author: Stevens, Y. C.

text:
    The Mayor and Common Council of the City of Newark v. The Erie Railroad Company et al.
    [Decided December 4th, 1908.]
    1. A case involving the rights of the parties in case of conflicting easements is one of equitable, and not of- legal, cognizance, and appertains to 'the exclusive, and not auxiliary or concurrent, jurisdiction of chancery.
    2. The case of the rights of two tenants in common of an easement is one of equitable cognizance, and equity may use any remedy appropriate to the circumstances, either preventive or mandatory, adequate to promote and secure the joint user in such a way as the law requires in view of the particular situation.
    3. The test of equity jurisdiction in a case affecting the rights of tenants in common of an easement is the existence of actual conflict; and, if there is no conflict, there is no jurisdiction.
    4. The court of chancery does not ordinarily compel a corporation to do its duty, the performance of which, neglected or contested, is enforced by the supreme court by mandamus.

    5. The court of chancery has power to compel railroad elevation over highways, if that is the only way in which joint user can be properly secured and enjoyed.
    6. In view of the legislation of this state recognizing that railroads may cross streets at grade, it cannot be held that grade crossings are per se illegal structures even in cities, or that streets are not safe, in the legislative sense of that word, merely because they are crossed at grade by a railroad crossing, but the situation must be such that nothing but track elevation will protect the public.

      7. It cannot be maintained that streets become unsafe and inconvenient when more than one track is laid across them.
    8. If a street is so encumbered with -railroad tracks that the public is practically shut out from using it, the appropriate remedy in such a case is an injunction restraining their excessive use; neither party being at liberty to destroy the right of the other.
    9. If the number of tracks crossing a street be not excessive, the question whether trains run over them with such frequency and such speed and at such an angle or with such curves, that the joint user of the crossing would be practically gone, and so necessitate elevation of the tracks, is one of fact, to be determined according to the circumstances of the case.
    10. Tracks cannot be built over a street, or used thereon for the convenience of factory or yard or station purposes, and thus injuriously affect the public traffic over the highway.

      11. The right of a railroad over a highway is a right of passage, with its reasonable incidents, and nothing more.
    12. Evidence held not to show that a railroad elevation over a street was the only way in which joint user could be properly secured and enjoyed.
    13. A bill praying, not only for the depression or elevation of railway tracks at a street crossing, but also for general relief, is broad enough to warrant an injunction against the use in the highway of certain tracks illegally obstructing the way, and the unlawful use of another track for an unauthorized purpose.

      Mr. Joseph Conit, for the complainant.

      Hr. Cortlandt Parker and Mr. Charles Corbin, for the defendants.
   Stevens, Y. C.

This is a bill to compel the defendant companies to elevate their tracks where they cross Summer avenue, in the city of Newark. The bill was demurred to and the demurrer overruled. Newark v. Erie Railroad Co., 72 N. J. Eq. (2 Buch.) 447. In overruling it Chancellor Magie reaffirmed the rule laid down by Chief-Justice Beasley in Central Railroad Co. v. State, 32 N. J. Law (3 Vr.) 220, to the effect that the duty imposed upon railroads whose charter provisions are similar to those of the Central railroad is to “keep at all times and under all circumstances the public highways, at the point where they cross the railroad, in a condition fit for safe and convenient use.” Both the supreme court and this court have approved the rule in the numerous cases cited by the chancellor. If there was any doubt about its correctness, that doubt has been set at rest by the recent decision of the court of errors and appeals in Borough of Metuchen v. Pennsylvania Railroad Co., 73 N. J. Eq. (3 Buch.) 359.

The act of 1898 does not confer upon this court the power to abolish grade crossings. It merely authorizes it to make reasonable provision for their protection. The act is, in terms, limited to cases' where the public road or highway “is crossed by a railroad track at the same grade or level.” The effect of the act was considered in Palmyra v. Pennsylvania Railroad Co., 62 N. J. Eq. (17 Dick.) 611; 63 N. J. Eq. (18 Dick.) 799, and in Eckert v. Perth Amboy and Woodbridge Railroad Co., 66 N. J. Eq. (21 Dick.) 437. Section 29 of the General Railroad act (P. L. 1903 p. 600), is, however, held by Chancellor Magie, in his opinion overruling the demurrer (72 N. J. Eq. (2 Buck.) 447), to authorize the court to decree track elevation. The section reads as follows:

“When any company shall not properly construct and maintain the bridges or other crossings of highways by its railroad tracks as required by law, it shall be lawful for the governing body of the township or municipality wherein such crossings are located, within a reasonable time, after notice to the company, to construct or repair such bridges or other crossings and the cost thereof may be collected from the company whose duty it is to make such construction or repair by action in any court of competent jurisdiction; or, in lieu of such construction or repair, the township or municipality may proceed by a suit in equity to compel the specific performance of the duties imposed by law upon such company with respect to the construction, maintenance and repair of such bridges and crossings and the court shall prescribe the crossing to be constructed or the repairs to be made, and in order to enforce obedience to its decree or mandate, the court may restrain the exercise of any of the franchises of the company or adopt such other remedies as may be in accordance with the practice of the court.”

• Referring to this section, the chancellor says: “The claim that no statutory jurisdiction has been conferred on this court to prescribe the crossing to be constructed, if any railroad company shall not properly construct bridges or other crossings of highways as required by law, may be for the present passed by with the observation that by section 29 of the revised Railroad act of 1903, the legislature has undertaken to confer, and has conferred, by language which is incapable of any other construction, precisely the jurisdiction in question. It is contended, however, that in so doing, the legislature exceeded its. constitutional powers. This contention will hereafter be considered. That the twenty-ninth section of the act above cited does, by its terms, confer such jurisdiction has been settled in this court. Pennsylvania Railroad Co. v. Metuchen, 71 N. J. Eq. (1 Buck.) 404.

The case referred to was one in which a bill had been filed by the borough of Metuchen against the company to compel it to widen a bridge over a highway, its tracks being laid upon this bridge. It appeared that the railroad had originally crossed the highway at grade, but that the company had elevated its tracks, and in so doing, had narrowed the highway by placing abutments therein and otherwise contracting it. It was held by Vice-Chancellor Pitney, in this court, that section 29 gave this court jurisdiction to make an order ‘directing the company so to reconstruct and lengthen its bridge that the public might have the use of the highway to its full width. The court of errors and appeals (73 N. J. Eq. (3 Buck.) 359) sustained the vice-chancellor in his view of the jurisdiction conferred, but differed with him on the question of fact.

Section 29 contains two clauses. The first authorized the governing body of the township or municipality to construct and repair “bridges and other crossings,” if the company shall not properly construct and maintain them. I think it may be doubted whether this clause would be held to confer upon municir palities the right, after notice, to interfere with the company’s rails, and with the structure supporting those rails, or to give it the right to change the grade of the railroad. The words, taken according to their natural import, would seem to authorize municipalities to build bridges over cuts, to plank between the rails and to do such other acts as would interfere little, if at all, with the exclusive control exercised by the company over its roadbed. The second clause of section 29—the part that was construed by this court and the court of errors and appeals— gives the township in U°u of such construction and repair the right to proceed by a suit in equity to compel the specific performance of the duties imposed by law upon the railroad company “with respect to the construction, maintenance and repair of such bridges and crossings”—i. e., such bridges and crossings as the company did not properly “construct and maintain.”

As the same words, “construct” and “maintain” and “repair,” are found in both clauses, it might be argued with some plausibility that the second clause was intended to apply to the same classes of cases that the first clause was. But this view appears to have been rejected not.only here but in the court of errors and appeals, unless we take the view that power is given to the municipalitj' to interfere with the grade and structure of the roadbed. Chief-Justice Gummere says: “The grounds which led the learned vice-chancellor to the conclusion that the matters involved in the litigation were cognizable in the court of chancery are fully set out in his opinion, and we concur in the views expressed by him upon this point and in his conclusion.” The vice-chancellor, in his opinion, had said: “The power of the court to compel, by mandatory proceedings, the railroad corporation to do its duty in this respect (i. e., to widen its bridges and remove, a part of its embankment) rests, so far as I am aware,' wholly upon the statute of 1903.”

Had it not been for this expression of opinion I should have thought that the power might have been referred to the jurisdiction exercisable in the case of conflicting easements. Delaware, Lackawanna and Western Railroad Co. v. Erie Railroad Co., 21 N. J. Eq. (6 C. E. Gr.) 302; National Docks Railroad Co. v. Central Railroad Co., 32 N. J. Eq. (5 Stew.) 755, 767; National Docks Railroad Co. v. United Companies, 53 N. J. Law (24 Vr.) 218, 224. A case of that sort is one of equitable and not o£ legal cognizance. It appertains to the exclusive and not to the auxiliary or concurrent jurisdiction of chancery. Says Chief-Justice Beaslejr in the leading case (Delaware, Lackawanna and Western Railroad Co. v. Erie Railroad Co., supra): “They (the two companies) are tenants in common of an easement, and if this court cannot protect the one against the injustice of the other the party whose rights are invaded is clearly without any adequate remedy.” But if the case is one of equitable cognizance it would seem to follow that equity may use any remedy appropriate to -the circumstances. Not only a remedy merely preventive, but also one that is mandatory—any remedy whatsoever, out of its store of remedies, adequate to promote and secure the joint user in such a way as the law requires, in view of the particular situation.

The test of jurisdiction would seem to be the existence of actual conflict. If there is no conflict there is no jurisdiction. This court does not ordinarily compel a corporation to do its duty. Performance of a dut)' neglected or contested is enforced by the supreme court by mandamus. It would seem to have been this aspect of the matter that presented itself to the judges in New York and Greenwood Lake Railroad Co. v. Montclair, 47 N. J. Eq. (2 Dick.) 591. The case was one of demurrer to a bill, and, as will be seen by a reference to the facts stated in the preface to the opinion of the chancellor (45 N. J. Eq. (18 Stew.) 436), it appeared that the predecessor of the defendant company had constructed a bridge over a cut, the bed of which had been graded, but on which no rails had been laid. This bridge had been suffered to decay, and the question was whether the defendant company, as the successor of the original company, was under an obligation to rebuild it. The question was, apparently, one of legal duty, not of conflicting easements. It was, in view of such a situation, that Mr. Justice Reed said: “The doctrine that a court of equity will not act in any instance where the common-law courts possess adequate power to afford the relief asked for, is fundamental. The power of the common-law courts to compel the performance of duties of the kind under consideration * * * is complete.”

Be this as it may, I must hold that, from whatever source derived, the power to compel railroad elevation over a highway, if that is the only way in which the joint user can be properly secured and enjoyed, exists in this court. Chancellor Magie was, as it seems to me, strictly logical when he held that inasmuch as it had been decided that the second clause of section 29 was broad enough to confer the power to order the company to reconstruct its railroad bridge over a highway by lengthening it and removing part of the railroad embankment, it was also broad enough to authorize this court to order the defendant company to reconstruct its tracks across the highway by elevating or depressing them. If the generality of the language of the qlause included the one, it necessarily included the other.

But an affirmation of the jurisdiction of this court does not solve the question as now presented. The allegations of the bill are so general that they present little more than the abstract question whether, under any circumstances, this court would compel a railroad company to elevate or depress its tracks. The decision was that in a proper case it would. Whether it would or not was held to depend upon the special facts. To these I now address myself.

Summer avenue is a residence street. The houses fronting upon it extend northward as far as the railroad. Further north there are still many vacant lots, both on the avenue itself and to the east and west of it, but the town is growing in that direction. There are six tracks laid across the avenue at grade. The general lay of the land in the immediate vicinity is level, and the tracks, if unobstructed by cars, moving or standing still, may be seen eastward and westward by a person standing from twenty to thirty feet away, for about a quarter of a mile. From one thousand to one thousand two hundred people and over one hundred vehicles cross daily between six o’clock A. M. and six o’clock p. M., and about a third as many at night. From twenty-two to twenty-eight passenger trains, each way pass over the crossing every twenty-four hours. The number of freight trains running-through is small, but in the operations of the local yard, and in the making or breaking up of trains, freight cars frequently cross and recross the avenue. The yard and freight station are between Summer avenue and Washington avenue. The obstruction to travel seems to be mainly due to the freight cars. The gates are frequently lowered and the delay amounts, at times, to several minutes. According to complainant’s count, in the twenty-four hours between 6 a. m. of August 2d and August 3d, 1907, the gates were down thirty times for three minutes or more. The report shows that the delay to travel thus occasioned resulted chiefly from the handling of freight cars. As the freight-house and water tank, as well as the yard, are in the vicinity, the side tracks are seldom unoccupied and the cars standing on them are a serious obstruction to the view up and down the tracks. The street crosses the railroad at right angles. It occupies the site of an old highway that was laid out many years before the advent of the railway.

This, I think, gives a general view of the situation. The question is whether such a situation calls for an elevation of the road at the point in question under the rule laid down in the Central Railroad Case. It is admitted that it cannot be depressed, and, if elevated, the grade at Mount Prospect avenue, further to the westward, will have to be changed.

The first thing that strikes one is that it has not yet become the policy of the state, as evinced by its legislation, to require crossings, generally, to be otherwise than at grade, although there has been some advance in that direction.

In the beginning of railroad construction the practice of laying the tracks at the grade of the highways, unless unadvisable from an engineering standpoint, was universal. The cities were then small, the trains slow and infrequent and the tracks few. As the cities grew and the trains and tracks became more numerous, the state began to take precautions for the public safety. In 1839 it was enacted that a bell should be placed on the engine and rung at least three hundred yards from the highway. It was also provided that a board with the inscription “Look out for the Locomotive” should be erected and maintained. By tire act of 1852 the company was allowed to. blow a steam whistle as a substitute for a bell. These have been the only precautions that were generally deemed indispensable by the legislature where trains crossed highways at grade. But the courts went further. They held that under circumstances of special danger— for example, where there was a railroad curve within a short distance of the highway, or where the company itself had erected buildings close to the tracks so as to obstruct the view, a duty to take special precautions arose, and the company must provide gates or a flagman. Pennsylvania Railroad Co. v. Matthews, 36 N. J. Law (7 Vr.) 531. But in a long series of cases the courts have decided that if the element of special danger be wanting, then neither the court nor the jury can require more than the legislature has seen fit to prescribe, viz., the ringing of a bell or the blowing of a whistle and the erection of sign posts. New York Railroad Co. v. Leaman, 54 N. J. Law (25 Vr.) 202. This is the law to-day.

What the legislature has done toward further protecting the highways is this: It has authorized cities and other municipalities to require, by ordinance, flagmen, or gates to be placed at designated crossings. Delaware, Lackawanna and Western Railroad Co. v. East Orange, 41 N. J. Law (12 Vr.) 127; Morris and Essex Railroad Co. v. Orange, 63 N. J. Law (12 Vr.) 252. This, of course, is a legislative recognition that railroads may cross streets at grade.

It has authorized the governing body of any township or municipality to petition this court to order gates, to he erected, or a flagman stationed at any grade crossing, or that some other reasonable provision be made for protecting the crossing. P. L. 1903 p. 664 § 36; Palmyra v. Pennsylvania Railroad Co., 62 N. J. Eq. (17 Dick.) 601; Eckert v. Perth Amboy and Woodbridge Railroad Co., 65 N. J. Eq. (20 Dick.) 777. This is also a legislative recognition that railroads may cross at grade.

And it has also declared (section 27 of the same act) that any railroad thereafter to be constructed (Newark v. Central Railroad Co., 67 All. Rep. 1009) shall cross streets cither above or below grade unless the governing body thereof shall permit crossing at grade. This is a further recognition of the lawfulness of grade crossings in cities, if the cities agree thereto.

With a view to the gradual abolition of grade crossings by mutual consent, it has provided that any municipality or township, or in the case of a county road, the board of chosen freeholders, may enter into contracts with railroad companies to abolish grade crossings. P. L. 1874 p. 47; P. L. 1901 p. 116; P. L. 1902 p. 402; P. L. 1903 p. 669 ¶¶ 30, 31.

The legislature has gone a' step further; it has enacted that on the initiative either of a city of the first class or of a railroad company, application may be made to the supreme court for an order compelling the abolition of grade crossings. If that court finds that the change is feasible and that it may be made without unreasonable cost, the matter is referred to commissioners to prepare a plan, and if the plan be approved the court apportions the cost of the work. This act, it will be seen, differs from the acts of 1901 and 1903 in that its provisions may be put into operation by either party without the consent of the other. P. L. 1896 p. 139.

Tn view of this legislation it is quite impossible to hold that grade crossings are, per se, illegal structures, even in cities, or that streets are not safo, in the legislative sense of that word, merely because they are crossed at grade by railroad tracks. There must be something in the situation so peculiar as to compel the court to say that gates will not adequately protect the public; that flagmen will not; that nothing but track elevation will.

And, it cannot be maintained that the streets become unsafe and inconvenient when more than one track is laid across them. In Allen v. Jersey City, 53 N. J. Law (24 Vr.) 522, it was held ¡by the supreme court that the Erie railroad could, against the consent and protest of Jersey City, lay another track across Jersey street, one of its main thoroughfares.

_ The question, then, must be, as I have said, whether gates and flagmen and other expedients are, in the given case, so in-efficacious that nothing but track elevation will give to the public, in fact as well as in name, the joint use of the highway. It is obvious that a street may be so encumbered with tracks that the public is practically shut out from using it. As neither party is at liberty to destroy the right of the other, the appropriate remedy in such a case would appear to be an injunction restraining the1 excessive use. Newark v. Central Railroad Co., 73 N. J. Eq. (3 Buch.) Newark v. Delaware, Lackawanna and Western Railroad Co., 42 N. J. Eq. (15 Stew.) 196. If, on the other hand, the number of tracks be not excessive, it is still conceivable that the trains might run over them with such frequency and speed and at such an angle or with such curves that the joint user of the crossing would be practically gone. The question is, then, one of fact, to be determined according to the circumstances of the case.

1'n considering the question, it must, however, be remembered that it is no light tiring to order a change in the grade of a steam railway. In the language of Chief-Justice Church in People v. New York Central and Hudson River Railroad Co., 74 N. Y. 302, “the grade necessarily embraces considerations of convenience, expense and. facility of construction and operation and is fixed at a particular point with reference to grades at other points.” The legislature has, therefore, necessarily vested the company with a considerable discretion in determining what and where it shall be.

Coming to the evidence, it appears that there has, as yet, been no accident, although the situation, as it exists, seems to be such that one might easily occur, especially as the crossing is used daily by a considerable number of school children on their way to and from the public school. The only safeguard hitherto provided has been gates, raised and lowered by an operator in a tower, several hundred feet distant.

But there is a complication in the case. The company has, without the consent of the city, placed on the crossing no less than six tracks. One of these is conceded to be merely for the convenience of a nearby factory (as to which, see Montgomery v. Trenton, 36 N. J. Law (7 Vr.) 279); another for the convenience of another factory, but occasionally used for general freight delivery. Still another—the north siding—is used in connection with the defendant’s yard, of which it seems to be an adjunct. Mr. English, in his evidence, calls it a passing siding. He admits, however, that it has a dead end and that it is used most of the day for the storage of coal and other cars. These three tracks, so far as they are laid upon the highway, seem to me to bo unlawful structures. The right of the railroad over the highway is a right of passage with the reasonable incidents of passage—nothing more. In the case of Pennsylvania Railroad Co. v. Angel, 41 N. J. Eq. (14 Stew.) 328, Justice Dixon portrayed a situation similar to that I am now dealing with. He said: “In our judgment, they (the legislative provisions) indicate that those rights are such as pertain to the use of the avenue for the purposes of a way; not the purposes of a station yard. The primary privilege given is that of passage. This and its reasonable incidents cover the whole scope of the grant. The right of storing engines and ears, either for a longer or a shorter period, the right of making up or breaking up trains, are not embraced in such a concession. These are strictly terminal and station purposes, and by providing for station yards, the legislature has indicated its intention that business of that nature should be transacted there. * * * Having a right of passage, it (i. e., the Pennsylvania Railroad Company) used its tracks as though they were within its terminal yards, and so used them constantly in its every day concerns.” Accordingly, an injunction was given against the use of the tracks for purposes other than of passage.

The case of State v. Morris and Essex Railroad Co., 25 N. J. Law (1 Dutch.) 437, is very much in point. There the railroad had been indicted for obstructing the highway at or near the village of Bockaway by placing its cars upon the streets and allowing them to remain there and obstruct its use. ChieEJustice Green said: “It is admitted that the freight could not be received and discharged at the Rockaway depot in its present location without, to some extent, impeding the public travel, and that the defendants have not willfully caused any obstruction beyond what their business at this depot required. The necessity of obstructing the highway results, not from the exercise of their corporate rights. bat from the improper location of their depot. A. station house and freight depot may be necessary to the operations of the company. It may be necessary that the cars should stand for half an hour, or an hour, to receive and discharge freight. But there is no necessity that the depot should be so located as to cause an obstruction of the highway by the cars. The company cannot, by its own imprudence, create a necessity for the obstruction, and then justify the nuisance on the ground of the necessity which they have created. Because a depot is necessary to the operations of the company, they are not, therefore, justified in building it upon the highway or so near it that their trains must injuriously affect public travel. The fallacy of the argument on the part of the defendants consists in assuming that placing tire depot in its present location was a matter of necessity.”

In these two decisions is indicated the solution of the present question. The company, in the case in hand, has been doing just what the court of errors and appeals and the supreme court said, in the cases above quoted from, it could not do. For its own convenience it has placed its switches, its .sidings, its yards, its freight depot and its water tank in such close proximity to the highway that it now finds it necessary to use it otherwise than as a way.

Of the three remaining tracks, two are undoubtedly used for passage. The third, as I gather from the evidence, is used both for passage and for yard or station purposes. It cannot be lawfully used for the latter where it crosses the avenue.

If the three tracks first spoken of, where they cross the highway, be eliminated and the unlawful use of the other enjoined, 1 do not think that the crossing, properly guarded, will be more dangerous in an absolute sense than most of the other grade crossings in the cities and many of the other municipalities of the state.

To sum up: The legislature has not seen fit to abolish grade crossings except to the extent heretofore indicated. It still authorizes them with the proviso, however, that where, in the future, any railro.ad shall cross any street in any city, it shall cross above or below grade, unless the governing body of the city grant permission to cross at grade. In this state of the legislation upon the subject, I think the court can go no further, in a case situated as this is, than to enjoin the use in the highway of the three tracks above referred to, and the unlawful use of the fourth. On the evidence it would seem that a flagman should be stationed at tire crossing, but I doubt whether an order to that effect could be made in this proceeding. It would hardly come within the scope of the bill.

The two cases relied upon by counsel for the city (State v. St. Paul, &c., Railroad Co., 108 N. W. Rep. 261, and State v. Duluth (same volume), are not in point. There the necessity of a bridge which had, in fact, existed over the locus in quo for some time, was conceded. The question was, who should bear the expense of maintaining it. Here, the necessity of the overhead crossing is the very point in controversy.

The question whether the tracks that have been found to have been illegally laid over the street should be actually taken up, has not been argued. I presume that if they cannot be used for any purpose they would naturally be removed. They would seem to be illegal obstructions and, if allowed to remain, would be calculated to distract the attention of persons about to cross, who would not know on which of them to look for approaching trains. If, however, counsel desire to be heard on this subject, I will hear them.

The bill, although primarily designed to enforce track elevation, is broad enough in its statements to warrant the giving of the relief indicated. There is a prayer not only for depression or elevation of the tracks, but also for general relief.


source: Caselaw Access Project

author: Stjívgnson, Y. C.

license: Public Domain

text:
    Thomas Farmer et al. v. Margaret Ward.
    [Decided October 31st, 1908.]
    1. Under the Martin' act (S Gen. Btat. 1895 p. 8370), providing for the sale of land for taxes, a mortgagee may not purchase so as to cut off the equity of redemption 'by notice.
    2. A mortgagee prior to sale may pay the taxes on the mortgaged property and thereby acquire a lien by subrogation, which in respect to priority, occupies the same position as the tax lien.
    3. If a mortgagee does not pay taxes before sale, he may redeem by the Martin act (3 Gen. Btat. 1895 p. 3370) after sale.
    4. After sale of land for taxes, and before redemption, a mortgagee’s interest is practically transferred to the fund, and he is entitled to any excess paid by the purchaser over the tax lien to be applied on the mortgage, debt.
    5. If, in order to redeem from a tax sale, a mortgagee is required' to pay liens which the purchaser has paid in addition to the tax lien for which the sale has been held, the Martin act (3 Gen. Btat. 1895 p. 3870) gives to the mortgagee a lien for the total amount so paid, which he may enforce, either in a suit to foreclose the mortgage or in a separate suit.
    6. The owner of mortgaged land may not acquire a tax title adverse to the mortgage.
    7. Where a mortgagee without authority purchased the property at a tax sale, she occupied the same position as if she had paid the taxes before sale, and was therefore only entitled to subrogation to the tax lien.
    8. Where a mortgagee purchased the property at a tax sale, and thereby acquired a mere lien on the property for taxes, she could thereafter sell the property on foreclosure of the mortgage, subject to the tax lien, without affecting her right to hold such lien as against the purchaser on foreclosure.
    9. Under the maxim that he who seeks equity must do equity, a purchaser of land on mortgage foreclosure, charged with a tax lien, held by the mortgagee as a prior encumbrance, could not maintain a suit to vacate the tax lien without paying the amount represented by the tax certificate, with interest.

      10. Where both parties to a suit in equity prayed for relief as against the other, which was inequitable, and the decree did not conform to either prayer, costs would not be allowed to either.
    11. Where a case for the vacation of a tax certificate was argued on the assumption that the bill had been amended so as to allege the procurement of a tax deed after the bill was filed, the amendment must be actually made before decree.
    Final hearing on bill, answer, replication and agreed state of the case.

      Mr. John J. Mulvaney, for the complainants.

      Mr. Clarence Linn, for the defendant.
   Stjívgnson, Y. C.

My conclusions in the above-stated cause may be briefly stated as follows:

1. I think that the Martin act impliedly excludes the mortgagee from becoming a purchaser so as to be able to cut off the equity of redemption by notice. Under what I think is a well-settled rule, the mortgagee prior to sale may pay the taxes which the owner of the equity of redemption was primarily liable to pay, and thereby acquire by a species of subrogation a lien for the amount so paid, which, in respect of priority, occupies the same position as the tax lien. Manning v. Tuthill, 30 N. J. Eq. (3 Stew.) 29; Fiacre v. Chapman, 32 N. J. Eq. (5 Stew.) 463; Schatt v. Grosch, 31 N. J. Eq. (4 Stew.) 199; Sidenberg v. Ely, 90 N. Y. 257. If the mortgagee does not see fit to pay the taxes before the sale is held, the statute protects him by giving him a most ample right of redemption. After sale and before redemption the mortgagee’s interest stands practically transferred to the fund, and he is permitted to come into court and have any excess paid by the purchaser over and above the1 tax lien applied to the satisfaction of his mortgage debt. If, in order to redeem, the mortgagee is obliged to pay liens which the purchaser has paid in addition to the tax lien, for which the sale was held, the statute gives the mortgagee a lien for the total amount, which he has thus paid in effecting redemption. The statute further expressly gives the mortgagee a remedy for the enforcement of his lien— the lien which he has acquired by subrogation—either in a suit to foreclose his mortgage or in a separate suit.

If all the provisions of this statute are read together, I think it is quite plain that the intention is that the mortgagee shall stand with the owner, and that the rights which he can enjoy under the statute after a sale held in pursuance of the statute, are those which are expressly provided or recognized. The statute does not, in terms, prevent the owner from acquiring a tax title which will cut off the mortgagee, and yet such a prohibition, it is conceded, actually exists. Of course, the main reason for this rule arises from the fact that the owner ordinarily is primarily liable for the taxes, and as between himself and the mortgagee ought to pay them. In determining whether the mortgagee is to be deemed excluded from the class of possible purchasers, we have presented, I think, merely a question of statutory construction; we must ascertain what the statute means. I perceive very strong indications that the procedure under the Martin act for the acquisition of tax titles was not provided for the use of either owner or mortgagee. This construction of the statute is supported, I think, by the policy of the law which is to induce all parties interested in real estate to see that the taxes are paid. Mortgagees oftentimes are practically owners, and always may be regarded as part owners of the thing which is taxed-—of the thing in respect of which the state demands its money. Mortgagees should be encouraged to influence the owners of the equity to keep their taxes paid, and when that is not done, to come forward and pay the taxes themselves for the protection of what is their own property. It would tend to the accumulation of arrears of taxes if mortgagees could stand by indifferently until a tax sale should be held at which they could acquire a valid tax title which, in many cases, would save the expense of a foreclosure suit.

The above are some of the considerations which point to the conclusion that it is not the intention of the Martin act that a mortgagee who may get the benefit of the rights and remedies provided by the act f.or mortgagees shall be a purchaser so as to be able to acquire an absolute title by notice.

Perhaps the whole matter may be summed up in the statement that the Martin act expressly provides for the protection of the mortgagee upon the theory that his estate is sold, and that he cannot be a buyer at what is his own sale. There might be good reasons for permitting the mortgagee to buy at the tax sale, and thereby merge the mortgage title subject to a restoration of the original status upon redemption by the owner, if the mortgagee were not otherwise fully protected by express provisions of the statute. Both owner and mortgagee are sold out; the purchaser takes their estates. Both owner and mortgagee are allowed a wide privilege of redemption, and the mortgagee is vested with a most important and protective right of subrogation in respect of the payment of taxes. Both owner and mortgagee may, I think, very properly be considered as confined to these ample remedies of redemption and subrogation. These remedies greatly modify the title which any purchaser can take through the tax sale. The statute thus seems to define the rights of two classes, and the rights created for each class are in derogation of the rights created for the other class. The purchaser in time may acquire absolutely the estate of both owner and mortgagee. On the other hand, both owner and mortgagee have a right to redeem which can only be extinguished after notice has been served upon them, and a period of time has elapsed during which they may save their estates. Last of all, the equities between the owner and the mortgagee, in case the mortgagee redeems, are protected and enforced by the most ample right of subrogation which is given to the mortgagee against the mortgagor. The whole situation, to my mind, impliedly excludes the mortgagee from claiming at his option to exercise the statutory rights of redemption and subrogation accorded to him as mortgagee, or what may be called the antagonistic rights which the purchaser acquires as against both owner and mortgagee.

2. It does not follow that the defendant must lose the amount of the tax lien which she paid to the tax collector in the form of a bid for the property. I think she stands in the same position as if instead of bidding the amount of the tax lien at the sale she had paid the same amount in discharge of the tax lien before the sale was held. If the Martin act does not contemplate that a mortgagee who is specially cared for by the act shall be a purchaser at the tax sale, it follows that when a mortgagee assumes to do this thing what in fact he does is to pay off the tax lien and acquire the same by subrogation. No practical difficulty will be encountered in dealing with the situation on this theory in case the mortgagee should pay more than the amount of the tax lien.

1 think that the defendant occupies substantially the same position as the holder of two mortgages who forecloses the second and sells subject to the first. The claim on behalf of the complainant that the defendant lost her lien for the taxes seems to me to be without any equitable basis. There is no proof that the complainants at the foreclosure sale did not have full notice of all the tax liens, which at that time encumbered the property. The taxes which the defendant paid were a matter of public record. Neither the complainants nor any possible purchasers were misled by any conduct of the defendant. The defendant was openly undertaking to foreclose her mortgage while she still held her tax title, or tax claim, for what it might be worth, and all parties interested must be presumed to have understood the exact situation. It may be that the defendant after foreclosing her mortgage and neglecting to bring in her tax lien or claim, would not be allowed costs in a subsequent suit for the enforcement of that lien. I do not see how the complainants have been subjected to any disadvantage, because the tax lien was kept out of the foreclosure suit if they are protected against unnecessary costs of suit.

In the case of Manning v. Tuthill, supra, Chancellor Runyon most positively upheld the right of the mortgagee who has paid the tax to a lien by subrogation. In that case, however, the mortgagee paid the tax and thereby apparently canceled the tax lien and the land was then sold apparently free and clear of taxes. Subsequently the mortgagee endeavored to compel this purchaser to reimburse him the amount 'of the tax so paid. This claim was not sustained. The mortgagee had already failed to recover against the purchaser in an action at law based on an alleged promise of the purchaser to repay the amount of the tax. The ease is widely different from the present one in a most important particular. The mortgagee having allowed the land to be sold to a purchaser apparently free from the tax lien, undertook in a subsequent suit to have the canceled lien reinstated for his benefit. He asked to be subrogated to the original holder of the lien when he himself had canceled the lien and caused the land to be sold apparently free from it.

'Under the evidence in the present case, as we have seen, the complainants are charged with having made their bid and bought the property with full notice that the defendant was holding the tax certificate, having never intended to pay the tax or cancel the tax lien, and that such lien was outstanding in full force, as undoubtedly appeared from the public records.

If, however, any course of reasoning leads to the result that the defendant has lost her lien, it must be borne in mind that the defendant is not coming into court and asking to have such lien enforced. On the other hand, complainants are standing-in a court of equity and asking that court to. aid them against this defendant. They are seeking equity and they must do equity. This property was primarily bound to pay the tax which the defendant paid, and the defendant had the right to pay this tax and collect it at the same time when she collected the amount of her mortgage. The land was offered to the public for sale in the foreclosure suit charged with the amount of the taxes paid by the defendant as a prior encumbrance. No court of equity in my judgment would give to the complainants the relief which they ask for against the defendant which involves compelling the defendant to surrender her tax title excepting upon condition that complainants pay the defendant the amount represented by the tax certificate with interest.

3. No costs should be allowed to either party in this case, as each party has been in part successful. The complainants have sought to strip the defendant of her tax title or tax lien without paying her anything fob it; the defendant, on the other hand, has sought to have the complainants’ bill dismissed and her title under her tax deed adjudged absolute. In my judgment, each party has contended for what is inequitable and therefore neither should have costs.

4. Counsel will bear in mind that this case has been argued upon the assumption that the bill of complaint has been amended so as to set up the procurement of the tax deed after the bill was 'filed. The amendment is by way of supplement under the rules. This amendment, however, must be made before the decree is advised.


author: Stevenson, Y. C.

text:
    The L. Martin Company v. L. Martin & Wilckes Company.
    [Decided November 13th, 1908.]
    1. In a suit to enjoin the use of a corporate trade-name and to recover profits diverted by such use, evidence considered, and held to show that the act of defendant company, in hiring one who had been a member of plaintiff company and placing his name at the head of the former name so as to read L. Martin & Wilckes Company, was with the fraudulent intent to imitate the plaintiff’s name, L. Martin Company, and constituted unfair competition.
    2. A corporation, apart from statutory provision, has not the right to so use an individual’s name, in forming its corporate name, as to imitate a prior corporate name, engaged in the same business, so closely that the public would be deceived; the maxim, sie utere tuo ut aliemim non Icedas, applying to everything a man has, including his name.
    3. Laws April 21st, 1896 (P. L. p. 880 eh. 185 § 8), providing that no name shall be assumed by a corporation already in use by another corporation, or so nearly similar thereto as to lead to uncertainty or confusion, does not merely impose a duty upon the attorney-general of the state, but protects all corporations created under it in the use of their corporate names, and hence an individual name, so used as to imitate a prior corporate name having the same individual name, by which the public are deceived, is within the terms of the statute, and its use may be enjoined.
    4. Where it is found that a name adopted by a corporation is so nearly similar to a prior corporate name, both corporations being engaged in the same business, as to entitle the latter to an injunction, the injunction should merely restrain the former from carrying on the same kind of business unless the name be changed so as to clearly and unmistakably distinguish the t\vo corporations and their respective business, and it cannot permit the rise of the same name with only qualifying words to show that the company is a different one, as the unchanged corporate name would still be deceptive to the public.
    5. The court of chancery of New Jersey has general jurisdiction in all cases of fraud, and the .only question as to jurisdiction, where there is fraud, is the propriety of exercising the power which the court undoubtedly has.
    G. In all cases in which the jurisdiction of the court of chancery, based on fraud, is invoked to obtain purely equitable relief, such as an injunction, the court should proceed to accomplish complete justice and enforce all the complainant’s rights arising out of the fraud, including the ascertainment and award of all damages caused by the'fraud, unliquidated as well as liquidated.
    7. Where a court of chancery has taken cognizance of a suit for unfair competition in the use of a corporate trade-name, in which an injunction is sought as the main remedj7, the court may grant the injunction and make an assessment of damages or authorize an accounting for profits claimed to have been diverted by the use of the deceptive corporate name as an incidental relief.
    8. Where in an equity suit for injunction to restrain the use of a corporate name similar to a prior corporate name, an award of damages is ordered incidental to the injunction, it is proper in the absence of a request to have the court determine the matter to refer the assessment of damages to a master.
    Final hearing on bill, answer, replication and proofs taken in open court.

      Mr. Robert H. McCarter, attorney-general, and Mr. Charles L. Garrick, for the complainant.

      Mr. Craig A. Marsh and Mr. Frank P. McDermott, for the defendant.
   Stevenson, Y. C.

The evidence in this 'case which is very voluminous, in my judgment establishes a plain case of fraud, and an equally plain violation cf the complainant’s rights in respect of its corporate name vested in it by virtue of the provisions of the eighth section of the Corporation act. P. L. 1896 p. 280 § 8. An appeal having been taken from the decree of this court a statement of the "reasons’’ therefor becomes necessary.

Inasmuch, however, as fee complainant’s right to injunctive relief, which manifestly was the principal relief for which its bill was filed, has become an academic question by reason of the abandonment by the defendant of its corporate name, and the substitution of a corporate name which seems to distinguish it and its business from the complainant and the complainant’s business, suGh statement peed not be so extensive as otherwise might be deemed necessary. Apart from the question of costs, however, the issue still in litigation between the parties seems to relate solely to the liability of the defendant to account for the damages or diversion of profits which the decree adjudges that the complainant suffered as the result of the defendant’s wrong. Of course, the defendant is not liable to account for profits or to pay damages to the complainant unless the defendant’s conduct which caused such loss was fraudulent or otherwise illegal. The appeal, therefore, necessarily involves the review of the main issue decided by this court in favor of the complainant establishing the complainant’s right to injunctive relief. Nevertheless, in view of the enormous mass of testimony, including exhibits, the probative force of which sometimes can only be determined when presented to the eye, I shall not enter upon an elaborate discussion of the evidence; an outline of the facts will, I think, be sufficient for the purposes of this statement.

On the 10th day of January, 1906, the complainant, The L. Martin Company, and the defendant corporation, then bearing the corporate name of Weglin & Wilckes Manufacturing Company, were two corporations created under the General Corporation act of New Jersey, and actively and competitively engaged in the manufacture and sale of lampblack throughout the United' States. Both parties were large manufacturers and dealers in an article (lampblack) proved to be used in large quantities and in a very great variety of businesses. A large portion of the output of each concern is sold in bulk without any special label other than perhaps a brand on the bag. This branch of the trade seems to be carried on directly between the lampblack manufacturer and certain classes of large dealers who buy without regard to any special label, and who do not seem to be liable to make any mistake as to the identity of the manufacturer whose goods they buy. Another large portion of the product is put into a great variety of packages of various sizes under different brands and labels, upon which packages the name of the manufacturer is printed, and is distributed widely throughout the country and sold for a great variety of purposes.

It appears that from the year 1849 the historic name Luther Martin has been intimately associated with the lampblack business. From that date continuously until the present time the Luther Martins—three of them, father, son and grandson—have been widely known as lampblack manufacturers, under the name of L. Martin & Company, which name has been printed and stamped upon packages of lampblack offered for sale at retail in the market. Although the American manufacturers of lampblack were to a large extent enumerated and described in the testimony, I do not recall that the name “Martin” appeared in any form in connection with any one of them besides the parties to this suit.

In 1886 the original Luther Martin died and his two sons, who were then his partners, and one of whom bore his name, continued the family lampblack business using the same firm name, L. Martin & Company. In 1900. Luther and Robert W. Martin, these two sons, who. were still carrying on the lampblack business under the firm name of L. Martin & Co., entered into a consolidation agreement with the Ebony Lampblack Company in pursuance of which the complainant corporation, The L. Martin Company, was created, and succeeded to the business and good will of both the constituent manufacturing concerns so consolidated. The complainant is thus the direct successor to the original firm of L. Martin & Company founded in 1849, and owns the good will of this old established Martin lampblack business.

The defendant, the L. Martin & Wilckes Company, was incorporated under our general act on the 14th day of March, 1901, by a number of German lampblack manufacturers whose names were Weglin or Wilckes. The name of the corporation as set forth in its certificate and with which it began to do apparently a large and successful business, was The Weglin & Wilckes Black Manufacturing Company. The prior history of the business of this company, which extended back, as I recall the testimony, for a brief period, need not be.set forth. The Weglin and Wilekes concern soon after its incorporation became large manufacturers of lampblack in this country and sharp competitors of the complainant.

One fact is of great importance, I think, in getting a clear view of the situation of these two rival lampblack manufacturers in January, 1906. By that time the Martin family had to a large extent transferred their interest in The L. Martin Company to the original proprietors of the Ebony Lampblack Company or other persons. In February, .1905, Luther Martin, 3d, a young man about thirty-two years of age, after some jrears of employment in The L. Martin Company and service as a director, resigned as a director and quit his employment, and after apparently a faint effort to establish some sort of a lampblack business of his own, negotiated a contract of employment with the defendant corporation, The Weglin & Wilekes Black Manufacturing Company. The written contract of employment which was produced in evidence, bears date March 10th, 1904, and in it Luther Martin, 3d, is described as Luther Martin, and he signs his name in that way. According to the terms of this contract he was employed as manager in the manufacturing department and as salesman of the goods of the defendant -corporation “for a period of five years, commencing March 15th, 1904, and terminating March 15th, 1909, at a salary of $1,800 per annum, payable in equal weekly instalments.” Toung Mr. Martin expressly agrees to give his entire time, skill, &c., to the business of his employer, and agrees specially that he will manufacture and turn out black of the strength, color and fineness equal to the best black manufactured by any -other manufacturer “and fully equal in all other respects and in all qualities to the black now produced by the The L. Martin Company,” and he further agrees that said black shall be pure, straight lampblack, and that he will instruct the president of the party of the first part in methods of making the same. The contract further provided for setting aside for Mr. Martin $6,000 of the capital stock of the defendant, and that upon his faithfully carrying out the contract on his part such stock should be transferred to him at the end of the above-mentioned term of five years. Any violation of the contract by- Mr. Martin effected a forfeiture of his right to the stock. The dividends on the stock were payable to Mr. Martin and were guaranteed not to be less than $350 per annum. In the event of Mr. Martin’s death, at any time after September 15th, 1904, and during his employment, the stock was to be paid to his widow, but the corporation held the right to repurchase the same at par at any time within one year from Mr. Martin’s death. In case Mr. Martin fully performed the contract so as to become entitled to the stock, it was agreed that if he desired to sell the same the corporation should have the privilege of buying it back at its par value, $6,000.

There are a number of significant features of this contract, but perhaps the most noticeable one is the very slight interest which young Mr. Martin obtained in the defendant corporation —an interest which was practically controlled by the corporation itself. The Weglin & Wilckes Black Manufacturing Company plainly were seeking to get the knowledge and skill which young Mr. Martin had acquired in the service of The L. Martin Company. It is conceded that they had a right to do this. It is conceded that they had a right to announce to the trade and widety advertise that they had in their employ as the manager of their manufacturing department, the only man by the name of L. Martin or L. Martin, 3d, or Luther Martin, who was activefy engaged in the lampblack business if such was the fact. Such a course of procedure may be criticised as being not in accord with the highest standards of ethics or of taste, but the law permits competitors to be coarse and greedy and to do savage tilings. I think, however, that it is quite plain that when the defendant corporation took this young man in in the manner above described, and proceeded to advertise his connection with its business, it became all the more necessary that it, the defendant corporation, should scrupulously avoid any simulation of the .complainant’s business which might have the effect to deceive purchasers and users of lampblack and injure the complainant.

In the fall of 1905 the $6,000 of stock appears to have been transferred to young Mr. Martin, and the papers were drawn to effect a change of the corporate name of the defendant from The Weglin & Wilckes Black Manufacturing Company to “L. Martin & Wilckes Company.” I think young Mr. Martin had previously become a director and a vice president of the company.

The certificate effecting the above-mentioned change of name was filed on the 10th day of January, 1906, and thereafter until the recent second change of corporate name above referred to, made by the defendant corporation, these two great competitors in the manufacture and sale of lampblack carried on their business under the names respectively of The L. Martin Company and L. Martin & Wilckes Company. In these days of consolidations, inasmuch as it was widely known throughout the country that there had been an old and successful lampblack business of high repute carried on for fifty years under the name of L. Martin & Company, it seems to be evident from the mere statement of these two names that there was a high degree of probability, if not practically a certainty, that numerous purchasers and users of lampblack—buyers, for instance, of a ten-cent package at a grocery or paint store—wotdd infer, upon seeing the name of L. Martin & Wilckes Company that the corporation bearing that name had succeeded by consolidation or otherwise to the original Martin lampblack business and good will, and that the package so purchased bearing the Martin name had back of it the qualities and reputation of the well-known Martin lampblack. The two competitors were dealing with articles which in many important respects were necessarily similar in appearance and in characteristics. The name “Germantown” as a sort of mark or designation used on packages of lampblack is admitted to have been common property among all lampblack manufacturers. The course of business pursued by both these concerns in the way of advertising, packaging and distributing their products, present many similar features and thus make confusion arising from the use of the name L. Martin in each of their corporate names more liable to occur. That- confusion in fact was created to the annoyance and injury of-the complainant, I think, was sufficiently proved. A very large manufacturer of paints and chemicals, Mr. Robert S. Perry, was sworn on behalf of the defendant to testify that there was no possibility of any confusion in the business of the two corporations arising from their similarity of name. This witness, however, seemed to refer to large purchasers of lampblack in bulk like his own firm or corporation. The witness frankly admitted that such direct dealers with the defendant corporation would be saved from confusion only by their knowledge of the continued business activity of the old Martin concern under the name of L. Martin & Company. This testimony strengthens the position of- the complainant that the purchasers of lampblack in packages who find it on shelves in the shops all over the country, bearing the name of the defendant corporation, in large numbers of instances, would probably infer that the goods before them were manufactured by the successor of the old manufacturing concern, which for so many years went under the name of L. Martin & Company.

All the inferences leading to the conclusion that the assumption of this new name by the defendant corporation was a fraud, injurious to the complainant, are sustained by a mass of testimony, which from its form, variety and minuteness of detail requires for elucidation the exposition of counsel, which was made before this court on both sides in a most ample and satisfactory manner. Without undertaking to set forth this testimony it will, I think, be sufficient to state the- main conclusions which I have reached in this case.

1. No honest purpose for changing the corporate name of the defendant so as to appropriate the name L. Martin as a part of it has in my opinion been suggested by the testimony. Let it be conceded that the defendant corporation in its competition with the complainant corporation had an unlimited right to advertise to all purchasers of lampblack that it (the defendant) had in its employ the only man named L. Martin- who was connected with the manufacture of lampblack, and that he had learned his business with the original L. Martin Company. Let it be conceded that defendant’s corporate name might be changed so as to advertise these facts, provided no fraud or confusion injurious to the complainant was eJIected thereby. It seems unnecessary to consider under what limitations the corporate name of the defendant might have been employed in the manner and for the purpose above indicated because Mr Felix Wilckes, the president of the defendant companjq one of the original founders of its business, and one of its largest stockholders, who was thoroughly conversant with all the transactions which resulted in the change of the defendant’s corporate name, testified that in making such change they did not have in view that thereby there would be a wider publication of the fact that the defendant had the advantage of the L. Martin name and the L. Martin skill. The witness repeated that that result was not in-view at all.

I shall not undertake to discuss the very considerable mass of testimony about a dinner which was held by the officers and customers of the defendant some time, I think, in or about January, 1905, in which it was suggested that young Mr. Martin should be recognized by having his name introduced into the business of the defendant. It is, I think, impossible to believe that these keen, aggressive business men’ who apparently have large experience in the markets and have other business ventures on their hands, would have made this change in their corporate name from the sentimental motives applied to them upon the occasion of this dinner. The change, in fact, was not made for about a year. When the change was made, young Mr. Martin had no business and no good will of any business. Only a few weeks at most had intervened between his withdrawal from the employ of the complainant corporation and his successful negotiation for employment with the defendant corporation. I do not recall any testimony that young Mr. Martin in that brief period did 'anything in the way of business except possibly to have a label printed preparatory to embarking in the lampblack business at Germantown. During.all of his business life until he left the employ of the complainant, he had been identified with the business of the complainant and had no good will of his own, and he liad acquired none when he merged himself in the Weglin & Wilckes Company in March, 1904. Why should these two manufacturers, the Messrs. Wilckes, after the Weglins had withdrawn and gone back to Germany, so as to make a change of the corporate name proper and necessary, place this young man’s name at the head of their own so as to constitute it the most prominent and distinctive' part of their corporate title? lie was with, them under a five-year contract, after which period he might be turned out. He might be discharged at any time for violation of his contract, or he might die or become incapacitated. The Messrs. Wilckes had a very large investment in this lampblack business. Out of nine1 Hundred and two shares of stock outstanding each brother held four hundred and twenty shares, representing in the aggregate $84,000. The remaining stock outstanding' consisted of two qualifying shares, and the sixty shares which the Messrs. Wilckes had transferred to Mr. Martin. It does not appear that the transfer on the books of these shares in the fall of 1905 practically affected the control over them which the Messrs. Wilckes had under the terms of Mr. Martin’s contract of employment.

We have then a large and apparently permanent business almost wholly owned and exclusively controlled by the Messrs. Wilckes, while the connection of young Mr. Martin with that business was based upon a very slight interest, and was necessarily extremely uncertain in respect of its duration. Is it possible to believe that the Messrs. Wilckes made this permanent change in the name of tlieir corporation from a kindly desire to gratify this young man whose personality was liable to disappear from their business at any time? Is not the inference unavoidable that these shrewd men intended permanently to incorporate the name of L. Martin in the name under which their large and expanding business would be conducted in order to appropriate to themselves the permanent benefit of the name L. Martin in the lampblack business ? If young Mr. Martin at the end of a period of two or three years, during which this L. Martin & Wilckes Company had been advertised all over the' country as lampblack manufacturers of high repute, had died or been discharged for dishonesty, can it be doubted that the Messrs. Wilckes, the defendant corporation, would remain permanently in the possession of a very valuable thing ? The Messrs. Wilckes changed the name of their corporation with such possibilities plainly in view. Can there be any doubt that when contemplating such possibilities they had no intention in case young Mr. Martin was eliminated from their lampblack business to have his name eliminated from their corporate name as well?

A great deal of testimony was taken in regard to the very significant change which young Mr. Martin made in his own name after he left the employ of the complainant. The testimony satisfactorily proves that young Mr. Martin originally was uniformly known as L. Martin, 3d, or perhaps, occasionally, Luther Martin, 3d, and that he so signed his name. His father was known as L. Martin, Jr., or Luther Martin, Jr., notwithstanding the fact that the first Luther Martin who appears in the testimony died in 1886.- When young Mr. Martin associated himself with the defendant corporation, he seems to have resolved upon changing his name. In the latter part of 1895 we find him signing his name in letters addressed to The L. Martin Company and to the Philadelphia Trust Company, where his stock was pledged, as L. Martin, 3d—the name by which these correspondents knew him. We also find during the same period that he signed his name as L. Martin when carrying on the correspondence of his employer with its customers. When the business of changing the defendant’s corporate name was finally entered upon, the young man’s name was accepted as L. Martin, and that name appears in the most prominent place in the new title of the corporation. Assuming for the mere purpose of the present discussion that the defendant corporation would have an absolute right to put the name of this young man, whose connection with their large business was so slight and possibly transient, at the head of their corporate name, without the slightest regard to the fact that such form of corporate name would lead to uncertainty and confusion or deception to the injury of the complainant, what possible justification can be offered for incorporating this young man’s name in an altered form—a form in which it had not been known, but which manifestly simulates the name of the defendant corporation and the name of the Martin lampblack business to which the complainant had succeeded? In my opinion in order to find that the defendants were innocent of any intent to fraudulently appropriate the name and good will of the original Martin lampblack business which belonged to the complainant, we must disregard sound rules of evidence, all experience with the motives which influence human nature and common sense.

2. Tlie idea that a man has a right to use his name as a part of the name of a corporation in which he is interested, without regard to the effect of such use in the way of accomplishing deception and fraud, precisely as a natural person can use his own name, has, I think, in this state, been exploded. The opinion of Mr. Chief-Justice Fuller in the case of Howe Scale Co. v. Wyckoff, Seamans & Benedict, 198 U. S. 119; 49 Law Ed. 972, 985, so far as it negatives when properly interpreted the proposition that the use of a family name by a corporation stands on a different footing from its use by individuals or firms, is, I think, inconsistent with the unanimous opinion of the court of errors and appeals in this state in International Silver Co. v. Rogers Corporation, 67 N. J. Eq. (1 Robb.) 646.

I think we have got beyond the notion, if it ever prevailed, that a man has an absolute right to use his name in his business shutting his eyes to the inevitable effect of such use to deceive the public generally, and to injure some other dealer in the market. The maxim sic uiere íuo ut alienum non leudas applies to eveiythmg that a man has, including his name. Confusion seems to have sometimes arisen from the failure to' recognize the difference between the name with which a man finds himself encumbered and, perhaps, cursed, when embarking in business, and which perhaps to a very large extent he is practically obliged to use in such business, with the name of a corporation which he creates for the purpose of carrying on his business. He is not responsible for his individual name'—had no choice in its selection; he is wholly responsible for the corporate name, having had a. wide field within which to make any selection as he might see fit.

Confusion between two' natural persons who are doing business under the names their parents wisely or unwisely gave them, generally may be regarded as an accident, a misfortune to both, but neither is to blame for the harm that is done. Two men having the name John Smith in common might be engaged in the same line of business in the same town. Certain special duties may be cast upon each, growing out of this sameness of name and business. Neither one, however, can compel the other to abandon his name or carry on his business under a different name. Suppose, however, an old established lampblack manufacturer named John Smith, carrying on his business in his individual name, should incorporate his business under the name of The John Smith Lampblack Company. Is it not clear that no other John Smith could thereafter embark in the lampblack business and carry on the same under the same corporate name ? Under our present Corporation act the second John Smith could not create a corporation with such a name.

3. Apart from the general equitable principle which limits a man in his use of his name as a part of the corporation which he creates for carrying on his business, our statute, it seems to me, recognizes a right in every corporation under our general act to be protected against the evils of ^uncertainty and confusion” which arise from the adoption of a similar name by a subsequently created corporation. P. L. 1896 ch. 185 § 8.

I do not think that the object of this provision of our Corporation act was merely to impose a duty upon the attorney-general of the state. It seems to me that one object of this statute was to protect all corporations created under it and to safeguard the use of their corporate names in their business. What similarity must be deemed as leading to “uncertainty or confusion” must depend upon circumstances. An important test oftentimes will be found in the objects of the corporation set forth in its certificate. A John Smith company carrying on the lampblack business in Camden might have no possible complaint against a subsequently created J. Smith company carrying on the lumber business in Paterson, the objects of the two corporations being set forth in their respective certificates. A change of business or a change of location might bring two corporate names, which originally passed the statutory test, subject to the operation of the equitable rule which existed independently of and prior to any statute.

In the present case, however, I think the complainant’s right to relief, both through an injunction and a recovery of damages or diverted profits, rests firmly upon the great equitable principles which do not depend upon the above-mentioned statute. The statute, however, seems to be utterly inconsistent with the idea that the names of corporations on the one hand, and the names of individuals .and firms on the other, stand on the same footing-in cases of unfair competition. Apart from any question of actual fraud every man is hound to recognize the prior right to a corporate name which has been acquired under our statute. No man has an unlimited right to use his own name in the creation of a corporation under our statute. Any incorporation under our law is a privilege which must be accepted under the conditions, imposed.

4. The injunction which the complainant was allowed to issue in this case does not restrain the defendant from doing any business under its present corporate name. Under its present certificate or under an amended certificate it might carry on a business entirely different from the lampblack business without causing any deception to the public or injury to the complainant. It is not suggested that the “L. Martin & Wilckes Company” might not carry on the business of manufacturing silk fabrics or steel fails without defrauding or annoying- tire, complainant, by the introduction of uncertainty or confusion into its business. The injunction will, therefore, merely restrain the defendant from carrying on the lampblack business under a name 'of which the words “L. Martin” are a part, unless other words are made a part of such name which mil have the effect to clearly and unmistakably distinguish the two1 corporations and their respective businesses. Counsel for defendant in his brief suggested’ that the injunction should be so drawn as to permit the defendant to. use its present corporate name “coupled with such other words as would unmistakably distinguish it from the defendant.” Counsel suggested the phrase “not connected with The L. Martin Company, our competitors,” as a proper form of language to be emploj^ed “in connection” with the defendant’s present corporate name. These suggestions are based upon the opinion of the court of errors and appeals in the B.ogers Case.

The difficulty about permitting- the defendant to continue to ■ use its present corporate name in the lampblack business arises from the fact that although the defendant may connect other words with its corporate name, the public may not. Tire situation is radically different from that which was present in the Rogers Case. There the question related to the stamping of the goods or the name of a label or advertisement describing the goods. In order to get the benefit of the principle which the defendant invokes, it is necessary, I think, that the suggested curative phraseology be actually inserted in and made a part of the corporate name. Only in this way can the defendant corporation be with certainty identified and distinguished from the successor to the old business of L. Martin & Company. No practicable way was suggested by which the name L. Martin could be employed as part of the defendant’s corporate name without creating liability of injury to the complainant. Counsel for the defendant was allowed on settlement of the decree to further argue this question and to submit a form of corporate name for the defendant in which the name L. Martin or L. Martin, ■3d, might appear without injury to the complainant’s rights. It seems to be conceded that such a form of corporate name is impracticable.

o."After the announcement of the conclusions substantially set forth above, extensive argument was made in regard to the right of the complainant to an accounting from the defendant. The conclusion which I reached in regard to this matter is set forth in the following memorandum heretofore furnished to counsel:

The gist of the complainant’s case lies in a charge of fraud against the defendants. The court of chancery of New Jersey has general jurisdiction of all cases of fraud. The only question as to jurisdiction where 'there is fraud is.confined to- the propriety of exercising the power which the court undoubtedly has. The cases decided in this court and the court of errors and appeals sustain the wide theory, of equity jurisdiction in New Jersey in all cases of fraud which has prevailed in England, Eggers v. Anderson, 63 N. J. Eq. (18 Dick.) 264; Hubbard v. International Mercantile Agency, 68 N. J. Eq. (2 Robb.) 434; Dawson v. Leschziner, 72 N. J. Eq. (2 Buch.) 1; Mazzola v. Wilkie, 72 N. J. Eq. (2 Buch.) 722. It follows that where the complainant is found to have brought his case properly in the court of chancery of New Jersey for equitable relief based on fraud, and the court has administered a portion of the relief to which he is entitled, he ought not to he turned out of the court of equity and compelled to try his case all over again in a court of law in order to have his damages awarded to him.j Assuming that this tort, called unfair competition, which is so peculiarly the creature of courts of equity, is cognizable at law in an action of trespass on tire ease, it may be that the court of chancery would not entertain a, bill in this case, the sole object of which was to give the complainant damages which he had suffered on account of the defendant’s fraud. If such a bill were presented, the court of chancerjq while asserting its theoretical jurisdiction might decline to exercise it on the ground that the complainant, had an adequate remedy at law. Right here, it seems to me, comes the distinction between the award of damages in a fraud case and the award of damages in a nuisance case where an'injunction goes. Without a Lord Cairnes’s act the court of chancery is powerless in a suit in which an injunction upon a nuisance is granted to' go on and assess the damages which the complainant has suffered from the nuisance. Most jurists, I think, in these days agree that this is a deplorable result, and that Lord Cairnes’s act effected a useful reform.

The general rule, to which perhaps there may be exceptions, in my opinion, may be safely laid down that in all cases in which the jurisdiction of the court of chancery based on fraud is invoked to obtain purely equitable relief such as an injunction, the court should proceed to accomplish complete justice and enforce all the complainant’s rights arising out of the fraud, including the ascertainment and award of all damages caused by the fraud, unliquidated as well as liquidated. It may be noted that the present case does not call for the application of such an extreme rule. It has not so far been suggested that the complainant has suffered any substantial damages from the fraud of the defendant other than the diversion of profits. The defendant presumably has received or will receive these profits fraudulently diverted from the complainant, and the theoretical “fund” to. which Professor Pomeroy refers (1 Pom. Eq. Jur. §§ 170, 175), and which was thought to help out the jurisdiction of a court of equity to award damages, may perhaps be assumed to exist. The extreme rule above indicated would be applicable in case the complainant claimed damages (unliquidated, of course), because of the conduct of the defendant in supplying the market with inferior or defective goods, which would be attributed by the purchasing public, or some part of them, to the complainant, whereby the complainant’s reputation in the market had suffered. No such damages have been claimed in this case, but if they were I would not hesitate to hold that the jurisdiction of the court of chancery to award such damages exists in full force and should be exercised, the complainant having necessarily come into the court of chancery for the most important part of the relief to which it was entitled, viz., injunctive relief. Of course the court might obtain the aid of a jury in assessing the damages if in its judgment such aid would be valuable. The defendant, however, has no constitutional right of trial by jury because the court of chancery has complete though concurrent jurisdiction of fraud cases.

The effect of extending the jurisdiction of courts of equity by statutes like Lord Cairnes’s act, and of extending the jurisdiction of courts of law by statutes giving them cognizance of equitable defences-, and giving them power to issue injunctions upon our dual system of law and equity, has I think, oftentimes been misunderstood. To some minds the separation between the administration of law and the administration of equity is imperiled when the court of law or the court of equity in which a particular case happens to be pending is permitted to recognize and enforce all the rights of the parties litigant, whether legal or equitable, and to award all remedies which either a court of law or a court of equity can supply. This sort of merger of law and equity in particular cases has been firmly established under the modern English practice for many years without in the slightest degree impairing the value of the dual system. The reason is plain., The vast majority of disputes between litigants can be completely disposed of in a single civil action either in a court of law or in a court of equity. Day after day our two systems of courts are at work, each within its appropriate sphere. Our judges are trained and become expert in that particular kind of work which is allotted to their respective courts. The full advantage of the application -of the principle of the division of labor to judicial work is obtained by the natural and necessary classification of the vast majority of all civil actions, as actions' at law or suits in equity, and the allotment of these classes to their respective courts. When, however, the exceptional case appears and the enforcement of all the rights of the parties litigant so as to accomplish complete justice between them in a particular case necessarily involves the application of both law and equity, it certainly seems to be better to allow an exception to the general rule. Justice, convenience and common sense should not be sacrificed in order to maintain a rigid remedial system. Jin New Jersey we believe in the so-called separation of law and equity, because we think that such separation leads to the evolution of better law and better equity, to the training of better law judges and better equity judges than is possible under a system which compels every trial judge to be export in all branches of judicial work. But the separation of which’ wc approve ought not to include the splitting of a cause in two and the trial of the two portions in different courts. If the great majority of litigations were both legal and equitable in their nature, in my opinion the dual system w-ould be an intolerable evil.

After trying a nuisance case for three or four days and granting an injunction, it gives me no satisfaction, but, on the contrary, somewhat shocks my sense of justice to refuse to hear the complainant’s appeal for his damages, and to require him to bring an action at law involving perhaps three or four days of trial in order that his damages may be assessed by a jury. In all cases in which only a court of equity has the power to administer an important part of the relief sought by the complainant, I think it ought to be 'astute to find a wa,y by which it can go further and administer the rest of the relief to which the complainant is entitled, but which ordinarily he could obtain only in a court of law-. A similar statement, I think, can justly be made with reference to any possible corresponding action on the part of a court of law in ihe way of administering complete relief by exercising not only its own legal jurisdiction but also in the particular case the jurisdiction of a court of equity. 1

It may be noted in passing that the proposed constitutional amendments now before the legislature of the state provide for the “giving of complete legal and equitable relief in any cause in the court or division where it may be pending.”

6. A reference to a master in order to assess the complainant’s damages was made in this case because counsel on both sides assumed that such a course would be taken if an accounting of any kind should be ordered. In many cases of this class probabty the better method is to have the court try and determine the issues in regard to the nature and amount of damages to be awarded precisely as the other issues in the cause are tried. No application having been made to have the damages ascertained by the court in this manner, the old and well-settled method of conducting an assessment of damages or an accounting for diverted profits was followed in the decree. The decree, therefore, directs that an injunction issue in the form above indicated and that complainant’s damages be assessed by a master.


author: Garrison, Y. C.

text:
    James E. Reilley et al. v. Michael Curley et al.
    [Decided December 14th, 1908.]
    1. While a person is entitled to enjoy his property in pursuing a lawful business, it must be conducted with regard to the rights of surrounding property owners, and, when it creates conditions clearly rendering appropriate enjoyment of surrounding properties impossible, equity will restrain the injury.
    2. Noise may constitute a nuisance, but, in determining whether it is a nuisance, its character and volume, and the time, place, and duration of its occurrence, and the locality must be considered.
    3. Where the noise created by the operation of a steam engine in depositing stone on lots in a residence district is such as to render it impossible to converse in the neighboring houses or use adjoining premises for their customary purposes, its operation is a nuisance.

      On application for preliminary injunction.
    This is an application on behalf of Reilley and three other complainants against Curley and another to obtain a preliminary injunction.
    The bill alleges that the complainants are owners or occupants, or both, of houses in Jersey City, in the-neighborhood of Baldwin, Magnolia, and Pavonia avenues and West and East streets; that this is a strictly residential neighborhood; that on East street, Curley, one of the defendants, has leased from Byron, the other defendant, two lots of land on opposite sides of that street; that he is engaged in hauling, to those lots, loads of broken stone; that these stones are in what are termed “boats;” that on the lots he has an engine and a derrick and a cable; that the cable is hitched to the “boats” and they are drawn up, by means of the steam engine, to- the top of the pile and there dumped; that then the cable is allowed to. run free and the “boats” are lowered onto the wagons.
    It is charged that the noise attendant upon the operation of the engine and cable is so great as to. seriously interfere with the dwellers in that neighborhood, and is a nuisance.
    It is also charged that the engine is a second-hand one and in an unfit condition to be used. It is suggested that a muffler could be used upon the engine so as to minimize the noise, and that repairs could be made to it to do away with some of its present defects, which defects are alleged to be one of the causes of the noise complained of.
    The answering affidavits are mainly directed to proving that the engine was the one ordinarily used for such operations, and that no more noise is attendant upon its operation than is usual in such operations, and that mufflers are not put upon such engines, and that no repairs are necessary to make the engine a proper one to be used with no unnecessary noise in this business. There is some slight attempt to show that it does not malee much noise, but there is no direct denial of the allegations of the witnesses for the complainants that much noise does result from the operation.
    An opportunity was afforded the defendant Curley to experiment with a muffler and in such other way as he might think fit to adopt, but the proofs show that he did not succeed in minimizing the volume of noise, which was as great as theretofore.

      Messrs. Ziegener & Lane, for the complainants.

      Messrs. Tumulty & Cutley, for the defendants.
   Garrison, Y. C.

It will be useful to consider several questions of law before dealing directly with the case at bar.

Since the defendant Curley is not engaged in improving the land on which he is piling the stone, but is merely using the land as a storage place for the stone, there is no occasion for the application of the principle that neighbors must endure the usual and customary discomforts arising out of the improvement by one of his property.

The first question relates to the principle to be applied to the rights of the respective parties, and this has been well summed up in a recent case in this court, as follows:

“While defendant is entitled to the enjoyment of its property in the pursuit of a' lawful business, that business must be conducted with due regard to the well recognized rights of surrounding property owners. When such business becomes creative of conditions which clearly render the appropriate enjoyment of surrounding properties impossible, the rights of others are invaded and equity will restrain the persistent pursuit of such injury.” First M. E. Church of Cape May v. Cape May Grain and Coal Co. (Learning, Vice-Chancellor, 1907), 73 N. J. Eq. (3 Buch.) 257.

The next question is whether noise alone may constitute such a nuisance as to subject the one creating the same to restraint in equity. That such is the case I am convinced from the authorities not only in our state, but in many other jurisdictions.

Of course, the character and volume of the noise, and the time and duration of its occurrence, and the place where it occurs, and the surroundings thereof, are the important and determinative features. Davidson v. Isham (Chancellor Williamson, 1852), 9 N. J. Eq. (1 Stock.) 189; Wolcott v. Melick (Chancellor Williamson, 1856), 11 N. J. Eq. (3 Stock.) 207; Ross v. Butler (Chancellor Zabriskie, 1868), 19 N. J. Eq. (4 C. E. Gr.) 294 (at p. 302); Cleveland v. Citizens Gas Light Co. (Chancellor Zabriskie, 1869), 20 N. J. Eq. (5 C. E. Gr.) 201 (at p. 205); Demarest v. Hardham (Vice-Chancellor Van Fleet, 1881), 34 N. J. Eq. (7 Stew.) 470; Cronin v. Bloemecke (Vice-Chancellor Emery, 1899), 58 N. J. Eq. (13 Dick.) 313; Gilbough v. West Side Amusement Co. (Vice-Chancellor Pitney, 1902), 64 N. J. Eq. (19 Dick.) 31; Laird v. Atlantic Coast Sanitary Co. (Advisory Master Pitney, 1907), 73 N. J. Eq. (3 Buch.) 49; First M. E. Church v. Cape May Grain and Coal Co., supra; Powell v. Bentley & Gerwig Furniture Co., 12 L. R. A. 53 (with numerous cases in the notes); Hill v. McBurney Oil and Fertilizer Co., 112 Ga. 788; 52 L. R. A. 398; Froelicher v. Oswald Iron Works (La.), 64 L. R. A. 228, and note; Herring v. Wilton (Va.), 55 S. E. Rep. 546; 7 L. R. A. (N. S.) 349; 2 Wood Nuis. (3d ed.) § 611.

The defendant Curley placed the stress on his argument, so far as the law applicable to the case is concerned, upon the distinction suggested by the vice-chancellor in the ease of Hennessy v. Carmony (Vice-Chancellor Pitney), 50 N. J. Eq. (5 Dick.) 616. The court in that case drew a distinction between tha.t class of nuisances which affected air and light merely by way of noise and disagreeable gases and obstruction of light and' those which directly affected the land itself or structures upon it. The only pertinence of the distinction relates to the degree of the alleged nuisance, the vice-chancellor suggesting that in the former class of eases a much greater degree is required to- entitle the part}1, to relief than in the latter; but the whole matter is, in my view, set at rest by the most recent decision of the court of errors and appeals upon this subject. The case of Roessler & Hasslacher Chemical Co. v. Doyle, in the supreme court, reported in 73 N. J. Law (44 Vr.) 521 (1906), was affirmed in the court of errors and appeals—74 N. J. Law (45 Vr.) 850 (1907), by the unanimous vote of that court for the reasons set forth in the supreme court. In the supreme court, attention is called to the distinction above referred to, which apparently was first suggested by Lord Westbury in St. Helens Smelting Co. v. Tipping, 11 H. L. Cas. 642; and Judge Reed, in writing the opinion, said (at p. 528): “These observations of Lord Westbury seem to have suggested the form of the requests on the trial of the present case. The court was asked to charge that the undisputed evidence was that the odors and noise merely affected the air and plaintiff’s personal comfort; that the plaintiff’s residence is not (sic) in a manufacturing locality, and that the odors were incident to the proper conduct of defendant’s business; .therefore, the plaintiff could not recover.

“But it is apparent that if the odors and noises existed as testified to by the plaintiff and his witnesses, they diminished the • enjo3rment, habitableness and value of his dwelling, and so injured his property. The request was properly refused.

“All the requests to charge which are grounded upon a distinction between personal discomfort and injury to plaintiff’s habitation were based upon a difference which in this case did not exist.

“Indeed, no judge has ever suggested that personal discomfort received by an owner of property while residing therein would not afford a ground of action.”

This case also reiterates the well-settled principle which lies at the foundation of all of this branch of the law, and which has been heretofore stated, namely, that the degree of personal discomfort is the determinative feature, and “in measuring the degree * * * all the surrounding circumstances must be taken into account in judging whether the degree is of sufficient importance to confer a right of action.”

This brings me to a consideration of the facts of the case in hand.

The only dispute which.it may fairly be said the proofs disclose concerns the condition of the machinery in use, the complainants alleging that it is second-hand and defective, and the defendants denying this.

There is practically no dispute of the complainants’ testimony concerning the nature, extent and effect of the noise created by the defendant Curley’s operation of the engine and cable and the “boats.” The testimony of numerous witnesses on behalf of the complainants, who all dwell in the neighborhood, is that from an early hour in the morning until six o’clock at night the noise of the engine and its operation practically precludes' the possibility of conversing in the houses in the neighborhood when the windows of such houses are closed, and that the noise is such that the windows of the houses cannot be kept open.

■ It seems to me clear, beyond possibility of successful refutation, that an occupant of a dwelling house in a strictly residential neighborhood, as this is, may be said to be deprived of the legitimate use of his property, or to have his property rights seriously invaded, if, during all of the day so much noise penetrates his dwelling from the operation, by a neighbor, of machinery as to render it impossible for him to converse in or to use his premises for their customary purposes.

I do not decide, because it is not necessary, that the defendant may not use these lots for the deposit of stone. I do not decide that a residential neighborhood is an improper place to store broken stone taken from excavations in other places. But it is important in the consideration to bear in mind that there are undoubtedly numerous places (where broken stone could be stored with the noise necessarily attendant on handling the same) which are so far removed from residences as not to seriously interfere with their use by their occupants.

The fact that the use of these lots for this purpose is temporary does not aid the defendants at all, but rather makes in favor of the complainants. If the defendants’ purpose is, as they stated, merely to use these lots temporarily for this purpose, it would seem as if their duty,- under the circumstances, was to seek some other place for such temporary use than a thickly-settled residential portion of the city.

Under all of the circumstances of this case I think that the complainants have proven a right requiring protection, and that the defendants have invaded that right so as to be restrained.

I will advise the issuance of a temporary injunction restraining the defendants from so operating the engine or any engine upon the premises in question as to cause noise of sufficient volume to penetrate the houses of the neighbors and destroy the peace and comfort of those dwelling therein.