author: Back.es, V. C.

text:
    William Dolton v. Public Service Electric Company.
    [Submitted May 14th, 1914.
    Decided July 8th, 1914.]
    1. Where an electric company wrongfully erected massive poles in a street in order to carry a high-tension transmission system, the trespass was permanent, and constituted an injury to the reversion for which an action would lie.
    . 2. Query: Has an electric light company the right to suspend wires for private lighting purposes in a highway over the highway land of an abutting owner, without the owner’s consent?

      Mr. Riclvard, 8. Wilson, for the complainant.

      Mr. Frank Bergen, for the defendant.
   Back.es, V. C.

As a part of its general plan of construction for the distribution of electricity for light, heat and power, the defendant erected two poles on the highway in front of the complainant's lot. in the township of Hamilton, county of Mercer, and strung upon them wires for public and private lighting, as well as the wires of a high-tension transmission system, of a voltage of thirteen thousand two hundred volts, all without the complainant’s consent. After the filing of the bill, the defendant moved the poles to adjoining properties, from which the wares now suspend in front of the complainant’s house.

The defendant is under contract with the township to light some of its highways with electricity, and for this purpose it undoubtedly has statutory power to erect poles and string wires; but, in massiveness, the poles put on the complainant’s property were o.uc of all proportion to the requirements for local lighting, and as to them this case is governed by Thropp v. Public Service Electric Co., post p. 564.

The right to maintain in front of the complainant’s property the high-tension wires and wares for private lighting, raises another question which is suggested by the complainant, but is not argued or supported by authorities in his brief, and which is erroneously assumed by the defendant’s counsel to have been settled in this state. In the five cases submitted in the brief of defendant’s counsel, as “absolutely decisive upon this point,” the question of the invasion of the property rights of abutting owners by the swinging of telegraph, telephone or electric lighting lines in front of their properties, wras either not involved or the observations of the judges thereon were obiter.

The legislative grant to corporations like the defendant, of the right to use the highways of the state for the purpose of erecting qjoles to sustain the necessary wires, upon first obtaining the consent in waiting of the owners of the soil (P. L. 1896 p. 822), was, in Summit v. New York and New Jersey Tel. Co., 57 N. J. Eq. 123, and in East Orange v. Suburban Electric Light and Power Co., 59 N. J. Eq. 563, held to be, so far as the complaining municipalities were concerned, a grant within the public easement, and regarding winch they hail no standing to complain. In the first-mentioned case, the wires were strung across streets, and in the second, they wrere hung along an avenue upon the poles and right of way of a telephone company. In neither case was private property involved, and in the latter ease Vice-Chancellor Pitney points out that the rights of the owners of the soil were not brought in question and could not be invoked by the municipality in support of its proposed action to tear down the wires, to restrain which the suit was brought. Iiis views, that the permission given by the act of 1896 is quite sufficient of itself to authorize the mere act of suspending wires across the street, and that no action on the part of the municipal authorities was necessary to authorize it, were intended only to meet the claim of the municipality of the right to obstruct and interfere with the sovereign grant.

Roake v. American Telephone and Telegraph Co., 41 N. J. Eq. 35, and Blanchard v. Eastern Pennsylvania Power Co., 80 N. J. Eq. 10, were on motions for preliminary injunction to restrain the stretching of wires (one for telephone, the other for electric lighting) in front of the complainant’s properties. The motions were denied because the complainant’s rights which were sought to be protected were doubtful. It is true that in the former Chancellor Runyon remarked that “the legislature of this state appears to have considered that the use of the street, so far as the wires are concerned, was not a violation of the rights of the owner of the soil in the street; for, while it recognizes such rights as to the erection of poles, it does not do so as to the wires;” although he added that he did not intend to express any opinion at that time upon the merits of the case, and that in disposing of the motion, it was enough that it appeared that the complainant’s right was not clear. In the latter case, Vice-Chancellor Emeiw gives his impressions of the construction to be given to the statute of 1896, above quoted, as requiring the consent of the owners of the soil over which the wires are suspended, as well as the owners of the soil on which the poles are located.

The last ease cited by the defendant is that of Paterson Railway Co. v. Grundy, 51 N. J. Eq. 213, in which the question was whether a street railway had the right to stretch feed wires in front of an abutting owner’s property without his consent, and in concluding, that if authorized so to do by statute, it was not such an invasion of the defendant’s right of adjacency as to entitle him to compensation. Vice-Chancellor Green points out the distinction between the use of streets by telephone and telegraph (electric light) companies, and street railways, to be that the latter is, and the former are, not consistent with the character of a highway, and cites Halsey v. Rapid Transit Street Railway Co., 47 N. J. Eq. 380.

1 have analyzed these cases, in order to persuade counsel that the question which was so nonchalantly- — perhaps unthinkingly — handed up, and which to me seems to be one of great importance, both to properly owners and public service corporations, remains undecided in this state, and that it should not be finally passed upon until after a careful examination and full discussion by counsel, and, therefore, I decline to express an opinion at this time.

The opinions of the courts of other states are irreconcilable on the proposition as to whether grants, such as conferred by the act of 1896, are consistent with the use of highways, but in this state our highest tribunal has held that such grants to telegraph and telephone lines, a fortiori electric lighting lines, are not within the public easement. Nicoll v. New York and New Jersey Tel. Co., 62 N. J. Law 156; affirmed in 62 N. J. Law 733. The solution of the problem, then, depends upon whether an exercise of the power given by the act of 1896 invades the constitutional rights of abutting owners, and if it does not, whether the legislature intended that the grant may be enjoyed without the consent of the owner of the soil over which wires only are stretched.

In the briefs of counsel it was argued pro and con that because the complainant was not in the actual possession of the premises at the time the poles were erected, he was not injured and cannot maintain this action. The bill of complaint sets up, and the answer admits, that he was tenant in possession of the premises at the time he commenced his suit. I do not recall any testimony (a transcript w'as not furnished) which disputes this allegation; but, however that may be, the poles were unlawfully erected. The trespass was permanent in character and an injury to the reversionary interest (if that was the estate of the complainant), for which an action will lie. Tinsman v. Railroad Company, 25 N. J. Law 255; Todd v. Jackson, 26 N. J. Law 525; Carlisle v. Cooper, 21 N. J. Eq. 576; Taylor v. Public Service Corporation, 75 N. J. Eq. 371.

If counsel for the complainant desires further argument, I will fix a day. If not, a decree may be entered denying an injunction to remove the poles and wires, but otherwise sustaining the bill, with costs.


source: Caselaw Access Project

author: Backes, Y. C.

license: Public Domain

text:
    William R. Thropp, Elizabeth Jane Thropp, Adam Exton, Eliza Exton and Emma Exton v. Public Service Electric Company, a corporation.
    [Submitted May 1st, 1914.
    Decided July 7th, 1914.]
    1. Township act March 24th, 1899 (P. L. 1899 p. 399 § 67), provides-that a township committee may provide for lighting the streets and public places of the township, and may contract with any person or private corporation for a supply of light for public use in the township. — Held, that the power to light the streets includes the power to use the prevailing and approved methods of illuminating by electricity, which implies the right to employ the instruments required to effectuate the object, including the right to erect poles and wires in the streets for public lighting without the consent of abutting owners.
    2. Where an electric company was under contract to light the streets of a -township, it was authorized under its franchise to construct and maintain in the streets poles and wires of sufficient size to enable it to-perform its contract, but it had no authority, as against abutting property owners, to install and maintain in the streets poles of much greater-size than would be required to sustain its wires necessary for its public service contract, in order to maintain a high-tension transmission system for the sale of electricity for private use.

      Mr. Richard S. Wilson, for the complainants.

      Mr. Frank Bergen, for the defendant.
   Backes, Y. C.

The defendant erected electric light poles on the highway in front of the complainants’ land, located in Hamilton township, Mercer county, without their consent, which they seek to have removed. At the time the poles were put up, and wires were strung, the defendant was under contract with the municipality to furnish street electric lighting, and, with others, the highway in front of the complainants’ property was designated by the authorities for that purpose.

In so far as the poles and wires may be considered as means for public lighting, authority for their construction is to be found in the Township act of 1899 (page 372), section 67 of which reads:

“The township committee shall have the power to provide for lighting the streets and public places of the township, and for that purpose may contract with any person or private corporation for a supply of light for public use in said township.”

The potver to light the streets includes the power to use the prevailing and approved methods of illuminating by electricity, and necessarily implies the right to employ the instruments required to effectuate the object of the grant; and when the privilege thus granted is exercised through the medium of ■another, as authorized, the right is automatically conferred on that other. French v. Robb, 67 N. J. Law 260; Andreas v. Gas and Electric Co., 61 N. J. Eq. 69. That poles and wires may be placed in a highway by a municipality for its public lighting, without the consent of abutting owners, is settled by authority in this state. Meyers v. Electric Company, 63 N. J. Law 573.

“The use of a street of a city or other municipality for the purpose of placing lamp posts or of laying gas pipes and mains therein, or erecting electric poles and conductors, for purposes of public lighting, is one of the burdens upon the fee which must be borne as an incident to the public right of traveling over the way, and is one of the uses for which the land was taken or dedicated as a public highway.” Dill. Mun. Corp. (5th ed.) § 1213.

The complainants do not pretend that they have sustained any Injury which is not common to all abutting landowners, nor do they invoke any special equities in their favor; but, on the argument, rested their claim- to relief in this respect, exclusively, upon the theory that the poles on their property, even for public lighting purposes, are an unlawful invasion of their property rights. Upon this aspect of the case they must fail.

There is, however, another element in the case which they have vigorously pressed. They insist that the poles are very much larger than is required for the lighting of the highways of the township, and that the defendant’s design in erecting poles of such great sustaining capacity as these have, was to- carry wires for private lighting, and wires of a high-tension transmission system, the standard voltage of which is thirteen thousand two-hundred volts. As to this, the proof is abundant. The defendant has power plants at Trenton, Bordentown, Burlington and Camden, which-have recently been connected by the high-tension transmission system, the wires of which extend from the Trenton station along highways to the northerly line of the complainants’ property, and then by detour to a point below their southerly line, where they again strike the highway and thence- on to Camden. The poles of the trunk line are of a uniform 'height of about fifty-three feet when in position and measure at the ground base approximately sixteen inches in diameter, with gains for three or four cross-arms near the top. The line was being built and ten poles had been set along the complainants’ lands, when, because of their protest, the work at this point was stopped, and the detour made. The ten poles remained and more were added to complete the closure, upon which were strung a single line of two wires forty feet up the poles, to supply lamps, which hang seventeen feet from the ground. .

Although the defendant’s witnesses aver that the poles in front of the complainants’ property were of standard size, and were set-to enable the defendant to carry out its contract with the township, it is also made plain by them that they are an integral and indispensable part of the defendant’s general plan of operation for the transmission of electrical energy for public and private consumption, to wherever the current can be profitably marketed; and, indeed, they state very candidly that but for the objection of the complainants, the detour, so far as the high-tension wires are concerned, would not have been made, and that they would liare been strung on the poles, the subject of this litigation.

In testifying to the effect that the building of the transmission line was not entertained by the defendant until nearly a year after these poles were set, the assistant engineer of the defendant is evidently mistaken, because a year has not as yet transpired. What he evidently meant was that it was nearly a year after the township began negotiating for this lighting, which was in 1912, that the trunk line was projected. This harmonizes with the rest of the facts, all of which clearly evince that this construction was chiefly to further the private enterprise of the defendant. The use made of the poles in furnishing public lighting to the township is merely incidental to the defendant’s general scheme or project, and, as one of the defendant’s witnesses testified, they were put up “for future purposes,” obviously meaning for future distribution of electricity, elsewhere and to others than the towns]lip. It is perfectly patent that this line of two wires, all that is needed to light the township roads, does not require these massive poles to suspend it, and it is equally incredible that the poles were erected solely for that purpose. It is of no consequence that the poles on the complainants’ property are of the standard approved in electrical engineering, and of a size uniform with those on the highway, on lands of adjoining owners, who perhaps consented to their erection. We are dealing strictly with the rights of the complainants and the extent to which the defendant may exercise its power under the statute, without invading those rights.

The power conferred by the statute on the defendant, in virtue of its agency of the township, is measured and fixed by the power granted to the principal. To the extent of erecting such poles and stringing such wires as may reasonably be required for the carrying out of its contract with the township, the defendant had authority to put them in the highway on the lands of the abutting owners, without their consent. Any erections in excess of these requirements, though they may servo in performing the contract, are, without such consent, unlawful. P. L. 1896 p. 322; Andreas v. Gas and Electric Co., supra.

An injunction will issue to remove the poles. Application may be made to have determined the size of poles to be substituted.


author: Baokes, Y. C.

text:
    Joseph S. Van Dyke v. William H. Anderson.
    [Submitted July 14th, 1914.
    Decided July 17th, 1914.]
    1. Complainant by a written instrument granted and farm-let unto defendant his certain farm described, defendant agreeing to occupy, till and cultivate the premises during the year beginning April 1st, 1911, in a husband-like manner, and deliver to complainant one-half of the products. The instrument also required that complainant contribute to the cost of seed, fertilizer, fencing, &c., and that defendant do all the cultivation, repairing of fences, ditching, &e. — Held, that defendant was a tenant, and not a mere cropper, and that complainant did not acquire title to any portion of the crop until division, so that an attachment levied thereon as the property of the tenant before division was prior in right.
    2. Whenever a dispute arises as to the meaning of a contract, that construction which the parties themselves have placed on it, as between themselves, is the one to be adopted by the courts.
    On exceptions to master’s report.

      Mr. Lmlon SaiterIhwaitc, for the exceptant.

      Mr. Aaron V. Dawes, for tire respondent.
   Baokes, Y. C.

By an indenture, the complainant, Yan Dyke, granted and farm-let unto the defendant, Anderson, his farm situate in Monmouth county, and tbie latter covenanted and agreed that he would

“occupy, till and cultivate the premises during the year beginning April 1st, 1911, until April 1st, 1912, in a husband-like manner according to the usual course of husbandry * * * that he will deliver to the party of the first part * . * * one-half of the products.”

In the document provision is made for the method of division. It also requires of the complainant that he contribute towards the cost of seed, fertilizer, fencing, &e., and of the defendant that he do all of the cultivation, repairing of fences, ditches, &c. Anderson entered into possession and farmed the land until the month of August, 1911, when he disappeared and remained away until about September 9th. During his absence, the complainant filed his bill for an accounting and a receiver. A receiver was appointed on September 13th, who harvested the crops and accounted, showing a balance in his hands of $193.43. On September 3d, the complainant issued an attachment out of the Monmouth circuit court against the defendant for the sum of $195.64, under which the crops were seized. On September 11th, William Kirby levied upon the crops, under an execution issued out of the Monmouth common pleas, to make $175, and on December 3d, Grover Brothers made a levy to recover $89.13. The receiver’s account was referred to a master, to examine and also to report the liens against the fund and the order of their priority. The master reported the foregoing facts, and also that the receiver, upon the assumption that the complainant was entitled to one-half of the crops, erroneously paid to him, $507.96. This sum was charged against the receiver, plus the amount reported by the receiver, $193.43, making a total of $700.38, which constitutes the fund to be disposed of. The master further reported that out of these moneys the complainant should be first paid the amount of his debt sworn to in his attachment proceeding ; that the Kirby judgment should be paid second, the Grover judgment third, and the balance to the complainant on account of his share of the crops. The exceptions go to the refusal of the master to allow to the complainant, as a prior claim, the value of one-half the crops, being the sum which the receiver had paid to him, and the argument in support is, that Anderson was a cropper ; that he and the complainant were owners in common, and that the attachment and judgments were liens only upon the urn-divided interest of Anderson. <

To arrive at his result, the master necessarily concluded that by the terms of the indenture, the farm was rented to the defendant, Anderson, that the crops belonged to him until a division was made, and that one-half of the yield would be payable as rent. •

A division was not made until after the liens attached, and then by the receiver, who, of course, had no authority to do so. The correctness of the master’s report depends upon the construction to be given to the indenture. By it Van Dyke “doth grant and to farm-let” unto Anderson the premises for a fixed term. Bent in kind is reserved and exclusive possession is given. This language imports tenancy. Where the contract is manifestly for work and labor, and a share of the crops is given for such services, it should be construed not to create the relation of landlord and tenant, but where it is in form a lease, containing terms of demise, and reserving rent in kind, it should be given effect according to 'the expressed intention of the parties, and held to create that relationship. New Jersey Midland Railway Co. v. Van Syckle, 37 N. J. Law 496; Reeves v. Hannan, 65 N. J. Law 249. It will be found upon examination of the authorities cited by the complainant in support of his position, that they involve agreements which were clearly for work and labor, for which a share of the crops formed the compensation. Guest v. Opdyke, 31 N. J. Law 552; Edgar v. Jewell, 34 N. J. Law 259; Gray v. Reynolds, 67 N. J. Law 169. That the instrument was intended by the parties to create the relation of landlord and tenant is manifest from the construction the complainant himself has placed upon it by his allegations in the bill in this suit. lie therein sets forth that

“he let and rented the said farm * * * to Anderson * * * for one year * * * upon-condition that said Anderson should render to him as compensation for said occupancy during said term one-half part of all the products of said farm * * * which should be sold and marketed by said Anderson * * * That in pursuance of said indenture of lease, said Anderson and his family moved into possession of said premises * * * and are now in possession thereof * * * that he (complainant) is advised that he cannot safely take possession of said farm * * * because there is no provision contained in the said indenture of lease which would permit your orator to take possession thereof.”

Clearly, at the time the bill was filed, Van Dyke regarded himself as landlord and Anderson as his tenant. Whenever a dispute arises as to the meaning of a contract, that construction which the parties themselves place upon it, and as to which they deal with each other, is, as between them, the one to be adopted, and to be given by the courts.

I agree with the determination of the master, and the exceptions will be overruled, with costs.


author: Bacees, V. C.

text:
    William C. Jones v. Anna P. Read Jones.
    [Submitted February 7th, 1914.
    Decided July 31st, 1914.]
    1. In a husband’s suit for divorce, evidence as to the circumstances surrounding the separation of the parties held to show that the wife did not desert the husband without his consent.
    2. On a wife’s petition to open a decree of divorce in favor of the husband, evidence in support of her contention that she failed to defend the suit because of her belief, induced by messages from the husband that the suit would be withdrawn — Held, to show surprise, entitling her to have the decree set aside in order that she might defend.
    3. A degree of divorce, obtained by a husband by false testimony in a suit which the wife failed to defend, will be vacated on the wife’s application, irrespective of the wife’s excuse for her default, as the state was an interested party to the suit, and its interests had been imposed upon by the conduct of the husband, requiring that its rights be vindicated.
    On petition to open decree a vinculo.

      Messrs. Bourgeois & Coulomb and Mr. John W. Wescolt, for the petitioner.

      Mr. Floyd II. Bradley, for the defendant.
   Bacees, V. C.

On August 17tli, 1912, the petitioner filed his petition for divorce a vinculo, in which he alleged that he cohabited with his wife until June of 1906, when she deserted him, and that for more than two years then last past, her desertion bad been willful, continued and obstinate. The cause was undefended, and upon the report of the master to whom it was referred, a decree nisi was entered January 17th, 1913, and on July 18th following a final decree of divorce was signed. On November 18th of the same year, before the decree was actually enrolled, the defendant filed _her petition praying that the final decree be vacated, and that she be permitted to defend, on the grounds of surprise and' merits, in which she sets up that she was deprived of her defence by the fraudulent representations of her husband and that the decree was procured by false testimony imposed upon the court. An order to show cause issued, an answer was filed, and on the day set for trial the parties and their witnesses were heard in open court.

The petitioner and defendant were married in 1886, and lived together as husband and wife until June of 1906. At that time they were living in Camden. During the previous fall, their daughter, a young lady, had been sent to Swarthmore College for a four-year course. She was in delicate health, and for her better protection and comfort the defendant planned to move to the college town. While her husband was in Denver, Colorado, she wrote to him of her intentions, and he replied- under date of January 22d (1906) :

“Anna:
“Tour letter received this a. m. I am very sorry to hear that the children are not well and I am especially anxious about Edna. It might be wise for her to see Dr. Snader, 1919 Arch St., and have him make a thorough examination, particularly of her lungs, and prescribe for her. I have great faith in his ability. In regard to your going to Swarthmore to live, if it will contribute to your happiness or the health of the children it has my entire approval. It might be a good plan for you to consult an agent, as such a person would be more familiar with existing conditions and have knowledge of any opportunities to rent or buy. I expect to be engaged here for some time yet, and cannot say how soon I will be able to go east.
‘Tours,
“Witt.

Upon the strength of this letter, the defendant went to Swarthmore to look for a place, and a few days afterwards wrote to the petitioner a gossipy letter, in which, amongst other things, she said:

“Dear Will:
“* * * j suppose you would like to hear of our experience the other day at Swarthmore. Mrs. Keller, Willie and I started about twelve o’clock from Hamilton Court. We went to their country place, got Bill, the work horse. We went all over Swarthmore and saw only three houses that we cared for. Two was out by Strathaven Inn. One is Graham’s house, which is $15,000, and the one adjoining it is $11,000. Now Will, I am afraid to mention the other one because it is so high in price, but it is an ideal house. It adjoins the college grounds and it has every convenience. I went to see the agent yesterday. His office is at Thirteenth and Chestnut. J. T. Jackson is his name. When you come home you can go and see him if you like.”

She closed the letter with a love message from the children and herself. Upon the petitioner’s return to Camden, he negotiated with the owner of the Graham house and purchased it for $12.-000, on April 19th, 1906, placing the title in his wife’s name. He paid down $5,000 in cash, and with his wife executed a purchase-money mortgage for the balance. He made extensive alterations to the house, which he personally supervised; purchased rugs and furniture, which he and his daughter selected; paid for the moving of the household effects; made alterations and repairs to the house until recently, and, up to the time of this application, paid, the taxes on the property, interest on the mortgage, water rents, electric light bills, telephone bills, besides sending to his wife a weekly allowance of $32.50, which was increased to $35 in the spring of 1913, and to nis children each a monthly allowance. In December of 1909, and January of 1910, ho purchased, in the name of his wife, additional ground adjoining the Swarthmore home. Tn all he spent on the property and in supporting his family the s\un of $41,500. In the month of June, 1906, the petitioner again went west, and the other members of the family to Atlantic City for the summer, as had been their custom. He returned in the early part of July, and again went to Denver the latte]' part of August. During this period he made the arrangements for improving the house and for its furnishing. When the house was substantially completed, the defendant moved into it with her household effects (except some personal belongings of her husband), where she has ever since lived. From that time on, the petitioner never saw his wife to speak to her, although he was_ a frequent visitor at the house to see his children. The defendant’s removal to Swarthmore constituted the alleged desertion upon which the decree of divorce was based.

The testimony taken before the master persuaded him to report that while the petitioner was iu the west, the defendant, without his consent or knowledge, went to Atlantic City, where she remained until the month of September, and that during the latter part of the month of October, or the early part of November, 1906, the defendant packed all of her belongings and caused them to be removed to Swarthmore, in the State of Pennsylvania, without the consent or knowledge of the petitioner, at which latter time the defendant deserted the petitioner. And further, that

“The petitioner visited the house where the defendant was living, in Swarthmore, a number of times, and there saw his children; that the defendant, from the testimony shown, avoided meeting her husband, the petitioner, and at other times purposely absented herself from her home in Swarthmore, when she knew that her husband was coming to her home; that defendant stated that she would not return to Oamden to live with the petitioner, and it is evident to my mind that the defendant fully intended to desert her husband when she moved from Oamden, New Jersey, to Swarthmore, in the State of Pennsylvania.”

The petitioner had testified that he lived with his family at 107 North Seventh street,, in Camden, until the 15th of June, 1906; that prior to that time he and his wife had several altercations; that on one or two occasions his wife had told him that she would not continue to live in Camden; that he had told her that he could not live anywhere else; that his business required him to live in that city. On June 15th he was obliged to go to Colorado. He returned in seventeen or eighteen days, and then went to his home where he expected to find his wife and children. The house was closed up, and he was informed that they had gone to Atlantic City. He did not see her during the summer, for the reasons stated by him, that he believed she had gone away in one of her fits of anger, and that it was best to leave her alone as she would get over it and return all right in the fall. As he'had no place to sleep, he went to his office building where he furnished a room. Soon after this, about the middle of September, he was again required to go to Colorado and was gone until the 1st of November, when he returned and went immediately to his home, and to his surprise found all of the furniture moved with the exception of a few pieces of rubbish and the framed marriage certificate. He learned that his wife had moved to Swarthmore, and he says, “I then knew that when she left me she intended to desert me.” He further stated that in the latter part of November, within two or three weeks of his return, he went to Swarthmore to sec his wife, and talk over marital relations and about continuing the home in Camden; that he did not succeed in seeing her at that time; that he was informed that his wife was “not at home;” that within the next two years following he made six or more trips to Swarthmore to see his wife, for the purpose of arranging a home in the city of Camden, and for her to return and live with him, but that he did not succeed; that whenever he went there he was told that she was not at home, although upon some occasions he believed that she was, but would not see him; that during the next four years he went to Swarthmore many times and saw his children, but on no occasion was he able to, nor did he, see his wife; that he had never had any conversation with her since she had left for Swarthmore; that his wife has never written to him or communicated with him in any way whatsoever since that time; that he has never had intercourse with his wife after she left him in June, 1906, and that he believed that she left him because of extreme jealousy; that he knew of no other reason for her leaving him, and that in fact there was no ground for her suspicion and jealousy; that he had supplied money for the support and education of his children, but whether any of the money sent for the support and education of the children was used by the wife, he did not know; that when he went to Swarthmore it was for the purpose of talking with his wife and having her return to their home in Camden, where he had provided a home, or to provide such other place as might be agreed upon between them; that his wife knew that he was calling upon her children, and she must have known that he endeavored to see her a number of times, because he was at the house so many times, but she at no time allowed him to see her nor did she offer to see him. That, therefore, he was unable to talk with her or make any provision in accordance with her wish, if she had any to express; that he did not write to his wife because he thought he could make himself better understood by seeing her personally; that they could have arraaiged the matter between them, and by conversing with her, he thought they could arrange about her returning to Camden to live with him, and knowing the disposition of his wife, he thought that writing to her would be futile, when she constantly avoided seeing him when he went to her house to see her and the children; that as early as the spring of 1905, the defendant had a conversation with him, in which she wanted to move from Camden and go to Swarthmore to live, and that he always protested, because his profession required him to live in this state; that between the time of this first conversation and when he went to Colorado, in the spring of 1906, he had two or three conversations on the subject. One was held in the office, and that she still persisted and urged that they move to Swarthmore, and that he replied that it was impossible; that while in Colorado, he recalled a conversation that they had had on the subject of moving to Swarthmore, and that he wrote her that while he would do anything in his power for her happiness and the happiness of the children, he could uot move to Swarthmore, and that such a thing was impossible; that at one time, prior fco June, 1906, his wife told him that if he didn’t like the house in which they were then living in Camden that he could get out. During the summer of 1906, when the defendant was in Atlantic City, he regularly supplied her with money, and that she had a personal income of between fifty and seventy-five dollars a month, which she was receiving. While she was in At-’ lantic City he did not suspect that she had deserted him, but later he concluded that she must have intended to desert him from the time she left to go to Atlantic City. At that time he was sending her $25 a week, and now sending her $32.50 a week for the support of the children; that his wife was living in Swarthmore “without his assent or consent.”

Testimony was given by two colored servants of the petitioner, his stenographer and a plumber employed by him to do work at the Swarthmore house. One of the servants said that he heard Mrs. Jones say that she would not live in Camden; that she was going to Swarthmore to live. The other, that whenever the petitioner called at the Swarthmore house, the defendant would seem to know it, and on several occasions told him, “Mr. Jones is coming; I am going to Philadelphia;” and that the defendant told him on two or three occasions that she would never live in Camden again. The stenographer testified that Mrs. Jones wanted to move to Swarthmore on account of her daughter going to college, and that in the spring of 1906 the defendant was at the petitioner’s office to talk about the purchase of the Graham house. Mr. Jones told her that he was perfectly willing to do anything that would add to her happiness and malee her comfortable, but that she knew'.he could not live in Swarthmore, and that the defendant said that that was the house she wanted, and that she intended going there and that

“her tone conveyed the idea that she was ■ determined to go to Swarthmore to live, and it did not make any difference whether he intended to go or not, or whether he could go. She did not say those words, but that was her tone of voice.”

The plumber related that on one occasion, when the petitioner telephoned to his daughter, he heard the defendant say to the daughter that if her father came she would lock herself in a room so that he could not see her, and that at different times when he was working there he noticed that the defendant seemed to avoid her husband.

The corroborating testimony is fragmentary and equivocal, and was evidently moulded to give color to the petitioner’s story. Tn the further discussion it need not be commented upon, except as the history of the case explains the true meaning of the defendant’s action and of what the witnesses said Mrs. Jones from time to time stated.

The evidence given by the petitioner before the master was a bald perversion of the truth. That his wife left him, moved to, and was living at, Swarthmore without his “assent or consent,” and that he endeavored to secure her return to him, is absolute fabrication. It will be observed that the petitioner altogether suppressed the purport of the letter to his wife of January SSd, 1906, in which he consented to her moving to Swarthmore, and the fact that he there bought and furnished a house which he was maintaining for his family — and the motive is obvious. The letter and the petitioner’s operations in consequence, establish incontrovertibly that he was anxious for and consented to a separation. In fáct, in his testimony at this hearing, with these cir•cumstances confronting him, he confessed, as he was compelled to, that he consented to Iris wife’s going to Swarthmore, but he endeavored to ameliorate the gravity of the situation in which he found himself — only to involve himself further — by the claim that the consent was to a temporary residence, until the daughter graduated, and that that was the understanding he had had with his wife. This avoidance is disingenuous. Why, if this were the arrangement, should he, as he testified before the master, immediately after he found his wife had gone to Swarthmore, try to see her to get her to come back to Camden ? The purchase of a high-priced house, and large outlays for improvements, speak permanency. The failure of the petitioner to seek a termination of the separation when his daughter graduated, and the fact that in 1910 he bought two additional lots of land adjacent to his wife’s home, for her use, add to his confusion and utterly rout his pretentions.

Although the. defendant had gone to the home her husband had provided for her, the petitioner, without relating this important fact to the master, averred, as he did afthe present trial, that it was not until then that he knew that she had deserted him. He pretends to have based this belief, principally, upon what he asserts to be the fact that his wife took with her everything, leaving only rubbish and the marriage certificate hanging on the wall. A disdainful abandonment of this token of their union might be significant if there were not other and controlling circumstances which were not brought to the master’s attention. The wife denies the charge, and I am inclined to disbelieve the petitioner as to the incident, and for this reason: In his testimony before the master, he said that when he returned from Denver on July 2d, to remain until August 28th, he found his family had gone to Atlantic City (he forgot to say that it was the annual custom), and having no place to sleep he moved to a room in his office building on Market street. Before me, he insisted that during that period he slept in the Seventh street house. The defendant testified that when she came up from Atlantic City in the summer she missed the certificate and telephoned her husband about it, and that he replied that he had taken it for safekeeping. He admits having such a conversation, and I believe that he took it before the family moved to Swarthmore. Eor, why should the defendant, if she had spurningly left it behind with a lot of rubbish, be so solicitous about it as to telephone?

But, aside from this, it 'is quite clear to me that the petitioner’s explanation of this metamorphosis of a temporary separation (if it was that) to a permanent desertion, is an absurd prevarication. Domestic discord of a repressed character prevailed for some time before the separation. There were no violent contentions or outbreaks of passion; on the contrary, the manner of the two towards each other was gentle and polite, but cool. Some six months previous she had left his bed, because of an indignity, with which situation he was apparently content. Had he made the least advance, she doubtless would have rejoined him. He was generous in his money affairs and considerate of his wife’s comfort and -welfare. She, on the other hand, was complacent and hopeful. Their demeanor towards each other was an absolute contradiction of their sentiments. It’s the familiar story of the husband tiring of his wife. She had lost her charms for him. Her personality and presence became intolerable. He was willing to provide, but-not to embrace. Whether he had found solace elsewhere, is not clearly shown, but it does appear that later he lived in Overbrook, Pennsylvania, much of his time, in a family in which there -was a daughter to whom he did not deny he paid attention. Before going west, in June of 1906, he told his wife that he would never return to the Seventh street house. He virtually abandoned her then. He had previously threatened to procure a divorce.. To a letter which she wrote to him while he was desperately ill, offering to-nurse him, he ma.de no reply. He claims to have not received it, but I think he did. To his son, who- had told him that the defendant still loved him, he replied, with a laugh, “That’s too-bad; I am sorry. Of course, you know it can’t be helped now.” And that it was impossible for them to live together again because his wife was irresponsive and uneducated. To a message which the daughter carried to him he made a similar response.

That when the Swarthmore proposition was first broached, the-petitioner refused to go there with his famity, and that he told his wife, as he says, it would be impossible because of his profession, may be true, but that ho was willing, if not anxious, that they should go, is also true. Yainly did he try to explain away the significance of the purchase and furnishing of the house. He protested vigorously and emphatically, he says, but, nevertheless, bought, because his wife, unknown to him, had entered into-negotiations with the owner who threatened suit, and that he-completed the bargain to avoid trouble, or, as counsel argued, out of self-respect. How impossible of belief this is, when we consider that the petitioner admitted on the hearing, that by the letter of January 22d he intended that his wife should select a house at Swarthmore for her home; that by her reply letter she informed him that she had looked at the Graham house; that she had spoken to him about purchasing it, at his office in the presence of his stenographer; and that he bargained with Graham and obtained it for $12,000 instead of $15,000.

The petitioner’s testimony before the master, that he sought his wife with a view to a reconciliation, and that she evaded his efforts, is even more reprehensible. Upon his return from Denver, in July, 1906, he knew that his family was on its annual summer outing. He neither called upon, nor communicated with, his wife, and his reason for this, as given to the master- — - that he believed that she had gone away in one of her fits of anger and that it was best to leave her alone, and that she would get over it and would return to her home all right in the fall — ■ in the light of the circumstances as they were developed at this hearing, was manufactured to suit the occasion. After the family moved to Swarthmore, he visited his children there, only upon condition that his wife should be out of the house.. Later ■on, he modified this, so that she might remain in the house, but must be invisible to him. When a. visit was projected, ho communicated by telephone, or, otherwise, to his son or daughter, notifying them of his coming, with a strict injunction that the mother must 'be absent. This we have not only from the two children, but also from the family physician, who carried some of the messages to the son and daughter*. The defendant, silently and uncomplainingly, complied. She always vanished. At the time of the commencement exercises, when his daughter graduated, in 1910, the petitioner sent word, by this same physician, that he would not attend if his wife intended going, and, being assured that she did not, he went. He was beside himself with rage when he saw her in the audience. Furthermore, in his testimony at this hearing, he asserted that he ceased to love his .wife when he found she had gone to Swarthmore. Is it likely that he would thereafter seek her? He also admitted that he never asked for hex when he called at the house, or ever wrote to her or communicated with her by telephone (they had the ■facilities). His statement before the master that he did not write because he thought he could make himself better understood by seeing his wife personally, stretches one’s patience to the breaking point.

The enforced absence or seclusion of the defendant whenever her husband appeared at the Swarthmore house, accounts for the testimony of the plumber and the colored servant. If she ever stated that she would never live in Camden again, as both colored servants say she did, but which the defendant denied, her declarations were perfectly consistent with her apprehensions that her husband was permanently estranged.

Process was served upon, the defendant while she was summering at Atlantic City. The surprise and shock made her ill. The next day the son went to see his father and informed him of his mother’s condition. He returned with a message to his mother that he had seen his father; that he was sorry that the matter had upset her so, and that he had said she should not worry any more; that she could tear up the papers, and that she didn’t have to go to Trenton. In the afternoon of the same day, the petitioner met his daughter at the ladies’ waiting-room of the Pennsylvania station in Philadelphia. She wrote to her mother from Evanston, Illinois, where she liad gone on a trip, that she had seen her father, and that he -was very much worried over her condition, and that he had told her to tell the defendant, “She needn’t worry; that everything would be all right, and that it wasn’t necessary for her to go to Trenton.” As a result of these communications, tire defendant, although she was advised by her niece to consult counsel, refrained, from putting in a defence, because, as she says, she trusted Mr. Jones and believed in him, and that thereafter she thought that the case had been dropped, and that she had no information to the contrary until her marriage anniversary, on October 27th, 1913, when the news was broken to her by her niece.

The petitioner himself interpreted the 'meaning of these messages as carrying an assurance ihat the suit would be withdrawn, but he denies the assertions of his son and daughter that he initiated them. To his son, whom he admits asked him whether the defendant would have to go to Trenton, he said he replied:

“It isn’t for me to say what she has to do. Your mother has two courses open for her; one is to secure counsel, file an answer and fight the case; and the other is to refuse to do anything and, if she wishes, throw the papers in the fire. It is immaterial to me what she does.”

And to his daughter, who was very much agitated, he claims to have said: “Don’t you worry; you can’t help' this. It is not your fault. You go on your trip and enjoy yourself.” The petitioner is supported in' this statement by his stenographer, as to what he claims to have said to Ms son. But her exquisite recollection of what occurred a year and a half before, and which she described in the precise language used by her employer, impressed me at the trial that she had been coached. I believe the two children. I am convinced that they told the truth. What possible motive could they have had to bear false information which they must have realized would deceive their mother and aid in the wrongful purpose of their father? Why should the daughter, when informed by her father that he had procured the decree nisi, as she did, express astonishment and repeat to him his broken pledge? It may seem odd that the wife should have rested entirely upon her husband’s assurances, but she says that he always had been truthful to her; that she had confidence in him; that she trusted him, and then still loved him, and that she thought he would not proceed with tbe suit — and her manner on the witness-stand suggested that she was of a confiding, pliable and dependent nature. In her despair there still flickered hope of a renewed love. I think she was fully warranted in relying upon. his representation, and the weekly remittances which he thereafter regularly made, reassured her that he had abandoned the proceedings. lie thereafter acted as he had before, as the executor and trustee of her mother’s estate, until May of 1913, and was acting as her agent in the collection of rents and other moneys, even to the time of this hearing. In Fovember, after the petition for divorce was filed, he procured from the defendant (the children acted for her) a mortgage which she held on Camden property for the purpose of foreclosing it. These were all acts which naturally gave her the impression that he was not proceeding adversely, and that he had not abused her confidence. The defendant has not had her day in court. Of this she was deprived by the deceitful and fraudulent machinations of the petitioner.

From the foregoing review of the evidence it is manifest that the defendant has abundantly shown merits, as well as surprise, and that she is entitled to be protected by opening the decree, in order to admit her defence. Miller v. Rushforth, 4 N. J. Eq. 174; Brinkerhoff v. Franklin, 21 N. J. Eq. 334; Day v. Allaire, 31 N. J. Eq. 303; Richardson v. Richardson, 67 N. J. Eq. 437; White v. Smiths 72 N. J. Eq. 697.

There is another consideration which requires that this decree be vacated. The state is an interested party to the suit. Its interests have been imposed upon by the malevolent conduct of the petitioner, and public policy demands that its rights be vindicated.

It is urged that the defendant is in laches, because, as it is argued, she was careless In relying upon her husband’s promise, and that slight investigation would have put. her in position to have timely defended herself. This argument is incongruous. It necessarily assumes that the defendant should have entirely disregarded her husband’s promise to withdraw the suit, or should have regarded him as unworthy of belief; an assumption which is entirely inadmissible and comes with, ill-grace from the petitioner.

The enrollment will be vacated and the decrees opened. On this hearing the main cause was retried. Both parties presented all of the evidence available on final hearing; and having reached the conclusion that the defendant was not guilty of desertion, the petition of divorce will be dismissed, with costs, unless the petitioner, on the settling of the decree, shall represent that he has further testimony, to be offered on final hearing.


author: Backes, V. C.

text:
    The Trenton Trust and Safe Deposit Company, substituted trustee, &c., v. Joseph H. Moore et al.
    [Submitted May 6th, 1914.
    Decided August 25th, 1914.]
    1. The primary direction of the will to the trustee on the death of the equitable life-right holder, to pay over and convey the remainder to H. and A., in equal portions, being a distinct and positive gift, absolute in terms, and unconditional that either be then living, creates a vested estate; it enabling them at any time the life estate becomes vacant, which is a certainty, to enjoy the gift, and giving a present right of future enjoyment; the only uncertainty being as to whether they will ever actually enjoy it.
    2. Postponement of time of payment, being for the single purpose of allowing the life-right holder to enjoy the estate, does not make the remainder contingent.
    3. The vested gift in remainder to H. and A. is not divested as to H., by the further conditional direction of the will to turn over the corpus
      of the estate, on the death of the life tenant to A. and the issue of H. if A. survives, and H. predeceases, the life tenant, where H. leaves no issue, though predeceasing, while A. survives, the' life tenant.
    4. If a devise be made to A., to be divested on a given event in favor of persons unborn or unascertained, it will not be affected by the happening of the event described, unless also the objects of the substituted gift come in esse and answer the qualification which the testator has annexed thereto.
    5. The naked power of sale given by a will to the trustee not being exercised till after death of a vested remainderman, her share of the real estate passed to her heir.

      Messrs. James & Malcolm G. Buchanan, for the complainant.

      Mr. Scott ScammeTl, Mr. John T. Temple, Mr. Gha/rl’es E. Gummere, Mr. Linlon SatteHhwaite and Messrs. McDermott & Enright, for the defendants.
   Backes, V. C.

The complainant, substituted trustee under the last will and testament of Lydia A. Moore, deceased, prays for instructions and directions as to the proper course to be taken in the distribution of funds, which involves the construction of a portion of the will, which reads as follows:

“Fourth. All the rest and residue of my estate, both real and personal,* I give, bequeath and devise to William S. Gummere, of the city of Trenton, in the county of Mercer and State of New Jersey, his heirs, executors and administrators, upon and for the trusts hereinafter mentioned, that is to say, upon trust that he the said William S. Gummere do and shall pay over all the rents, interest, dividends and annual produce of the said residue of my real and personal estate to my beloved sons Eckford and Charles in equal shares, so long as they, shall live; that upon the death of my son Eckford, said trustee do and shall assign and pay over the one-half part of the said residue of my personal estate, and convey the one-half part of the said residue of my real estate to his daughter Helen B. Moore and to his wife Annie S. Moore, in equal portions; and in case his said wife should die during the lifetime of my said son Eckford then that, at the death of my said son Eckford, said trustee do and shall assign and pay over the said half part of the said residue of my personal estate, and convey the said half part of the said residue of my real estate to the said Helen B. Moore, daughter of my said son Eckford; and in case the said wife of my said son Eckford shall survive him, and his said daughter shall die during his lifetime, then that at the death of my said son Eckford, the said trustee do and shall assign and pay over said one-half part of the said residue of my personal estate, and convey the said one-half part of the residue of my real estate to my said son’s said wife Annie S. Moore and to the issue of his said daughter Helen B. Moore in equal shares, the one moiety thereof to the said Annie S. Moore and the other moiety thereof to the issue of the said Helen B. Moore; and in case my said son Eckford shall survive his said wife, and shall die without issue surviving him, then that, at his death, the said trustee shall assign and pay over the said one-half part of the said residue of my personal estate, and convey the said one-half part of the said residue of my real estate to my son Charles and his heirs.”

The trustee was authorized and empowered to make sale of the real estate at public or private sale. All of the parties mentioned in the will survived the testatrix. Both life-right holders are dead. Charles Moore died before Eckford, without issue, testate, leaving his estate to his widow, Eliza A. Moore. Helen B. Moore died in the lifetime of Eckford, her father, without issue and intestate. Eckford Moore was survived by his widow, Annie S., to whom he gave bis estate. Annie S. Moore has since died testate, leaving her property to her sister Cornelia Y. Temple. Lydia A. Moore’s only heirs-at-law and next of kin at the time of her death were her two sons. Descendants of deceased brothers and sisters also survived hex*.

The coxitroversy relates to that portion of the estate which was given to Helen B. Moore, and the propositions submitted for determination are whether she took a vested or a contingent equitable remainder- — contingent upon her surviving her father —and if a vested remainder, whether it was divested by reason of the happening of certain eoixtiixgent events mentioned in the executory gifts. The primary direction to the trustee to pay over and convey the remainder to Helen B. axxd Annie S., the daughter and the wife of Eckford, in equal portions, it will be observed, is a distinct axxd positive gift, absolute ixx terxns, and unconditioned that either Helen or her mother should be living at the death of Eckford, the equitable life-right holder. This disposition is such as to have enabled them at any time the life estate became vacant, which was a certainty, to enjoy the gift. It gave a present right of future enjoyment: the only uncertainty being as to whether they would ever actually enjoy it. That this creates a vested estate is well settled. Security Trust Co. v. Lovett, 78 N. J. Eq. 445. It is contended by some of the defendants that the remainder is contingent, because the gift is to be found only in the directions to the trustee to “assign and pay over and convey” at a future time. It clearly appears, however, that the time of payment was postponed for the single purpose of allowing the life-right holder to enjoy the estate. If the postponement of division or payment is merely on account of the position of the property; as, for instance, if there is a prior gift for life, or a bequest to trustees to pay debts, and a direction to pay upon the decease of the legatee for life, or after payment of the debts, the gift in remainder vests at once. Theob. Wills 584; Post v. Herbert’s Executors, 27 N. J. Eq. 540; Howell v. Gifford, 64 N. J. Eq. 180; Potter v. Nixon, 81 N. J. Eq. 338.

Both remaindermen having survived the testatrix, and the gift having immediately vested upon her death, it remains to be considered whether the further provisions of the will and the happening of events worked a divestment. These further and mutually exclusive and conditional directions to the trustee are that he turn over the corpus of the estate upon the death of the life tenant to — (1) Helen B. Moore, if Annie S. Moore predeceases the life tenant; (2) Annie S. Moore and the issue of Helen B. Moore, equally, if Annie S. Moore survives and Helen B. Mooie predeceases the life tenant; (3) Charles Moore and his heirs, if the life tenant should die without issue surviving, and should survive Annie S. Moore. With the first and third we have no concern. The contingencies therein mentioned did not come to pass, because Annie S. Moore survived the life tenant. The second contingency, upon which the gift over was made, exists (Helen B. predeceased her'father without leaving issue), except for the fact that Helen died without issue, and the questions which arise are whether, as to Helen’s share, the testatrix died intestate, or whether all of the contingencies upon which the gift over was based, not having happened or being impossible of performance, the primary disposition to Helen and her mother stands undefeated. The testatrix, undoubtedly, contemplated that Helen B. would die leaving issue, and intended that only in the event of her dying before her father, in the lifetime of lier mother, leaving such issue, that the portion of the estate which had been previously given to her should pass from her and to such issue. Helen’s children were to take in substitution. I can regard this executory gift in that light only, and it having failed for want of issue in Helen, the original gift remains unimpaired. 2 Jarm. Wills (R. & T.) 498; Cook v. McDowell, 52 N. J. Eq. 351; Security Trust Co. v. Lovett, supra.

There is another rule of construction supported by formidable authority by which this same result is reached. Helen having died without issue in the 'lifetime of her father, the gift over to her issue is incapable of taking effect. If a devise be made to A., to be divested on a given event in favor of persons unborn or unascertained, it will not be affected by the happening of the event described, unless also the objects of the substituted gift come in esse and.answer the qualification which the testator has annexed thereto. 2 Jarm. Wills (R. & T.) 443. The point was expressly ruled by Vice-Chancellor Pitney in Dusenberry v. Johnson, 59 N. J. Eq. 336, and is controlling in this case. There a legacy was given in trust to pay the income to the 'two grandchildren of the testator until they arrived at the age of one and twenty, when it was to be divided between them or go to the survivor ; and further, that if the two grandchildren died before attaining their majority, the legacy was to be paid to their father, the testator’s son. The father died in the lifetime of his children, both of whom died during minority, and it was held on the authority of Drummond v. Drummond, 26 N. J. Eq. 234, and the cases there cited, that the death of the father of the two grandchildren in their lifetime prevented the divesting of the legacy by their death before attaining twenty-one years, and that the survivor died vested of it. Groves v. Cox, 40 N. J. Law 40.

The contingency mentioned in the third executory gift, that in case Eckford should die without leaving a wife or issue, then the estate was to go over to Ms brother Charles and his heirs, might be indicative of testatrix’s intention that the primary gift to Helen should not become absolute unless she survived her father, were it not for the circumstances that the first gift to her and her mother is distinct and positive, and that the tlmee alternative contingencies upon which the remainder was to go over, do not exhaust every possible event; for, there is no specific provision made for the contingency of Eckford surviving his wife and daughter, but leaving other issue him surviving, nor for the contingency which has actually happened, viz., the death of Helen B. without issue, prior to the death of Eckford and the subsequent death of Eckford leaving Annie S. him surviving. Jarm. Wills 494.

All of the real estate has been converted into cash. Fone had been sold at the time Helen died, and as the trustee had but a naked power of sale, the real estate (now proceeds), to the extent of her share, passed to her father as her heir-at-law, and is payable to his executor. Herbert v. Tuthill, 1 N. J. Eq. 141. At her death her father, as next of kin, became entitled to her personalty, which will be ordered paid to his executor, unless her administrator shows some reason why it should pass through his hands. Helen has been dead upwards of fifteen years, and it is highly improbable that at this date there are any outstanding debts.


author: Geiepin, V. O.

text:
    The Board of Chosen Freeholders of the County of Hudson v. The Delaware, Lackawanna and Western Railroad Company et al.
    [Submitted June 25tb, 1914.
    Decided June 29th, 1914.]
    1. In a suit to restrain a railroad company from laying a track across a much-traveled highway in addition to two tracks already laid and in operation, where no relief was asked against the existing tracks, an injunction would be denied, though travel on the highway was impeded by the existing tracks contrary to the charter of the railroad company’s lessor, act January 29th, 1835 (P. L. 1835 p. 25), and General Railroad act (S Comp. Stat. 1910 p. 4231 § 26), unless the additional track would further impede such travel.
    2. In a suit to enjoin the laying of an additional railroad track across a much-traveled highway across which defendant was operating two tracks upon which about two hundred and fifty trains passed every twenty-four hours, evidence held to show that the additional track would not increase the dangers of the crossing or add to the congestion of traffic thereat, but that, on the contrary, it would relieve such congestion.
    3. In a suit to enjoin a railroad company from laying an additional track across a much-traveled highway, or, in the alternative, for a decree fixing the mode and manner of the construction and laying of such track for the proper protection and safety of travelers, where there was no prayer for relief with respect to the existing tracks, and it appeared that it was not feasible to elevate or depress the additional track or carry the highway across it alone, and it appeared that the company was employing safeguards at the crossing conforming to the best modern requirements which were not criticised in any manner, and that it proposed to install the same safeguards with respect to the additional track, no relief could be granted under the alternative prayer.

      Mr. James J. Murphy, for the complainant.

      Mr. W. B. Orosson, for the defendants.
   Geiepin, V. O.

The defendant Delaware, Lackawanna and Western Railroad Company (hereinafter called the Lackawanna) is the lessee of the defendant Morris and Essex Railroad Company (hereinafter referred to as Morris and Essex) and in possession of a steam railroad operated from the city of Hoboken, Hudson county, in a general westerly and northerly direction across the counties of Hudson, Essex and other counties of this state, and heretofore laid at grade two tracks across a road owned and maintained by the complainant known as Newark and New York turnpike, which point of crossing is called “Sanfords Crossing,” and at the time of filing the bill herein said Lackawanna was engaged in laying a third track at grade, parallel with those theretofore laid and to the north thereof and had said track laid up to said San-fords crossing and intended to lay the same across said turnpike at said crossing when restrained by the decree of this court.

The right of way of the Lackawanna crosses the highway at quite an acute angle, as appears by the following diagram.':

It is agreed that the additional track will occupy twenty-five feet of the highway measured along the centre line thereof. A dispute, however, has arisen as to the space occupied by the two easterly tracks along said’ centre line: The complainants say seventy-six 'feet; the Lackawanna says sixty-six. I am inclined to the view that the Lackawanna is correct, measuring along the centre line, but as vehicles have width, the complainant seems to be correct, not as to the centre line measurement, but the distance that the vehicle must travel before it is completely oif the tracks.

On the foregoing facts the complainant, by leave of the court, filed its amended bill praying that the defendants be restrained from laying the additional track.

It will be perceived that this bill is not filed for relief against the existing tracks (as in the case of Mayor, &c., of Newark v. Central Railroad Co., 73 N. J. Eq. 469), but only against the laying of the additional track; therefore, the court may not decree with respect to those tracks, but may examine into the amount of traffic thereon and over the highway, and if on such inquiry it ascertains that the conditions are such that the use now made of said crossing by the Lackawanna is such that the passage of carriages, horses, and cattle on said road are impeded thereby, contrary to the terms of section 9 of the charter of the Morris and Essex (P. L. 1835 p. 25) and the General Railroad act (8 Comp. StaL p. )$8-1 § 26), and finds the further fact that the additional track when in use will further impede the passage aforesaid, it will then become the duty of -the court to enjoin its laying, but if it funis that the using of the additional track will not constitute an. additional impediment, or will decrease the same, the injunction should be denied.

An examination of the facts shows that about two hundred and fifty trains pass over this crossing every twenty-four hours on week days, about two hundred and twenty of which are passenger trains running at a speed as high as sixty miles an hour, the remaining trains being freight, running at a very low speed; and during the same period about one thousand three hundred vehicles of all kinds and a few foot passengers pass along this highway over the tracks — but the rights of the respective parties should not be determined b,y spreading the traffic equally over the twentj'-four hours, as during some periods of the day the traffic is much greater than at others. Thus, take three periods of one hour each, viz., between eight and nine a. m. — eighteen eastbound, seven westbound passenger trains and eighty-six vehicles of all kinds pass over this crossing, or one train every two minutes and twenty-four seconds, and one vehicle about every forty-five seconds; between five and six p. m. — four east and fifteen westbound passenger trains, about one every three minutes, and one hundred and three vehicles, about one every thirty-five seconds; between six and seven p. m. — seven east and eleven westbound and four freight trains, or one everjr two minutes and forty-five seconds, and ninety-nine vehicles, one every thirty-seven seconds.

In addition to the periods between tire passage of these trains, the traffic is further delayed by reason of the gates being necessarily lowered while approaching trains are a long distance from the crossing.

Eronr the foregoing exposition of the traffic on the railroad and' turnpike, considering that the railroad of necessity has the right of way, it would seem that the traffic over the turnpike is now impeded in the language of the charter and statute aforesaid, but, as above stated, the frame of the bill does not give the court power to deal with existing conditions, but only to inquire into them for the purpose of passing on the propriety of permitting the additional track to be laid. This leads to the question, Will the use of the additional track further impede traffic on the turnpike ?

The complainant says that it has proved that the laying-of the additional track will increase the hazard. The testimony upon which this claim is made is that of Mr. Wasser, the county engineer, whose testimony on the subject is, in effect, that the danger is increased by the traveling public being compelled to cross over one hundred feet of railroad instead of seventy-five, with the possibility of three trains being operated on the three tracks at or about the same time. If. there was a long freight train on the track sought to be laid, and a vehicle was crossing the turnpike ÍQwards the east, this train would interfere with the vision of the traveler, particularly by reason of the acute angle at which the turnpike crosses the railroad. But this might also be said of a train on the westbound track.

The testimony of the defendants’ engineers is to the effect that the running of the freight trains on the third track would neither increase nor dimmish the hazard, but would result in raising the gates oftener, and free the turnpike of protracted obstruction, because, by removing the freight traffic from the main line, it would leave the passenger trains free to travel on schedule. The situation, from the railroad’s view, is about as follows: The Harrison freight yard lies to the north of the tracks, and is about two and a half miles -west of the tunnel. The freight trains run from this Harrison freight yard across the westbound track, over on the eastbound track, and when near the tunnel curve in and upon the westbound track, travel a short distance, and then lead off to Boonton. These freight trains travel at a very low rate of speed, and while they are on either track, or crossing the same, necessarily they block the traffic east and west, with the result that passenger trains both ways are held up until the way is clear, then passing over this turnpike crossing in such rapid succession that the gates are kept down during the passage of several trains, thus resulting in a congestion of traffic on the turnpike; the engineers of the defendant say that with the additional track laid this freight traffic would be eliminated from the two present tracks, and by reason of the fact that the passenger trains then could run at regular intervals without these obstructions, the gates would be up a greater number of minutes in the-day than at the present time;-and in this view I concur. Therefore, in so far as traffic is concerned, it would relieve the congestion both on the railroad and on the highway.

This, therefore, leaves open the question, Will the laying of this additional track increase the danger of crossing? In the case of Mayor, &c., of Newark v. Central Railroad Co. of New Jersey, supra, Vice-Chancellor Stevens, in his opinion, said: “The bill is filed primarily to enjoin the defendant company from laying down, at grade, over Plum Point lane crossing, three tracks in addition to the throe already there; and, secondarity, by mandatory injunction, to compel the railroad to cross Plum Point lane in some other manner than at grade.” Then, after stating that since the decision of the chancellor in the case of Newark v. Erie Railroad Co., 72 N. J. Eq. 447, there can be no doubt that the court of chancery may compel railroad companies, whose roads cross streets at grade, and whose charters contain provisions like those of the defendants, to elevate or depress their tracks, or the highways crossing them, he proceeds to deal with the situation presented at that crossing. Prom the statement of facts in the opinion it appeared that Plum Point lane crossed the existing tracks diagonally; that Brill’s yard lay to the south of the track, and, under the conditions existing, trains from the manufacturers’ branch, which lay to the north of the tracks, entered on the main track and traveled along the same, over the lane, crossing the other tracks in the Brill yard. By the plan proposed, the trains, instead of entering into the existing tracks, would cross the same, cross Plum Point lane and connect with the manufacturers’ branch. This made an additional crossing of the highway. It appeared that there passed over the existing track's, daily, one hundred passenger trains and twenty freight, the speed of the passenger trains being from forty to sixty miles an hour. The company desired the northerly track for the purpose of switching freight intended for the manufacturers’ branch, instead of using one of the main tracks on which the swiftly-running passenger trains were constantly passing.

The vice-chancellor said: “It seems to me that it would conduce to the safety of the traveling public if the tracks were so laid. Its presence would not tend to increase or impede travel over the crossing. It would rather facilitate it.” The situation there presented is precisely the same as in the present case; and it is my view that if the company be permitted to lay this additional track it will reduce the duration of interruptions to travel over the highway, without in any manner increasing the danger to those using the highway.

The vice-chancellor, in the above-mentioned case, then considered the laying of the two additional tracks south of the existing tracks, and finding that they were to be used for freight purposes, and that the use for that purpose would not only, at times, tend to block Plum Point lane, but obscure the vision of the traveling public while these freight cars, either were at rest or being drilled, he continued the injunction.

In addition to the prayer for injunction, the bill contains a prayer in the alternative, as follows: “Or, in case such tracks shall be laid across said turnpike, this court may by its decree fix the mode and manner of the construction and laying of such tracks, for the proper protection and safety of persons traveling over and along said turnpike.”

It is conceded that this single track cannot be elevated nor depressed; it also appears that the highway cannot be carried across this single track; that the only feasible method is to carry it across all tracks. This relief cannot be afforded within the scope of the bill. Under the last-mentioned prayer the only relief the complainant may have is a definition of the safeguards to be used at the crossing. The defendant’s witnesses describe the present methods of safeguarding this crossing, which seem to conform to the best modern requirements. The complainant does not in any manner criticise them, nor has it suggested other additional safeguard?. The defendants say that they propose to install the same safeguards with-respect to the additional track that now exist in connection with the other two.

In this view of the case there is no evidence upon which the complainant is entitled to relief on this latter prayer.

Having reached the conclusion that the laying of this additional track only is brought in question by this bill, and that its laying will not further impede traffic on the road, the conclusion naturally follows that the order to show cause, with the restraint therein, should be vacated and a decree will be advised accordingly.


author: Griffin, V. C.

text:
    Harry T. Davimos et al. v. Emily Green.
    [Submitted September 23d, 1914.
    Decided October 8th, 1914.]
    1. A contract in writing for the sale of land which does not disclose the name of the vendor as required by the fifth section of the statute of frauds (2 Comp. Stat. p. 2612), will not be decreed to be specifically performed.
    2. Where the memorandum of the contract for the sale of land is signed “Clarence T. Van Deren, Agent.” the admission of oral evidence to make known the name of the principal would infringe the statute.
    3. Where the bill for specific performance prays for “such other and further relief, by way of correction or addition thereto or change in said memorandum as aforesaid as the nature of the case may require,” &c., such relief cannot be afforded for two reasons — first, there is no allegation in the bill which justifies any such prayer, and secondly, this court cannot first reform and then specifically enforce the instrument.

      Mr. Harry T. Davimos, for the complainants.

      Messrs. Davis & Hastings, for the demurrant.
   Griffin, V. C.

The bill in this cause is filed by the vendee against the vendor to compel specific performance of the following contract:

“Hakbison, N. J., June 13th, 1914.
“$500.00.
“Received of Harry T. Davimos Five Hundred and 00/100 Dollars in part payment of the sum of Thirteen Thousand ($13,000) Dollars in purchase of the Property known as the Wm. Green Farm on West Side of Schuyler Ave., Kearney, N. J. The balance to be paid on or before September 1st, 1914.
“Clabence T. Yan Deben,
“Agent.”

To this bill the defendant filed a demurrer, assigning several causes, one only of which need be noted, viz., that the contract is ■defective, in that it is a contract for the sale of land and does not disclose the name of the vendor as required by the fifth section ■of the statute of frauds. 2 Comp. Stat. p. 2612.

In the case of Johnson et al. v. Buck, 35 N. J. Law 338, Mr. Justice Depue, in dealing with this statute, said: “The memorandum must contain the full terms of the contract — that is, the names of the buyer and seller, the subject of sale, the price ■and terms of credit, and the conditions of sale, if any there be,” and his conclusion was that as the written contract or memorandum proven was deficient in some of the above elements, no recovery could be had because the deficiencies could not be supplied by oral proof without violating the statute..

The rule above enunciated was followed and affirmed by Vice(Jhaneellor Van Fleet in Schenck v. Spring Lake Beach Improvement Co., 47 N. J. Eq. 44, and by the supreme court in Bowers v. Glucksman, 68 N. J. Law 146. In this latter case the action was for damages against the vendee at the suit of the vendor for failure to consummate a contract for the purchase of lands. The memorandum was signed by the vendee only; the name of the vendor did not appear in ihe memorandum. The vendor obtained judgment in the district court. This judgment was reversed because the memorandum did not fulfill the requirements of the statute as defined in Johnson v. Buck and Schenck v. Spring Lake, &c., Co., supra, in that the vendor did not sign, nor did his name appear in the memorandum.

Cases supporting the above construction of the statute are Clement v. Young-McShea Amusement Co. (Court of Errors and Appeals), 70 N. J. Eq. 677; Stengel v. Sergeant (Vice-Chancellor Emery), 74 N. J. Eq. 20, and Brown v. Pinniger (the Chancellor), 81 N. J. Eq. 229.

But the complainants contend that because the memorandum is signed “Clarence T. Yan Deren, Agent,” the admission of oral evidence to malee known the name of the principal would not infringe the statute.

The only case cited by the complainants to support this view is that of Smith v. Felter, 63 N. J. Law 30._ A careful reading of this case shows that it is not in point. It does not deal with the statute of frauds. The contract did not concern the sale of goods or lands; it was an agreement between James Scott, the committee of Edna Smith and Ann Eliza Horton, providing that if Ann Eliza Horton paid $3,2-20 to Scott and shipped to him all the personal property of Edna Smith ip. her possession or under her control, Scott, upon the receipt of the cash and goods, would deliver a release to Ann Eliza Horton. This opinion was written by Mr. Justice Dixon, who afterwards wrote the opinion for the court of errors and appeals in the case of Clement v. Young-McShea Amusement Co., supra, in wfhich he cited'with approval the cases of Schenck v. Spring Lake, &c., Co., supra, and Bowers v. Glucksman, supra; and no reference in the opinion is made to Smith v. Felter. It is, therefore, perfectly clear that neither Mr. Justice Dixon nor the other members of the court regarded, the last-mentioned case as in any manner involving an interpretation of the statute of frauds.

It seems, however, quite plain that if, in order to comply with the terms of the statute, it is necessary, among other things, that the name of the vendor should appear in the writing, this requirement is not satisfied by placing after the name of the person signing on behalf of the vendor the word “agent.” This word, while indicating that the person signing is not the principal, sheds no light on the identity of the person for whom he is acting.

This identical point was passed upon by the United States supreme court in the case of Grafton v. Cummings, 9 Otto 100, and decided contrary to the contention of the complainants; so that at this day it cannot be considered a moot question.

The complainants also in their bill pray for “such other and further relief, by way of correction or addition thereto or change in said memorandum as aforesaid as the nature of the case may require,” See. Such relief cannot be afforded for two reasons— first, there is no allegation in the bill which justifies any such prayer, and second, applying the law as laid down by Vice-Chancellor Emery in Wirtz v. Guthrie, 81 N. J. Eq. 271, and followed by Vice-Chancellor Stevens in Vogt v. Mullin, 82 N. J. Eq. 452, this couid cannot first reform and then specifically enforce the instrument.

I will advise a decree in favor of the defendant on the demurrer.


author: Griffin, Y. C.

text:
    John Armstrong v. Joseph William Griffin and Kathryn Muller.
    [Submitted May 25th, 1914.
    Decided May 27th, 1914.]
    A deed contained the restrictions: “That the party of the second part, their heirs and assigns, shall not at any time previous to September 1st, 1903, erect, &c., nor cause any building other than a store or dwelling having a stone or brick foundation, and having at least two stories above such foundation, which building shall not be used for any other purpose than as a store or dwelling within the time limited; that no building shall be erected nearer than five feet to the street line of West Side avenue. No two-story clothes poles shall be erected on the said property. It is expressly agreed that no wines, beers nor liquors of any kind shall be sold or manufactured upon the said premises.” Upon a bill to restrain the leasing or using or permitting to be used said premises for the sale, &c., of wines, beers or liquors — Held, that the time limitation applies to all the restrictions, and is not confined to two of them only, and that all became inoperative after September 1st, 1903.

      Mr. Joseph Anderson, Sr., for the complainant.

      ■ Mr. Robert Carey, for the defendant Kathryn Muller.

      Mr. Joseph F. Farmer, for the defendant- Joseph W. Griffin.
   Griffin, Y. C.

The material facts in this case are as follows: On the 23 d of November, 1897, one Darling conveyed to Spangenberg and wife, the immediate grantors of the defendant Kathryn Muller, certain premises on West Side avenue, in Jersey City, by deed containing the following restrictions:

“That the party of the second part, their heirs and assigns, shall not at any time previous to September 1st, 1903, erect, nor cause, nor procure, permit or suffer to be erected upon the said premises any building other than a store or dwelling having a stone or brick foundation, and having at least two stories above such foundation, which building shall not be used for any other purpose than as a store or dwelling within the time limited; that no building shall be erected nearer than five feet to the street line of West Side avenue. No two-story clothes poles shall be erected on the said property.
It is expressly agreed that no wines, beers nor liquors of any kind shall be sold or manufactured upon the said premises.”

Afterwards, by dcocl dated the 1st of December, 1898, Darling conveyed to the complainant lands on Duncan avenue, about twenty-five feet west of the rear line of the Spangenberg lot, which deed contained the following restrictions:

“That the party of the second part, his heirs or assigns shall not at any time previous to September 1st, 1903, erect, or cause or procure, permit or suffer to be erected upon the said premises, any building other than a store or dwelling having a stone or brick foundation, and having at least two stories above such foundation, which building shall not be used for any other purpose than as a store or dwelling, within the time above limited. That no dwelling shall be erected nearer than ten (10) feet to the street line. It is, however, understood and agreed that stables and barns may be erected upon the rear half of the said premises, which buildings shall, however, be used only as stables and barns, and shall be kept clean and free from nuisance.
It is expressly agreed, that no wines, beers nor liquors of any kind shall be sold or manufactured upon said premises.
No two-story clothes poles shall be erected on the said premises.”

This deed was offered in evidence at the hearing on the order to show cause by consent.

Mrs. Muller leased the premises which she purchased from Spangenberg to Griffin, who had a license to sell liquor at another place transferred by the mayor and aldermen of Jerséy City to permit the sale of liquor on said premises; and Griffin was proceeding to fit up the premises for the sale of liquors when the complainant filed his bill to restrain the defendants from leasing or using, or permitting to be used, the said premises, 771 West Side avenue, in Jersey City, for the sale or manufacture of wines, beers or liquors, &c. Upon filing said bill an order to show cause was granted, which included a restraint against the defendants selling or manufacturing wines, beers or liquors of any kind on the premises.

A comparison of both sets of restrictions shows that the third restriction in the deed to the complainant, again.st the sale of liquors, is the fourth restriction in the deed to Spangenberg; and the third restriction in the deed to Spangenberg is the fourth restriction in the deed to the complainant. Both restrictions, however, are substantially the same.

The defendants contend that all the restrictions contained in said deed expired on September 1st, 1903; whereas, the complainant contends that there are practically four separate and independent restrictions, all disjoined, the time limitation applying only to the first, namely, as to the style of building to be erected on the premises, which restriction became inoperative on and after September 1st, 1913; the second, which prohibits the erection of a building within a certain distance of the street line; the third in the complainant’s deed, and the fourth in the Spangenberg deed, directed against the sale and manufacture of liquors; and the fourth in the complainant’s deed, and the third in the Spangenberg deed, which regulates the height of the clothes poles which.might be erected. And he must so contend; because if the time limitation is annexed to any one of the subsequent restrictions, it must necessarily apply to all, for the reason that there is nothing in the instrument which indicates that the framer of the restrictions intended that there should be any distinction made between the second, third and fourth restrictions as to the period of their existence. It is, therefore, necessary to examine into the character of the restrictions to determine if the second, third or fourth restrictions, or either of them, are so related to the first that the restrictions would lack utility after the first became inoperative.

In. dealing with the “third and fourth restrictions,” for the sake of brevity, I will refer to the fourth restriction in the Spangenberg deed as being the “third restriction,” and to the third restriction in the Spangenebrg deed as being the “fourth restriction,” thus making the restrictions conform in order of sequence in the complainant’s deed.

The first, second and fourth restrictions have to do with the building; the first is as to the style of the building to be erected prior to September 1st, 1903; the second is referable to the location where the building mentioned in the first restriction may be erected; the fourth relates to the height of the clothes poles to be used in connection with the building mentioned. This must, of necessity, be so, because after the 1st of September, 1903, the owner of the premises was not limited to the erection of a store or dwelling; he might erect a factory building extending the full width of the lot; he might erect telephone or telegraph poles to any height on the lot. It seems unreasonable to say that after the first restriction had expired the draughtsman intended that the second and fourth restrictions as to the building line and the clothes poles should stand, when, at the same time, the owner might cover the whole lot with any character of building without restriction. If the second and fourth restrictions are so lied to the first that they also ceased to be operative after September 1st, 1903, then, to my mind, a plain reading of the four restrictions indicates that all four were to expire on September 1st, 1903. The complainant says that the object of the restrictions was to create a neighborhood plan for residence purposes. I am satisfied that this is true; but of what value would such a plan be after the 1st of September, 1903, if any character of lawful building which the owner might see fit to construct could be erected upon the land. The owner might erect factories and other buildings which might be perfectly lawful and yet tend largely to depreciate the value of the surrounding property which had been developed on the neighborhood plan and to destroy it for residential purposes.

If the framer of the restrictions had intended that any of them should continue after the 1st day of September, 1903, he should have so provided by clear and unambiguous language. This he has not done. On the other hand, taking the scope and purpose of the restrictions, it seems to be clear that they were all to endure until September 1st, 1903. If this interpretation is doubtful, then the restrictions are ambiguous. In either event, the result reached must be the same, namely, that the complainant is not entitled to an injunction. Fortescuc v. Carroll (Court of Errors and Appeals, 1909), 76 N. J. Eq. 583, 586.

I will advise an order discharging the order to show cause.