fastened to the floor to keep them steady in their places.-—Held, these machines were not fixed machinery within the meaning of the Mechanics’ Lien act. The component parts of these machines, separated only for purpose of shipment, were not “materials” within the meaning of that act. The machines themselves had separate and distinct functions, which were wholly unrelated— they were transient, adjustable tools; such machines were not “materials” furnished to, or parts of, fixed machinery, under the act.
    On appeal from determination of receiver against a claim of preference as a creditor.

      Mr. Echará P. Budd, for the receiver.

      Mr, Charles K. Chambers, and Mr. Abbott (of the New York bar), for the Prentiss company, petitioner and appellant.
   Grey, Y. C.

(orally).

I have gone over this matter since counsel have submitted it, and I think I can dispose of it now.

The Taylor Manufacturing Company was a corporation doing business in this state, at Mount Holly, in the manufacture and production, among other things, being the greater part of its business, of power-wheels and water-wheels. Incidental to that business, which had beeir conducted for a short period of time by the Taylor Manufacturing Company, but for a very much longer period by its predecessor, the Eisdon works, the Taylor Manufacturing Company made certain purchases. It had a machine shop before these purchases were made, and it had machines and tools and the ordinary equipment of such a shop. The tools were not satisfactory, and the Taylor company replaced them by purchase from the Prentiss company. 1'hey consist of five different pieces. No. 1, the Lodge & Shipley lathe; No. 2, the Eogers bore mill; No. 3, the Sibley field drill; No. 4, the Bickford boring mill; No. 5, the Giant key-seater.

Each of these machines had its separate function and use, and when they were purchased they were forwarded by the vendor, the Prentiss company, to Mount Holly, to be set up in the machine shop of the Taylor. Manufacturing Company. Before this had been completely done as to some of the machines, the Taylor Manufacturing Company went into the hands of a receiver, and the Prentiss company then filed with the receiver its claim for payment for the price of the several machines, asserting a right to preference in payment because of an alleged mechanic’s lien claim filed by virtue of the debt created by the purchase. The receiver heard the parties, and refused it preference as a lien claim, but admitted it as a general claim, entitled to share with other general creditors of the defendant companj''. From that adjudication of the receiver the Prentiss eompanjr has taken its present appeal. On that appeal additional testimony has been taken upon the question of the lienability of the debt which the Prentiss company asserts. The amount due is not disputed, unless, possibly, upon the question of the non-delivery of a turret, one of the auxiliary portions of the Lodge & Shipley lathe, No. 1, but not apparently an essential part of the lathe proper, being rather an auxiliary appliance, affording a convenient method of operating the lathe, and not doing the work itself. It may be that some deduction may be necessary as to the non-delivery of this turret, but as to all the rest the amount of the claim is undisputed.

The whole question of argument before this court on the appeal has been addressed to the lienability of this debt. That is placed by the appellant upon its claim that, under the first, fifth and eighth sections of the Mechanics’ Lien act, it has a right to a lien for this debt, because the appellant says.that it was contracted for the furnishings of material for the erection of fixed machinery; and it is entitled to enforce that debt by lien because it furnished materials for fixed machinery, and such a debt is a lien whether the materials were actually used on the premises in the erection of a fixed machine or not. It became a lien because the debt was incurred for that purpose.

Whether this construction of the statute, as stated by the appellant, should be accepted, need not be determined in this case, because I take it to be perfectly clear that the things furnished were‘not, within the meaning of the statute, materials for the erection of fixed machinery. The proof .is entirely clear that the five different articles furnished.were, when they left the shop of the Prentiss company and arrived at the shop of the Taylor company, each one in itself separately perfect arid entire. They were in pieces .for convenience of shipment to Mount Holly, where the separated parts of each machine were'to be re-assembled, thus making the same machine which had been in the shop of the Prentiss company before shipment. There was no use, nor intended use, of these separated parts as materials out of which fixed machinery was to be constructed, unless the completed machines are lield to be fixed machinery.

Materials, in the meaning of the statute, and in the view taken in the discussion in the case of Morris County Bank v. Rockaway Manufacturing Co., 1 McCart. 189, cited by appellant, are essentially different from the things delivered in this case.

In the Moms County Bank Case the materials claimed for were, as I gather from the report, bricks and building stuffs, which, in the condition in which théy were delivered, had no perfected function, and were simply something out of which a building might be constructed. No brick had, when delivered, any relation to any other brick, each was separate and distinct until the construction was begun. The component parts of these machines were utterly different. Each part, before it was shipped, had been properly fitted to the other and tested as an entirety, and when the temporarily separated parts were again assembled they again constituted a perfected entirety. The separation into component parts and delivery in that condition was not as materials for purposes of construction, but as an entire and complete machine, temporarily separated for convenience of transportation and delivery. Under no construction could such a transaction be held to be a furnishing of materials. What were furnished were five different, separate and perfected machines. I shall deal with the matter, therefore, as a deliverance by the Prentiss company to the Taylor company of five different machines, each a perfect entity in itself, usable and complete for the accomplishment of certain work.

At this point some notice should be taken of the condition of things at the machine shop of the Taylor company at the time when these machines were received there. The proof is that the establishment was then in the full and active conduct of business for the manufacture of wheels, and had been - a plant for that purpose a considerable time before the purchase of these machines from the Prentiss company. These machines were not a part of the original equipment of the shop. They were not built in and incorporated into the realty as part of the original structure. When they got there the building in which the'y were to be placed had long been erected; other machines had been there, which had performed the functions which these new machines were to perform. The other machines were taken down and the new ones were to be installed in their places. They were, therefore, so far as the location and use to which they were to be put, substitutions for, and improvements upon, the previous equipment of the shop.

Each of these machines had, as stated, its own separate function, and it is claimed that even if the delivery in parcels did not constitute it “materials,” yet it must be held to be within that section of the Mechanics’ Lien law which grants a lien for the price of fixed machinery. The appellant insists that the debt was incurred for the delivery of fixed machinery, and that this must secure it a lien.

Tlie clause- in the statute which declares that fixed machinen' for manufacturing purposes shall be considered to be a building for the purposes of the Mechanics’ Lien act, does not apply to all machinery for manufacturing purposes; otherwise the furnishing of sewing machines, washing machines and the like, which have an adjustable, movable, unfixed character, would create liens. The words of the statute, and its obvious intent,give a lien only when the thing furnished is such that it comes within the designation “fixed machinery for manufacturing purposes.” Only then can it be considered a building.

The twentj'-eighth section .declares that in the case of machinery, the bringing of the same on the premises shall be the commencement of the building which the statute contemplates. This specification of the time when this imagined building shall be deemed to have commenced, does not annul the requirement that the machinery which may be considered to be a building shall be of a fixed, and not of an adjustable, character. The twenty-eighth section simply declares the time when this statutory building shall be deemed to have commenced. The machinery to create it must still be of a fixed, and not of a changeable character.

It is therefore of vital importance in this case to ascertain whether these machines were fixed or .transient in their nature.

Pending the taking of testimony in this matter, I was invited by counsel of both parties to go and see these machines, in order that the testimony might be fully understood. The counsel of both parties attended, and very frankly exhibited the location of these various machines. They were, part of them, still in boxes, unassembled; some of them were partially erected; one was entirely set up, and, I think, had been in actual use.

The testimony shows that under the floor on which two of them had been placed a solid brick wall had been built, and under the floor on which two others stood brick piers-had been put. These brick walls or brick piers formed no part of the machines, and the machine formed no part of the brick wall or piers. The walls and piers were obviously erected for the purpose of enabling the floor to carry the weight of the machines, and keep them steady and support them. There was no consiructive connection between the foundations and the machines, for the floor intervened between them. The foundation, as I understand the testimony, held the same relation to the floor that heavier joists, inserted for the purpose of more effectually carrying the floor, would have occupied. The machines were set up on top of air unfinished floor, and were bolted down, or screwed down, or blocked down, as the case might be, to the floor. There was no structural incorporation of the foundation into, and making it part of, any of the machines. This was so of the machine which was actually put up and in use, and it was so, in a very much greater degree, of those machines which were only partially put up and in use. Those which were in place were fastened in their places to prevent swaying and movement, and were no part of the construction of the real estate. Others were not even put in place, but were still, as to parts of them, in the boxes in which they had arrived, or were tying, in their separated component parts, unassembled. The machines were obviously of such character that they were completely finished before sale, and were, when delivered, ready for use when set up and power was applied to them. They could have been set up anywhere else, where power was used, just as well as in the Taylor company’s shop, and can now be taken away without altering either the machines themselves or the structure of'the real estate. Their attachment to the freehold is in no sense structural; on the contrary, it is merely casual and convenient.

The principle upon which the Mechanics’ Lien’law is based is to give a lion upon the building and land, because the thing done for which the lien is claimed increased the value of the property of the owner. Coddington v. Dry Dock Co., 2 Vr. 489. As the party furnishing the goods had specialty contributed to increase the value of the land, it was deemed equitable that he should, to the extent of his claim thus arising, have a lien upon the land. All the modes of procedure prescribed by the lien statute contemplate the enforcement of a lien upon land. This has not been changed by the extension whereby “fixed machinery” and “fixtures for manufacturing purposes” are considered to be buildings for the purpose of the Lien act. No lien can be maintained for a debt owing for “fixed machinery” unless that machinery has become such part of the real estate as to pass by a sale under the Lien act. It follows that the decisions which determine whether machines and tools have, by the circumstances of the dealing with them, been converted from personal property into real estate are applicable in this cause to define whether the facts proven show that the machines in question have became, in the sense of the lien statute, “fixed machinery.” All these machines are of the same class as to their attachment to the realty. Whatever annexation was given them was for the purpose of staying them in their places, holding them so that they could not move on the floor, as, when so swaying, they would not effectually do their work. The lien claimant’s expert, when asked whether “the object in fastening the machines to the floor would be to make them steady when used for work,” answered, “Yes, sir.”

The court of appeals, in the leading case of Blancke v. Rogers, 11 C. E. Gr. 563, declared the law in such matters. .Where, from the whole case, it appeared that the annexation was intended to be for the purpose of staying the machine in its place, to overcome the tendency to motion, and where the machine was not, by its structure and manner of building, incorporated into, and made part of, the realty, it remained personal property, capable of being chattel mortgaged, and did not become part of the freehold.

The same rule was recently declared by the supreme court, in the case of Crane Iron Works v. Wilkes, 35 Vr. 193. There the machines consisted of a large lathe, a large planer, a small planer and a number of other lathes, apparently of very much the same nature as the machines here in question. That court, in discussing; the relation of these machines to the land, for the purpose of ascertaining whether they had become part of the realty, cited the case of Blancke v. Rogers as the leading case on the point, and the cases of Penn Insurance Co. v. Semple, 11 Stew. Eq. 575, which was a foreclosure case and petition for injunction to stay removal of machinery; Feder v. Van Winkle, 8 Dick. Ch. Rep. 370, which arose between a mortgage-holder and a receiver- of an insolvent estate, and Erdman v. Moore, 29 Vr. 445, a mechanic’s lien case, as turning upon the tests above applied. Tire supreme court also held, in the Crane Iron Works Case, that complete machines, purchasable on the market as such, and capable of being used wherever power can be supplied, if placed in the owner’s machine shop for use, and not fastened to the realty, or, if fastened, only by being screwed to the floor, so as to keep them steady while in operation, do not thereby become part of the realty.

These incidents attend upon all the machines for which this lien claim is asserted. The undisputed evidence shows that they were stayed in their places for the purpose of making them steady, and not for the purpose of incorporating them into, and making them form part of, the realty. They were complete when they were brought there. They were not built into the machine shop—they were simply put there as complete things. Their predecessors had been taken away and these were supplied in their places, and the time may come when they themselves may be taken away and others put in their places. They have not been shown to be “fixed machinery.” .They have been proven to be adjustable machines, serving their time, coming, going and movable as complete machines when worn out or antiquated. In short, they are tools and convenient appliances, and not “fixed machinery.” They are designated as “machine tools” in the letter of December 15th, 1900, asking the Prentiss company to “please rush the machine tools ordered from you.”

I think, therefore, the Reliability of the debt incurred by the delivery of the machines has not been established, and that the receiver’s adjudication should be sustained 'and the appeal dismissed.