text:
    Helen Knittel, appellant, v. Charles A. Knittel, respondent.
    [Decided July 13th, 1917.]
    On appeal from a decree of the court of chancery advised by Advisory Master Thompson, who filed the following opinion:
    The petition is filed by the wife charging the husband with having committed adultery with three different women, unknown to the petitioner, in Atlantic City, New Jersey, at different times during the summer of 1916, and specifically charges the defendant with having committed adultery with one Ivitty Murray, in Atlantic City, on September 19th, 1916. During the hearing the petitioner asked for leave fo amend the petition and charge the defendant with having committed adultery with three other women, names unknown, during July and August, 1914, in Atlantic City, at 15 South Carolina avenue.
    The defendant in his answer denies the charges in the petition, and for defence says that the ¡oetitioner condoned the offence with knowledge of said supposed acts of adultery and they continued their matrimonial relations and they cohabited up to and including September 5th, 1916; and as a further defence charges that in said supposed acts of adultery the petitioner connived and deliberately sought to entrap the defendant to commit adultery by procuring the parties named in the petition to invite the defendant to commit adultery. ■
    The parties were married in Atlantic City, New Jersey, on December 12th, 1911, and have, lived in Atlantic City continuously. There were two children born of their marriage—Elizabeth aged four j^ears, and Helen aged one year.
    The petitioner has an income, independent of her husband, of $5,000 per year. Her mother also contributed towards her support. Her husband allowed her $17 per week, and in his testimony claimed that was all he could afford to give her, which statement is uncontradicted. The husband was engaged in the real estate business in Philadelphia and Atlantic City, dividing his time between the two offices.
    In support of the charges in the petition with respect to adultery with three different unknown women during the summer of 1916, several witnesses were examined, generally detectives employed by Mrs. Knittel to watch Mr. Knittel, who was in the habit of bathing, walking and sitting on the beach with different women during the summer of 1916. The petitioner’s witnesses say, and 'also Mrs. Knittel, on at least one occasion, that Mr. Knittel’s conduct toward these women, both in the water and on the beach, was common and vulgar, and that he had his hands on their breasts and legs. This is.not denied by the defendant, but, on the contrary, he admits part of these charges, but denies that he ever committed adultery with any of them. On these occasions there was clearly an inclination on his part to commit adultery, but no opportunity so far as shown by the testimony. The beach and boardwalk were crowded -with bathers and sightseers when he was in company with these women.
    The charges alleged in the amendment to the petition that the defendant committed adultery at a house number 15 South Carolina avenue with women unknown to the petitioner during July and August, 1914, is denied by the defendant. The testimony offered to support these charges was confined to one witness, Frank Wade, who saj^s he was a roomer in the house during the summer, and on three separate occasions saw Mr. Knittel in the house with as many different women; that the house was run for immoral purposes, and that defendant came there at night and occupied, on each occasion, a room next' to his room, and he saw him through a hole in the door between the rooms, and the lights were on, and that he saw and heard him, and that he had sexual intercourse on these occasions, and that he remained in the room for several hours. When asked how he knew that it was Mr. Knittel that was there with these women, he said that Mrs. Harrison, who kept the house, told him that it. was Mr. Knittel when he came in with a girl. Later, during liis testimony, lie said that he had known the defendant before he saw liim at the house, and that they had drank together at several different saloons and hotels. This witness was brought into the case by George Herbert, a detective employed by the petitioner to secure evidence against her husband. His direct testimony did not impress me with its truthfulness, and after the conclusion of his cross-examination, from the manner he had conducted himself and his general appearance and actions, I was convinced there was no confidence to be placed in any statement he made. A man as anxious as he showed himself to be in telling of his own conduct, depravity and licentiousness must be inherently wrong in his whole make-up and entirely without responsibility, and without any corroboration must be disbelieved. The defeudant denied that he was ever in the house and that he ever knew the witness, and says he never saw him until in court that day. I must believe the defendant’s statement in this respect.
    The petitioner produced a colored man, James Lewis, 'as a witness, who had been employed by the defendant’s mother as a chauffeur. On cross-examination the witness said he left Mrs. ICnittel’s (defendant’s mother) employment because he
    “didn’t feel like working around Mrs. Knittel’s house, knowing that Mrs. Knittel told me every day that her son Charlie was innocent of this case, coming in and talking to me about that, and I knowing he was guilty of it, and been treating me very funny, and I say to myself X don’t like to work for people that way, I know what had been going on around the house, and I didn’t feel that I should stay there, so I left.”
    And he later said:
    “I didn’t like to work for this kind of people.
    “Q. Why not?
    “A. Because I don’t know if people do things like that they could say that—won’t say that his mother, either one, 'I don’t know about her—but he could say that I taken a tire off the car and sold it, or any kind of thing.”
    This witness testified that on several occasions, at night, he took the defendant out in his mother’s automobile and he met and took in the car women -from the street and took them to saloons and out-of-the-way places. The defendant denies the statement made by this witness and says-that he was discharged by his mother under suspicion that he had stolen $43 in money left by her in her automobile. Without special reference to this testimony, I was not impressed by his manner on the witness-stand and cannot accept his statements as true. AL a subsequent hearing I requested the production of this witness in order that I might personally further examine him. It was claimed'by Mr. Herbert, the detective, that’the day before he had left Atlantic City and probably gone to Washington, and that he had tried to reach him by telegraph but had failed. At the time this witness gave his testimony, and for some days afterwards, in fact, rip to the time it is said he went to Washington, he had been employed by Detective Herbert in teaching him how to run his automobile.
    There is one direct charge of adultery with Kitty Murray, so named in the petition, on September 19th, 1916, which is still left to be considered. Most of the testimony in this case is directed to this specific charge and is by far the most important in the petition from my viewpoint.
    Kitty Murray was not her right name. It was Kitty Abrams, as appears from the testimony of Mr. Garrison, the petitioner's solicitor, who knew her and had represented her in two suits he had previously brought for her, one of which was then pending but in process of settlement. ,.The defendant says in his answer, "petitioner connived and deliberately sought to entrap the defendant to Commit adultery.” Kitty Abrams was subpoenaed by the defendant but failed to appear and answer the subpoena. She ds now supposed to be beyond this jurisdiction. The last known of her wras after the first hearing in this case, when the mother of Kitty Abrams called Mr. Garrison on the telephone and told him she had been offered money to testify in behalf of the defendant. She was then supposed to be in Philadelphia.
    The defendant, by invitation from Kitty Abrams over the telephone, went to number 512 Oriental avenue, Atlantic City, on the evening of September 19th, 1916. She and her mother had an apartment on the ground floor of that building. It wras located on the corner‘of Oriental .avenue and an alley. There were at least two doors by which the apartment could be entered, one on Oriental avenue, the other from the alley in the rear. So far .as it appears from the testimony, Nitty Abrams must have been alone that night in the apartment. The defendant says he first met Nitty Abrams at his office. She and her mother came there and wanted to rent an apartment through him. She came there the second time and he made an appointment to meet her on that same day, which was Saturday, on the beach and bathe with her. During the day of September 19th she called him on the telephone and made the appointment to meet him that evening between eight and eight-thirty at her apartments, 512 Oriental avenue. He further says that he went there, rang the bell, and was admitted by Nitty Abrams. She took him through the apartment and then to a bedroom where he removed his coat, vest, trousers and underdrawers, and she removed some of her clothing, then stepped out of the bedroom to turn out the light, came back and pretended to lock the door. At about that time George Herbert, the detective, Miss McGowan, an assistant detective, Edmund J. Shaw and the petitioner came in the room; that he was sitting on a chair and his wife said to him, “Give me the key to the house.” The Herbert party then left the room and the house and he then came out of the room and went away. The defendant denies that he had sexual intercourse with Nitty Abrams at that time. Unquestionably, however, he' went there for that purpose. The defendant, as a matter of fact, denies that he had ever at any time since his -marriage been untrue to his wife.
    Nitty Abrams rented the apartment 512 Oriental avenue, which was furnished, for eight months, as shown by this testimony of the owner of the property. She paid one month’s rent in advance and left about the end of the month without notifying the owner, not even surrendering the keys. Before she and her mother rented the apartment they had rented rooms at number 11 South Mt: Vernon avenue from Mrs. Della Clark. Mrs. Clark knew her by the name of Nitty Murray at that time. They moved from Mrs. Clark’s rooms to 512 Oriental avenue. When they left they owed Mrs. Clark for room rent $16.50. She did not know where they were going, but had one of her nephews follow the wagon that removed some of their things from the rooms that they had occupied, and through this she learned where they were then living. Mrs. Clark wanted her money and says Kitty Abrams told her she was to meet a man in her apartment for the purpose of having his wife come there and catch them together. She says she had called him up> on Monday and made an appointment for him to come to her apartment on Tuesday night, between eight and eight-thirty, and she would get $200 if they pulled the trick off, and she would then pay her. The next day after Tuesday the 19th she came to Mrs. Clark and paid her $16.50, and at that time exhibited a roll of bills and claimed that she was paid $200 for pulling off the trick. Mrs. Clark says that on the Sunday morning before Kitty Abrams vacated her rooms, which she did on Monday, a man came to the house who answers the description of Detective Herbert and asked for Mrs. Abrams. She told Mrs. Abrams and Mrs. Abrams said, “Tell him to step in the bedroom,” that he was her cousin, and the party went in the bedroom, and as she was passing back through to the bath she heard him say, “I saw you. I saw you when you met him.” And he said something about being on the pier. I believe that man was George Herbert. She says she saw this man on the night of September 19th in the apartment with another man at 512 Oriental avenue; later he came out alone and went away and returned with two women a few minutes later. Shortly after that the defendant (whom she did not' know at that time) came and entered the apartment. Soon after this the Herbert party came out and later the defendant, and that one of her nephews, who was with her watching the house, went up to the defendant and called him by name, “Charlie Knittel.” Mrs. Clark says that she went to Oriental avenue and took her two nephews with her for the purpose of trying to protect the person whom she did not know from getting in trouble. She says: “I went up there for the full purpose of putting this man wise, for I thought it was a shame to break up a home/’ Her two nephews Claude 'L. Clark and Phineas Long corroborate her statement as to ydiat occurred outside of the apartment that night. All of these three witnesses, from their manner in giving testimony and their appearance and actions on the witness-stand, impressed me with the truthfulness of their statements. I believe Mrs. Clark went there for the purpose which she states. They all testified they did not warn the defendant, as they had intended, as they did not know who it was that was to come there in advance, and that he came from a direction and approached the apartment away from them and entered the apartment quickly and they did not have time to warn him.
    George Herbert was employed by.the petitioner to secure evidence against her husband. He had watched him from time to time during the summer on the beach bathing with different women, and had observed his conduct toward these women, and he and other witnesses, including Mrs. Knittel, described his actions. Part of this was admitted by the defendant on his direct examination. The testimony shows that Mr. Herbert was well paid for Ms services. He also had other operatives of his at this work. Mr. Herbert had made an investigation • which concerned Kitty Abrams and her mother in relation to an accident, which suit had been brought by Mr. Garrison for them against the Shill Rolling Chair Company. Mr. Herbert says that on the morning of September 19th he was going to Mr. Garrison’s office and Kitty Abrams was passing out of Mr. Garrison’s office. He said to Mr. Garrison that she, meaning Kitty Abrams, was in Knittel’s office and Mr. Garrison said:
    “Well, she told me that she had a broker putting up for her and that she had a date with him that night, and that he would not be surprised that if Knittel was not the man, because she would go with anybody.”
    Herbert says he followed her and- ascertained where she lived. NHe notified two or three other parties of the supposed meeting that night, including Mrs. Knittel, the petitioner. They went up to Oriental avenue and they all say found the back door unlocked and entered the house through that door, went in and hid, and saw the defendant and Kitty Abrams come through the room where they were concealed and went to the bath room for a moment, and that Kitty Abrams struck a match as' they were passing through the room,i and a few minutes later they all went to the bedroom. Mr. Herbert opened the door, which was unlocked, and went in and found the • defendant and Kitty Abrams, and that defendant had on Qiily an undershirt, and Kitty Abrams had removed part of her clothing.. Mrs. Knittel said to her husband, “What are you doing here in this shape?” And she said,,“Give me the key to my house.” The defendant gave her the key and they left. In this party was Mr. Herbert, Mrs. Knittel, Miss McGowan and Mr. Shaw. All of these parties testified to about the same thing with rc-spect to the visit to the apartment. Apparently, from their statement, all of the doors of the house were unlocked, the rear door and the bedroom door, and evidently the front door, as they say they went out that way. Mrs. Clark, Mr. Clark and Mr. Long all testified that shortly after Mr. Herbert, Mrs. Knittel, Miss McGowan and Mr. Shaw had entered the apartment Kitty Abrams came out on the front in the street and walked up and down and appeared to be watching for somebody, and that she did this several times. I am forced to the conclusion that the Herbert party was concealed in the apartment expecting Mr. Knittel io come, and that Kitty Abrams was impatiently waiting for him as shown by her anxiety in going to the door and looking out. Mrs. Clark and her two nephews all testified positively that the Herbert party used only the front door in going in the building and coming out; that someone came out, as the testimony shows was Mr. Herbert; that he went away and came back with two women, which the testimony shows were Mrs. Knittel and Miss McGowan, and that they entered the apartment through the front door, and when they finally left the building they went 'out through.the front door. I believe this tó be true, and not the statement made by Mrs. Knittel and her witnesses.
    From all the facts and circumstances shown in this case I am entirely convinced that all of this had been prearranged, that Kitty Abrams had been employed to lure the defendant to her apartment, and that she and they connived at the act of adultery. They were all there in good time. They were concealed in the apartment, even according to their own testimony, at the time -Mr. Knittel came there, and when Mr. Herbert evidently concluded that the time had arrived for going in the bedroom he was there promptly followed by the other parties. Before that Kitty Abrams had invited him to remove his clothing. She had removed part of hers, everything staged for the entry of the Herbert party. The detective had finished his job and it was so well done that the petitioner, according to her own testimony and Herbert’s testimony, paid him $500 more than she had agreed to. •
    I cannot believe that the testimony of Mrs. Clark, Claude A. Clark and Phineas Long as to what they say occurred that night is false. Mrs. Clark must have known from someone that the defendant was going to that house on the night of September 19th, and she must have obtained that information, as she says, from Kitty Abrams herself. I do not believe it was a mere chance that the detective, Herbert, w.as taking chances from the information he sayS he got from Mr. Garrison’s office on the morning of the 19th that induced him to go there that night and arrange to have Mr. Shaw go with him, and arrange with-Miss McGowan, his assistant, to have her go down and bring Mrs. Knittel up town that night and take them all to this apartment, unless he was sure the defendant would be there too.
    Connivance to have the- defendant commit adultery is clearly shown to my mind by every fact and circumstance in the ease and admits of no substantial doubt.
    My 'conclusions are a decree should be entered 'refusing the divorce prayed for.

      Messrs. Garrison & Yoorhees and Messrs. Bourgeois & Goulomb3 for the appellant.

      Mr. Martin B. Keffer, for the respondent.
   Per Curiam.

The decree appealed from will be affirmed, for the reasons stated in the opinion filed in the court below by Advisory Master Thompson.

For affirmance—Garrison, .Swayze, Bergen, Mikturn, . Kalisch,'Black, White, Heppenheimer, Williams, Taylor, Gardner—11.

For reversal—None.


source: Caselaw Access Project

author: Per Curiam.'

license: Public Domain

text:
    In re application of Rebecca H. Shreve et al. for sale of lands.
    [Decided March 14th, 1917.]
    On appeal from an order of the court of chancery reported ante ¶.7.

      Mr. Ellis L. Pierson, for the appellant.

      Mr. Scott ScammeTl, for the'respondent.
   Per Curiam.'

The order appealed from will be affirmed, for the reasons stated in the opinion filed in the court below by the chancellor.

For aiffirmance—The Chief-Justice, Garrison, Swayze, Trenohakd, Bergen, . Minturn, Kalisoi-i, Black, White, Hebeenheimer, Williams, Gardner—12.

For reversal—None.


author: Walker, Chancellor.

text:
    Franklin Banks v. William Simpkins.
    [Decided December 20th, 1917.]
    1. The right of a lower owner to dam and back water up on an upper owner can only be acquired by grant or prescription.
    2. To show tliat flooding bogs at various times is a custom in the husbandry of cranberries in an action. involving the right to dam up ■waters, it is not necessary to show that such usage is immemorial.

      3. Because a cranberry grower keeps a gateway in a natural water course closed, and uses an artificial- drain in ordinary times, this does not require him to keep such gate closed in a freshet, where the lower owner has acquired no right by prescription or grant to require it to be kept closed at such a time.
    4. In this case the evidence shows that a reservoir of an ancient or natural water course, was an obstruction causing the backing up and flooding of an upper cranberry bog.
    5. An answer to a suit to enjoin the maintenance of a reservoir by a lower landowner, although denying that the reservoir caused water to back up on the complainant’s land, held to admit facts which bring the case within the rule that courts of equity have jurisdiction of such cases where the legal right, though disputed, is clear on facts which are not denied and legal rules which are well settled.
    On final hearing on pleadings and proofs.

      Mr. Jonathan IT. Kelsey, for the complainant.

      Mr. Harold B. Wells, for the defendant.
   Walker, Chancellor.

The bill alleges that the complainant is the owner of a tract of fifty-seven acres of land in the county of Burlington, which is largely under the cultivation of cranberries, and that a stream of water flows through the tract and cranberry bog; that the defendant is the owner of a large tract of land adjoining that of the complainant., and that the defendant’s land is ón the stream of water and below the land of the complainant, and that the natural course of the stream running through the complainant’s land is toward and through the tract of land and cranberry bog of the defendant; that the defendant maintains a reservoir below and adjoining the tract of the complainant, which reservoir consists of a large area of land enclosing the water course and basin of the stream by large banks, and that the banks or dams have flood-gates or sluiceways for holding and discharging water; that the reservoir of defendant completely blocks the water that flows through the stream in complainant’s bog; that the complainant can only drain his bog by a ditch from the stream flowing in another direction, and, by so doing, diverting the water from its natural course; thiat the complainant has no way of draining his land or bog except by diverting waters from the natural course of the stream, and is unable to sufficiently drain his land and bog by reason of the defendant’s maintenance of his reservoir with a large body of' water below complainant’s land, which water has backed up on the complainant’s bog, overflowing the same, by reason whereof large quantities of cranberries, and the bog, have been damaged, and the complainant prevented from cleaning and cultivating his berries; that he has frequently applied to the defendant to open the sluiceway in. his dam' and allow the water to flow from his bog and not back up on to complainant’s land by the maintenance of the reservoir, and has requested him to desist from holding the water in his reservoir to such a height that it would back up on the complainant’s lands and destroy the berries, which defendant has wholly refused to' do. The prayer of the bill is that the defendant may be restrained by injunction from holding a head of water in his reservoir from the 1st of May to the 1st of December in each year to- siich height that the complainant cannot drain his bog through the natural water course flowing through the defend■ant’s land, and that defendant be restrained from obstructing the water course by dam, gates or otherwise during the time complainant’s bog is not flooded during the seasons that bogs are necessarily to be clear of water for the growing of crops, and that the defendant be restrained from interfering with the natural water course by stoppage or otherwise, so that the complainant may .have a clear water course at all times that it may be necessary for the maintenance of his cranberry bog and the growing and cultivation of fruit thereon, and for further or other relief.

The answer of the defendant admits that the complainant is the owner of the tract of land and premises described in the bill and admits that a portion thereof is under the cultivation of cranberries, and that a stream of water flows through the tract and cranberry bog; that defendant is the owner and proprietor of the tract' of land and premises adjoining that of complainant, -and avers that some portion of defendant’s land is on the stream of water and below the land of complainant, and that the natural water course of the stream running through complainant’s land flows toward and through some portions of the tract of land and bog of the defendant, but denies that the natural water course of the stream runs through his reservoir, and says that this natural course runs from the lands of the complainant to a point opposite the sluiceway in the dam dividing the land of complainant from the reservoir of the defendant, and thence along .tire southerly side of the dam dividing the land of the complainant from the reservoir and land of the defendant, in an easterly direction to the sluiceway in the dam dividing the property of complainant, from that of William II. Brown, and thence on to the property of Brown, through his sluiceways and ditches on to other lands of the defendant and to the northeast of the lands of Brown, and thence on and through the lands of Samuel E. Garrison to Deep run, and thence to Rancocas creek; that the defendant has maintained a reservoir adjoining the complainant’s tract and that the reservoir consists of a large area of land, but denies that it encloses the water basin referred to in .tire bill, but admits that the reservoir is enclosed by banks, and that in the banks are floodgates or sluiceways with gates for holding and discharging water; that'it is not true that his reservoir completely blocks any water that may flow through the stream in complainant’s bog from the natural flow of the water, and denies that complainant can drain his bog only by a ditch from the stream flowing in another direction, .and, by so doing, diverting the water from its natural course, and says that the natural course is not through defendant’s reservoir; that it is not true that complainant has no way of draining his tract except by diverting the water from the natural course of the stream, and says that there aye two sluice-ways other than the one leading from complainant’s land to defendant’s reservoir, one of which is the dam dividing the lands of complainant from that of Brown, and the other is near the easterly’ end of the dam dividing the lands of defendant from those of the complainant, both of which sluiceways afford ample outlet for the water; sufficient to drain complainant’s land and bog; that for the last thirty years only the top water has passed from the lands of the complainant to those, of the defendant through the sluiceway leading into defendant’s reservoir, and that.for over twenty-five years a sand or turf dam immediately in front of the sluiceway completely blocked the bottom water from passing from the lands of complainant, and his predecessors in title, to the land of defendant and his predecessors in title, and that for the last ten years that sluiceway has been in existence as an auxiliary dam to the sand or turf dam, and the two combined have prevented anything but the top water from passing from the lands of complainant into the reservoir of defendant, and that the boards in that sluiceway have always been kept in, and that the sand.or turf dam was removed by complainant in the month of July,'1915, but that the sluiceway still effectually prevents anything but the top water from passing from the lands of the complainant to the reservoir of defendant, the bottom water still passing; as it has passed for over thirty years,along the southerly side of the dam dividing the lands of complainant from lands of defendant to and through the Brown sluiceway, &c.; that it is not'true that by defendant’s maintenance of his reservoir with a large body, of water below that of complainant’s land the water has backed up on complainant’s cranberry bog, overflowing the same, 'and by reason thereof has rotted large quantities of cranberries and damaged the bog and prevented the complainant from cleaning and cultivating the berries; that complainant has not frequently applied to defendant to open the sluiceways and allow the water to flow from complainant’s bog and not back the water on complainant’s land by maintaining the reservoir, and to desist from holding the water in the reservoir to such a height that it would back on to complainant’s land and destroy his fruit, and says that only on one occasion did complainant ask defendant to open the sluice-ways in his dam, and that was during a long and severe storm in which unprecedented quantities of water'fell upon the earth, by reason of which many bogs in the vicinity were inundated, and during which and for a short time thereafter the bog of complainant was covered with water due to his neglect in the regulation of his gates or sluiceways in the dam dividing the property of complainant from that of Brown, and also the gates or sluice-ways near the easterly end of the dam dividing the lands of complainant from those of defendant; defendant admits that on this occasion complainant asked him to remove the-lower gates in his reservoir, with which request he refused to comply, for the reason that it -would not have helped to remove the volume of water from the lands of complainant and would have damaged the defendant’s bog by overflowing the same with, water then held in defendant’s reservoir, none of which was at that time backing up on to the lands of complainant, nor has the water ever backed up from defendant’s reservoir to and upon the lands of complainant.

In Defiance Fruit Co. v. Fox, 72 N. J. Eq. 297, Vice-Chancellor Leaming decided that the overflowing of a cranberry bog by back water, was a purely legal question and of his own motion refused to try that issue in the case and relegated, the.complainant to a suit at law, retaining the bill ad interim. In S. C., 76 N. J. Eq. 147, after verdict for defendant in the action at law, and another similar action brought, defendant filed a cross-bill, to the end that this court should make a decree determining the level to which the water in a. certain mill pond could be lawfully maintained, and the defendants answered and joined in the prayer of the cross-bill.

The original bill in Defiance Fruit Co. v. Fox was retained pending action at law because of the absence of the denial of equity jurisdiction by the defendant,. In the second suit of Defiance Fruit Co. v. Fox the vice-chancellor, after hearing, decided the height to which defendant had obtained a prescriptive right to raise the water in the stream in question by means of a certain dam. And in the case at bar both parties have submitted for my determination the issue raised by the bill and answer. The question thus presented has been submitted on affidavits served and replied to, as on final hearing, and, at my suggestion and by consent of the' parties, I have viewed the premises in question. It is pertinent to observe that in the Defiance Fruit Company Case the defendant asserted a, prescriptive right to maintain a dam at a certain height. Not so in the case at bar. Here no right by prescription is set out. On the contrary, it is conceded that defendant’s dam has only existed fifteen years. This case I deem to be entirely within the jurisdiction of this court, as will hereinafter be made to appear. ■

The testimony is conflicting and perplexing. It is significant, however, that the defendant in one of his affidavits says that owing to a scarcity of water.it became necessary for him, some fifteen years before the filing of complainant’s bill, to construct a reservoir, which he did at considerable expense, and that the reservoir is on a piece of swamp land, at the northerly and easterly ends of which are dams in which are sluiceways or gates, and that his bog adjoins that of the complainant and that they are separated by a dam, near the westerly end of which is a sluiceway. It is true that the defendant avers and testifies that this sluiceway has been closed for over twenty years, and that the only water he receives for his reservoir through this sluice-way is the top water and such as soaks through the gates, and also that there has existed for over twenty-five years in front of the complainant’s, sluiceway a sand or tuff dam which was removed by the complainant in July, 1915, and that for over ten years the present wooden sluiceway has been in existence, and that the turf dam alone completely prevented the water from flowing from complainant’s bog to defendant’s reservoir, and that the present sluiceway was an additional and auxiliary barrier. But it is not perceived that these facts, assuming them to be true, give the defendant any right to maintain a reservoir, below complainant’s lands, which would raise the height of the water in the natural stream, thereby raising its level as it flows through the land and bog of the complainant in times when it is necessary for the complainant to have the water flow at its natural level instead of backing up and overflowing .his bog by reason of the existence of the reservoir below and any unnatural height of water maintained in it. Such a right could only be acquired by grant or prescription. No grant was pleaded or proof offered to show that the prescriptive period of twenty years of uninterrupted exercise of tire alleged right has accrued.

It may well be that th.e defendant would have' a right to demand that the natural flow of the stream through complainant’s land should be uninterrupted, so that he, the defendant, could enjoy all of the natural flowage of the stream instead of only the top water running over the boards in complainant’s sluice-way, were it not for the fact that the complainant appears to have acquired a prescriptive right -to so control the water in the stream. And this by the defendant’s own showing. However, this question is not in the case.

The defendant also testifies that his cranberry bog without the use of the reservoir would be worth a much less sum than it is, as the reservoir is the only means which he has of protecting his bog.

On the argument before me it was stated and conceded that the cultivation of cranberries is a specialized business. That an acre of cranberry vines in good state of cultivation, with proper and necessary dams, ditches, reservoirs and water-supply, is worth, approximately, $1,000, but when such ground is'not properly taken care of, and without proper .ditches, reservoirs, dams and water-supply, it is of little value, probably. about $50 per acre. That to a cranberry grower the land or bottom is divided into two classes, namely, the swamp bottom, which is of muck or peaty nature, and is almost invariably traversed by a stream of water, and land that sheds the water toward the swamp proper, and which is only very occasionally flooded by freshets,-which bottom is made up of a mixture of sand ánd decayed matter, and is called “SavaJmah” ground. All other land is what is called “outland,” being the higli land, composed principally of sand, and is of little or no value for cranberry cultivation.

The swamp bottom and Savannah ground is that used for cranberry cultivation, and in its wild or natural state is covered with trees and undergrowth. The person who proposes to change such land into a cranberry bog, invariably must build dikes or dams across the. swamp or slope of the ground and catch the water and hold it on the ground until all such undergrowth is killed, which takes about two years. Then the water, is drawn off and the ground is properly ditched and then burned over. After the burning, the ground is cleared of such rubbish as may remain and then graded. After this the vines are set out in rows about one foot apart — a small bunch of vines in each hill or place. After setting out the vines they come into bearing after four or five years, and a full crop is not procured until approximately eight years after the vines are planted. Thus, practically ten years are consumed in placing a property on a paying basis.

After the cranberry vines come into bearing they are seriously affected by frosts, floods, draughts, insect pests, severe hot weather and different kinds of noxious growths, most of which can be dealt with properly by flowing .the bogs at the proper time of year and for the required length of time.' The growing season for cranberries is from about the 1st of May to about the 1st of October, during which time the bogs are not flooded, except for short periods only. The winter flood is usually put on about the 1st of December, but sometimes earlier, and kept on until 'some time in April. During this later period the vines should be completely covered with water, the principal reason being to prevent them from being winter killed, as it is called, and to prevent the too early starting of growth in the spring. The cranberries are harvested during the month of September and the early part of October. If a frost occurs during the growing, it will kill the bloom during the early part of the period and ruin the berries during the later part, and thereby make them worthless. One night of frost is often sufficient to completely ruin a crop of berries for the year. The only practical method known to the industry to save a crop-'from frost is by covering the vines with water, which is an effective shield.

If a grower has no reservoir wherein to store water, it becomes impossible for him to flood within the time required to prevent blighting by frost, if there are no streams flowing througlrthe bogs sufficiently large to flood the necessary acreage within the few hours required.' Frosts occur during the months of May and June, sometimes as late as the 15th of June, and then again in the fall, from the 1st of September until the crop is entirely harvested. The harvesting is usually complete by the 15th to the 20th of October. A heavy frost on one night can, and has, • destroyed entire crops of berries.

Insect pests must also be guarded against. The “fire worms” can, and do, often within a few days ruin entire crops. These worms work during the mid-blooming and growing seasons. They can be controlled only by water. Such flowing must be done very quickly, and the water held on the vines only sufficiently long to do the work required, and then must be drawn off as quickly as possible. The “girdle worms” work toward the latter part of the growing season, and to control them the vines must be flowed immediately after the berries are picked.

In order to flood cranberry bogs they mu§t be surrounded by dams of proper size so that the water can be impounded where needed. Proper sluiceways must also be built in such dams for the venting of the water that may be in streams, or that may accumulate from rainfall.

This description of the custom of husbandry in this particular kind of agriculture — that is, the cultivation of cranberries, is interesting. It is not shown how long this custom has existed, but it would appear that it is not necessary that such usage should be immemorial. Barton v. McKelway, 22 N. J. Law 165, 175. See, also, Runyan v. Central Railroad Co., 64 N. J. Law 68, 78.

Both these parties are cranberry growers on lands adjoining one another. Each must, in the nature of things, maintain dams, and may maintain reservoirs with sluicegates, &e.; but this does not permit of either one so controlling the water on his premises that it may operate to the detriment of the other, unless a right to such control resides in grant or prescription. No mere custom of husbandry could be permitted to subordinate the principles** of law regulating the flowage of water in natural streams, unless, of course, a party acquired such a right by grant or prescription, or succeeded to such right, already acquired,'by descent or conveyance.

Three maps were offered in evidence — two made by James Logan, civil engineer,, for complainant, and one by Henry S. Haines, civil engineer, for defendant. The first Logan map was 'made November 16th, 1915, and is a sort of skeleton or outline map. The other one was made in June, 1917, and contains many levels. In the Logan map of November, 1915, in the divid-' ing line between the premises of the complainant and defendant, ■is shown a sluiceway in the dam, marked A. On the defendant’s land, and at two certain points in the bank of his reservoir, are sluiceways marked B and C. Logan testified that point A is the elevation of the ground on the northwest side of Banks’ dam; point B, the elevation of the ground on the south side of Simpkins’ dam, near the gate on the west, and point C, the elevation of the ground near the other gate of the same dam; .that the difference in elevation between A and B. is one foot eleven and three-quarter inches, A having the higher elevation, showing flow from A to.B; that the difference in elevation between A and C is one foot six and three-eighths inches. A having the higher' elevation, showing a flow from A to C. Logan further testified that the reservoir of Simpkins shown on the map covers a natural water course from Banks’ dam to the dam of Simpkins; that his reason for stating that the flow of water is from Banks’ to Simpkins’ is the result of a survey which he made.

The Haines map shows the sluiceways A, B and C, the same as on jhe Logan map. Mr. Haines says that ninety-nine and ninety-eight hundredths represents the elevation of water on the Simpkins” side of the sluiceway, marked A, and that ninety-nine and fifty-seven hundredths represents the elevation of water on the Banks’ side of the.same sluiceway, showing the water on the Banks’ side to be forty-one hundredths of a foot, or nearly five inches lower than on the Simpkins’ side of the same sluiceway. He further says that the field book which he had with him when testifying did not give the levels found by him at point B; that there is a decided slope in the'land along which the stream of water runs from A to D, E to E to G to H to Deep run, on his map, which course runs in a northeast direction, generally speaking, and empties into Rancocas creek. Logan’s map shows the elevation at point A on Banks’ side to be ninety-eight and eighty-five hundredths, and on Simpkins’ side to be ninety-eight and eighty-eight hundredths. The engineers are thus in agreement to the effect that the water was slightly higher on the Simpkins’ side of the dam when their maps were made. But this, it seems to me, is quite immaterial, because the dam, between the two properties, would enable either owner to maintain a greater head of water on his property than the other at will.

George Reilly, seventy years old, testified for the complainant that he resided in Burlington' county, hear the bogs in question, for about twenty-six years, and at one time owned the Banks’ land and is well acquainted with his bog and the reservoir of Simpkins 'adjoining, the general contour of the land and the natural flow of the waters that rise in the land of Theodore Budd, flowing thence through the Clevenger bog; thence through the lands and bogs of Burr; thence to the adjoining lands of Banks to that of Simpkins.' He remembers when the Banks’ tract was cleared and set out in cranberry vines and when the dams .were built, which was about forty years ago, and at that time all of the water flowed from the Banks’ property down through a natural water course to the Simpkins’ property, and has continued to flow from that timé up to the present in the same course and direction through the property of Simpkins. He remembers that Simpkins bought his property-about fifteen or sixteen years ago, at which time there was no reservoir on it, which was a natural swamp, with no dams surrounding it. The reservoir and dams of Simpkins have been erected and maintained since he purchased the property; that the dams consist of turf-walls of sufficient thickness and height to retain large bodies of water; that in those dams are-gates or sluiceways so constructed that the water can be held in the reservoir at such height as to back water over a considerable part of Banks’ bog and through it on to the land of Burr; that there is no other natural water course by which Banks can drain his bog except through Simpkins’-tract; that if Simpkins maintains a head of water in his reservoir it blocks the natural water course so that the water is backed upon tire lands and bog of Banks.

Victor Bush, another witness for complainant, testified that he is fort}r-nine years old, and has lived in Burlington county all his life; that he was with Messrs. Shreve, Lemon, Burr, Banks and others at the bog of Banks the first part of August, 1915, and was. there a few days before, when the bog was covered with water, when a boat could have been rowed anywhere over the Banks’ bog; that the reservoir of Simpkins was full of water, it being eighteen inches higher than .the water in Banks’ bog. He saw the condition of the cranberries on tire vines in Banks’ bog; that over the parts that had been flooded about ninety per cent, were rotted and decayed, and this was due to the' water backed up from the stoppage by Simpkins’ reservoir. Witness said he remembered Banks’ bog when his (witness’), father owned it about thirty-five years ago,, at which time there was no reservoir and there was no auxiliary ditch which led into Brown’s land; that there is a knoll through which this auxiliary ditch has been cut into Brown’s land, and that he himself was concerned in cutting the top off the knoll and putting in a little trough which was used as a tumbling dam, so that when the water reached a certain height it would automatically run over the tumbling dam; he remembered when Simpkins purchased his land and there was no reservoir there at that time and the bog now of Banks was drained through the Simpkins’ land, which was then a swamp; that Simpkins constructed his reservoir about fifteen years ago; that the auxiliary ditch was a narrow one, not situated at the lowest point of the bog and can only be used to drain excess water of a limited amount, and that to properly drain Banks’ bog it is necessary that the natural -water course running through Simpkins’ land should be clear and unobstructed. ,

J. Howard Burr, Thomas C. Shreve, Grant Joyclin, Charles Carpenter, William H. Brown, Franklin Butterworth and Franklin Banks, the complainant, testified generally to the same state of facts as those just detailed.-

The defendant, William Simpkins, besides testifying as above stated, said that his entire life has been 'spent in the development of cranberry bogs; 'that he gets the water in his reservoir from the lands of Andrew Fort, lying to the west, and holds the water in the reservoir at certain seasons of the year in order that he may distribute it throughout the ditches on to the various bogs owned by him to protect them against the winter "and for the extermination of insects wlien occasion requires; that if he has no right to shut the gates in his reservoir from May 1st to November 1st, it is practically useless, and his bogs are depreciated at least three-fourths in value; that he has never backed water from his reservoir on to the bog of Banks;. that there is no natural water course leading from Banks’ bog through his sluice-way into defendant’s reservoir, and thence through it to the lands of Butterworth, Eeilly and- Bills;’ that the natural water course for over forty years has been from Burr’s bog to Banks’ bog, and from Banks’ bog through a well-defined channel in an easterly direction along the southerly side of the Banks-Simpkins dam to a sluiceway in the dam between Banks and Brown, which dam runs perpendicular (parallel) to the dam between Brown's and his own, and which is known as the Brown sluiceway; that this channel or ditch is wide and deep and that the slope of the land is in that (Brown's) direction.

■ George Haines testified for’the defendant that he has resided in Pemberton township (Burlington county) for over thirty years, and has lived in the neighborhood of the bogs of Banks and Simpkins during all that time ; that he has been acquainted with the stream of. water running from the' lands of Burr on to and over the land of Banks; that the bottom water in the stream has been running for over thirty years from the lands owned by Banks through a stream or channel to the gates or sluiceway on and over the land of Brown and thence to Deep run, emptying into Bancocas creek; that it is only the top water that passes from the lands of Banks to those of Simpkins through the sluice-way in the dam dividing the properties; that the water in the Simpkins reservoir cannot back up upon the land of Banks unless Banks removes the boards in his gates; that on all ordinary occasions and in ordinary freshets the water is readily carried from the bog of Banks through his ditch into and through the sluiceway dividing his lands from those of Brown, and on and over Brown's land to Deep run, and thence to Bancocas creek; that for over thirty years the surface water from the ditches on Banks’ bog is the only water that has been conveyed through the Banks sluiceway on to the land of Simpkins, and for the last fifteen years Simpkins has caught the surface water in his_ reservoir and has distributed it from the reservoir to the land of Butterworth, Beilly and Bills; that the reservoir gathers the greater part of its water from the west and from the land formerly of Andrew Fort; that the general slope of the land is to the northeast, and that the lands of Fort are located to the west of Simpkins' reservoir and are higher; that the water from this reservoir cannot be made to injure the property of Banks unless he removes the boards in his sluiceway when there is a head of water in the reservoir and at the same time keeps in the boards in the Brown sluiceway and thereby draws the water'in the reservoir back through his, Banks’, sluiceway on to his land, and, by closing the Brown sluiceway, holding it there; that the reservoir is needed as a protection against the frosts of May,-June and'September, and that the bog of Simpkins would be practically ruined if he were compelled to leave the gates of his reservoir open from May to November 1st.

Samuel E. Reilly, Allen Clevenger and Harry Knight gave testimony corroborating the claim of defendant.

The trouble between these two men, complainant and defendant, of which this suit is the outgrowth, occurred by reason of an extraordinarily severe rain storm in the first part of August, 1915. As to that occurrence complainant testifies that in the forepart of August there had been a number of heavy rains and the water overflowed the ditches in his bog and commenced to cover the vines. It got so high that he found he could drain some water through the auxiliary ditch into the bog of Brown and then removed two boards from the gates into Brown’s bog'. Oh the next day he found that the water was still rising in his bog and the one remaining board was taken.out in the gates of the Brown ditch'; still the water got deeper in his bog and the next day he went to the bog and did everything he could to drain it, but found the water was getting deeper and flowing over his vines, completely covering the bog and. submerging the vines, except on the higher ridges; that he immediately drove over to Simpldns’ house and requested him to take some of the boards off the gates (B and C on the map) and thereby allow the water to flow through the natural course of his (Simpkins’) land, who, Simpkins, said he would go over and see if he could do as Banks wished; that he,-Banks, afterwards returned home and went back to the bog early the next morning, August 4th, and found the water deeper than -on the previous day; that Simpkins was there building a new gate (at a place marked on the map); that he again asked Simpkins if he would not take the boards off (on gates B and C) as he had promised he would; that Simpkins said he had only one board on the gate where the land was higher than at his (Banks’) gate; that he, Banks, went around to see the gates (B and C) for himself and found every board on that the gates would hold, up to the top, and the water flowing over the top boards. At that time Simpkins came up to where he, Banks, was and he asked him, Simpkins, if he would not take the boards-off the gates in the dam (B and C), that it would ruin his, Banks’, crop if the water much longer stayed up where.it was, and that Simpkins replied that the land was his and he would do as he pleased with it; that he had held that piece of land as a reservoir for the last fifteen years and expected to continue to do so. The complainant then sought out Howard Burr to get him to induce Simpkins to take the boards off. He took Burr and Victor Bush back to the bogs. Simpkins had gone home, leaving the gates as they were. The party met Clarence Simpkins, the defendant’s son, on the dams, and Burr called his attention to the water and told him the crop of his own bog would be ruined, if it was not already, and Clarence went around and took a board off each gate (at B and C). Complainant, Burr and Bush then went away, leaving Grant Joyelin to watch Clarence to see if he put back the boards. Joyelin testified that Clarence Simpkins took, a board off each gate referred to, and that Banks asked him, Joyelin, to watch that the boards were not put on again, which he did, and that shortly after Banks, Burr and Bush left he heard someone hammering at the gates, and went around there and found that the boards had been replaced, and then he went around to the dam, at point A, and saw that the water had stopped (flowing through the same and was backing on to Banks’ bog; that when Clarence Simpkins took the boards off the gates the water was running over the top board; that he could see the water go down at once in the reservoir; that there was quite a current out of the reservoir when the boards were out and this stopped when they were put back. Complainant testified that the water continued to flood his bog until August 7th, when it commenced to go down, and on the 8th it was off the vines, but the ditches were still flowing and the berries showed signs of rot, and continued to rot on-the part of his bog which had been flooded.

Defendant testified that the trouble, between him and the complainant arose because of the storm which occurred in the first part of August, 1915 ; that it was the most severe storm he recalls, lasting for several days; that during the first two days Banks neglected his bog, and did not remove the boards in the Brown sluiceway, which was the natural outlet for his water, nor from tlie sluiceway running from defendant’s to Banks’ bog, known as the Simpkins’ sluiceway, and that the water accumulated upon- the bog of Banks to such an extent as to overflow it; that when he did remove the boards in-the Brown sluiceway the water went down through the regular channel as fast as it possibly could, and that no water whatever, during this severe storm, backed up from the reservoir of defendant to the land of Banks; that during all the time of tire storm the boards were in the Banks’ sluiceway, making it impossible for -the water to back up from defendant’s .reservoir to the bog of Banks.

The question is as to the direction in which the water, unobstructed by the dividing dam or by the farther banks of the Simpkins’ dam, flows. My inspection of the locus in quo demonstrated to my satisfaction that the natural flow of the water was through Banks’ tract on to and through Simpkins’ tract in the bed of a swamp, which contained very little water in the dry periods. My view of the premises also convinced me that the water course running along the Banks’ side of the dam dividing his property from that of Simpkins, on to and through -the land of Brown, was an artificial ditch or drain. This was indicated by its commencing at the sluiceway A, through which the water would naturally flow on to Simpkins’ tract and running along the Banks’ tract practically paralleling the clam in almost a straight line until it reached the land of Brown, with equally distant bank's and of practically the same depth along its course. It appears to be a clear-cut and clearly-defined ditch or run.

Because Banks retains water in his ditches which would otherwise flow on to and through Simpkins’ land were it not for the generally closed sluiceway which Banks maintains, does not enable Simpkins to compel Banks to keep his sluiceway closed in times of freshet (or other times), because Banks appears to have acquired a right by prescription to retain the water, while Simpkins has obtained no right, either by grant or prescription, to prevent Banks from draining through and over Simpkins’ land.

The water rights here involved are not strictly those of upper and lower riparian owners, as such rights generally concern those of the owners of lands bounded by a stream of water in which the owners Lave a qualified property in the soil to the thread of the stream, but are rather the rights of flowage of a natural stream from higher ground on to and through the land of a lower owner. Although rights of flowage obtain in strictly riparian cases also.

A case in this state much in point is-that of Earl v. De Hart (Court of Errors and Appeals, 1866), 12 N. J. Eq. 280. The opinion is that of Chancellor Williamson, whose decree was' affirmed on his deliverance. The chancellor said (at p. 282) that the defendants’ answer admitted that there was a considerable quantity of water requiring an outlet from the complainant’s land at certain seasons of the year, and from the formation of the surface of the ground the water naturally flowed from the complainant’s land across the lot of the defendants. A parallel is created in the case at bar by the defendant’s averment in his answer that some portion of his land is on the stream of water and below the land of complainant, and that the natural water course of the stream running through complainant’s land flows toward and through some portion of the tract and bog of the defendant. It is true that the defendant denies that the natural water course runs through his reservoir and says that it runs from (over) the lands of the complainant to a point opposite the sluiceway in the dam dividing the land of complainant from the reservoir of the defendant and thence along the southerly side of that dam to the property of Brown. But- this is a virtual admission of what the fact is, namely, that the water course runs right down to the sluiceway in the dam dividing the lands of complainant and defendant, from whence, were it not for the dam when the sluiceway is closed, the water would flow on to the lands of defendant and into his reservoir. And, as already remarked, the water course turning abruptly to the right at the sluiceway and running along Banks’ side of the dam on to Brown’s land, is an artificial ditch, without which all the water running across complainant’s land would have to flow through and over the defendant’s or else be backed up on complainant’s.

Speaking of the stream in question, in Earl v. De Hart, the chancellor used this language (at p. 283):

“It is an ancient water course if the channel through which it naturally runs has existed from time immemorial. Whether it is entitled to be called an ancient water course, and, as such, legal rights can be acquired and lost in it, does not depend upon the quantity of water it discharges. Many ancient streams of water which, if dammed off, would inundate a large region of country, are dry for a great portion of the year. If the face of the country is such as necessarily collects in one body so large a quantity of water, after heavy rains and the melting of large bodies of snow, as to require an outlet to some common reservoir, and if such water is regularly discharged through a well-defined channel, which the force of the water has made for itself, and which is the accustomed'channel through which it flows, and has flowed from time immemorial, such channel is an ancient natural water course.”

In Bailey v. Schnitzius, 58 N. J. Eq. 235, Vice-Chancellor Bird applied the doctrine of Earl v. De Hart, to which case he referred as a well-considered one. In Bailey v. Schnitzius the court of errors and appeals likewise affirmed on the opinion of the vice-chancellor, which is the only one printed. Earl v. De Hart and Bailey v. Schnitzius embody the settled law of this state on this subject.

There is abundant testimony to show that the stream running across complainant’s lands on to and through those of the defendant is an ancient water course, and my observation of the surface of the ground indicated that it is the kind of ancient stream, comparatively dry during a great portion of the year, such as requires an outlet after heavy rains, as mentioned by Chancellor Williamson in Earl v. De Hart. That there is an artificial ditch or waterway on Banks’ land for the draining of a portion of the waters running through this ancient stream is favorable to the defendant, as otherwise all of the water running through the natural course would have to be emptied on and across the defendant’s land.

In my judgment, this case, on the law and the facts, is clearly with the complainant.

The case at bar, I think, is one of those in which the court of errors and appeals, in Hart v. Leonard, 42 N. J. Eq. 416, concedes that the court of chancery has jurisdiction without the rights of the parties having first been settled in an action at law. It comes, I think, within the third class of cases mentioned by Mr. Justice Dixon, who wrote the opinion — that is, cases where the legal right, though disputed, is clear on facts which are not denied and legal rules which are well settled, and the object of the bill is to ascertain the extent of the right and enforce and protect it in a manner not attainable by legal procedure. Earl v. De Hart is cited as one of the cases siqoporting this proposition. As above indicated, there are averments in the answer which, in my judgment, sufficiently admit the existence of facts which bring the, case within the rule just stated. The defendant could prevail only by showing that he had held the water so high in his dam for the prescriptive period of twenty years as to affect the land of plaintiff as injuriously as it did at the time of the.flood in August, 1915. See Carlisle v. Cooper, 21 N. J. Eq. 576 (at p. 595).

The defendant must, therefore', be enjoined from holding a head of water in his reservoir from May 1st to December 1st in each year to such height that the complainant cannot drain his bog through the natural water course flowing over the defendant’s land; and he must also be restrained from obstructing the water course "by dam, gates or otherwise during the time complainant’s bog is not flooded and during the season that bogs are necessary to be clear of water for the growing of crops, and from interfering with the natural water course, by stoppage or otherwise, so that the complainant may have a clear water course during times that may be necessary for the growing and cultivation of cranberries on his bog.

It was suggested on the argument that if an injunction issue it should not be in general terms as to height, but should determine the exact height at which defendant may maintain a head of water in his reservoir. The trouble is that the testimony before me does not with sufficient clearness indicate any such height. The case was not tried with that in view. The parties will, however, if they desire it, be permitted to take testimony on that point. It'was also suggested that the defendant could entirely remedy the situation by dividing his reservoir into two parts, so as to permit the flowage of the stream in its natural course between two reservoirs, which would require him to build two additional banks or dams. With that proposition the court is not concerned.

A decree will be made in accordance with the views above expressed. The complainant is entitled to costs.


text:
    In the matter of George F. Schmidt, charged with contempt of court.
    [Decided October 1st, 1917.]
    1. On hearing of rule in contempt proceedings the ex parte affidavits upon which the order was based in part could not be used, but the facts therein stated could be elicited upon testimony in open court.
    2. Respondent, member of local exemption board appointed to examine men drafted for the army, given the use of the chancery chambers by the sergeant-at-arms, who, after being informed while in possession in the forenoon that one of the vice-chancellors was in the court house and wanted the room for the business of the court, retained possession all day, was guilty of contempt, especially where he enjoyed an hour’s recess for lunch without endeavoring to communicate ■ with the vice-chancellor, and his assertion that he did not know where the vice-chancellor was and did not think about the matter, was no excuse, as neither carelessness nor forgetfulness is a defence.
    3. As the Accused disclaims any intention to contemn, protests respect for the court, and makes submission to it, the court will follow the general rule and inflict no punishment.
    On hearing of rule in re contempt before Walker, chancellor, and Lewis, vice-chancellor.

      Mr. John W. Griggs, prosecutor, for the rule.

      Mr. George F. Schmidt, pro se, contra.

   Opinion by the Court.

It having been represented to the court by affidavit and otherwise that on the 8th day of August, 1917, the respondent, George E. Schmidt, with certain associates, constituting a federal exemption board for the examination of men drafted for the military service of the United States, took possession of the chancery court room and retiring room adjacent, situate in the court house, in the city of Paterson, constituting the chancery chambers in that city, and of which this court has exclusive control; that the respondent received notice from one of the vice-chancellors on the preceding day (August 7th) that on August 8th the chancery chambers would be required by the vice-chancellor for .the- trial of causes in this court, and that notwithstanding such notice the respondent took possession of the chambers on August 8th, 1917, in the forenoon, and excluded the vice-chancellor and his'court therefrom, and when notified in the forenoon of that day- by the vice-chancellor to vacate, so as to leave the chambers for the occupation of the vice-chancellor and the transaction of the business of this court at two o’clock in the afternoon, he refused to do so and remained in possession thereof during the whole of Wednesday, both forenoon and afternoon, thereby preventing the vice-chancellor from holding court in the chancery chambers on that day; that this conduct of the respondent was without permission of this court and in disobedience of its direction, and that the respondent thereby obstructed and interfered with the administration of justice, and particularly with the trial of certain causes which were set for trial on the 8th day of August, 1917. An order was thereupon made, of the court’s own motion, requiring Mr. Schmidt to show cause before the court why he should not be adjudged guilty of contempt of the power, authority and dignity of the court of chancery in respect to, and of, his conduct aforesaid, and why he should not be punished therefor.

On the hearing the respondent made an oral statement in his own defence. He said that the local exemption board No. 2 (of which he was chairman), appointed to examine candidates for the army, had no place to go to in the court house, and the sergeant-at-arms of the chancery chambers, he believes, gave them the chambers, stating that the vice-chancellor would not be there that week; that in the course of his and their duties of examining conscripts on Wednesday, August 8th, word was sent to them that they should vacate the room; that they were very busy doing their work and it would not have been convenient to move at that time, and that it was impossible for them to give up the room; that as soon as they heard that the vice-chancellor would be there the following week they did vacate the room and made other arrangements; that they did not take the room; they were placed there and had no intention whatever of committing any contempt of the court of chancery. Asked if he had learned that the vice-chancellor was in the court house and intending to go on with the trial of a case and wanted possession of the room, Mr. Schmidt sa'id, yes, he was told in substance that the vice-chancellor wanted the room, but that they went ahead with their work; that he had no time to communicate with the vice-chancellor, as they were up to their ears and above their heads with the work of the board. Asked if they did not take an adjournment for lunch that day, Mr. Schmidt replied that they did, from one to two o’clock. Asked if he could not have communicated with the vice-chancellor then, he said he did not know where the vice-chancellor was and did not inquire as he did not think anything about it. Mr. Schmidt concluded his statement by asserting that he had due and full respect for the power, authority and dignity of the court of chancery, and intended no contempt of that court by the use of its room, and submitted himself to the court.

We think it entirely unimportant, in view of the conclusion to which we have come, whether Mr. Schmidt were warned on one day that he and his associates should not usé the room on the next day, as appears from the affidavit on which the rule in part is based, or whether he only received the notification that it was wanted for the vice-chancellor on the very day the vice-chancellor desired possession, as appears from the statement made by him, Schmidt. While the ex parte affidavit cannot be used on the hearing of this rule (Staley v. South Jersey Realty Co., 83 N. J. Eq. 300), the facts therein stated could still be elicited upon testimony in open court where the respondent could he present and have an opportunity to cross-examine the witness, if, as already remarked, it were important; hut it is not.

That the respondent was guilty of contempt appears from his own statement that while in possession of the court room, he was informed that the vice-chancellor was in the court house and wanted the room for the business of the court, especially in view of his further statement that he enjoyed an hour’s recess for lunch without having endeavored to communicate with the vice-chancellor. TIis assertion that he did not know where the vice-chancellor was, and did not think about the matter, is no expuse.

Neither carelessness nor forgetfulness is a defence.

A case directly in point is that of In re Lyman, 55 Fed. Rep. 29, in which Judge Brown, in the United States district court for the southern district of New York, held that an unlawful ousting of the court, its officers and records, from their rooms, would be a contempt; and that a threatened attempt to do so might bo enjoined.

And such a. contempt would be in facie curiae. See In re Merrill, opinion by Walker, ordinary, filed August 31st, 1917, and not yet reported.

' Courts, however, are loath to punish for contempt, and where the accused disclaims any intention to contemn, protests respect for the court and makes submission to it, the court will, as a general rule, inflict no punishment.

In the case at bar, considering Mr. Schmidt’s protestation of respect for the court of chancery, his entire lack of intention to contemn its authority or dignity, and his submission to the court, we see nothing to take the matter out of the general rule, and, therefore, no judgment will be pronounced.

It is not inappropriate to remark that there is, and has been, no conflict of authority between the state and federal governments — that is, between the court of chancery and the district exemption board above mentioned. There were other rooms in the court house which could have been used by the board. It was, and is, simply a question between the court and the resppndent to the rule.


text:
    In the matter of the construction and declaration of rights under the will of Guiseppe Ungaro.
    [Decided October 16th, 1917.]
    1. It is irregular .for a party’s solicitor of record or counsel to take his affidavit to be used in a judicial proceeding; but this rule is one of judicial policy and may be waived by the court.
    2. A bill or petition does not require verification unless the party complainant desires some ex parte relief upon it, such as a restraining order or the like.
    3. Formerly, a petition for the construction of a will would not lie, but now by the Chancery act (P. L. 1915 p. 184 § 5) it is provided that no proceeding shall be dismissed on the ground that it was erroneously begun by petition instead of bill, but in such case the court may order proper amendments to be made.
    4. Persons, who by the construction of a will would be affected by the court’s determination, are necessary parties to a bill for the will’s construction, for without their presence before the court the construction would be a mere academic deliverance so far as they were concerned and would not be binding upon them.
    5. Formerly, a suit would not lie for the construction of a will without seeking equitable relief in the premises, the rule being that the court would only interpret the provisions of a will as an incident in the granting' of relief, but now by Chancery act (P. L. 1915 p. 184 § 9) it is provided that any person claiming a right cognizable’ in a court of equity under a will or other instrument, may apply for the construction thereof so far as the same affects such right, and for a declaration of the rights of the persons interested. — Held, this statute is not declaratory, but remedial, and was meant to extend the remedy of construction to cases where there exists no present right to relief resulting from construction,
    6. What the legislature meant by a “right cognizable in a court of equity,” was a right over which, in and of itself, the court has jurisdiction, and it was intended that the jurisdiction should be exercisable where the right was present, although an accompanying circumstance, the presence of which theretofore .alone permitted the right to be declared, was absent.
    On petition.

      Mr. Ferdinand D. Masuc-ci, for the petitioner.
   Walker, Chancellor.

A petition entitled as above has been filed, and counsel for petitioner moves for an order of reference of the matter to a vice-chancellor for hearing. The petition is sworn to, the affidavit having been taken before the petitioner’s solicitor of record, which is irregular.

The petition avers that Guiseppe Ungaro died seized of certain real estate in Newark, having made a will which has been probated by the surrogate of Essex, in which he devised to his daughter, Isabella Prisco, the petitioner, and to her heirs and assigns forever all the rest, residue and remainder of his estate, real and personal; and that by his will the testator ordered and directed that the devisee (petitioner) should at her own proper costs and expenses, provide for, maintain and support her two brothers, Frank and Anthony, during the period of their natural lives; and the petition further avers that under and by virtue of the will the petitioner has become seized in fee-simple of the. land mentioned, but that this contention has been questioned, meaning, doubtless, that her brothers claim that their support, ordered put upon the petitioner by the will, is thereby charged upon the real estate devised to her.

The proceeding before me is irregular throughout.

In the first place, it is irregular for the solicitor of record of the petitioner to take her affidavit. In Den v. Geiger, 9 N. J. Lam 225, an affidavit offered to be read on a rule to show cause was objected to because it had been taken before one of the counsel in the cause and it was rejected. See, also, State v. Bergen, 24 N. J. Law 548, 550. But this rule is one of judicial policy and may be waived by the court. State v. Bergen, supra.

The affidavit to this petition will be treated as a nullity, as the petition is a pleading that does not require verification. It is in effect a bill of complaint. And a bill does not require verification unless the complainant desires some ex parte relief upon it, such as a restraining order or the like. And a petition, which is usually preferred to the court in a pending cause after the filing of the bill, is in the same category.

In Smalley v. Smalley, 54 N. J. Eq. 591, a petition was filed for the construction of a will and Vice-Chancellor Stevens said the proceeding was fatally defective because not commenced 'by bill.

Although, as already remarked, the petition in this matter is in the nature of a bill, still, it is not one, and were it not for the. Chancery act (P. L. 1915 p. 184. § 5), which provides that no proceeding shall be dismissed on the ground that it was erroneously begun by petition instead of bill, but in such case the court may order proper amendments to be made, the petition would have to be dismissed. It is radically defective in substance and will have to be amended, or it may be dismissed, to the end that a proper suit may be commenced by bill, as petitioner may elect.

The suit attempted to be begun by this petition would not lie prior to the passage of the Chancery act (1915). The attempt here made is to get a construction of Guiseppe Ungaro’s will without seeking any equitable relief in the premises. It appears that formerly this court would never entertain a suit brought- solely for the purpose of interpreting the provisions of a will without any further relief being sought; and this because interpretation was an incident in the granting of relief. Hoagland v. Cooper, 65 N. J. Eq. 407. See, also, Bevans v. Bevans, 69 N. J. Eq. 1; Morris v. De Bel, 71 N. J. Eq. 43, 44; Goetz v. Sickel, 71 N. J. Eq. 317; Gillen v. Hadley, 72 N. J. Eq. 512; Kellogg v. Burnett, 74 N. J. Eq. 304; Nagle v. Conard, 79 N. J. Eq. 125; Shreve v. Wilkins, 82 N. J. Eq. 18; Northrup v. Ackerman, 84 N. J. Eq. 117; Du Bois v. Waterman, 84 N. J. Eq. 341; Hoe v. Hoe, 84 N. J. Eq. 401; Tyndale v. McLaughlin, 84. N. J. Eq. 652.

In Hoe v. Hoe, supra, Vice-Chancellor Backes said that the trustees before him did not present a case that entitled them to the guidance of -the court in the administration of their trust estate, -but that they simply asked to be informed whether a devisee owned the property devised absolutely or for life only. So, in the matter at bar, the petitioner appears to desire to be informed whether the land devised to her by her father is subject to a charge in favor of her brothers. Prior to the Chancery act (1915) she could not bring any such suit — not even if she charged her brothers as parties defendant and thus afforded then! an Opportunity to be heard, which she has not done, and without doing which she could not in any case obtain a decree which could be enforced against them. Persons who by construction of a will may become-legatees thereunder should be made parties to a bill for the will’s construction. Walker v. Booraem, 68 N. J. Eq. 345. The construction of a will without the presence before the court of parties to be affected by the construction would be a mere academic'deliverance — a sort of moot court opinion.

We come now to the crucial point in the case. The question is, Will this proceeding lie in any form? As already remarked, it would not have lain prior to the Chancery act (1915), and the question is, Will it lie under that act? I think it will.

In section. 9 of that act (P. L. p. 184) it is provided that any person claiming a right cognizable in a court of equity under a will or other instrument may apply for a construction thereof, so far as the same affects such right, and for a declaration of the rights of the persons interested.

At first blush it might seem that the words “cognizable in a court of equity” were intended to limit the court to construction of an instrument in the class of cases in which the- jurisdiction of the court was then asserted, which, in the case of a will, would only be to construe it incidentally to affording some relief between the parties. If this be the meaning of the act it would be merely a declaratory statute. ' But there was no reason for passing a declaratory act on the'subject, there being no doubt about the jurisdiction or its limitations.

In, 1 Bl. Com. 86, it is laid down:

“Statutes also are either declaratory of the common law, or remedial of some defects therein. Declaratory, where the old custom of the kingdom is almost fallen into disuse, or become disputable.; in which ease the parliament has thought proper, in- perpetúan rei testimoniumi, and for avoiding all doubts and difficulties, to declare what the common law is and ever hath been.”

Instead of being declaratory I think the statute in question was meant to be remedial — that is, to extend the remedy of construction to cases where there exists no present right-to relief resulting from construction. The fact that so many cases have been brought for construction .where no relief was available and the suitors were turned away, seems to indicate a situation where construction' without relief was a right much desired and one .which might be extended with propriety. And the legislature seems to have taken this view. Moreover, that statute provides in its first section that the act shall be liberally construed, which, of course, means to advance the remedies given in and by it.

What the legislature meant by “a right cognizable in a court of equity” was, in my judgment, a right over which, in and of itself, this court has jurisdiction, and it was intended that the jurisdiction should be exercisable where the right was present, although an accompanying circumstance the presence of which theretofore alone permitted the right to be declared, was absent. In other words, I 'think the act was passed to enable this court •to do the very thing'which the petitioner is seeking to do, but cannot do in this proceeding, as above pointed out.

The petitioner may elect to file an amended petition, charging specifically the claim her brothers make with reference to her estate as legatee and devisee, making the brothers defendants and praying for the specific construction of the will and declaration of rights she is advised she is entitled to have made by the court; or the pending petition may be dismissed without prejudice to the filing of a bill for the relief sought.


text:
    Marie L. Orens, petitioner, v. Isaac W. Orens.
    [Decided December 20th, 1917.]
    1. In canses for divorce for desertion there are two periods of two years each during which the desertion must have been willful, continued and obstinate; the first, that immediately succeeding the desertion, at the expiration of which the cause of action arises and accrues, and which vests jurisdiction in the court to entertain the suit; and the second, that immediately prior to the filing of the petition, which vests jurisdiction in the court to decree a divorce. These periods may run concurrently and overlap each other in whole or in part; but, if they do not, legal proof must nevertheless be made of the desertion for the whole period between its commencement and the filing of the petition, including the interval between the two periods mentioned, because, if there were a reconciliation and resumption of cohabitation by the parties during such interval, it would operate to destroy the cause of action alleged to have accrued, and necessitate another and different suit, one counting upon a cause of action accruing after the reunion had been terminated by another and subsequent desertion.
    2. To corroborate means to strengthen; to make more certain; to add weight or credibility.
    3. The corroboration of a petitioner’s testimony, required by law, in order that a divorce may be decreed, need not be testimony given by another or other witnesses to all of the same identical facts to the minutest particulars, but only their giving such facts in evidence as already testified to by petitioner, ■ or such circumstances tending to establish them, as renders petitioner’s' testimony so much more probable as to be legally acceptable, and which serves to empower the judge to accept the truth of the petitioner’s whole story.

      4. Corroborative testimony of other witnesses is not always required in divorce proceedings, but circumstances shown by expressions and conduct of a defendant,' together with letters of the parties, are, in some cases, sufficient.
    This matter was referred to Samuel D. Oliphant, advisory master, who filed the following conclusions:
    On final hearing on petition for divorce and proofs ex parte.

      Mr. Harry H. Whaland, for petitioner.
    The petition alleges desertion in the month of June, 1905. Suit was commenced December 9th, 1916. In the proofs returned with the special master’s report in favor of a decree of divorce, there was no corroboration of petitioner’s testimony to the first four years of the alleged desertion. Upon receiving my memorandum to that effect solicitor obtained an order of re-reference for further proofs of the continuation of the desertion. The proofs returned with the second report of the special master added corroboration only as’to the first "two or three” years. The special master in bis second report stated that he had “reported favorably under the prior testimony because it seems to be the practice of the court that desertion need to be shown to have existed only during a period of two years prior to the filing of the petition.” He then continues: “The testimony as now submitted, still leaves a period of a little over two years uncorroborated. The master is of the opinion, however, that the desertion 'being corroborated for the first eighteen months and from the year 1909 to the present date, that -the law properly presumes an uninterrupted continuance of the desertion.” I know of no authority for such a presumption and since the continuity of the desertion for a stated period-is plainly a principal part of the proof required by the statute (Divorce act, 1907j P. L. ¶. 1/.71/., § 2), I am unable to accept the-existence of such a rule of evidence. The case then distinctly raises the question of whether it is the established law of this state that the desertion must be_ proved to have been “continued” from the date of separation of the parties to the commencement of the suit, although that period may be much longer than two years. It is not questioned in practice that the two 3ears’ continuation expressly required by the statute necessitates the proof of continuation for that time immediately preceding the commencement of suit. The reasoning adopted by this court in the several cases upon the point, is, in the language of the court of errors and appeals in Myles v. Myles, '77 N. J. Eq. 265: “That the period of desertion must be that immediately preceding the petition is plain from the fact that if the petition left a hiatus between such period and the date of the filing of the petition, such hiatus might represent a complete reconciliation and reunition of tire parties that would entirely destroy any right to a divorce arising out of a previous desertion.”
    The difficulty with which thé court is confronted in a very large proportion of the uncontested suits for divorce is an existing view of the requirements pertaining to the first part of the period of desertion. But it is apparent that the same reasoning is of like force when applied to the first part of the period. If there is no proof of the continuation during all the earlier part there might have been a like hiatus in which marital relations could have been resumed, thus terminating the desertion and the right to a divorce. This I take to he the law resulting from Myles v. Myles, supra,; Getz v. Getz, 81 N: J. Eq. %8\5; Lake v. Lake, 89 All. Rep. 53%.

    In causes for divorce for desertion there are two periods of tiro years each during which the desertion must have been willful, continued and obstinate; the first, that immediately succeeding the desertion, at the expiration of which the cause of action arises and accrues, and which vests jurisdiction in the court to entertain the suit; and the second, that immediately prior to the filing of the petition, which vests jurisdiction in the court to decree a divorce. These periods may overlap each other in whole or in part; but, if they do not, legal proof must be made of the desertion for the whole period between its commencement and the filing of the petition, including the interval between the two periods mentioned, because, if there were a reconciliation and resumption of cohabitation by the parties, during such interval, it would operate to destroy the cause of action alleged to have accrued, and necessitate another and different suit, one counting upon a cause of action accruing after the reunion had been terminated by another and subsequent desertion. To illustrate: if A deserted B on January 1st, 1910, a cause of action for divorce for desertion would arise and accrue to B on January 1st, 1912, and a petition for divorce for that cause could be filed on January 2d, 1912. In such case the two two-year periods of accrual and ground for divorce would run concurrently and overlap each other. But if A deserted B on January 1st, 1910, and B did not file a petition for divorce therefor until January 2d, 1917,. although the cause of action accrued on January 1st, 1912, the two years’ desertion for which a divorce could be granted would run from January 1st, 1915, to January 1st, 1917, leaving an interval between January 1st, 1912, and January 1st, 1915, or three years, during which the desertion must also have been willful, continued and obstinate, for, if the parties were reunited on, say, January 1st, 1914, the cause of action which accrued on January 1st, 1912, would thereby be destroyed, and if they cohabited together one year, that is, until January 1st, 1915,. when A again deserted B, a new and different cause of action for desertion would arise 'and accrue on January 1st, 1917, two years after the second desertion commenced, for which a petition could not be filed until January 2d, 1917. It was this state of the law, doubtless, that led Mr. Biddle to cast the allegation 'of a desertion in the form of petition in the second edition of.his work on New Jersey divorce practice, thus:
    "Defendant deserted petitioner in the month of nineteen hundred and (state the date of the commencement of the last period of iminterrnpted desertion) ; ever since which time, and for more more than two years last past, said defendant has willfully, continuedly and obstinately deserted your petitioner. See Bid. N. J. Dm. Brae. (2d ed.) 186.

    The necessity for corroboration in this and every other divorce ease makes it pertinent to make some observation on what constitutes corroboration. While it is quite impossible to lay down any hard and fast rule, some general statement on this important subject may be helpful.
    To corroborate means to strengthen; to make more certain; to add weight or credibility. 10 Oyc. 1367, citing, among other cases, State v. Guild, 10 N. J. Law 163, 187.

    In State v. Guild, supra (at p. 187), the supreme court was dealing with circumstances corroborating a confession, and observed that "the phrase (corroborative circumstances) clearly does not mean facts which, independent of the confession, will warrant a conviction, for then the verdict would stand not on the confession, but upon those independent circumstances. * * * The testimony of a witness is said''to be-corroborated, when it is shown to correspond with the representation of some other witness, -or to comport with some facts otherwise known or established. Corroborative circumstances then, used in reference to a confession, are such as serve to strengthen it, to render it more probable, such in short as may serve to impress a jury with a belief of its truth.”
    These observations while applied to corroboration of a confession in the particular case (State v. Guild), are equally applicable to what is necessary in the way of corroborating the testimony of any witness, whose story is required to be eorroborated in order to be given weight or value as evidence. The corroboration of a petitioner’s testimony, required by law, 'in order that a divorce may be decreed, need not be testimony given by another or other witnesses to all of the same identical facts to the minutest particulars, but only their giving such’ facts in evidence as already testified .to by petitioner, or such circumstances tending to establish them, as renders petitioner’s testimony so much more probable as to be legally acceptable, and which serves to empower the judge to accept the truth of the petitioner’s whole story. The court of errors and appeals held in Foote v. Foote, 71 N\ J. Fq. 873, 880, that corroborative testimony of other witnesses is not required, but that circumstances, shown by expressions and conduct of a defendant, together with letters of the parties, are sufficient. On the subject of corroboration in divorce cases see also Chancellor Pitney’s opinion in Williams v. Williams, 78 N. J. Fq. 13, and eases therein cited.
    ,1 am unable to adopt the opinion of the special master above quoted, and as the petitioner’s testimony concerning about two years of the alleged period of desertion, remains uncorroborated, I am unable to advise a decree nisi. But, as the error is not that of the party, leave will be given for the taking of additional testimony before the master, but no further report will be required. The testimony, if and when taken, should be> returned directly to the coitrt.
   Walker, Chancellor.

An order will be made in conformity with the advice contained in the conclusions of Advisory Master Oliphant, which are hereby adopted as the opinion of the court.