text:
    The State of New Jersey, on the relation of the State Board of Health, v. The Mayor and Aldermen of Jersey City, The Mayor and Council of the City of Hoboken, The Morris and Essex Railroad Company, The Delaware, Lackawanna and Western Railroad Company, Edlow W. Harrison, Theophilus Butts and Michael T. Connolly, commissioners.
    1. In a bill to abate a nuisance, where it was alleged that a sewer, which had been laid in the channel of a natural brook, carried not only ordinary sewage, but “ also the waters from the drainage area of the brook, * * * which waters are corrupted by the mixing of sewage therewith,” the phrase “waters from the drainage area of the brook” means the waters which, if collected naturally, would form the brook.
    2. In a bill to abate a nuisance, it was alleged that Jersey City has under its control a sewer which is the sole outlet for the drainage of a large district of that city; that the sewer was laid in the channel of a natural brook down in a ravine, and at first ended on the meadow lands in the city of H., only slightly above the level of high water in the Hudson river; that the sewage was “discharged at the foot of the ravine, close to the H. city line, and created a public nuisance in the H. meadows; ” that the sewer was afterwards extended across the meadows and connected with another, emptying into the H. river; that owing to the slight fall, in case of a heavy rain the water could not escape through the extension sewer as fast as it came down the ravine, causing the sewer to break and discharge the water and sewage on the H. meadows in great quantity; that the cities had failed to take any action for the proper drainage of the affected district, and that stagnant water was collected and retained, constituting a nuisance dangerous to health. — Held, that the bill showed a nuisance in the city of H., having a source outside its limits, and hence within the act of May 24th, 1894, section 2, which, in such a case, confers jurisdiction on the state board of health to intervene to abate the nuisance.
    3. A bill to abate a public nuisance caused by the discharge of sewage on low lands in a city, where it was allowed to collect in stagnant pools, alleged that the original outlet for the waters discharged from the sewer, as well as for the surface waters of this part of the city, was, by a natural watercourse, dis,charging into a cove of the Hudson river; that one of defendants, a railway company, had constructed its road across this creek and extended the shore line of the cove out into the river by filling for their yard; that the parties responsible for the nuisance were city officers, who had failed to keep certain sewers in repair, and defendant railway company, “ who have filled up the ancient watercourse through which the surface water and the waters of the brook (in whose channel the sewer was constructed) were wont to pass in its natural flow.” — Held, that the allegations were sufficient to hold the railway company in part liable for the nuisance.
    4. Where a contract is made by commissioners who are acting in behalf and for the benefit of a city, the contract inures to the benefit of the city, and its authorities may enforce it, though the commissioners have fully discharged their office.
    5. The act of May 24th, 1894 (P. L. of 1894 p. 495 $ 2 ; Gen. Stat. pp. 1646, 1647), which authorizes the state board of health to intervene to abate a public nuisance within the territorial limits of a city, whenever such nuisance “ shall have a source or origin outside of the limits,” is constitutional.
    Bill to restrain and abate a nuisance. On demurrer by the railroad companies.

      Mr. Charles L. Corbin, for the complainant.

      Mr. Flavel McGee, for the demurrants.
   Pitney, V. C.

The bill is filed under the second section of the act of May 24th, 1894. P. L. of 1894 P- 495; Gen. Stat. pp. 1646, 1647. It alleges the existence of a nuisance within the territorial jurisdiction of Hoboken, which has its origin within the territorial jurisdiction of Jersey City, and alleges and attempts to show that the Morris and Essex Railroad Company and the Delaware, Lackawanna and Western Railroad Company are in part responsible for its existence.

The railway companies have demurred. I shall refer to them as one company.

The location of the nuisance is the extreme southwesterly part of the city of Hoboken, in the low lands at the easterly foot of the Palisade bluff, just to the north of the easterly end of the tunnel of the railway company. No map is annexed to the bill, . but, by consent of parties, a map of the locus was furnished to the court as a part of the bill, and both parties relied upon the familiar general knowledge of the court and counsel of the geography and topography of the neighborhood.

The details of the nuisance are set forth as follows: That Jersey City has under the charge of its municipal government, as a part of its drainage system, a sewer called the “ Ravine Road Sewer,” which is the sole outlet for the drainage and sewage of about three hundred acres of that part of Jersey City lying on what is called the Heights and formerly a part of Hudson City, with a population of about thirty thousand. This sewer was constructed in the year 1870 or 1871, and ran down a steep ravine, which was the channel of a brook or stream called the Showhank brook, and, at first, ended and emptied on the low meadow lands in the westerly part of the city of Hobo-ken, which meadow lands are notoriously only slightly above the level of high water in the Hudson river, and about a mile distant therefrom; that this sewer carried not only ordinary sewage, but “also the waters from the drainage area of the brook partly in Jersey City and partly in the town of West Hoboken, which waters are corrupted by the mixing of sewage therewith/

I stop here to notice a criticism made by counsel of the railway company upon this language. He contends that it does not amount to an allegation that the natural waters of the brook are carried in the sewer, but only that the surface waters are carried therein. I cannot agree with him in this. The words “the brook” there used refer to Showhank brook, which has just been mentioned as being the name 'of the brook running through the channel in which the sewer was laid.

Now, it is common knowledge that when a district of country which lies at the headwaters of a small natural brook has been altered by the building of paved streets and sidewalks, and dwellings on each side, the result is, oftentimes, to very much diminish, if not entirely destroy, the natural springs which feed the brook, so that when rain falls, instead of soaking in the ground and forming reservoirs to supply the springs, it runs off immediately and rapidly. Such rain water is, nevertheless, brook water, and properly styled the waters of the brook; so that the phrase “the waters from the drainage area of the brook ” means the waters which, if collected naturally, would form the brook.

The bill proceeds to state that, as the town grew, the sewage discharged by this sewer increased and spread over the southwesterly part of Hoboken. The language used is, “ discharged at the foot of the ravine, close to the Hoboken city line, and created a public nuisance in the Hoboken meadows.” I think that that is a sufficient statement that it created a nuisance within the territorial limits of Hoboken.

The bill then proceeds to state that this nuisance became so great that legislation was had in 1875 (P. L. of 1875, p. 621), to provide for the continuation of the Ravine Road sewer in the city of Jersey City and the' city of Hoboken, and commissioners were appointed to extend the ravine sewer and connect it with the sewers then existing in Jersey City; that, in pursuance of that act, the commissioners appointed under it constructed an extension of the Ravine Road sewer from its original terminus southerly across lands in the city of Hoboken to a street in Jersey City called Jersey avenue, then along Jersey avenue (southerly) until it crossed Thirteenth and Fourteenth streets, there connecting with sewers in those streets which had their outlet in the Hudson river. The map shows a sewer connecting with sewers in those streets and their connection with the Hudson river.

The bill alleges that this remedy proved inadequate; that the extension from the end of the ravine sewer at the foot of the bluff was nearly level, and the extension from there to the Hudson river was nearly level, so that in case of a heavy rain the water could not escape through the extension sewer as fast as it came down the steep slope, in the ravine, and the resulting pressure caused the sewer to break and deliver the water and sewage on “the Hoboken meadows and low lands” in great quantity, where it remained stagnant.

Criticism is made upon this language, but I understand it clearly to indicate the meadows and low lands in the city of Hoboken lying near the foot of the slope and at the end of the Ravine Road sewer, as it was originally constructed, which point is a short distance north of the embankment of the railway company.

The bill then states that the nuisance thus created has been of a notorious character and has been recognized as a constant and growing injury to the health of the people of Hoboken and Jersey City, and that various attempts have been made to remedy it by legislation; that authority had been given to Jersey City to enlarge and rebuild the sewer and enter upon the streets of Hoboken for that purpose; that in 1890, by an act (P. L. of 1890 p. 85), the three defendants, Harrison, Butts and > Coimolly, were appointed commissioners to rebuild the sewer extension on lands wholly within the territory of Jersey City, and that several supplements have been passed giving them further and increased powers; that certain repairs have been made from time to time on the extension of the sewer by Jersey City and by Hoboken, but have been so unskillfully and inadequately made that the sewer has broken again under the pressure caused by heavy rains, and for several years no serious attempt has been made to abate the nuisance. In the meantime, a large and increasing population has occupied the territory in Jersey City, draining into this sewer, and many lateral sewers have been built by the authorities of Jersey City, connecting with it, and that it is the sole outlet for a population of thirty thousand people.

The bill then alleges that the municipal authorities of Jersey City and Hoboken, whose territories join near the foot of the hill, and thence to the Hudson river, have both failed and refused to take any action for the drainage of the territory affected by this nuisance, and have permitted the streets and adjoining lots to remain low and sunken and undrained, and the natural watercourse and outlet therefrom to be obstructed, so that stagnant pools of water are collected and retained, breeding disease and constituting a nuisance dangerous to health &c.

Now, it seems to me that this sets out a nuisance existing within the territorial limits of the city of Hoboken, and one which has a source of origin outside of the limits of Hoboken. The case is thus brought within the second section of the statute of May 24th, 1894, and jurisdiction is conferred upon the state , board of health to intervene in the manner they have. In my judgment, it is not necessary that the source of the nuisance should be wholly in one jurisdiction and the nuisance itself wholly in another jurisdiction. The act does not provide that all the sources or causes of the nuisance shall be in one jurisdiction and the nuisance itself wholly in another, but it says simply that “ wherever any nuisance shall have a source or origin outside of the limits ” &c.

Ho demurrer is filed by the city of Hoboken, and I think it plain that none would lie, because it is certain that in addition to the water and sewage which come down from Jersey City Heights, there is a certain quantity of water falling on the territory of Hoboken itself which must tend to increase and prolong the continuance of the nuisance after a rain; and for the water falling upon its own territory, the city of Hoboken is of course responsible. But it is not necessary to express á final opinion . on that subject for reasons presently to be stated.

The bill next states the connection of'the railway company with this nuisance. It proceeds to state that “ the ancient outlet for this part of the city of Hoboken [by which I understand it means the natural outlet] and for the waters of Showhank brook flowing through the ravine watercourse, was a channel or creek discharging into Harsimus cove of the Hudson river” How, criticism on this language was made by counsel for the railway company, to the effect that it does not say that this channel or creek was the outlet for the waters of this part of the city of Hoboken and for the waters of Showhank brook flowing through the ravine. I think that criticism is put too high; that we must supply, by construction, the words waters of,” in the first part of the sentence, and read it this way : “ The ancient outlet for the waters of this part of the city of Hoboken and for the waters of Showhank brook flowing through the ■ravine watercourse,” and that the whole sentence when read together means that Showhank brook reached the Hudson river by a natural watercourse discharging into Harsimus cove, and that that natural watercourse -also took off the waters which fell on that part of the city of Hoboken immediately adjoining it.

The point of the debouch of this “channel or creek” into Harsimus cove was, as stated by the bill, at a point in or near the .present line of Henderson street, about three hundred feet south of Newark street, in Hoboken. That point is about half way from the mouth of the railway tunnel and the present docks or piers. The intermediate space has been filled in and used by the railway company as a terminus.

The line of the railway, from the mouth of the tunnel to the river, is nearly parallel with the line between Hoboken city and Jersey City, but the railway itself is located mainly within the limits of Jersey City, but its passenger station and passenger car-yard are mainly in Hoboken.

The bill proceeds to say that the Morris and Essex Railway Company constructed their railroad across this creek and extended the shore line (of the cove) out into the Hudson river by filling for their yard. Now it is argued that this language does not show any interference with the creek by the railway company, and that, so far as appears, that creek may still be open to the flow of water. But I cannot accept this criticism. Besides, we have, further on, this language:

“The parties responsible for this injury and nuisance are the mayor and aldermen of Jersey City, who have collected sewage and discharged the same at the foot of the ravine, and have neglected to keep the sewer in repair, and the Morris and Essex Railway Company and the Delaware and Lackawanna Railroad Company, its lessee, who have filled up the ancient watercourse through which the surface water and the waters of the brook were wont to pass in its natural flow.”

This is a distinct allegation that the watercourse had been filled up and obstructed by the railway company.

Now it seems to me that while it might be admitted, for the purposes of the argument, that the city of Jersey City would have no right, as against the riparian proprietors, to use the creek in its natural course as an outlet for its sewage (see State v. Freeholders, 1 Dick. Ch. Rep. 173), yet the complete obliteration of the creek and stoppage of all. flow of water through it, so that the waters naturally flowing through it are stopped and held back on the Hoboken meadows, does have the effect of aggravating and protracting the nuisance described in the previous part of the bill. This is a sufficient allegation to hold the railway company in part liable for the nuisance.

The bill then proceeds to state that the railway company, in 186.8, entered into an agreement in writing (which is set out word for word in a schedule to the bill) with certain commissioners authorized to drain certain low lands lying in the city of Hoboken and the township of Weebawken, who founded their authority .'upon “An act to provide for the drainage of certain low lands lying in the city of Hoboken, in the township of Weekawken,” approved April 4th, 1866 (P. L. of 1866 p. 941), which agreement, after reciting that the commissioners had laid sewers and made ditches for the purpose of draining a cer^ tain portion of the low lands of Hoboken, up to and adjoining the lands of the railroad company in Hoboken, and that it was desirable that the drainage should be continued permanently over the lands owned and occupied by the railroad company in the city of Hoboken to the Hudson river, provided that the railroad company, in consideration of the sum of $1,216.25 to it paid, covenanted and agreed that they would make, keep and maintain a proper and sufficient opening for the drainage of the said low lands over and across the lands of the party of the second part to the sluice-gate as now erected, defining the size and character of the drain,

“ and that they will keep said opening, sluiceway or drain in good repair and condition so as effectually to drain the said low lands from the sewers and drains as laid by the parties of the first part to the Hudson river.”

Here it is to be observed that in the preamble it is recited that the commissioners had “ laid seioers ” and “ made ditehes ” for the purpose of draining certain portions of the low lands, and the clause just recited declares that the railroad company shall keep the said opening, sluiceway or drain in good repair, so as effectually to “drain the said low lands from the sewers and , drains as laid by the parties of the first part.” Note that the words sewers and ditches are used in one place, and sewers and drains are used in- another place. Now, I understand the distinction to be that sewers are closed or covered waterways, and ditches are drains which are or may be open and so arranged as to take surface water.

Now, it is argued that this language does not, by its proper force, provide for the taking of any surface water from the low lands. I cannot accede to that construction. I think it was intended to take water both from sewers proper and from open ditches or drains.

Then follows a provision in the agreement that the railroad company may change and remove the sluice-gate, but that it shall always maintain a proper opening from the sluice to the Hudson river or to some communication therewith, “ so that the said ditches and sewers,” as laid by the parties of the first part, “ so long as they shall be kept up and maintained by the said parties of the first part,” shall have free communication and outlet over and across said lands of the said parties of the second part to the Hudson river, so as to effectually drain the low lands first aforesaid. But then followed this provision :

But this agreement shall only be binding on said parties of the second part so long as the said parties of the first part shall keep up and maintain the said sewers' and drains so laid by them aforesaid.”

Now, it is contended that there is no sufficient allegation in the bill that the sewage in question in the bill, or the lands in question, are those mentioned in the contract. I cannot agree to that contention. I think that the map and geography of the neighborhood show plainly that the waterway which the railroad company agreed to construct and maintain led directly from the low lands here in question. The drain which the agreement recited that the commissioners had created, ended near the lands of the railroad company; the map shows just where the low lands mentioned in the agreement are situate, and that they were located just at the place where the nuisance is alleged now to exist. As I have already said, the contract provides for the carrying of surface water as well as sewage water proper, and, besides, it is common knowledge that ordinary sewers do carry-surface water.

The bill then proceeds to state that the railroad company constructed a ditch in accordance with the provisions of the contract, and afterwards substituted an underground structure therefor, and that they have maintained imperfect outlets, and have not fully and adequately provided for the drainage, and have not kept a proper and sufficient opening for the drainage and sewers, as required by the contract, but have narrowed the channel and permitted it to become out of repair, and have obstructed the same in part by their filling and inadequate drainage pipes, and that the mayor and council of the city of Hoboken have negligently permitted the outlet to be so narrowed and partly changed, and have not enforced said contract against the railroad company.

The point of this last allegation is that the contract was made by commissioners who were acting in behalf and for the benefit of the city of Hoboken; that, although those commissioners are. now functus officio, yet that the contract inures to the benefit of the city of Hoboken, and the municipal authorities of that city have the right to enforce it, and that they have failed to do so. But I think that, so far as the railway company is concerned, the bill is faulty in not alleging that the conditions under which the continuance of the artificial watercourse was to be maintained, namely, the continued maintenance of the ditches and sewers in Hoboken, still continued. There is a failure to allege that, and therefore the bill does not state with sufficient clearness and- explicitness any contractual default of the railroad company, and if the case against the railroad company rested upon that agreement only, I should be inclined to the opinion that the objection on that ground was fatal.

But the real object of the introduction of the agreement into the case was to show that the city of Hoboken was in part responsible for this nuisance, because it did not use the power which it had to relieve the place in question of such part, at least, of the waters there collecting as fell within its territorial jurisdiction, and as the city has not demurred, I think that the allegation stands as against the city.

Undoubtedly, reading between the lines, and taking all the circumstances together, the inference is a fair one that this artificial channel which the railroad company agreed to maintain was a substitute for the natural watercourse through which the Showhank brook and the other waters falling on that part of Hoboken found their way to the river.

But the principal point made by the counsel of the railroad company, and urged with earnestness in various shapes, is that the object of the bill is either to compel a specific performance of the agreement or to provide' a scheme for the drainage of this part of Hoboken over the lands of the railway company without paying for the land and thereby taking private property for public use without just compensation. But I think that neither of those matters is involved within the scope of the bill. The prayer of the bill is that the duties of the several defendants, with respect to the abatement of the nuisance, may be defined, and that they and their officers and agents may be decreed to perform such duties, and that they may be respectively enjoined from continuing the nuisance, and that the authorities of Jersey City may be enjoined from discharging sewage or water polluted therewith upon lots or streets in the territory of the city of Hoboken or any part thereof, and that the authorities of the city of Hoboken may be enjoined from maintaining pools of stagnant water on the lots and streets in the said city adjacent to the Ravine Road sewer terminus at or near the city line, and that the railroad company may be enjoined from obstructing the flow of the waters which have their ancient outlet across their lands, and that there may be other relief.

Now, I think that this statement of the prayer of the bill is in itself an answer to most of the very elaborate causes of demurrer set out in the pleadings and to much of the very able, learned and elaborate argument of the learned counsel of the railway company.

A vigorous attack, in argument, was made upon the constitutionality of the legislation which authorizes this suit. This legislation has been before the court of errors and appeals several times; once in Hutchinson v. Board of Health, 12 Stew. Eq. 569, where the decision below had been in favor of the board of health and against the appellant, and the appeal was argued for the appellants by the late Mr. Gummere, whose appearance on that side of the cause insured the taking of every possible point against the respondents, and the decree below was affirmed. Again, in Butterfoss v. Lambertville, 13 Stew. Eq. 325, where a decree against the defendant was also sustained. In none of these cases was it suggested that the legislation was unconstitutional, and I am unable to see the least ground for the contention. It is within the jurisdiction of this court to abate nuisances, and the question at the hearing will be whether the nuisance is thoroughly established, so that the complainant’s right is not in doubt upon the facts, but for present purposes the nuisance is admitted. Neither can I see the least reason to doubt the power of the legislature to invest the several boards of health, whether state or local, with the power to act in behalf of the public to abate nuisances which are an injury to the health of the public at large.

The demurrer is overruled, with costs.


source: Caselaw Access Project

author: Emery, V. C.

license: Public Domain

text:
    Waldo Danforth et al., executors of Edward G. Brown, deceased, v. James Moore et al.
    1. Evidence of a declaration by a tenant in common of property, to a disinterested person, that he was operating it entirely at his own expense, is not sufficient to establish a contract on his part not to make any demand on account of his expenses.
    2. In the absence of a contract, the only remedy for a tenant in common, who makes expenditures on the common property, is to have the part improved set aside to him on a partition, or, this being impracticable, to obtain an equitable allowance on sale in lieu of partition.

      3. Where property held in common is sold pursuant to an agreement of the tenants in common, among themselves, that from the proceeds there shall first be paid to them the respective amounts found to be due to them as debts, and this has reference to expenditures made by them on the property, the agreement will be enforced, but such expenditures will not be considered debts, so as to bear interest from the time they were made up to the time of such, agreement.
    4. Where an agreement is made by the owners of railroad bonds, the purchasers thereof and the agent negotiating- the sale, that one of the owners shall be custodian of them and make pro rata delivery thereof to the purchasers, as partial payments in money are made, and pay the agent his commission when a certain amount of the purchase-money is paid, he will be liable to the other owners for making delivery of part of the bonds for a worthless note and for delivering others to the purchasers on their agreement to pay the agent, the purchasers not having then or afterwards paid the amount which entitled the agent to his commission.
    5. The loss by reason of such delivery will, in the absence of evidence as to the value of the bonds or any regular market value, be the price put on them in the contract of sale made shortly before; allowance, however, being made for the fact that the remaining bonds, which the purchasers failed to take, were benefited by a necessary expenditure in improving the road, which the purchasers made pursuant to their agreement that they would do so if the bonds should be delivered in consideration of the note.
    6. On a sale of railroad bonds, one of the owners was made custodian thereof to make delivery of pro rata amounts as partial payments were made. Without authority he delivered some of them for a worthless note. Thereafter, the purchasers having failed to take the remaining bonds, and the road having become insolvent, and there being litigation pending in which the organization of the railroad and validity of the bonds were attacked, the other owners proposed a sale of them for a certain amount, and he agreed to a sale at any price, “provided, however, I am forever thereafter relieved from any further responsibility or liability in any way relative to said railroad or the securities thereof.” — Held, that this did not have reference to or include his liability to the other owners for this unauthorized delivery of bonds.
    On bill for accounting &c. Heard on bill, answers, replications and proofs.

      Mr. James R. English and Mr. A. S. Brown (of the New York bar), for the complainants.

      Mr. Frank Bergen, for the defendants.
   Emery, V. C.

The bill in this case was filed by the complainants, as executors of Edward G. Brown, one of three tenants in common, against James Moore and John Kean, the other two tenants in common, and John Kean having died after answer filed, the suit has been continued against his executors by an order of revivor. The common property was sold previous to the filing of the bill, under an agreement in writing made between the complainants and Moore and Kean, and the proceeds of the sale have, by virtue of the agreement, been paid over to John Kean, Jr., as trustee, who is also made party defendant in that capacity. The object of the bill is twofold — first, to recover for the complainants the disbursements which were made by Edward G. Brown, in his lifetime, for the repairs and improvements made upon the common property, and in managing the property, with interest thereon, payment of these sums being claimed before any division of the proceeds of sale among the tenants in common or their representatives, and second, to charge the defendant James Moore, one of the tenants in common, with the amount of two notes, aggregating $12,000, which were taken by him as part, of the proceeds of sale, and which turned out to be worthless, and also to charge him with a certain other payment or allowance of $1,500 made by him. For these amounts the complainants claim that Moore is accountable under the agreement of sale.

So far as relates to the claim for contribution or reimbursement of the expenditures made by the deceased tenant in common, the facts established by the pleadings and proofs are as follows:

[Here follows a statement of facts.]

The case must therefore be treated as one in which the disbursements were made by one tenant in common, without any contract in relation to them on either side, and the rights of the parties are to be determined upon the rules applicable to tenants in common, except so far as these rights are modified by the agreement for sale and division of the proceeds.

The right of the complainants to recover their proportion of these expenditures made by Brown from the other tenants in common cannot, it seems to me, be based on the first ground alone, for the rule is clear, both at law and in equity, that in the absence of a contract to pay, either express or implied, on the part of the co-tenants, no remedy exists for money expended in repairs or improvements by one tenant in common so long as the property is enjoyed in common. Leigh v. Dickeson, 15 Q. B. Div. 60, 67; Farrington v. Forrester, 2 Ch. Div. 461, 478 (1893); Freem. Co-ten. & P. ¶¶ 261, 262.

In such cases where necessary repairs and improvements have been made in good faith- by one tenant in common, but without any contract or agreement for repayment or contribution, the only remedy of the tenant who has made the disbursements is in the court of equity, where, on a partition or sale of the common property, an equitable adjustment is made to the tenant, either by assigning to him the part of the property which he has improved in good faith or, where such partition is impracticable and the property is sold at an increased value by reason of the repairs or improvements, by making an equitable allowance for what has been expended in order to obtain this increased value.

The former course was followed in Hall v. Piddock, 6 C. E. Gr. 311; Doughaday v. Crowell, 3 Stock. 201; Brookfield v. Williams, 1 Gr. Ch. 341; Obert v. Obert, 1 Hal. Ch. 397.

Lord-Justice Cotton, in Leigh v. Dickeson, supra (at p. 67),. says: “No remedy exists for money expended in repairs by one tenant in common so long as the property is enjoyed in common, but in a suit for partition it is usual to have an inquiry as to those expenses, of which nothing could be recovered so long as the parties enjoyed their property in common. When it is desired to put an end to that state of things [the ownership in common] it is then necessary to consider what has been expended on improvements and repairs; and whether the property is divided or sold by the decree of the court, one party cannot take the increase in value without making an allowance for what has been expended in order to obtain that increased value; in fact, the execution of the repairs and improvements is adopted and sanctioned 'by - accepting the increased value. There is, therefore, a mode by which .money expended by,one tenant- in common for repairs can" be recovered, but the procedure is confined to suits for partition.” ' ‘ ‘

Brett, M. R. (at p. 65), also says: The only remedy which exists,.either at law or in equity, is when the rights of the tenants in common go into chancery on suits for partition or sale. If the law were otherwise, a. part owner might be compelled to incur expense against his will. The refusal- óf one co-tenant to bear any part of the cost may be unreasonable; nevertheless, the law allows him to refuse, and no action will lie against him.” See, also, cases cited in 29 L. R. A. 452, notes.

The cases in our own courts above referred to, which are relied on by complainant, are not authority for the recovery of a proportionate share of the advances made by Brown, as of a debt due to him, for so much money, but only for an equitable-partition of premises which have been improved .by one tenant in common.

And, if the complainant’s right of recovery is to be put upon the basis of a debt or claim for which Brown had the right of recovery at once, either at law or in equity, it is difficult to see why the claim is not barred by laches. The claim, on this basis, was due not later than July, 1872, while the bill in this, case was not.filed until September, 1893, and the debt, -not being due by contract under seal, was by analogy with the statute óf limitations and upon the ground of laches barred before Brown’s death. After this delay, and in the absence of any express contract, or of circumstances from which a contract for reimbursement can be implied, the complainants’ right to recover must be based on their equities as representing the deceased tenant in common, and succeeding to such rights, modified as they were by the agreement for sale. Independent of this agreement for sale,' the equity of the complainants was to have such equitable allowance made bn a sale of the property as would, out of the increased value of the property derived from Brown’s expenditures for improvements, reimburse him to the extent of his advances, in connection with Kean’s.' But the common property having been sold by agreement of the parties, without application to any court for partition or sale either in New York, where the property was located, or in New Jersey, the domicile of the owners, it has been rendered impracticable to adjust the equities on this basis. And in making the sale, under this agreement, the parties have treated the advances made by Brown, if recoverable at all, as the personal property of Brown’s estate, whereas, for all the expenditures which relate to the real estate, the heirs-at-law or the devisees of the tenant in common and not his executors as such, are the successors to the rights of the deceased tenant in common and entitled to the allowance for improvements on the real estate. So that, in the present case, the defendants and the complainants, by selling all the property as common property, owned as such by themselves and themselves only, have pursued a course which has made the usual course of inqury either impracticable or altogether unsatisfactory. It would be difficult, if not impossible, to ascertain now, by a reference, what increased value, at the time of the sale in 1887, existed in the property, both .real and personal, by reason of' the repairs and improvements made by Brown in 1871 and the years following up to 1880, and to ascertain further what proportion of this increase was due to the complainants, as succeeding to the personal estate of Brown. And, if the rights of the parties to this suit were to be settled purely on the basis of the rules of equitable allowance, for the increased value the fairest rule to be applied, on the evidence in this case, would be, as it seems to me, to treat the advances made by Brown and Kean as additions to the cost of the road, and to treat them as adding their proportion along with the original cost, to the value at the time of the sale.

This seems to have been the basis on which the statement of September 30th, 1879, was made up, the original cost and the additional expenditures each being put on the same basis as to interest. This would increase the proportion of Brown and Kean, in the proceeds of sale, over their original three-eighths, until the balances due for advances were repaid. But in view of the express provisions as to the disposition of the purchase-money, made by the agreement of sale, and of the radical changes which that agreement made in the equitable status of Brown’s estate, and especially of his personal representatives, I do not consider that I have the right to remit the complainants to what would have been their strict equitable rights, if a court of equity had ordered a sale. The complainants, as Brown’s executors, succeeded' certainly to his rights in- all the personal assets conveyed, including choses in action accounts &c., and by reason of Brown’s original ownership of all the personal property purchased by him, and which does not seem ever to have been conveyed to the other co-tenants, had, perhaps, exclusive ownership (at least in equity) of all the valuable personal property which replaced his original purchases. When, therefore, the defendants, desiring to convey the whole property, real, personal and choses in action, as one common • property, procured the complainants to join in the sale, and thus change altogether their existing equitable status, it was entirely competent for the parties to treat the property as a common property in its then existing state, without reference to the proportionate value to it by Brown’s repairs and improvements, and to provide, by their agreement, for another method of protecting Brown’s right to reimbursement for his advances.

In my judgment, and as I construe this agreement, the parties have made this change in the status existing at the time of the sale, and have, by this agreement and for the purposes of dividing the proceeds, agreed to treat the advances made by all of the co-tenants as debts to be first paid out of the proceeds of sale. ■

The advances made by Moore and Kean, after the death of Brown and before the agreement, were, so far as appears, of precisely the same nature as those made by Brown, and have no higher equity. These advances by Moore and Kean, equally with those made by Brown — when the latter were judicially determined — are treated, for the purposes of the agreement and division, as debts, the language of the agreement being, the trustee “shall pay to John Kean, James Moore and the executors of Edward G. Brown, the respective amounts found to be due to them as debts ” &c.

For the purposes of this division, the parties treated advances made by either tenant in common as a debt, and not merely as a claim for equitable .'allowance, based on benefits, actually conferred on the property. As the parties were competent to deal with‘the -proceeds on any basis they chose, a-court of equity should- carry- out the settlement on the basis of the advances provided for them in the agreement; especially in view of the fact that-the agreement and sale thereunder has-made.it impos•sible to adjust the rights of-the parties on their original equitable basis. In reference to this claim for reimbursement, therefore, •I conclude that the complainants and'Kean are to be first repaid ■out. of the funds remaining in the hands of the trustee, the balances due them respectively for their advances prior to Brown’s ■ death. This allowance, however, will be made only on the principal of the claims, with interest thereon from the time of filing •the bill. The agreement makes no express provision in regard to the interest, and the mere characterization of these advances as •“debts,” in the agreement for division of the proceeds of sale, will not so change their nature as to make them debts payable when the advances were made, and with interest from that time. The advances, as I have above said, cannot be treated as debts of this character, for then both principal and interest would be ■ barred by the Brown laches.

Complainants claim interest at -least from 1885,'the time when, as defendants’ answers admit, Brown notified them of ■ his advances, and -that he would ask payment out of the proceeds of sale, but the defendants also state that at the time of the notice they denied his right to reimbursement, and that Brown agreed they should be paid only after the original cost had been repaid. These admissions are not sufficient to charge them with interest from that date, nor, in view of the agreement of sale and its effects on the equitable rights of the parties, do I see any basis of allowing interest on any debt for advances •payable to complainants under this agreement until demand • made for it, under the agreement which,- in this case, was by ■ filing' the bill in this cause. ■

The second question in the cause relates to the right of the - complainants, finder the agreement of sale, to charge the. defend- : ant with certain ■ notes of A. W. Beasley & Co., onfi for $4,00.0 , and one for $8,000, and an allowance to them of $1,500 for ' commissions to the agent who effected the sale, the claim being ' that Moore received and allowed these in' violation of the agreement, which provided that cash should be paid and that the commissions were not payable until the whole purchase price was paid. Moore, in his answer alleges that the-notes were taken and the allowance of the $1,500 made with the consent óf the complainants, and it is claimed by his counsel, that the proofs establish that-the $4,000 note and the $1,500 allowance for commissions were made by the verbal authority of the complainant Ryder, one of the executors, and that the $8,000 note was taken by authority of Danforth, the other complainant • executor. ‘

[Here follows a statement of the facts in relation to these claims.]

In view of these facts and evidence, I think the. defendant Moore has sufficiently established, by the weight of evidénce, that the delivery of bonds for the $4,000 of notes instead of cash, was by the authority of Mr. Ryder.

But this authority, given by Ryder to Moore, as testified to by the latter, to make thé best bargain he could, was no authority to deliver any bonds without any payment, either in cash or in notes, by the Beasleys, under the agreement, or to deliver any bonds to the Beasleys by way of payment or allowance for the commissions of Thomas Moore, which were not due or to be paid until the whole $50,000 was paid.

Even admitting that Ryder, as one of the executors, had authority to bind the estate by authorizing such an allowance to be made, it should certainly appear satisfactorily that he specially authorized it to be made, and that he did so with as much knowledge of the relations between Thomas Moore and the Beasleys as the defendant James Moore could have communicated to him before making this allowance for unearned commissions. ' As to so many of the bonds, therefore, as were to be delivered to the Beasleys for this $1,500, the defendant must be held to account.

On April 20th, 1888, the defendant Moore made another delivery of ten bonds and thirty shares of stock to the Beasleys, this delivery being made without receiving any cash at all from them, but receiving their note at ninety days, for $8,000, they also agreeing to expend that amount in betterments and repairs on the road.

[Here follows statement of facts in reference to this delivery.]

I conclude, therefore, upon this second branch of the case, that it is sufficiently established that the defendant Moore, in violation of the complainants’ rights, under the agreement, delivered bonds and stock for the $1,500, on the second installment, and the $8,000 on the third installment, without receiving the cash therefor, and, as the notes are admitted to be valueless, is responsible to the complainants for the loss they have sustained from such violation, unless the further claim of the defendant that he was afterwards released from this liability is sustained. This question arises as follows: After the default of the Beasleys in their purchase, in 1888, the vendors retained the remaining stock and bonds along with the control of the road, which soon after became involved in litigations arising out of foreclosure of the mortgage and other claims, and a receiver or receivers of the road were appointed.

The sale of the bonds and stock of the Belt Line road still remaining in Moore’s hands for the common benefit was made in April, 1892, on the proposition of Mr. Ryder, contained in the following letter:

Elizabeth, N. X, April 1st, 1892.
“James Moore:
There is a remote prospect of getting $10,000 for the Bonds of the S. I. B. L. R. R. if we can all agree to it. Are you willing to accept that amt. ? It is that or nothing. If we accept it will end all further litigation. Please let me know right away and if you think favorably appoint a time and place to meet now.
S. B. Rydeb.”

Mr. Moore mailed a reply to this letter, of which reply a duplicate or copy was retained by him, and was put in evidence after a call for the original letter, which was not procured. Mr. Ryder, being afterwards examined, did not, however, deny the receipt of the letter.

The reply was as follows:
“ Elizabeth, N. J., April 1st, 1892.
“Seth B. Ryder:
Dear Sib — Yours of this date is rec’d informing me ‘ that there is a remote prospect of getting $10,000 for the Bonds of the S. I. B. L. B. B. if we can all agree to it ’ &c. In answer I say that I will agree to that or any other sum that the parties in interest will agree to. Provided however that I am forever thereafter relieved from any further Responsibility or Liability in any way relative to said Bail Boad or the securities thereof. I directed Mr. B. C. Swan of 115 B. Way, if. Y. to call upon you with English the other day to consult about the sale of the road, and informed him that I would agree to any arrangement that the Estate of Brown & Col. Kean would agree to.
“ If well enough I will call at your office on Monday next A. M.
“ Yours truly,
“James Moore.”

The bonds and stock were soon afterwards sold by the owners for $10,000 — $5,000 in cash and $5,000 in notes, with security— and delivered by Mr. Moore pursuant to this offer referred to. It is now claimed that this sale being made upon the condition specified in Mr. Moore’s letter, he is relieved from all previous liability as trustee or custodian under the agreement, and at the hearing, before the examination of Mr. Moore, an amendment was permitted to be made to his answer setting up this defence. At the time of the letter, it is shown that several litigations were pending against the Belt Line company, and that in some or one of them the organization of the railroad an<J the validity of the bonds held by the owners were attacked. This was undoubtedly the litigation referred to in Ryder’s letter, and reading Ryder’s letter in connection with Moore’s reply, I do not think that the provision in the latter that Moore was to be forever thereafter relieved from any further responsibility or liability in any way relative to said railroad or the securities thereof” can fairly be construed as eovéring or intended to reach to Moore’s liability as trustee or custodian under the agreement of September 1st, 1887, for previous violations of its provisions made while it was in force. If Moore intended it to be used for that purpose, this intention should have been specially called to his cestui que trust’s attention.

The court scrutinizes closely releases from a cestui que trust to a trustee, and the cestui que trust must have full, knowledge of the circumstances of the case. £ Perry Trusts § 851. This would include, I think, knowledge of the purpose for which the release was to be used in relation to the breach of trust.

No consideration appears for the release from any previous liability as trustee, because Moore says in the letter that he is willing to sell the bonds and stock for the $10,000 or any other* sum the other parties would agreed to, and if. a release had been actually intended to be executed by the complainants, on the terms of Moore’s letter, it is doubtful whether a court of equity would have required its execution by them, if intended to cover the previous default as trustee, which was not expressly called to the attention of the parties. And inasmuch as no release has actually been executed, and the whole defence upon this - point rests on the basis of equitable estoppel, the provision or condition in the .letter ’ should, in equity, be applied to the responsibilities and liabilities of Moore, which were evidently in the minds of both parties, and'should not be construed to protect him against liabilities for breach of duty as trustee under the agreement, as to which no litigation had then been commenced. I conclude, therefore, that the question of Moore’s. liability in this suit, based on the agreement, is unaffected by this correspondence or action under it. ■ • .

The defendant being, then, liable to make good to-complainants their loss by reason of the wrongful delivery of the bonds, the next question is as to the amount of the loss with which he is to be charged. This depends upon the value of the bonds at the time of their delivery, but what-this value-yas it is difficult to determine satisfactorily from the evidence. Prima facie, as it seems to me, the bonds must be, as against the defendant, who offers-no proof of their values, táken as worth the amount which the vendors would have realized for them under the agreement, i. e., $50,000, less $5,000 commission for the whole $100,000 in bonds, or at . the rate of forty-five per cent, of the par value. The Beasleys sold- some of the first and second installments of bonds at about ninety, but there, was no regular market value, arid .it would not be just to take these special sales,"the. circiun.stances of which'are not known, as the basis of. the loss which the complainants sustained by Moore’s improper delivery of the bonds to the Beasleys. Nor, on the other hand, can the salé of the remaining bonds and stock made by the parties four years later, and after the new company had failed and the road was in the hands of a receiver/ and while numerous litigations were in progress, be taken as a standard for proving the value in T888, when, the road, although not in good condition, was free, from debt. In .the absence of direct evidence as to valué, it seems to me that the sum fixed on near the time by all the parties as their value, may fairly be taken as prima facie the' basis -from which to establish the ¿mount of loss. It must be borne in mind, however, that it has been shown that at the time of the delivery of these bonds- the road was in bad repair, and that by reason of its condition the Beasleys found it difficult or impracticable to dispose of more bonds; that this need of expenditures for improvements was one reason given by them for their lack of funds to pay for the bonds, and that upon giving the notes for $4,000 and $8,000 they agreed to expend these amounts in improvements on the road, which seems to have been treáted by the vendors as under the control of the Beasleys for this purpose at least. These moneys are proved to have been expended by the Beasleys- upon the roád pursuant to their agreement, and therefore to the extent of this expenditure the vendors, as holders of the remaining bonds, and by reason of the delivery to the Beasleys, have been benefited along with the other bondholders by having the security still held bettered to that extent. This expenditure and benefit must therefore also be taken into account in estimating their loss by reason of the delivery of the bonds, and in'order to arrive at the allowance which should be made for this, I can see no more fair or equitable method than to treat this amount as really expended, or necessary to be expended, by the vendors upon the road in order to realize upon the remainder of their securities. Deducting, then, the $12,000 from the total sum of $45,000 which was to be realized, the bonds would stand as worth thirty-three per cent. This is the best estimate I can form on the evidence submitted. I omit all reference to the stock in estimating the values, for the reason that this being a road whose stock did not have any selling price in the market, it was in fact worth little or nothing unless the bonds were worth par.

The defendant Moore, on this basis, would be chargeable, in favor of the complainants, with bonds to the par value of $1,875, being the proportionate amount to which the $1,500 allowance was entitled on the second installment, and with bonds to the par value of $10,000 on the third installment. At thirtyrthree per cent, of their face value the charge would therefore be of $718.75 on the delivery of February 20th, 1887, and $3,300 on the delivery of April 20th, 1887.' This charge, however, in taking the accounts, is to be made only in favor of the complainants and not in favor of the defendant John Kean or his representatives. In his answer this defendant makes no claim that Moore’s action in the matter was without his authority or consent, and Moore, in his evidence, called as a witness for the defendants, states that he had absolute carte blanche authority from John Kean to deal with the Beasleys under the contract.

The accounting, therefore,.will be upon the basis that, in favor of the complainants, the defendant James Moore will be chargeable with three-eighths of the above amounts — $718.75 and $3,300 — and with so much more thereof as may be necessary to reimburse the trust fund sufficiently to pay to the complainants the amount which they are entitled to receive for the advances made by Brown in his lifetime and allowed them, with interest.

The accounts of the trustee John Kean, Jr., not being disputed in any respect, the final decree can be made on the evidence already in, unless either party applies for a reference to a master to state the account in conformity with this opinion.


text:
    The Delaware, Lackawanna and Western Railroad Company v. Henry W. Breckenridge et al.
    A court of equity is without jurisdiction of an action to enjoin a continued trespass on lands hy the maintenance across them of pipes laid under the surface, where the right to relief depends on the question of the complainant’s being the owner .of the legal title to the land, which has not been determined by a court of law, the trespass being one not involving irreparable injury, and one for which an action in ejectment afiords full and complete relief.
    On bill, answer, replication and proofs.

      Mr. J. Franhlin Fort, for the complainant.

      Mr. Joseph M. Foseberry, Mr. Henry S. Harris and Mr. Sherman (of the Pennsylvania bar), for the defendants.
   Emery, V. C.

This is a bill for a mandatory injunction and other equitable relief against the continuance of trespasses on lands alleged to be in complainant’s possession, as lessee of the Morris and Essex Railroad Company, and against the continued forcible occupation and forcible detention of these lands. The principal invasion of complainant’s rights, which is complained of, is the laying of pipes for the transportation of oil beneath the surface of an undergrade crossing, made by the Morris and Essex railroad in the original construction of its railroad across a farm in Warren county, then belonging to one Cornelius Stewart, and over which crossing the railroad continues to be operated by complainant under the lease. Stewart conveyed to the Morris and Essex Railroad Company a strip of land through this farm, by deed dated March 26th, 1864, the deed stipulating, among other things, for the erection of this undergrade crossing. Complainant claims that the Stewart deed conveys the exclusive title and right of possession to the soil under the roadway of the undergrade crossing, subject only to a right of way across the surface of this road. The defendant Breckenridge claims title to the roadway and the right to lay pipes under the surface of the soil, his claim of title being based upon conveyances of lots or parcels of the original Stewart farm on each side of the crossing, made by the grantees of Stewart’s title after his conveyance to the railroad company, and also upon conveyances subsequently made by the heirs or devisees of Stewart of the. title remaining in Stewart, to all of the lands described in his deed to the company after his conveyance to the railroad company.

The defendant Breckenridge claims that, by the true construction of complainant’s deed, the title to the soil under the surface of the roadway of the crossing did not pass to the railroad company, and further that, by his deeds, he has the title and right to possession of the roadway, which title he holds in trust for the defendant the United States Pipe Line Company.

Under this claim of title, the pipe line company, about. October 27th, 1895, laid two pipes under the roadway of the crossing, and, for the purpose of preventing the forcible removal of the pipes by the railroad company, themselves* occupied the whole of the undergrade crossing, enclosing it by fences and other obstructions reaching upon the embankments of the railroad, and retained possession of these structures by force. These structures were, as was agreed by counsel at the hearing, placed around the entrances to the undergrade crossing for the purpose of defence against the complainant in its attempts to remove the pipes, and not under any claim of right to put them there as a permanent structure, this intention being disclaimed in open court. On October 29th, 1895, a bill was filed in this court by Breckenridge to enjoin the complainant from removing the pipes which had been laid, and an application for a preliminary injunction was made before Vice-Chancellor Bird, who granted an ad interim stay: against the removal of the pipes pending the hearing. The application for preliminary injunction was denied after argument, upon ■ the ground that, by the true construction of the Stewart deed, the .title to the soil under' the roadway was in the railroad company, and the pipe line company was a trespasser.

Upon the injunction being refused, the complainant thereupon attempted to remove the pipes and structures, but the defendants resisted the attempt and by force retained possession of the whole crossing for that purpose. This bill was thereupon filed by the Delaware, Lackawánna and Western Railroad Company for the purpose of obtaining a declaration that the laying of the pipes for the purpose of transporting oil ’ through them and the erection of these structures is a continuing trespass on the lands of the complainant, and also to compel the removal of the pipes laid and to enjoin the future laying of the pipes or other trespass on the lands of complainant or the interference with its peaceable and exclusive possession.

Pending the hearing, a restraining order was granted on the application of complainant, and afterwards modified on application of the defendants, the effect being to retain the status quo and to allow the pipes and structures to remain pending the hearing. The structures erected by defendants at the crossing still remain, but since the restraining orders, the force of men has been withdrawn. Counsel upon both sides desire an adjudication upon the main question in dispute, viz., the right of the railroad company, under the deed from Stewart, to the exclusive possession of the soil under the roadway, against the subsequent grantees or devisees of Stewart, under whom defendants claim. On the facts now appearing, this is a pure question of the construction and legal effect of the deed to the railroad company. The defendants, in their answer, raise no objection to the jurisdiction of this court, and counsel on both sides, at final hearing, request the construction to be made in order that the rights of the parties may be put in course for a final determination on appeal, and they have fully argued the question of construction. But it is apparent that this question of title, as now presented, is a question of purely legal title, asserted upon one side and denied upon the other, and this being the aspect of the case, the preliminary question must necessarily be whether a court of equity has jurisdiction to determine this legal title.

Ballantine v. Town of Harrison, 10 Stew. Eq. 561 (Errors and Appeals, 1883), and Hart v. Leonard, 15 Stew. Eq. 416 (Errors and Appeals, 1886), are both cases where the jurisdiction was denied on appeal from decrees entered on final hearing, without (so far as appears by the reports) any objection taken in the court below to the jurisdiction, and these cases settle the rule that before deciding upon the question of legal title it must first appear that the court of equity has jurisdiction. This question must therefore be first examined. The first case, Ballantine v. Harrison, makes irreparable injury the test of equitable cognizance over cases involving the tortious taking and holding of real property, and it was said (Chief-Justice Beasley, p. 562) that “no ease could be found in our reports purporting to hold that the mere taking possession of lands and holding them vi et armis will form the basis for the arrest of the doing of such wrong by the arm of equity.” In Hart v. Leonard inadequacy of legal remedy is made a test, and it was declared that where the legal right of complainant, though formally disputed, is yet clear on facts which are not denied and legal rules which are well settled, a court of equity would have jurisdiction where the bill is filed to ascertain the extent of the right and to enforce or protect it in a manner not attainable by legal procedure. Complainant’s counsel insist that the construction of the deed and its legal effect in reference to the points now disputed are well settled by several adjudications of our courts, and rely upon several cases as establishing the jurisdiction of a court of equity to enjoin continuing trespasses in such cases. But none of these cases in which injunctions were issued reach to the present case.

In Morris and Essex Railroad Co. v. Hudson Tunnel Co., 10 C. E. Gr. 384 (1874), the ease principally relied on, Chancellor Runyon, in directing an injunction against occupation of complainant’s land, says (at p. 388) that if the complainants’ proprietary rights had been invaded, they were entitled to protection and that the trespass was of a continuous nature. But the decision was not placed upon the ground solely of such trespass to land, but upon the fact that the defendant, a railroad incorporated under the general law, was required first to make cbmpensation, and that this right to compensation before entry was one to be protected by injunction. The later cases in the court of errors and appeals, above cited — Battantine v. Town of Harrison, Hart v. Leonard — both put the right to protection by injunction in such cases on the protection of express constitutional or statutory right to compensation before entry, and on that alone.

In Carlisle v. Cooper, 6 C. E. Gr. 576, also cited by counsel, the legal right was established or admitted, and the object of the bill was to define the right and protect it by means unattainable at law. The sole claim to equitable jurisdiction in the present case, must, as it seems to me, under our decisions, be placed upon the inadequacy of the legal remedy. Now, so far as the removal of the pipes already laid is concerned, the remedy by ejectment accomplishes this precise object. The actual fixing of the pipes and their forcible detention in the soil by defendant, seems certainly to constitute such an actual possession of the soil occupied by them as to sustain an action of ejectment. The right of the owner of the soil of a highway, or other way subject to a right of surface passage, to bring ejectment, is settled in our state (Wright v. Carter, 3 Dutch, 76; Burnet v. Crane, 27 Vr. 285, 288), and in several cases, pipes of this character laid in the soil under grants of rights in the soil, are held to be real estate under the tax laws. Pipe Line Co. v. Berry, 23 Vr. 308; State v. Haig, Collector, 29 Vr. 295.

The only additional remedy now asked, therefore, would be the injunction against the laying of other pipes hereafter, either in the same or any other part of the roadway. If the defendants, after their right to lay the present pipes is determined against them by the proper court, should attempt or threaten to lay other pipes in other portions of the same roadway, on the assertion of the same rights, which had been adjudicated against them, a distinct ground of equitable jurisdiction for relief against the repeated assertion of unfounded claim would probably arise, but there is nothing in the present case which would justify the retention of the decision of the legal rights here, upon the ground that the defendants intend hereafter to assert any such claim. The mere laying of the pipes beneath the surface does not interfere with the complainant’s occupation and use of the lands conveyed, for the purposes of its railroad and the continuance of the pipes under the surface is manifestly not an irreparable injury to the property itself. The real injury to the complainant from the laying of the pipes, as set out in its bill, is the invasion ■of its proprietary right in the lands and the forcible detention •of the lands by the defendants for the purpose of transporting oil through the pipes, this transportation of the oil being in itself (if the complainant’s claim of title is well founded) a continuous trespass on complainant’s lands for the sake of profit. This right of transportation across its lands, complainant, as proprietor, and in the absence of any statute allowing the lands to be taken by condemnation, is entitled either to allow at its own price or to refuse altogether.

Some cases, notably Goodson v. Richardson, 9 L. R. Ch. 221, seem to protect mere proprietary rights by injunction, where the defendant sets up no fair claim of right whatever, and where it is doubtful whether ejectment could be brought. But this case, if it can be relied on as to extending to proprietary rights in general the protection by injunction, was criticised in Ballantine v. Harrison, 10 Stew. Eq. 563, as not in harmony with the current of authorities. In Goodson v. Richardson all of the judges seemed to be of the opinion that the'only clear legal remedy of the complainant was an action of trespass, and that there was no clear right to ejectment, and the general doctrine of the English courts is that the remedy by injunction cannot be used simply to accomplish the object of an ejectment. Deere v. Guest, 1 Myl. & C.516 (13 Eng. Ch., 1836). Sir George Jessel, in Cooper v. Crabtree, 20 Ch. Div. 589, 592, distinguishes between an enormous injury to the property of the complainant and an actual damage done by the trespass. The injury to the property in these cases of infringement of proprietary rights consists, he says, in the landowner being deprived of the large sums which he would be entitled to claim for the privilege of crossing, and he refers to cases where injunctions were granted. But all •of these cases, except, perhaps, Goodson v. Richardson, were cases in which ejectment did not lie, and other circumstances were sufficient to give a court of equity jurisdiction. Except in those instances where the proprietary right is expressly protected by constitutional or statutory provision against seizure without compensation, our courts have not yet recognized the mere proprietary right in real estate as entitled to be protected by injunction, in the absence of facts showing the inadequacy of legal remedies. The equitable remedy in this case, so far as relates to the removal of the pipes now laid, could give no different relief from the execution in ejectment, and this legal remedy would go beyond the equitable remedy, inasmuch as a recovery in ejectment carries with it the right to recover damages for mesne profits, which may, perhaps, extend beyond the mere value of the land and may compensate complainant for the injury to his proprietary right. Sedgw. Dam. (5th ed.) 133, 134.

I conclude, therefore, on the authority of the two decisions above cited, that, as the case now stands, I have no right to adjudicate upon the main question in dispute, viz., the legal title of the parties to the soil under the roadway, but that the same must first be settled at law So far as relates to the claim in complainant’s bill, that the defendants, by their structures on the crossing, and otherwise, have interfered with the care and necessary protection of the embankments, culvert and drains, I think the complainant is entitled, pending the settlement of its legal right in the roadway, to be protected by injunction against any interference with its access to and passage over the crossing, for the operation of its railroad and the protection and care of the roadbed, with its appurtenances. "Whatever may be the ultimate decision as to the rights to the soil, the complainant has the undoubted right to such access to and over the crossing without interference, and the proofs show that a case has arisen for the interposition of a court of equity in the control of the crossing to this extent pending the litigation. This aid will, however, be granted to the complainant only upon the equitable terms that such access and passage are not to be used for' the purpose of removing the pipes, and the further condition that the complainant shall, without delay, bring its action at law to determine its legal rights.

There is another reason in this case for directing the title to the roadway to be settled at law. The right of a court of equity to interfere by injunction for the protection of legal title does not generally exist unless the legal title has been settled, either by admission of the parties or by suit at law, or the legal rules on which it depends are so well settled as not to require further adjudication at law. At the argument of the cause, I was inclined to agree with the complainant’s contention that Vice-Chancellor Bird’s opinion and the cases referred to by him in denying the preliminary injunction in the Breckenridge suit had settled the construction and operation of complainant’s deed, in accordance with the claim of complainant. State v. Brown, 3 Dutch. 13, decides that a conveyance of lands in fee to a canal company to have and to hold “ as long as used for a canal,” conveys a qualified fee, under which, so long as the estate continues, the grantee has the same rights and privileges as if it were a fee-simple absolute, and that, during its continuance, the grantor had no reserved rights in the land upon which he could claim to be riparian owner of them. In Fitzgerald v. Faunce, 17 Vr. 536 (Errors and Appeals, 1884), it was held that the conveyance of the right &c. for the purposes of fishing, and for no other purpose, of a tract of land, conveyed the exclusive use of the lands for this purpose, and would prevent the grantor being considered the riparian owner of the lands. Where lands are taken by condemnation, however, the company is entitled only to an easement in the lands condemned, for the purposes of its charter, and the condemnation leaves the fee in the owner of the land, with right to make such use of it as will not prevent the company from having the full enjoyment of the easement. New Jersey Zinc and Iron Co. v. Morris Canal and Banking Co., 17 Stew. Eq. 398 (Van Fleet, V. C., 1888); affirmed on appeal, 2 Dick. Ch. Rep. 598.

And it seemed to me that the English cases mainly relied on by defendants’ counsel (United Land Co. v. Great Eastern, 17 Eng. Railw. Cas. 164; S. C., 10 Ch. App. Cas. 586) differed radically from the present case in several particulars, one of them being that they were cases where the title of the railroad company, although consummated by deed, was considered as taken directly under the act of parliament only, and held, therefore, under rights strictly analogous to the title taken by condemnation under our statutes. But, upon consideration of the case, I find a decision in our own courts not referred to by counsel on either side, or called to the attention of Vice-Chancellor Bird, which seems to raise a question whether complainant’s title, under the language of this deed, conveys any greater right, in respect to the lands at this crossing, than it would have acquired by condemnation. This arises from the fact that in the deed from Stewart to the railroad company, in this case, the habendum limits, or purports to limit, the estate in fee, which was granted, by the granting words of the deed, “ to the uses and purposes of the charter,” and the question arises, what effect, if any, this limitation in the habendum has upon the estate in fee previously limited in the granting part of the deed.

In Green v. Morris and Essex Railroad Co., 1 Beas. 165 (Chancery, 1858), one Green conveyed to the Morris and Essex Railroad Company, their successors and assigns forever, the right to take possession of, hold, have, use, occupy and excavate a certain tract of land, with liberty to erect embankments &c., and to do all other things which shall be suitable for the completion or repair of said road,

to have and to hold the said tract of land and premises unto the said The M. & B. B. B. Co., and to its successors and assigns forever, for the purposes above mentioned and for all the other purposes mentioned in the said act of incorporation and the several supplements thereto.”

This is the language in the habendum of complainant’s deed. Chancellor Williamson was of opinion (see 1 Reas. 172, 178) that the language in the deed being the same as the language of the sixth section of the act, which defined the rights the company would acquire by assessment, the deed confined the company to the same use of the land as the act confined them to under the assessment. And the fact that the seventh section of the charter, providing that upon payment of the compensation fixed by assessment the corporation shall be deemed to be seized and possessed in fee of the lands, was not referred to as affecting the rights under the sixth section. The learned chancellor held that the deed did not relieve the company from the obligation imposed by their charter to provide a suitable farm crossing. On appeal, Mr. Justice Brown, delivering the opinion of the court (Morris and Essex Railroad Co. v. Green, 2 McCart. 469), says (at p. 475) that it may fairly be questioned whether, upon a fair construction of the deed, it did release the company from the charter obligation to construct the roadway, but that decision of this point was not necessary and would be reserved. Mr. Justice Depue, in Perry v. Pennsylvania Railroad Co., 26 Vr. 178 [Supreme Court, 1893), commenting on the above decision of Chancellor Williamson on the construction of the deed, recognizes the language of the deed as different from the language of usual conveyances of land, and does not refer to the decision in the Green Case as overruled by the subsequent decisions. In the Green Case the question involved was, it is true, the continued existence of charter obligations as to crossings, notwithstanding the deed had been given, and the case may for other reasons not be applicable to the decision of the present question, but it may be fairly questioned whether the ratio decidendi of the case, as stated by Chancellor Williamson, does not reach the present case, and whether it has been overruled by the later decisions relied on by the complainant. The case leaves the title as one which should be settled definitely at law, and for this additional reason the bill should be retained, as suggested in Hagerty v. Lee, 18 Stew. Eg. 256, until after suit at law. The form of the order will be settled on notice,, and the addition of the Morris and Essex Railroad Company as complainant may then be formally made as stipulated by counsel, if desired.


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    Frank C. Edwards et al. v. Norman McClave et al.
    1. Under act of March 7th, 1797 (Bev. p. 476), providing that any creditor may maintain an action against the heirs of a deceased debtor on a simple contract or specialty, the liability of the heirs on a note executed by decedent is purely legal and cannot be enforced by a bill in equity.
    2. On a bill in equity, brought against the administrator and the heirs-at-law, for the sole benefit of a single creditor of the estate, whose claim has not been admitted by the administrator nor established against him by judgment or decree, the court has no power to render a decree against the heirs, charging the debt on the lands or directing the sale thereof for its payment.
    3. A note executed by H. for the accommodation of E., to whose order it was made payable, was delivered by the latter, after the death of H., but before maturity, to complainant, who had no. notice of its accommodation character. By mistake the note was not endorsed, but E. executed a writing certifying that said note endorsed by him was deposited as collateral security for a loan, and authorizing the holder to negotiate it if the loan was not paid. On default in such payment, complainant, without having obtained judgment at law against the administrator, who had rejected the claim, filed a bill in equity against him and E. to compel the endorsement of the note and to charge its payment on decedent’s lands, the heirs-at-law being also parties defendant, but the bill alleged that E. was a non-resident and that it was impossible to serve him with process. — Held, that as a decree for specific performance of E.’s contract to endorse could not be decreed for want of jurisdiction over his person, no decree could be rendered against the administrator.
    4. "Where it appears on the face of a bill that defendants were non-residents at the time suit was commenced, and that the action does not relate to any of the subjects in respect of which the court is warranted in exercising jurisdiction over non-residents, a demurrer for want of equity will be allowed.
    On bill and demurrer.

      Mr. Howard W. Hayes, for the complainants.

      Mr. Edwin B. Williamson, for the demurrants.
   Emery, V. C.

The bill in this case is filed by two complainants, Frank C. Edwards and Charles Biermau, against the administrator and the infant heirs-at-law of Hannah McClave, deceased, and also against one E. Wilkes McClave. Separate demurrers have been filed by the administrator and on behalf of the infant heirs-at-law, the special causes assigned being remedy at law, misjoinder of complainants and multifariousness. The demurrer of the administrator sets up in addition that no relief is prayed against the administrator. At the hearing the want of equity was also relied on, on behalf 'of all demurrants. The complainants, as appears by the bill, are the holders of, or interested in, a certain promissory note for $648, dated September 3d, 1891, at four months, signed by Hannah McClave, deceased, in her lifetime, for the accommodation of the defendant E. Wilkes McClave, the payee of the note. This note was delivered to the complainants or, one of them by E. Wilkes,.McClave, after the death of Hannah McClave, who died on .September 23d, 1891, but before the maturity of the note, and .was delivered by E. Wilkes McClave as collateral security for the payment of a loan then made by complainants to him upon four of his own notes, aggregating $350. Upon obtaining the loan and delivering the note by Hannah McClave, the defendant E. Wilkes McClave failed to endorse this note, which was payable to his order, but executed and delivered to the complainant Edwards a writing set out in the bill certifying .that the note of Hannah McClave, deceased, endorsed by him, was deposited with 'Edwards as collateral security for his (E. Wilkes McClave) own notes, and authorizing Edwards, on his failure to pay these, to collect, sue for, sell, transfer or in any way negotiate or collect the Hannah McClave note for any price he might obtain for the same, rendering the overplus to him. The bill alleges that it was the intention of E. Wilkes McClave and of the complainants that the note should be endorsed by E. Wilkes McClave, but that this was neglected by mistake.

Hannah McClave died intestate on September 21st, 1891, and E. Wilkes McClave was appointed administrator of her estate, but was subsequently removed and the defendant John McClave appointed in his place. The notes of Edward Wilkes McClave were not paid at maturity, and, as the bill alleges, the complainant Edwards presented due proof of the Hannah McClave note to John McClave as her administrator, but he refused to pay the same or any part thereof. On August 16th, 1892, the complainant Edwards began a suit by attachment upon the note against the heirs of Hannah McClave, who were then nonresidents. The defendant heirs appeared in this suit, filed pleas and gave specifications of defences, one of which was that the note of Hannah McClave was without consideration. The testimony of E. Wilkes McClave, taken out of the state by commission, disclosed that the note was given for his accommodation, and this was the first information to the complainants that the note was not given for value. The complainant brought the suit to trial, relying on his title to the note by assignment, and judgment was rendered in favor of the infant heirs. No suit at law appears to have been brought against the administrator of Hannah McClave upon the note. This bill is filed against the heirs for the purpose of charging the lands described in the bill, which have descended to the heirs-at-law, with the payment of. the note, and prays that the lands of the deceased may be sold for the payment of the note. No special relief is prayed against the administrator, neither is any statement made in the bill as to the personal estate of the deceased, nor has any suit at law been commenced against the administrator to recover upon the note. A decree that E. Wilkes McClave may endorse the note is asked for, but the bill alleges that he is a non-resident and that it is impossible to serve him with process or compel his endorsement. So far as the heirs are concerned, the claim of the complainants must therefore be treated, I think, as substantially a claim against the heirs-at-law of the deceased maker of the note, to subject the lands inherited to sale by suit in equity for an alleged obligation or debt of their ancestor. The complainant’s equity for relief upon the note as against E. Wilkes McClave, the payee, is based upon his agreement to endorse the note, made upon good and valuable consideration and without notice that it was accommodation paper. Had such notice been given, the delivery of the note, after the death of the accommodation maker, would seem to have been invalid. 1 Am. & Eng. Enoycl. L. (2d ed.) 341 and notes and 5. To this agreement for endorsement made between the complainants and the payee Hannah McClave, the maker, was no party, and although E. Wilkes McClave could certainly be compelled to endorse the note in order that the complainants might sue the maker at law, it does not seem to be entirely clear that in such case a bill in equity would lie against the maker, if living, in connection with the payee, to compel payment of the note by final decree in equity in the suit brought to compel the endorsement. A bill in such a case, where the maker and payee were joined, was sustained on demurrer by Vice-Chancellor Van Fleet, in Nelson v. Hughes, 2 Stew. Eq. 547, but in that case the complainant was held to have no legal title whatever, and the question argued and decided was the effect of the judgment at law as preventing any relief. The case did not proceed to final decree, nor was the form of relief to be finally granted considered. The cases cited by the learned vice-chancellor upon the right of a court of equity to compel endorsement by the payee, are all cases where the application was made against the assignees in bankruptcy of the payee without joining the maker, and the only order directed was that the endorsement be made. The parties seem to have been then left to pursue their remedy upon the endorsed paper. Ex parte Greening, 13 Ves. 206 ; Ex parte Mowbray, 1 Jac. & W. 428; Ex parte Rhodes, 3 Mont. & A. 217.

In Watkins v. Maule, 2 Jac. & W. 243, the endorsement, which had been omitted to be made by the payee of an accommodation note, was made, after his death and after the maturity of the note, by his administrator, and the question in the case (which arose on a creditor’s bill for the administration of the maker’s estate) was whether the endorsement after maturity related back to the time the note was taken. The master of the rolls (Sir Thomas Plumer) held that it did so relate back, but this is a point upon which demurrants’ counsel claims that other learned judges have taken different views. The contract of the maker upon the note was, in its inception, a purely legal contract on his part, and having no connection with the contract relating to endorsement made between the payee and the transferee, it would seem logical that the maker’s only liability for the payment of the note was a legal liability to be decided upon in a court of law after a court of equity had compelled the endorsement on the bill by the payee or transferer according to his agreement. Otherwise the maker would be obliged to set up in the equity suit any defence to the note and would be deprived of his right to a trial by jury in a suit upon the note. But without turning the case upon this point, and taking Nelson v. Hughes to be an authority for proceeding to final decree for payment of the note against the maker in the suit in equity to compel the endorsement, the case does, not reach the main point now involved, which is whether the obligation of the deceased ancestor on the note can be enforced by a bill in equity against his heirs-at-law, either as a personal debt or as a charge on the lands descended.’ And I am of opinion that no such liability, either by personal decree or by charge on their lands, can be enforced against the heirs on this bill. The reason is that the obligation of the heirs for the payment of the ancestor’s debts of this character is a purely statutory liability, arising under the act of March 7th, 1797 (Rev. p. 476), and it has always been held that under this statute the liability of heirs is purely legal and enforceable only by action at law. Meeker v. New Jersey Insurance Co., 8 Vr. 282, 299; Mutual Insurance Co. v. Hopper, 16 Stew. Eq. 387; affirmed, 17 Stew. Eq. 604.

In Holley v. Weedon, 1 Vern. 400 (1686), an action at law was brought against the heir-at-law upon a bond of the ancestor. The heir put in a false plea, and afte*' verdict in the plaintiff’s favor, but before the time for entering judgment on it, the defendant died, having devised the lands descended. On a bill against the devisee to be paid the debt, Lord-Chancellor King said: “ Dismiss the bill; there is no color of equity in the case unless you’ll have it that the heir died maliciously before day in banc on purpose to defeat plaintiff in his debt.”

Nor can there, on this bill, be any decree that the lands descended to the heirs are chargeable with the amount of the note as debts of the deceased ancestor. This is not a creditor’s bill for the general administration of a decedent’s estate, and bringing all the estate of deceased, both real and personal, into the court for administration, but a bill by one creditor to establish an alleged obligation against decedent’s estate, upon the establishment of which he asks that a decree may be made for its payment out of the real estate of the deceased. There are no allegations in the bill in reference to the personal estate, which is the primary fund for payment of obligations of this character, and even on the supposition that there was no personal estate whatever, the claim, as it seems to me, not being admitted by the administrator, must first be regularly established by judgment or decree against him before the lands which have descended to the heirs can be sold by the court. If established against him, by judgment dr decree, and the personal estate is insufficient to pay the demand, the creditor would then be in a position to apply to enforce the payment of the debt by sale of the lands under the Orphans Court act, on which application the heirs are entitled to be heard. But it would seem to be beyond the power of a court of equity, as against the heirs-at-law, to enforce against them a sale of lands by decree in this suit, brought for the sole benefit of a single creditor whose claim is not admitted by the administrators and who has not established his claim by judgment or decree against him.

Haston v. Castner, & Stew. Eq. 697 (Errors and Appeals, 1879), decides that a creditor whose claim has been presented to the administrator, and its validity admitted by him, may, without obtaining judgment, file a bill in behalf of himself and other creditors to set aside conveyances of land made by the deceased in fraud of his creditors. The estate in this case had, however, been settled as an insolvent estate before the filing of the bill, so that the jurisdiction of the orphans court was at an end. And in the later case (Mayor &c. of Rutherford v. Alyea, 34 Atl. Rep. 1078 (Erors and Appeals, June, 1896), the court decided that, on a bill by a creditor for his sole benefit, the court of equity will not, except for special cause, interfere with the jurisdiction of the orphans court for the settlement of accounts of executors and administrators. This settlement in the orphans court includes the application of real estate of the deceased for the payment of his debts, which application may, if necessary, be made by the creditor after establishing his claim by judgment against the executor or administrator. Rev. p. 769 § 79, tit. “Orphans Court.” In the absence, therefore, of any facts alleged in the bill showing the equity of complainants to require a general settlement of the estate in this court, and a sale by the court of the lands of the deceased, including complainant’s claim, if it be eventually established, I conclude that no decree can be granted against the heirs-at-law on this bill charging the debt on the lands or directing the sale thereof for the purpose of payment. I do not consider the effect of the judgment at law in favor of the heirs-at-law, as this question may arise on any application for sale of the lands to pay complainant’s debt if it should be hereafter established against the administrator, and the consideration of the question is not necessary for the decision of this case.

So far, therefore, as the present bill seeks to charge the heirs-at-law personally, or the lands descended to them, with the payment of the note, it is without equity and must be dismissed. As against the administrator, my view is that if the complainants on the present bill could obtain a decree against E. Wilkes McClave for the endorsement of the note, then on the authority of Nelson v. Hughes, supra, the administrator might perhaps be a proper if not a necessary party to the suit, as the personal representative of the deceased maker, who is interested in determining the validity of the claims against the estate. The claim of the bill is that if the endorsement is made by decree of the court, the complainant is entitled to stand equitably in the same situation as if the endorsement was made at the time of the transfer, and the personal representative of the maker of the note may, therefore, perhaps properly be a party to a suit to compel the payee to endorse the note, but unless the final result of the suit is a decree for endorsement by the payee, the maker’s representative is under no equitable obligation upon the note.

If the court cannot decree specific performance of the contract to endorse, it cannot, as it seems to me, decree a liability against the maker, as if the note were endorsed. If this view be correct, the complainant’s bill must fail as against the administrator, for the reason that it discloses that no such decree can be rendered against E. Wilkes McCiave, the payee, because he is not within the jurisdiction of the court, and the bill states that he cannot be brought within its jurisdiction, and the decree for payment without endorsement is prayed. A decree for endorsement of the note made against the payee upon publication and without obtaining jurisdiction over his person, would be without due process of law under the fourteenth amendment to the federal constitution as construed in Pennoyer v. Neff, 95 U. S. 714.

It appearing, therefore, by the bill itself, that the contract which lies at the basis of the whole proceeding, viz., 'the personal contract of E. Wilkes McCiave to endorse the note, cannot be enforced by reason of the want of jurisdiction over his person, I am of opinion that no decree against the administrator can be made upon the bill, even if it had been prayed for, and as to him also the bill must be dismissed. Where it appears on the face of the bill that the defendants were, at the time of the institution of the suit, resident in a foreign country, and that the suit does not relate to any of the subjects in respect of which the court is warranted in exercising jurisdiction against persons so resident, a demurrer for want of equity will be allowed. 1 Dan. Ch. Pr. (6th Am. ed.) *550.

An order will be advised sustaining the demurrer, with costs.