author: Reed, J.

text:
    Anna R. McGrath, respondent, v. William F. Norcross, appellant.
    [Argued June 25th, 1906.
    Decided March 4th, 1907.]
    The act of 1901 (P. L. 1901 p. 58) provides that whenever any lands shall not, by reason of their extent or their being wild or unimproved, be in the actual peaceable possession of the owner or person claiming to own the same, such owner or person claiming the same in fee under a recorded instrument, who shall have been assessed and paid taxes upon such land for five consecutive previous years, shall be presumed to be in peaceable possession of such land, provided no other person be in possession; and it shall be lawful for such person so presumed to be in possession to bring suit in chancery to settle the title to the land.—Held, that this act is constitutional.
    On appeal from a decree of the court of chancery, advised by Yice-Chaneellor Grey, whose opinion is reported in 70 N. J. Fq. (4 Robb.) 864-

      Mr. Thomas E. French, for the appellant.

      Mr. Gilbert Collms, for the respondent.
   The opinion of the court was delivered by

Reed, J.

The bill is filed to quiet title under the amended statute authorizing suits in equity to compel the determination of claims to real estate in certain cases and to quiet the title to same.

This act passed in 190] (P. L. 1901 ¶. 58) is an amendment to the original act (P. L. 1870 ¶. 20). The original act provided substantially that when any person is in peaceable possession of lands in this state claiming to own the same, and his title thereto or any part thereof is denied or disputed, and no suit shall be pending to enforce the validity of any such title, claim or encumbrance, it shall be lawful for such person so in possession to bring and maintain a suit in chancery to settle the title of said lands and to clear up all doubts and disputes concerning the same.

The amended act of 1901, after re-enacting the portion of the original act before set out, proceeds:

“And- whenever any lands within the state shall not, by reason of their extent, or by reason of such lands being wild or wood' or waste or uninclosed or unimproved lands, be in the actual peaceable possession of the owner or person claiming to own the same, the owner or person claiming to own the same in fee under a deed or1 other instrument, duly recorded within this state, who shall have paid the taxes upon such lands, and to whom or to whose grantors the taxes upon such lands shall have been assessed for five consecutive years immediately prior to the commencement of suit, shall be presumed to be in peaceable possession of such lands within the meaning of this act; provided, no other person be in possession thereof, and it shall be lawful for such person so presumed to be in possession to bring and maintain a suit in chancery to settle the title of said lands and to clear up all doubts and disputes concerning the same,' and such person so presumed to be in possession shall be entitled to all the benefits of and subject to all the provisions of this act.”

The bill of the complainant sets out the jurisdictional facts required by the amended statute. An answer was interposed denying the existence of those facts. Evidence was taken before the vice-chancellor upon the question whether the complainant was entitled to prosecute her suit. A decree was signed adjudging that the complainant was so entitled.

The vice-chancellor, in his opinion, discussed the testimony in respect to the question whether the complainant was in actual peaceable possession of the land in dispute, and if not, Whether it was by reason of the extent and character of the lands; whether she claimed to own them in fee under a recorded instrument; whether she had paid taxes upon them for five consecutive years immediately prior to the commencement of the suit, and lastly, whether the defendant was in possession of the lands in question. These questions were all resolved in favor of the complainant. From the decree thereupon signed this appeal was taken.

In the briefs of the counsel the unconstitutionality of the amended act is suggested rather than argued. In the recent case of Brady v. Carteret Realty Co., 70 N. J. Eq. (4. Robb.) 748, we had occasion to consider the constitutionality of the provisions of the original act. That act, as will be observed, conferred upon the person in peaceable possession of lands and claiming to own them, the ability to institute a suit in the court of chancery against any person who claimed to own the lands, for the purpose of settling the title to the same. The validity of that act was vindicated upon the ground that it only extended the operation of a well-settled equity maxim that where there was none, or an inadequate legal remedy, equity would afford relief. The decision went upon the ground that the courts of common law had never entertained actions by a person in possession of land for the purpose of bringing the title to the land to a legal test against a person out of possession, and that the statutory proceeding was merely an extension of the doctrine of quia timet.

It was also held in that case that the proceeding, being an equitable remedy, the complainant was not entitled to a trial by jury in an action at law, but only to a trial by jury upon an issue framed in the court of chancery or to a jury trial in an action at law at the discretion of the chancellor.

In. the above statute the right to institute an equitable suit was conferred only upon the person in peaceable possession. The amended act enlarges the class of persons who can institute such a suit. It extends the right by creating a constructive peaceable possession, so that not only those who are in possession actually, but those who are not in peaceable possession, actually maj1 be presumptively in peaceable possession within the meaning of the act. It is not perceived, however, that this enlargement of the class of persons who may bring suit changes in any degree the complexion of the constitutional question.

Says Mr. Pomeroy (Eq. Jur. 1396) : “In extending equity jurisdiction to quiet titles, the states adopting such statutes may be separated into two classes: the first class requiring the plaintiff to be in possession, and the second allowing the action to be brought by a plaintiff either in or out of possession.” Our original act placed this state within the first class. The amended act extends the remedy partly within the second class. The latter act does not confer upon all persons out of possession the right to employ the statutory suit, but only upon some persons; but that the class mentioned are out of possession seems manifest, notwithstanding the statutory phraseology by which the right to sue is conferred. Although the statute speaks of persons within the class as having a presumptive peaceable possession of the lands in dispute, yet it is quite clear that presumptive possession, in its quality and in its purposes, is quite distinct from possession which the law has always recognized. It is obviously entirely different from that possession which, existing in a third person by the provisions of the statute, itself defeats a suit.

Indeed, the purpose of the act was not to declare that a person within the mentioned class had any actual possession at all. Its purpose was merely to confer upon the class a right to sue similar to that already possessed by one in peaceable possession. The statute might have provided that the owner or person claiming to own lands under the prescribed conditions, might bring a suit .in chancery to settle the title1 to said lands and then set out the course of proceeding as in the'original act or by reference thereto. Such a statute would have amounted in substance to the legislation as it now exists. Instead of this, however, the legislature merely put, by presumption, any one of the class in the same posture as one who had the right to sue under the original act, and thus by reference conferred upon him all the rights to sue, coupled with its incidents. The reference in the statute to one in peaceable possession was to furnish a measure of the right conferred upon the new class.

But whatever may be the view taken of the legislation under review, I am unable to perceive in what way it can be said to be in conflict with the constitution. Whether the plaintiff is in possession or out of possession, the situation in respect to- the question of encroachment upon the jurisdiction of the courts of law remains the same. The defect in the common law system of procedure did not consist in the position of the plaintiff— whether he was in possession or whether he was out of possession. The inadequacy of the legal remedy arose from the fact that the defendant was out of possession. The plaintiff could bring no action of ejectment against anyone claiming an interest in the land unless that claimant was in possession. Nor is the ability of the legislature to thus extend the jurisdiction of the court of chancery affected by the fact that the field covered by the common law action of ejectment was enlarged by the Ejectment act of 1855. Under the fourth section of that statute an action at law would now lie against Norcross at the suit of Mrs. McGrath. The constitutional objection to the present legislation, however, is confined to the proposition that the amended act to quiet title infringes upon the exclusive jurisdiction of tire couids of common law. as such jurisdiction existed in 1844 at the date of the adoption of our present constitution. At that date the courts of common law would not entertain such an action, and therefore the present statute strips them of no prerogative which they then possessed.

The situation seems to be precisely similar to that which engaged the attention of the court in Brady v. Carteret Realty Co., supra, so far as respects the adequacy of any legal remedy at common law, and the validity of the statute. The amended act is held therefore not to infringe the provisions of the constitution.

The questions of fact passed upon by the learned vice-chancellor were considered by him with characteristic carefulness, and the conclusions stated by him respecting their significance and force are approved.

The decree below should be affirmed.

For affirmance—Ti-ie Chief-Justice, Garrison, Fort, Garretson, Hendrickson, Pitney, Swayze, Reed, Trenoitard, Bogert, Vredenburgil, Vroom, Green, Gray, Dill—15.

For reversal—None.


source: Caselaw Access Project

author: Per Curiam.

license: Public Domain

text:
    Arthur L. Andrews v. Guayaquil and Quito Railway Company et al.
    [Argued June 22d, 1906.
    Decided June 25th, 1906.]
    On appeal of Robert C. Pruyn from an order of the court of chancery, advised by Vice-Chancellor Stevens, whose opinion is reported in i&9 N. J. Fq. (3 Robb.) 211.

      Mr. Fdivin B. Williamson, for the appellant.

      Mr. Charles L. Corbin, for the respondents.
   Per Curiam.

The order appealed from is affirmed, for the reasons stated in the opinion delivered in the court of chancery by Vice-Chancellor Stevens.

For affirmance—'The Chief-Justice, Garrison, Garretson, Hendrickson, Pitney, Swayze, Eeed, Trenohard, Bogert, Vredenburgh, Vroom, Green, Gray—13!

For reversal—None.


author: Per Curiam:.

text:
    William F. Barclay, respondent, v. Charles Roome Parmele Company, appellant.
    [Argued June 26th, 1906.
    Decided January 2d, 1907.]
    On appeal from a decree of the court of chancery, advised by Vice-Chancellor Emery, whose opinion is reported in 70 N. J. Fq. (J/. Robb.) @18.

    iliessrs. Guild, hum & Tamblyn and Mr. Arthur A. Mickell (of the New York bar), for the appellant.

      Messrs. Goult, Howell & Sm,iih and Mr. Henry W. Goodrich, for the respondent.
   Per Curiam:.

The decree of the court of chancery is affirmed, for the reasons given by Vice-Chancellor Emery in the court below.

For affirmance—Garrison, Fort, Garretson, Hendrickson, Pitney, Swayze, Eeed, Trenohard, Bogert, Vredenburgh, Vroom, Green, Gray, Dill—14.

For reversal—None.


text:
    Seven Mile Beach Company, respondent, v. Charles S. Dolley et al., appellants.
    [Argued. June 29th, 1906.
    Decided March 4th, 1907.]
    On cross-appeal by defendants from a decree of tbe conrt of chancery, advised by Vice-Chancellor Bergen, whose opinion is reported ante p. 7S6.

      Mr. Norman Grey, for the appellants.

      Mr. Lewis Stcurr and Mr. Clarence L. Cole, for the respondent.
   Per Curiam.

So mnch of the decree in this canse as is brought np for review by the appeal taken by the defendants below is affirmed, for the reasons stated in the opinion filed by Vice-Chancellor Bergen in the conrt below.

For affirmance—The Chiee-Justice, Garrison, Fort, Hendrickson, Pitney, Swayze, Reed, Trenohard, Bogert, Vre-DENBURGH, VrOOM, GREEN, GRAY, DlLL—14.

For reversal—None.


text:
    Chelsea Land and Improvement Company, appellant, v. Charles R. Adams, respondent.
    [Argued July 2d, 1906.
    Decided February 2d, 1907.]
    Complainant and his predecessor owned certain city property subject to a restriction that no building should be constructed nearer than twenty feet from the street line. This restriction was incorporated in the deeds of over one hundred and fifty purchasers; but, though ninety-nine or one hundred had violated the restriction, no steps had been taken to enforce the same, except in one case, in which a bill was filed in 1898, which was permitted to rest without trial until 1905, when suit was brought to enforce the restriction against defendant.—Eeli, that such facts were sufficient to show an abandonment of the original plan with reference to restrictions, and estopped complainant from enforcing the same against defendant.
    On appeal from a decree in the court of chancery, advised by Vice-Chancellor Bergen, who filed the following opinion:
    I will dispose of this case now. It appears that the Chelsea Beach Company purchased a large tract of land near Atlantic City for the purposes of development, and caused it to be surveyed and divided into streets, avenues, lots and blocks, and then began the sale of the property under certain restrictions. The important restriction to be considered here is that, in building on these lots, no building should be placed nearer the street in front than twenty feet, or nearer the side line of the lots than five feet. This court has, in an opinion by Vice-Chancellor Reed, which has been read here, although it does not appear to have been reported, determined that the restriction as to twenty feet applied to the sides of a corner lot, as well as the front, so that a building on the corner of a lot must be placed not only twénty feet from the front, but also twenty feet from the side street. In that situation the property remaining in the Chelsea Beach Company has been transferred to the present complainant, the Chelsea Land and Improvement Company. The defendant here obtained his title through mesne conveyances from the complainant. The deeds in that chain of title contained the restriction with the exception of one deed, but even that deed made a reference to the restriction sufficient to put the purchaser on notice. So that, when the defendant bought this property, he bought it subject to the condition that he would not put on that lot a building nearer the street in front of the lots than twenty feet. It is admitted that he has violated that restriction; that he at first contemplated building a structure to be used as a bathhouse, in connection with a sun-parlor, to be built flush with the street; that, after the proceedings in this cause were instituted, he determined to, and did, build the front of the building further back from the street, although it yet is beyond the restricted line.
    His defence is that, while his deed contained this restriction, the same restriction was incorporated in the deeds of other purchasers to the number of one hundred and fifty. Of that number ninety-nine or one hundred have violated the restriction contained in their deeds, and that this complainant, who is occupying substantially the position of the original company (having taken over all the property and undertaken to dispose of it subject to the same conditions), has stood by and permitted all these violations without complaint. Some of them were trivial, but others were important. Certainly the violation as to the Chelsea hotel property is an important one, and I think there are two other dwellings of considerable importance and value, whose, owners have been permitted to violate this agreement, and the defendant insists that having abandoned the general scheme, the complainant now has undertaken to enforce the restriction against this defendant, without taking any steps to compel other people to observe their .covenants, except in the single instance where a bill was filed in 1898, which suit it appears has not been prosecuted, and that such conduct is inequitable. While the president of the corporation testified that he had recently seen counsel and urged him to proceed with the case, I do not feel justified in saying that the filing of a bill in 1898, without further proceedings, was an indication that it has been the intention to preserve the plan. The suit has not been diligently pursued. No result has been reached, and no steps taken between 1898 and 1905. The ordinary litigant, determined to assert its right, would probably have employed other counsel if he could not get his case to a hearing through the efforts of the one employed. Upon the case as presented, I feel that I would not be justified in enforcing this restriction against this defendant. There have been a great many violations of these restrictions. They have been violated by two-thirds of the people who bought land from this company. Large hotel properties, and wealthy people have built, some on the very street where defendant’s property is located, and their buildings have been so erected that their foundations are beyond the restricted line, and yet not a word has been said by this complainant. It may be that, in the judgment of the officers of this company, they thought it prudent to allow these people to violate these restrictions, because they were putting in this locality large and valuable buildings, which enhanced the value of the land remaining in the hands of the company. That may be a wise thing to do. I am not criticising them. But I think that all the persons occupying these lands are entitled to be treated alike, and this complainant company cannot undertake to waive violations of these restrictions in so universal a manner as it is proved has been done here, and then undertake to enforce it against one other of their purchasers. Such a general consent to the non-observance of restrictive covenants amounts to an abandonment of the original intention and design with regard to restrictions. If the original grantor of one hundred and fifty lots by deeds, with a restriction as to building lines, allows two-thirds of the grantees to violate it without protest, it cannot enforce it against a single grantee for the purpose of benefiting its remaining lands, for the grantee thus assailed is entitled to the common privileges accorded to other purchasers who are subject to like restrictions. It appears in this cause that the complainant obtained from certain of the purchasers of a part of the tract a release as to the restrictions, so far as a portion of the whole was affected, and thereafter, as to that part, changed the character of the restriction, and materially altered the scheme of the original plan, not only as to size of the lots, but as to the building lines. This change affected all the lotowners, and cannot be confined by the original holders to a portion of the property, especially as, in this cause, the changes relate to a part of the street upon which defendant’s lands are located. This bill is not filed by individual lotowners, but on behalf of the holding company, owners of unsold portions, and because of its laches in so many instances is presumed to have abandoned the original plan as to restrictions.
    A decree will be advised dismissing the bill of complaint.
    ■ Mr. William M. Clevenger, for the appellant.

      Mr. Qeorge E. Bourgeois and Mr. J. Morton Adams, for the respondent.
   Per Curiam.

The decree appealed from will be affirmed, for the reasons stated in the opinion delivered in the court of chancery by Vice-Chancellor Bergen.

For affirmance—The Chiee-Justice, Garrison, Fort, Hendrickson, Bogert, Vredenburgh, Vroom, Green, Gray, Dill —10.

For reversal—Swayze, Reed, Trenchard—3.


text:
    The Township of Belleville, in the county of Essex, appellant, v. The City of Orange et al., respondents.
    [Argued July 2d, 1906.
    Decided February 2d, 1907.]
    On appeal from a decree of the court of chancery, advised by Vice-Chancellor Emery, whose opinion is reported in 10 N. J. Eq. ('4 Rolb.) 244-

      Mr. Oliver H. Perry, for the appellant.

      Mr. William E. Lord, Mr. Edwin B. Qoodell and Mr. Charles II. Halfpenny, for the respondents.
   Per Curiam.

The order appealed' from is affirmed, for the reasons stated in the opinion filed in the court of chancery by Vice-Chancellor Emery.

For affirmance—The Ohiee-Justice, Garrison, Fort, Hendrickson, Swayze, Seed, Trenchard, Bogert, Vredenbdrgh, Vroom, Green, Gray, Dill—13.

For reversal—None.


text:
    Charles R. Myers, appellant, v. Samuel M. Friedenberg et al., respondents.
    [Argued July 2d and 3d, 1906.
    Decided February 2d, 1907.]
    On appeal from a decree of the court of chancery, advised by Chancellor Magie, whose opinion is reported in 70 N. J. Eq. {Jf Robb.) S.

      Mr. Qlarence L. Cole, for the appellant.

      Mr. Joseph H. Gaslcill, for the respondents.
   Per Curiam.

The order appealed from in this case is affirmed, for the reasons stated in the opinion of the chancellor, delivered in the court below.

For affirmance—The Oi-iiee-Justice, Garrison, Fort, Hendrickson, Swayze, Reed, Trenci-iard, Bogert, Yredenburgh, Yroom, Green, Gray, Dill—13:

For reversal—None.


text:
    August J. Nicklas, administrator of Ellen Cunningham, deceased, v. Bridget Parker et al.
    [Submitted July 10th, 1906.
    Decided January 2d, 1907.]
    1. Where intestate deposited money in a savings bank in her own name as trustee for certain persons who were dead at the time the accounts were opened, the deposits passed to her administrator after her death.
    2. A mere savings bank deposit made by intestate in her own name as trustee for another, who was a mere friend, over which deposit intestate exercised complete control during her life, was insufficient to establish a gift of the deposit inter vivos, or to create a trust entitling the alleged beneficiary to the deposit as against intestate’s administrator.
    On appeal of defendant Honora Einerty from a decree in the court of chancery, advised by Vice-Chancellor Garrison, who filed the following opinion:
    Ellen Cunningham, who married a man named Kelly, and thereafter seems to have used indifferently either her maiden or her married name, died on the 13th of January, 1904. Her administrator, the complainant in this suit, found among her effects three passbooks evidencing deposits in the Provident Institution for Savings in Jersey City. One of these passbooks was numbered 115,348, and was in the name of “Ellen Kelly, Trustee for Eliza Clark.” Another passbook was numbered 116,443, in the name of “Ellen Cunningham, Trustee for Mary Clark.” The third passbook was numbered 93,249, in the name of “Ellen Cunningham, Trustee for Honora Einerty.” The administrator filed this bill for the purpose of having the controversy over the ownership of the choses in action evidenced by the books determined. The Provident Institution for Savings filed an answer and cross-bill, and in the latter tendered the money into court for distribution under the order of the court. Issue was joined thereon, and the case is now before the court practically as one of interpleader between the various claimants. The next of kin of Ellen Cunningham (or Kelly) are Bridget Parker, her sister; John Edward Clark, her nephew; Michael, William, Margaret and Mary Ann Keough, claiming to be her nephews and nieces, and Mrs. Catharine Donnelly, James, Isabella, John, Thomas and Vincent Donnelly, and Mary Donnelly Ritgert, claiming to be her grandnieces and grandnephews.
    Since it appeared at tire trial that Eliza Clark, who was named as cestui que trust of the account No. 115,348, was a relative of Ellen Kell}'', and had died some six and one-lialf years prior to the opening of the account, no contest was made with respect to her rights therein, and a decree will therefore be made that this account is collectible by the administrator of Ellen Kelly, otherwise Cunningham.
    A similar finding, for similar reasons, is made with respect to the account N>. 116,443. The Mary Clark named as cestui que trust in this account was also a relative of Ellen Cunningham, and had died many years prior to the opening of this account.
    This leaves as the sole chose in action in controversy in this suit that evidenced by passbook No. 93,249, in the name of “Ellen Cunningham, Trustee for Honora Finerty.” This account was opened on the 29th of June, 1898, by the deposit of $292. Small deposits were thereafter made, and semi-annual calculations of interest were added, so that on the 8th of January, 1903, the deposits and interest amounted to $1,638.98. Ellen Cunningham upon that date withdrew $200, leaving a balance of $1,438.98, to which semi-annual additions of interest were added, so that at the date of the filing of the bill there was in this account a balance of $1,492.52. Ellen Cunningham and Honora Finerty were Irish women, and were each domestic servants. They were friends, and intimately acquainted with each other. In 1869 Honora Finerty, through the procurement of Ellen Cunningham, started a bank account with the Provident Institution for Savings, and deposited money in it until she went back to Ireland in 1876. _ This account stood in her own name, and after her return to Ireland in 1876 she made no .further deposits, nor were any other deposits made in this account. At that time there was some $1,200 to her credit, and she - empowered Ellen Cunningham to draw from this account. At her request Ellen Cunningham drew the semi-annual interest paid by the bank on this account and forwarded the same to her in Ireland. Subsequently Ellen Cunningham, at the request of Honora Einerty, or with her consent, withdrew the entire balance remaining due Honora Einerty in this account and transmitted the same to her in Ireland. The account in controversy is not shown to have any connection whatever with the account of Honora Finerty just mentioned. Honora Einerty had no knowledge whatever of this account until after the death of Ellen Cunningham, and the latter never made any declaration to anyone concerning the same, and the case is bare of any testimony or evidence respecting it, save that evidenced by the passbook itself. Ellen Cunningham kept this passbook in her own possession, and it was found among her effects at her death, and upon one occasion she made a draft upon this account for her own purposes. Since there was no contractual relation between these women, the account in controversy has no consideration to support it, and must be viewed as a pure gratuity. The allegations in the answer of Honora Einerty which would lead to a conclusion that there was consideration to support this account are not supported by any evidence whatever, and must have been made by counsel under a misapprehension of fact
    This case presents the bald, bare question of the right to a chose in action arising from a deposit of the money of a depositor in a savings bank, in the depositor’s own name, in trust for another. So far as my own research has resulted, and so far as that of counsel has furnished me with data, this is the first case presenting this unqualified question in this state. The right of tire person named as cestui que trust to have the fund -on deposit must rest upon one of two theories, i. e., that it was a gift inter vivos by the depositor to her, or that it was a valid trust now enforceable by her. In either event the intention must be clearly proven, and such intention must be shown to have been carried into effect by the donor or settler. The nature and amount of proof required, and the essentials to be proven, are similar with respect to each of the two necessary contentions. The form of the transfer and the time of enjoyment by the beneficiary may be different with respect to a trust, but there must be the same definiteness and clearness of proof of the completed execution of intention in the one case as in the other. It is clear that the depositor in this case did not intend to make a gift inter vivos to Honora Finerty of the money deposited. If she had intended to do this, she would either have deposited the money in the name of Honora Finerty, so that the latter could have drawn it at will, or, if she preferred to put it in the form of a trust, she would have vested Honora Finerty with power to draw immediately, or under conditions which she might specify, from the trust funds. Since, by the retention of the passbook, and the failure to disclose to Honora Finerty the existence of this account, and the failure to vest Honora Finerty with the power to draw upon it, the depositor retained in her own power complete dominion over the chose in action; it must be. held that there is not sufficient evidence of a gift inter vivos. “In order to legalize such a gift, there must be not only a donative intention, but also-, in conjunction with it, a complete stripping of the donor of all dominion or control over the thing given.” Stevenson v. Earl, 65 N. J. Eq. (BO Diclc.) 7B1 (at p..7B5) (Court of Errors and Appeals, WOS). The depositor therefore must he held to have intended some other thing than a gift inter -vivos. It is, in my judgment, equally clear that she did not intend to create a trust operative inter vivos. The court of errors and appeals, in the case last cited, quotes the following language with approval: “The one thing necessary to give validity to a declaration of trust—the indispensable thing—I take to be that the donor or grantor, or whatever he may be called, should have absolutely parted with that interest which had been his up to the time of the declaration—should have effectually changed his right in that respect and put the property out of his power, at least in the way of interest.” The depositor in the case in hand did not so circumstance herself. By retaining the passbook, and refraining from disclosing to anyone her intention with respect to the money deposited, she retained complete dominion and complete interest.

      While the courts, in the mam' cases which have dealt with the intention with respect to gifts and trusts, have refused to lay. down any arbitrary, inflexible rule, they substantially agree that something more is necessary with respect to deposits in banks than the mere opening of the account in the name of the depositor in trust for another. This may have been done for any one of a number of reasons, each without donative purpose. There must be some unequivocal act or declaration clearly showing that an absolute gift or trust was intended, I do not enter upon an extended review of the cases in other jurisdictions, because I think the principles to be applied have been settled in this jurisdiction, and if there is conflict elsewhere, no benefit results from citing the conflicting decisions. The cases will be found in those cited and in the notes referred to.
    It may be in this case that the depositor merely used Honora Einerty’s name as she did the names of certain of her dead relatives, because it was a convenient designation of an account. Eor all that appears, she may, for any one of numerous reasons, have desired to have separate accounts, and knew of no other way to designate them, or preferred' this way of designating them. Unless she made some unequivocal expression of intention, she failed to effectually declare the trust, and hence failed to show that a trust was intended. By retaining complete dominion over the chose herself, and drawing from the account; by refraining from making any declaration respecting it or giving any notice concerning it, she certainly showed that she did not intend that the trust (if she intended a trust at all) should be operative during her lifetime. The case is almost, if not quite, indistinguishable from the familiar one of a person making a written statement of trust with respect to personal property which he retains in his own possession. In every such case the written statement is held ineffectual to establish an enforceable trust, and some other and further act or declaration is required. The most rational inference to be drawn from the circumstances, and that which I conclude to have been the fact, is that Ellen Cunningham desired to deposit her own moneys in this account in such a way that she would always be able to use them at her will during her life, but that at her death, if anything remained in the account, it should go to- her friend, Honora Finerty. The court of appeals of New York reached the conclusion that this was the proper inference to be drawn under similar circumstances. “When a deposit is made in trust, and the depositor dies intestate, leaving it undisturbed, in the absence of other evidence, the presumption seems to arise that a trust was intended in order to avoid the trouble of making a will.” In re Totten, 179 N. Y. 112 (at p. 121) ‘, '71 N. E. Rep. 7)8 (at p. 752). In this case the court of appeals of New York reached the conclusion that the trust which it found to exist was valid, and that the beneficiary thereof could recover the balance of the money on deposit at the death of the depositor. ¡(Our court of errors and appeals, however, has reached an opposite conclusion upon this subject, and has held that a disposition ¡-i of property not to take effect until the death of the owner is Testamentary in character, and that the statute of wills requires | it to be made in a particular way, and that it will not be ¡effectual, if not made in that way. Stevenson v. Earl, supra. The New York court of appeals, in the Totten Case, formulated its doctrine in the following language (179 N. Y. 125; 71 N. E. Rep. 752): “A deposit by one person of his own money in his own name as trustee for another, standing alone, does not establish an irrevocable trust during the lifetime of the depositor. It is a .tentative trust merely, revocable at will, until the depositor dies or completes the gift in his lifetime by some unequivocal act or declaration, such as delivery of the passbook or notice to the beneficiary. In case the depositor dies before the beneficiary, without revocation,, or some decisive act or declaration of disaffirmance, the presumption arises that an absolute trust was created as to the balance on hand at the death of the- depositor.” This decision has been much commented upon by legal writers, and is well described by Wilbur Larremore, in an article on “Judicial Legislation in New York,” in 1) Yale Law J. (No. 6) 815. lie there says, speaking with respect to this case, as follows:
    “This decision has been widely commented upon by legal journals, and so far as the writer is aware, has been unanimously disapproved. It is inconsistent with earlier authorities in the State of New Tork. It introduces a serious- anomaly into the law of trusts. Indeed, a trust that is revocable at the will of the creator can hardly be said to be a trust at all. It impugns the policy of the statute of wills, by permitting’ a disposition of property to take effect only after death, without following the testamentary requirements. On the other hand, as a piece of constructive legislation, the decision could hardly be too highly praised. It effectuates a custom which has grown up among the humbler classes of people, who, in placing their money on deposit in trust for other persons, often intend to retain the right to use it, principal as well as interest, during life, but that whatever remains at the time of death shall go to the oestuis que trust. Under the law as it stood, the estates of depositors who as trustees had drawn money from accounts would be liable to refund the same to the oestuis que trust. The validation of the business custom in question seems so unobjectionable, indeed so’ desirable, that the writer has on various occasions advocated the enactment of a statute on just the lines laid down in the Matter of Totten. He did not believe that a court would venture upon such a radical innovation, and it is difficult to justify it as an exercise of judicial power.”
    In our own state there is no direct authority with respect- to savings bank deposits of the nature of the one dealt'with in the case in hand, but the general principles to be applied are, I think, clear, and will be found stated in Cook v. Lum, ¡55 N. J. Law 37\5, 376 (Supreme Court, 1893); 26 Atl. Rep. ¡80S, and in Stevenson v. Earl, supra. In Dunn v. Houghton, .51 Atl. Rep. 71 (Vice-Chancellor Stevenson, 1902), the previous cases are cited and commented upon. While that part of the decision in Dunn v. Houghton which holds that the statute of wills does not prevent a trust operative only at the death of the settler may be in conflict with the principle subsequently laid down in the case of Stevenson v. Earl (and I do not stop to consider or determine this), much that is said, and the review of the New Jersey cases therein contained, sustains the principles which I deem applicable in the case in hand.
    Counsel for Honora Finerty placed great, if not entire, reliance upon the cases of Janes v. Falk, SO N. J. Eq. (S Dick.) 4-68 (Court of Errors and Appeals, 1892); 26 Atl. Rep. 138: 85 Am. St. Rep. ’7\88, and Collins v. Steuart, \58 N. J. Eq. (13 Dick.) 392; affirmed on the opinion below, sub nom., Collins v. Ijewis, 160 N. J. Eq. (IS Dick.) 488. From these cases counsel deduced the principle that a declaration of trust such as that evidenced by this bankbook was all-sufficient. I do not think that this is a warrantable deduction from the reasoning of the learned judges writing the opinions in those two eases. In each of them the court found, as a matter of fact, that there were unequivocal declarations of intention by the grantor or settler or assignor sufficient to show a purpose to transfer his interest in the subject-matter. In the Gollins Case the oral testimony is cited (i68 N. J. Eq. ('IS Dick.) S95), which led the court to find that it was intended that the declaration of trust was to become operative from the time of its execution, and in the Janes Case, in addition to the letter stating his purpose, there was positive evidence that he had informed the beneficiaries of what he had done, and the court held “these purposes, acts and declarations are not equivocal.-”
    I therefore conclude, in the case in hand, that there is no sufficient evidence of the intention of Ellen Cunningham that the money which she deposited in the bank in her own name, in trust for Honora Finerty, should be operative as an immediate gift inter vivos or as a trust inter vwos; and I further hold that if her intention was to retain complete dominion and control over the chose during her lifetime, and that it should pass to Honora Finerty at her death, such purpose was not effectuated in the only wray in which it can be done under the laws of this state, because it was not done in accordance with the provision of the statute of wills.
    I will advise a decree that the sum of money in controversy belongs to the administrator of Ellen Cunningham, deceased.

      Messrs. Garrick & Woriendyke, for the appellant.

      Messrs. Gollins & Corbin, for the respondent August J. Nicklas, administrator of Ellen Cunningham, deceased.

      Mr. Elmer H. Geran and Mr. Henry M. Stevenson, for the respondents Bridget Parker and others.

      Messrs. Harishorne, Insley & Leake, for the respondent Provident Institution for Savings in Jersey City.
   Affirmed on the opinion delivered in the court below.

For affirmance—The Ci-iiee-Justice, Garrison, Fort, Garretson, Hendrickson, Pitney, Swayze, Reed, Trenchard, Bogert, Vredenburgh, Yroom, Green, Gray", Dill—15.

For reversal—None.


text:
    Frederick B. Wilson, appellant, v. Georgiana B. Terry et al., respondents.
    [Argued July 11th, 1906.
    Decided March 4th, 1907.]
    On appeal from a decree of the court of chancery, advised, by Vice-Chancellor Emery, whose opinion is reported in TO N. J. Fq. (1). Robb.) 231.

      Mr. Robert II. McCarter, attorney-general, and Messrs. Frank Durand and Da,vid, Harvey, Jr., on the brief, for the appellant.

      Mr. Gilbert Collins and Mr. James D. Carton, on the brief, for the respondents.
   Per Curiam.

This is an appeal from a decree advised by Vice-Chancellor Emery dismissing the bill of the appellant, the object of which was to have a deed for certain premises in Asbury Park made by him through an intermediary to his wife (who died prior to the filing of the bill) adjudged to be a mortgage. Our examination of the case leads us to the conclusion that the decree should be affirmed. The opinion of the learned vice-chancellor contains so thorough and accurate an ana}dsis of the testimony, and so full a statement of the reasons which led him to his conclusion, and those reasons, with the exception of one hereafter mentioned, are, in our view of the case, so plainly sound, that we would be content to rest our affirmance upon that opinion were it not for the fact that, as we conceive, certain evidence offered by the defendants was erroneously admitted, and that evidence received consideration in the opinion and was one of the reasons upon which the conclusion of the learned vice-chancellor was rested. The evidence referred to consisted of entries contained in the private diary of the deceased wife, which, it was considered by the vice-chancellor, tended to show that the deed-which the appellant sought to have declared to be a mortgage, was, in fact, what it purported to be on its face, viz., an absolute conveyance.' If the bill of complaint had been filed against the wife during her life, clearly these entries would have had no probative force against her husband. They seem to us equally objectionable as tevidence in favor of those who claim in her right. But, excluding these entries from consideration, the other facts discussed in the opinion of the vice-chancellor amply support his conclusion that the appellant failed to make out a case which entitled him to the relief prayed for.

For affirmance-—Ti-ie Chiee-Justioe, Garrison, Fort, Hendrickson, Pitney, Swayze, Reed, Trenoi-iard, Bogert, Green, Gray—11.

For reversal—Vredenburgh, Vroom—2.


text:
    Maria Sophie Kleb, respondent, v. Jean Kleb et al., appellants.
    [Argued July 11th, 1906.
    Decided March 4th, 1907.]
    On appeal from a decree of the court of chancery, advised by Yice-Chaneellor Stevens, whose opinion is reported in 70 N. J. Fq. (4 Robb.) 865.

      Mr. John W. Queen and Mr. Gilbert Collins, for the appellants.

      Mr. Frnest F. Keer and Mr. Robert E. McCarter, attorney-general, for the respondent.
   Per Curiam.

The decree appealed from will be affirmed, for the reasons contained in the opinion of the learned vicerchancellor before whom the cause was heard in the court of chancery. In reaching the conclusion that the respondent, who was the complainant below, was entitled to the relief prayed for in her bill, he excluded from consideration testimony given by her as to transactions with and statements made by her deceased husband, upon the ground that the defendants were made parties because they were his heirs-at-law; conceiving that this fact brought the excluded evidence within the proviso of the fourth section of the revised act concerning evidence. P. L. 1900 p. 863. That proviso declares that the enabling clause in the body of the section “shall not extend to permit testimony to be given by any party to the action as to any transaction with or statement by any testator or intestate represented in said action,” &c.

As we concur with the learned vice-chancellor in the view that the other proofs in the cause fully support the décree advised by him, this appeal does not call for the determination by us of the question whether persons who are made parties defendant to a bill of equity for the purpose of compelling them to execute a contract made by their ancestor in his lifetime relating to lands which have descended to them as his heirs-at-law, represent their intestate within the meaning of this statutory provision.

For affirmance—The Chief-Justice, Garrison, Fort, Hendrickson, 'Pitney, Swayze, Reed, Trenci-iard, Bogert, Vre-DENBURGI-I, VROOM, GREEN, GRAY-13.

For reversal—None.


text:
    The Board of Home Missions of the Presbyterian Church et al. v. M. Eva Davis et al.
    [Argued July 12th, 1906.
    Decided February 2d, 1907.]
    On appeal from a decree of the court of chancery, advised by Vice-Chancellor Bergen, whose opinion is reported in 70 N. J. Fq. (4 Robb.) 577.

      Mr. George M. Shipman, for the appellants.

      Mr. Martin Wyclcoff, for the respondents.
   Per Curiam.

The order appealed from in this case is affirmed, for the reasons stated in the opinion filed in the court of chancery by Vice-Chancellor Bergen.

For affirmance—The Chief-Justice, Garrison, Eort, Hendrickson, Pitney, Swayze, Seed; Trenchard, Bogert, Yre-DENBURGH, YROOM, GRAY, GREEN—13.

For reversal—None.


text:
    Henry W. Doremus et al., respondents, v. The Mayor and Aldermen of the City of Paterson, appellants.
    [Argued July 13th, 1906.
    Decided July 13th, 1906.]
    On appeal from an order of the court of chancery, advised by Yice-Chancellor Stevens, whose opinion is reported in 70 N. J. Eq. (J/. Robb.) £96.

      Mr. Edmund 6-. Stalter and Mr. George 8. Hilton, for the appellants.

      Messrs. Lvndabury, Depue & Faullcs, for the respondents.
   Per Curiam.

The order appealed from is affirmed, for the reasons set ont in the opinion delivered in the court of chancery by Yice-Chancellor Stevens.

For affirmance—The Chief-Justice, Dixon, Garrison, Port, Garretson, Pitney, Swayze, Bogert, Yredenburgh, Yroom, Green—11.

For reversal—None.


text:
    The Long Branch Commission, appellant, v. The Tintern Manor Water Company, respondent.
    [Argued July 13th, 1906.
    Decided February 2d, 1907.]
    On appeal from a decree of the court of chancery, advised by Vice-Chancellor Pitney, whose opinion is reported in 70 N. J. Eq. (J Robb.) 71.

      Mr. Clarence G. Temióte and Mr. Robert II. McCarter, attorney-general, for the appellant.
   Per Curiam.

The decree appealed from in this case is affirmed, for the reasons stated in the opinion filed in the court of chancery by Vice-Chancellor Pitney.

For affirmance—The Chief-Justice, Garrison, Fort, Hendrickson, Swayze, Reed, Trenci-iard, Bogert, Vredenburgh, Vroom, Green, Gray—12.

For reversal—None.


author: Mache, Chancellor.

text:
    Malvina V. Dawson v. Siegfried Leschziner et al.
    [Decided January 15th, 1907.]
    1. -A bill disclosed that complainant employed defendants as real estate brokers to procure a purchaser for lands which complainant desired to sell; that defendants procured a purchaser who was willing to give $5,500 therefor; that defendants did not disclose to complainant the sum the purchaser was willing to give, but assured complainant that $5,062 was the best price they could obtain, and thereupon complainant contracted to, and did, convey her land to the purchaser, and received therefor only $5,062 of the $5,500 paid to defendants.—Held, that the bilí praying for an accounting and a decree for the excess paid to defendants over the amount received by complainant is not demurrable on the ground that complainant has a complete remedy at law.
    2. Whether complainant has a complete remedy at law may be doubtful, but if she has, equity will maintain jurisdiction to grant appropriate relief because of the fraud disclosed.
    On demurrer to bill.

      Mr. Samuel F. Leber, for the demurrants.

      Mr. Henry II. Dawson, contra.

   Mache, Chancellor.

The bill demurred to presents the following facts: Complainant was the owner of real estate in the city of Newark, and enrployed the defendants, who were at that time partners conducting a real estate business in Newark, to sell her property at the price of $5,500. The defendants notified complainant that they had an offer of $5,000 for the property, and advised her to accept it. Thereafter, the complainant agreed to sell her property for $5,062, which she was assured by the defendants was the best price they could obtain for it, and she signed an agreement to convey the property to Hugo Sutor for $5,062. Afterward complainant, with her husband, executed and delivered a deed for the property to Hugo Sutor for $5,062, for which price the complainant received a bond and mortgage for $4,000, and the balance of the purchase price in cash, less the brokerage charged by the defendants. Since that time complainant has discovered that Siitor, instead of paying to defendants for complainant $5,062 for the property, really paid them $5,500; that Sutor had previously told the defendants that he would pay $5,500 for the ju’opertj'' before complainant signed the agreement to sell for $5,062, which fact was fraudulently concealed from complainant by the defendants. Defendants, instead of accounting to complainant for $5,500, the amount received by them, only accounted to her for $5,062.

Upon these statements the complainant prayed for an accounting, and a decree directing the defendants to pay to the complainant $438, less two and one-half per cent, commission.

The defendants present several grounds of demurrer. The first, and the one principally argued, is that the complainant has adequate relief at law and may there recover the amount which she now seeks to have decreed to be paid to her.

This court has a general jurisdiction in cases of fraud, as well in cases where the remedy at law is plainly adequate and complete, as in other eases. But when the remedy at law is plainly adequate and complete, the court of chancery is reluctant to exercise its jurisdiction, and will not do so unless the administration of justice will be thereby plainly facilitated. Eggers v. Anderson, 63 N. J. Eq. (18 Dick.) 264.

It may perhaps be questioned whether the complainant has a complete and adequate remedy by a resort to an action at law. The case differs from that of Krueger v. Armitage, 58 N. J. Eq. (13 Dick.) 357, and from Polhemus v. Holland Trust Co., 59 N. J. Eq. (14 Dick.) 93, and 61 N. J. Eq. (16 Dick.) 654.

In each of the cases last stated the defendants had procured from the complainants money of the complainants by false and fraudulent representations, so that the complainants’ right to the money could be considered to be unaffected by the fraudulent transaction. In the case now before us, the defendants have received from a third party money which in equity ought to go to the complainant. In an action at law to recover that money the complainant would be met with a defence founded upon her written agreement to convey the property for the sum of $5,062, and with the fact that she had afterward executed and delivered a deed for the property to the purchaser at that price. So that without deciding that no action at law would lie, it at least is not clear that that action would be complete and adequate to relieve the complainant.

In the case made by the bill the real estate agents employed to sell have concealed from the complainant facts which they were bound to make known to her, viz., that the purchaser they had procured for the property was willing and ready to give $5,500 for it. In the case of Young v. Hughes, 32 N. J. Eq. (5 Stew.) 372, the relation of'a real estate broker with his principal was under consideration in the court of errors and appeals, and it was adjudged that the broker so employed became an agent with a fiduciary relation which required of him fidelity and good faith toward his employer within the sphere of his employment. Among other things, it was declared that the broker was bound to disclose to his principal all facts within his knowledge which might be material to the matter in which he was employed. In that case the concealment of facts was held to justify the court of chancery in refusing to enforce a contract of sale made by the procurement of a broker who was guilty of concealment with the connivance of the purchaser.

The case here presented discloses a fraud by a fiduciary agent upon his principal, and considering the fact that it may be doubtful whether the principal may be relieved in a court of law, the court of chancery should maintain its jurisdiction to enforce proper relief.

The bill is not objectionable on that ground.

It is secondly objected that the complainant has been guilty of laches. The sale of the property took place in June, 1904. The fraud was not discovered until December, 1904, and this bill was filed in April, 1906. It is not perceivable that this delay in seeking relief is laches, for which the bill should be dismissed.

It is thirdly presented as a ground for demurrer that no jurisdictional facts have been stated supporting the decree sought in this bill. The statements above made dispose of this objection. The bill sufficiently states a jurisdiction in the court and adequate relief may be here granted.

The demurrer must be overruled.


author: Magie, Chancellor.

text:
    Alfred R. Smith v. Laura Smith.
    [Decided February 16th, 1907.]
    1. Evidence in a suit for divorce considered, and held not to sustain the master’s finding of willful, continued and obstinate desertion.
    2. A wife was shown to have frequently left her husband, but to have always returned to him upon his request. Her leaving him, which was claimed to be desertion, was proved, but he made no request for her return thereafter. A letter, claimed to have been received by him from her, might have excused him for not seeking her return, but the receipt of the letter was only proved by his uncorroborated evidence.—Held, that a report that her desertion was willful and obstinate was not supported by evidence.
    On application by petitioner for an order to take additional testimony.

      Mr. Royal P. Puller, for the petitioner.
   Magie, Chancellor.

. The evidence before the master shows that for more than two years before the filing of this petition the parties were separated, and that the separation commenced by the defendant leaving the matrimonial domicile. The master has reported that willful, continued and obstinate desertion has been made out.

Whether the report in favor of a divorce is supported depends upon whether the desertion by the wife was, under the circumstances, willful. The evidence shows that she had frequently before left the petitioner, and remained away from him for times of various lengths. It also shows that on every former occasion she yielded to his requests and persuasions and returned to him. I find nothing in the case to indicate that petitioner should not have again approached the defendant with similar requests and persuasions, unless it be a letter which he declares he found under his plate on the breakfast table on the morning defendant left him. If that letter were really received by him from the defendant in the manner described, I think it fairly indicates such an intent on the part of defendant as would excuse petitioner from again persuading her to return. But the genuineness of the letter, and the description of the manner in which petitioner received it, are proved only by the evidence of petitioner, of which I am unable to find the least corroboration. The letter, therefore, cannot affect the conclusion to be reached upon this evidence.

Leaving the letter aside, I think the petitioner should have again sought to persuade his wife to return to him. If he had done so in a proper manner, and she had refused, her desertion at the time named would have been shown to be willful. As the proofs thus fail, I think the master’s report cannot be confirmed.

In anticipation of this conclusion, counsel have applied for an order opening the case and permitting the master to take additional testimony. In accordance with views previously expressed in other cases, I am unwilling to open a divorce case to permit the additional evidence necessary to obtain a decree to be proved by means which the party and his counsel had in their possession and under their control and failed to make use of. The necessity of corroborating the evidence of the petitioner respecting the letter was, or ought to have been, in the mind of counsel who took this testimony, who was not the counsel now applying for decree.

The application must be denied and the petition dismissed.


author: Pitney, V. C.

text:
    The Northeastern Telephone and Telegraph Company v. Henry Hepburn. The Northeastern Telephone and Telegraph Company v. Daniel Hepburn. The Northeastern Telephone and Telegraph Company v. Robert Hepburn.
    [Decided December 26th, 1906.]
    1. The right of a corporation to take and hold title to an interest in real estate cannot be denied by the grantor, but can only be contested by the public authorities.
    2. The grant of a right to maintain a telephone line over certain premises conferred on the grantee the right to construct a single line of poles, and to place thereon any number of cross-arms and wires.
    3. A deed to a water company granted a right of way over the grantor’s land for the laying of water pipes within a space not exceeding ninety-nine feet wide, “with the right to set up, operate and maintain a telegraph or telephone line or lines thereon, and with the right of ingress and egress to and from said right of way for all purposes.”—Held, that such grant did not confine the water company to a telegraph or telephone line used exclusively for the purposes of its water works plant, but entitled a telephone company, under an assignment from the water company, to use such right of way for the maintenance of a commercial telephone line.
    4. Where defendants granted a right of way for the maintenance of a telephone line to complainant’s assignor, and thereafter defendants con tended that complainant company had increased the burden of the easement beyond the scope of the original grant, and thereupon entered and cut down certain of the wires from the poles, &c., complainant was not required to establish its right to maintain its line in the condition that existed before defendants’ acts complained of in order to entitle complainant to an injunction restraining further interference with its wires.
    5. Where a deed to a right of way for a telephone line was unambiguous, parol evidence was inadmissible to limit it to a grant for the maintenance of a non-commercial line.
    6. Where plaintiff was a bona fide assignee of a right of way for the maintenance of a telephone line, it was not bound by an alleged oral agreement between the original parties to the deed conveying such right of way that the line should be used only for the benefit of the grantee in connection with its water works plant.
    Three causes tried together. Ou final hearing on bill, answer and proofs.

      Mr. Gilbert Collins, for the complainant.

      Mr. Adrian Riher, for the defendants.
   Pitney, V. C.

The object of these bills is to protect the complainant in the enjoyment of an easement in land by enjoining the disturbance thereof by the defendants. The easement was created by the predecessors in title of the several defendants in the three causes (which were tried together) by grant made to the predecessor in title of the complainant. The grant was for the right to set up, operate and maintain “a telegraph or telephone line or lines” over certain lands, and a telephone line was at once erected and has ever since been maintained.

The complainant and its predecessors in title have been in the possession and enjoyment of this easement for several years, and their right to do so has never been and is not now seriously contested by the several defendants.

The defendants justify their action complained of by complainant, which consisted of cutting down certain of the wires, &e., on the arms of the poles constituting the telephone line, on the ground that the complainant is increasing the burden of the easement beyond the scope of the original grant.

That I conceive to be the question involved in these causes, and its solution depends upon the true construction of the terms of the grant. It was made by the predecessors in title of the defendants to the East Jersey Water Company, and by it assigned in part to the city of Newark.

One point made by the defendants may be dealt with at the start. They contend that the East Jersey Water Company had no power to take and accept a grant of a right to maintain a telephone or telegraph system. The answer to this objection is simply that it does not lie in the mouth of the grantor of real estate or an interest in real estate to set up that the grantee was incapable of receiving and accepting the title or right so conveyed. Only the public authorities can take advantage of that disability. The authorities on that question are abundant and are collected and collated by Justice Harlan in Fritts v. Palmer, 132 U. S. 282 (at p. 291 et seq.).

Coming now to the grant itself, the language is this, as found in the deed from Henry Hepburn and wife to the East Jersey Water Company, dated July 3d, 1891, the grantors

“do hereby grant and convey to the East Jersey Water Company, * * • * its successors and assigns, the right of way over, through and across the lands hereinafter described, situate * * * in and upon which to lay, operate and maintain a water pipe or water pipes for the transportation of water to the city of Newark, in said state, and other places; such pipe or pipes to be laid within a space not exceeding the width (99 feet) particularly described in the description hereinafter set forth, with the right to set up, operate and maintain a telegraph or telephone Une or lines thereon, and with right of ingress and egress to and from said right of way for all purposes.”

Then follows a description of the right of way ninety-nine feet wide.

After the habendum clause, which follows the description, we find this language:

“The possession and use of the said premises are to be and remain in the said grantors, their heirs, executors, administrators and assigns, subject to the grant herein made, as fully as if this conveyance had not been executed.”

This language is the same in each of the conveyances of the predecessors in title of the defendants, and was probably found in a printed form used by the East Jersey Water Company in acquiring a right of way for their works from the northern portion of Morris and Passaic counties to the city of Newark and elsewhere.

That company assigned to the city of Newark its rights in this right of way by a deed dated May 2d, 1892, which recites an agreement of September 24th, 1889, and then conveys to the city all the works in the meantime erected by the water company,

“with all and singular their appurtenances, adjuncts and appliances of whatever nature, kind or description soever. * * * And also all and every the lands and rights of way over which the conduit or conduits, pipe line or lines, have been laid or constructed, and all and singular the lands and rights of way acquired. * * * Together with all and singular the ways, profits, privileges and advantages,” &c.,

with a corresponding habendum.

This deed seems to be ample to convey every sort of right which the water company acquired by the conveyances from the defendants.

Later on, however, in 1900, another agreement was made between the water company and the city by which the water company expressly conveyed to the city its right, title and interest in the existing telephone line here in question, with an exception or reservation to the water company of the right to maintain two telephone or telegraph wires upon the poles conveyed, and a joint agreement for the maintenance of the poles.

This right was later on assigned by the city of Newark to the complainant by deed dated August 24th, 1905. That assignment is special and reserves certain rights in the city, or rather, in consideration of the conveyance, the complainant herein agreed to perform certain services for the city.

Shortly after this arrangement the complainant entered upon the right of way and replaced the telephone poles already in existence with larger poles and placed upon them larger arms and prepared to string upon them a greater number of wires, but did not increase the number of poles. The sole increase of the burden of the easement was a subsequent increase in the number of wires strung on the poles.

As soon as this increase was made the defendants entered on the right of way and cut off all the wires, manu forti. Subsequently they restored two wires, being the number in use before the increase. 'Upon ox parte application to this court an injunction was granted and .under its protection the cut wires were restored.

It is not easily perceived how the adding of additional wires, and, if you will, arms on the poles, increases perceptibly the burden of the easement. The language of Mr. Justice Dixon, in Slingerland v. Newark, 54 N. J. Law (25 Vr.) (at p. 69), is significant in this connection. “Under these circumstances it is not apparent how the prosecutor can have any legal concern with the quantity of water drawn through the aqueduct, or with the use made of so much of it as the public does not need.” In fact the circumstances show that the right and interest of the owners of the fee in the soil is of little practical value. It resembles the ownership of the soil of a railway strip subject to the easement of the railroad.

The East Jersey Water Company conveyed to the city of Newark the right of way for pipes and telephone lines over only a part of the whole strip twenty-four feet in width. The water company reserved to itself the right to lay pipes for its own use on the rest of the strip.

The city has and maintains two large parallel mains beside its line of telephone poles. Besides these easements is the general right of way from end to end of the whole strip, which is naturally and necessarily in constant use, and must be nearly or quite exclusive in its character.

But the complainant itself has encouraged the defendants in the notion that the additional use to be made by it of this telephone line over and above that which the city previously used has some pecuniary value by providing, by a sort of stipulation in its contract of assignment with the city, tha t it would attempt to acquire from all the owners of the fee along the miles of the pipe line the right to make this additional burden on the land.

This right it did acquire, on what was to it satisfactory terms, from all the other owners of the fee, but was unable to agree with the defendants.

This conduct on the part of the complainant ought not, and will not, prejudice its right to the relief it asks in this court if such right is clear under its contract.

The defendants assert that it is not clear. Their counsel does not argue that the grant is not in terms very broad and general, and I have already expressed the opinion that they cannot take advantage of the circumstance that the water company was not capable, under its charter, to enter into the business of carrying on a telephone line for public purposes, but their counsel relies on a single word in the grant, taken in connection with the circumstances, to manifest an intention on the part of the grantors to confine the use of the telephone line to a use in connection with and as an adjunct to the beneficial use of the great waterworks the water company was about to construct.

The word relied upon is the single word “with,” which follows the grant of the right to lay, operate and maintain a water pipe or water pipes over the land in question, and precedes the words “the right to set up, operate and maintain a telegraph or telephone line or lines” on the land.

But two matters must be taken into account in considering the force of the word “with.” First, the grant is a right to maintain a line or lines, leaving the number unlimited. Now, it is quite clear and undisputed that by a line of telegraph or telephone poles is meant a line of poles carrying an unlimited number of wires, and that such a line is not rendered plural in its nature by having more than one wire stretched upon it. It still remains a single line, hence the use of the plural in the grant is significant. And the question arises, How could it be supposed that the water company could ever need more than one line of poles for its use in connection with the water works ? The other matter is that the grant of the right to maintain telephone and telegraph line or lines is followed in the same part of the sentence with a grant of ingress and egress to and from the right of way “for all purposes.”

Now, it seems to me that the words “for all purposes” cannot be entirely ignored, although its immediate connection is with a grant of a right of way.

Moreover, it seems to me that if the parties had intended to limit the right to maintain the telegraph and telephone poles to a use strictly in aid of the original construction and subsequent maintenance and operation of the great water works they would have said so.

The fact is that the burden of the telephone and telegraph line of poles is not affected or increased or varied by the number of messages sent over the wires, and hence there was no occasion to make any provision on this subject.

If the defendants’ contention in this behalf is sound, then it follows that it is not within the right of the water company or its assignee, the city, or the complainant, as the assignee of the latter, to send a single message from the city of Newark over the line to Newfoundland which does not relate to the business of the water-supply, and, according to the practice here adopted by the defendants and contended for by counsel, the sending of such a message would authorize the defendants to enter and, manu forti, destroy the wires.

The contention of the defendants is, as before stated, that the use of the word “with” in the grant confines the use of the telephone line to purposes strictly adjunct to and in aid of Ihe grant of the right to lay water pipes, which was for the “transportation of water to the city of Newark, in said state, and other places.” Eor this contention counsel relies upon three adjudged cases, which I will now refer to.

The first is Leeke v. Bennett, 1 Atk. 470, a decision by Lord Ilardwieke, which arose out of the construction of a clause in a will as follows: “I give to my niece, Elizabeth Martin, during the time of her natural life, my house on Maj^s Hill, in Greenwich, with all the household goods that shall be found therein at the time of my decease.”

The estate of the testator in the house was a term of years with only ten years unexpired. The question was whether the gift to the niece of the household goods was for life or in fee, and it was held that the word “with” so connected the household goods with the house as that the estate in those was limited in the same manner as that in the house. The lord-chancellor relied upon the fact that the words “during her natural life” preceded the gift of the house, and remarked: “If the words fduring her natural life5 had been subjoined to the devise of the house it had not been so clear a case, though I think that would not have varied the law of the case, * * * but those words, being put before the devise, must operate equally on both parts of the subsequent devise, and the same interest passed in both. The word ‘with* would have had the same effect and been considered in the same manner in the case of a grant.”

Here it is to be observed that the use of the house and the use of the goods consisted in substantially the same act or series of acts; unless they were separated one could not be used without the other, and the circumstances that they were not separated made the subject of the devise in effect a single one of the house and furniture. This circumstance differentiates that case from the present one.

Here there was no necessary or even natural unit of use between the water pipes for carrying water from Newfoundland to Newark and the telephone line; either could be used, and were, in fact, used without the other. There was nothing common in the mode of use. The telephone line was simply a convenience, and although used as a convenience, not as a necessitjr, in maintaining and operating the water pipes, the actual use of each was quite distinct and dissimilar.

The next case cited is Richards v. Baker et als., 2 Atk. 321. That also was the construction of a will. There the testator gave his widow £2,000, to be paid in six months after his decease, and then proceeds:

“I do also give and bequeath to my dear and loving wife all my household goods, furniture, plate, linen and china in my house at Edmonton, wherein I now dwell, or to the said house belonging, and also the said house, gardens, fields and lands thereto belonging, so long as she continues my widow, and no longer; and I likewise give her my jewels, coach, chariot and coach horses.”

The master of the rolls decreed the widow to leave with the master a schedule of all the several things specifically bequeathed to her during widowhood, which was the usual mode of limiting her right to a life estate. The matter came on before the lord-chancellor on appeal, and he said that he had to determine what is the relation and extent of the words of limitation “so long as she continued a widow, and no longer;” whether they are to be confined to the house at Edmonton or to be extended to the whole; and he held that it was to be confined simply to the house and the household goods, and did not include the jewels, coach, chariot and coach horses. Careful consideration of that case seems to me to make against the defendants rather than in their favor, for the gift of the jewels, &c., was connected with the other gift by the word “likewise,” which means “in like manner,” and might well be construed to mean “to the same extent.” But the lord-chancellor held otherwise.

These two decisions by Lord Hardwicke illustrate the true distinction to be applied in such cases. In the one case the natural and necessary use of the furniture with the house made the two a single subject of the gift, while in the other case the jewelry, coach, chariot and horses, though convenient, were in no sense necessary to the use of the house, and their use was entirely distinct from it. The present case falls under the latter category. Water works like those erected by the East Jersey Water Company had been erected and maintained many years before the invention and use of telegraphs and telephones.

The next case cited by defendants is Durham and Sunderland Railway Co. v. Walker, 2 Adolph. & E. (N. S.) Q. B. 940, also reported in 2 Gale & D. 326; 11 L. J. Exch. 442. In that case the court of exchequer chamber had before it on bill of exceptions and writ of error a construction put by Justice Coltman at nisi prim on a reservation out of a lease granted for years by the dean and chapter of the city of Durham to one Walker of a right in certain lands. Under that reservation the lessors had granted to the defendant the right to build an ordinary double-track railway for through traffic, and an action at law had been brought by the tenant for years against the persons acting under the grant. The reservation was of

“woods, trees, mines, quarries and seams of clay, and with full and free authority and power to cut down, carry away, * - ® * said woods and trees, and to dig and carry away the mines, quarries, * * * with free ingress, egress and regress, way, leave and passage to and from the same or to or from any other mines, quarries, * * * with carts and all manner of carriages, and also all necessary and convenient ways, passages, * * * for the purposes aforesaid, and particularly laying, making and granting wagonway or wagonways in or over the premises or any part thereof, paying reasonable damages.”

The learned judge at nisi prius declared his opinion that if the railway was made for other purposes as well as for the carriage of coals and minerals it was not such a road as could be made in pursuance of the exceptions and reservations contained in the indenture of the demise, and he directed the jury that if they thought the railway was so made for such other purposes, as well as for the carriage of coals and minerals, then they ought to find a verdict for the plaintiff.

The court of errors and appeals held that that direction was not right. It held that the plaintiff could not claim for a trespass affecting his present possession of the land, it being in the occupation of a sub-tenant, but that it was an injury to the inheritance, or rather the portion of the term which would remain to him after the expiration of the under lease out of the term of years which was granted to him, and it used this language:

“Now, if the railway is such a.railway as the defendants, at the time when it was formed, might lawfully make for the purposes for which when made they might lawfully use it, the plaintiff can have no ground of complaint by reason of the intention of the defendants also to use it for other purposes for which they have no right to use it. Such an unwarranted use of the railway, if afterwards put in execution, may entitle the tenants in possession to maintain an action of trespass, but the mere intention to commit such a trespass is no injury to the reversioner, and we therefore think that the direction of the learned judge was incorrect. The proper question for the jury, as it appears to us, was, not whether the railway was made for other purposes as well as for the carriage of coals and minerals, but whether it was such a railway as, at the time it was made, it was reasonable and proper to make for the purposes for which it was lawful to make it, and for those purposes only.”

But the court then proceeds to determine what would be the proper direction on a new trial. It will be observed that all reservations were there declared to be “for the purposes aforesaid,” which refers entirely and exclusively to the clauses giving what is called “way leave.” And then, after “the purposes aforesaid,” follows: “And particularly of laying, making and granting wagonway or wagonways,” &c. Now, that word “particularly” was the word upon which the case turned, and it shows clearly that the words which follow it were intended to be a mere amplification of the language which had preceded it. The court refers to the word “with” in the previous part of the reservation and says it means as an incident merely. That is quite plain when you read it, because, as well remarked by the court, the reservation of the timber and the minerals without a right and privilege of removing them would be nugatory, and those reservations of way leave were no more than what the law would imply. The construction put upon the word “with” in that case does not seem to me to reach the present case. That case turned upon the force of the word “particularly” and not on the force of- the word “with.”

For the reasons I have stated I am unable to limit the grant here in question in the manner contended for by the defendants. I am of the opinion that the word “with” has the force of the word “also” or “and” and is a mere conjunctive.

Undoubtedly the circumstance that the water company was not entitled to engage in the public service of a telegraph or telephone company, and the line was going into a region where there was no reason to suppose that there would be any public service of that sort, would naturally lead to the supposition that the telegraph and telephone line would be used for the purpose of the water company only. But against any inference from that circumstance is the very broad language of the grant itself, to which I have already alluded. It is a “telegraph or telephone line or lines” without limit in number, or any direct designation of purpose for which it was to be used, unless it be found in its immediate connection with the grant of a right of way “for all purposes."

Moreover, I am of the opinion that this is a case where the rule that before a complainant can have relief of this sort in this court Ms right at law must be perfectly clear, does not apply in its full force. The complainant here is simply asking that the defendants should not enter with strong hand and destroy its property, of which it has full possession and right of possession. See in this connection, French v. Robb, 67 N. J. Law (38 Vr.) 260. The case is far outside that relied upon by defendants, to wit, Broome v. Telephone Co., 42 N. J. Eq. (15 Stew.) 141. There the telephone company had hardly a color of right, and the landowner was defending Ms possession.

The effect of permitting the defendants not only to tear down the wires, which they did in this case, as before stated, but also to saw off the top of the poles, as is also charged and admitted, would be to compel the complainant either to wait for years the result of an action of trespass before enjoying the easement, or else to admit that the construction of the grant claimed by the defendants is the true one, and apply for condemnation of the additional right so claimed, and incur all the expense and hazard of condemnation proceedings.

On the contrary, I think the rule of clear right at law ought to be applied to the man who undertakes to enforce his rights bjr the strong hand, and that the defendants should be enjoined from enforcing Ms right in that manner until he shall establish it at law. I think, therefore, that the complainant is entitled to relief in this court.

One other point made by the defendants remains to be considered. The defendants offered parol proof, and it was admitted, subject to timely objection by the complainant, to the effect that at and before the time when one or more of the original grants in this case was made the purchasing agent of the water company stated to that particular grantor that the telephone line was to be used only for use in assisting in the construction and maintenance of the water works. I stated at the hearing, and I still think not only that the evidence was incompetent as tending to vary a written instrument, but that it was not of a character to rise to the dignity of a contract or representation which affected the transaction. In this connection I refer to Chetwood v. Brittan, 2 N. J. Eq. (1 Gr. Ch.) 438, on motion for an injunction, and 4 N. J. Eq. (3 Gr. Ch.) 334, on final hearing. I dealt with that case in O’Brien v. Paterson Brewing and, Malting Co., 69 N. J. Eq. (8 Robb.) 117, and will not repeat what I there said. I will only add that I attempted, and, I think, succeeded, in there drawing a distinction between the case where the parol evidence amounted to a stipulation that the instrument in question was not, under certain circumstances, to have binding effect, and one in which its effect was to vary the construction to be put by the court upon a written contract. In the latter case the rule is hard and fast that parol evidence cannot be used except in a direct proceeding to reform the contract. This element is not found in this case. Moreover, I see nothing in the evidence to lead to the conclusion that the remark made by the purchasing agent, as testified to by the witness, amounted to anything more than a casual explanatory remark, quite insufficient to maintain a bill to reform.

But if I had come to a different conclusion on this point I should have been met by another point made by the complainant in answer thereto, namely, that it stands in the position of a Iona fide purchaser without notice of the parol agreement. The contents of the agreement between the city and the complainant shows a consideration passing or to pass between the two, and the complainant entered and put up its new line of poles and incurred other expenses on the strength of that agreement as it appears in writing, and this constitutes it a Iona fide purchaser for value.

Upon the whole case, then, I find it necessary to adjudge and determine only this—that the defendants have no such right, adverse to that claimed by complainant, as-to entitle them to enforce such right, if any, by the strong hand, and will advise a decree for an injunction.