text:
    In the matter of the probate of the paper purporting to be the last will and testament of Elise Lerche, deceased.
    [Argued July 1st, 1913.
    Decided November 17th, 1913.]
    On appeal from the decree of the prerogative court made by the ordinary affirming a decree of the Hudson county orphans court upon an opinion rendered therein by Judge Carey, the judge of that court, as follows:
    In this matter the court has examined all the testimony and the briefs of counsel, the testimony consisting of some twelve hundred pages, and the briefs almost as voluminous. The court has given careful consideration to this case, running over a period of several months, and it has come to the following conclusions : First, that the will was executed in due form of law. The execution had incident to it all the requisites of our statute. In fact, I may say that there was no serious contention made in the course of the contest that this was not so. Secondly, I find that there is absolutely no evidence of undue influence of any sort, kind or character in the case. There is no testimony on the part of any of the witnesses in the case that would indicate that the parties who were responsible, either directly or indirectly, for the drawing of this will exercised any improper or undue influence upon the testatrix. The will was the product, undoubtedly, under the evidence, of her own mind. The only question that required any serious consideration by the court was the proposition that the testatrix was not of such mentality as the law requires in the making of a will. The court will find, as a matter of fact, that at the time of the making of this will, the testatrix, Elise Lerche, was of sound and disposing mind and memory, and was in such mental condition that she was thoroughly and completely competent to make a will, applying the legal principles recognized in this state to such a situation. The court, therefore, has determined that the will was the valid will of Elise Lerche and is entitled to probate as such. The court briefly states its findings in the matter as the result of an analysis of all the testimony and a consideration of all the arguments advanced. If counsel desire, the court will express its opinion more at length. The necessity of this, however, does not seem at present apparent, as the issues involved are really issues of fact.
    A copy of this memorandum may be forwarded to all counsel who appeared in the case. The court will hear counsel on Wednesday morning of next week in the matter of counsel fees and allowances.

      Mr. John J. Fallon, Messrs. Lindabury, Depue & Fmilks, Messrs. Gondici, Gondict & Boardman, Mr. Robert 8. Hudspeth, Mr. Daniel H. Applegate and Mr. Charles D. Thompson, for the proponen ts-appell ees.

      Messrs. Weller & TÁchienstein, Mr. Frederick K. Hopkins and Messrs. Sommer, Colby & Whiting, for the caveators-appellants.
   Per Curiam.

The decree of the prerogative court appealed from will be affirmed, for the reason stated in the opinion filed in the Hudson county orphans court by Judge Carey.

For affirmance■—Ti-ie Chief-Justice, Garrison, Swayze, Trenchard, Parker, Bergen, Minturn, Kalisch, Congdon, White, Heppenheimer—11.

For reversal—Vredenburgh—1.


source: Caselaw Access Project

author: Walker, Chancellor.

license: Public Domain

text:
    George P. Kroecker et al. v. The Camden Coke Company.
    [Decided October 31st, 1913.]
    1. Any business, however lawful, which causes annoyance that materially interferes with the ordinary comfort, physically, of human existence is a nuisance that should be restrained.

      2. The operation of a coke manufacturing plant in such manner that smoke is almost incessantly emitted from, one or more of the .ovens, day and night, and clouds of dust are created by the unceasing activity of a steam bucket dipping up and dumping down soft coal and coke, both day and night, materially interferes with the comfort of human existence in the neighborhood1, and is a nuisance as to owners or occupiers of property in the neighborhood.
    3. The operation: of a coke manufacturing plant in such manner as to emit fumes and vapors which, under certain conditions of the atmosphere, caused such an unpleasant odor that those residing in the neighborhood felt constrained to keep their windows closed is a nuisance, and should be enjoined at the instance of owners or occupiers of property in the neighborhood.
    4. Where -a bill to enjoin a nuisance alleged that loud and disturbing noises were caused by the operation of a particular machine, but it also contained a prayer for general relief, and the proof for both parties covered all noises caused by the operation of defendant’s plant, they would all be given consideration.
    5. Temporary inconvenience from noises caused by an occupier or owner of land in the execution of lawful works in the ordinary use of the land is not ground for an injunction.
    6. The operation of a coke manufacturing plant in such manner as to cause noises day and night, which disturbed and deprived1 those living in the neighborhood of their sleep, was a nuisance, and the manufacturer would be enjoined fromi so operating has plant during the night time.
    7. Things offensive to persons generally are a nuisance, although not unpleasant or disagreeable to some persons because of their habits and occupations.
    8. The right to relief against a private nuisance cannot be defeated by partially abating the nuisance pending a suit for relief.
    9. Parties entitled to an injunction against a nuisance will not be left to their remedy at law for damages.
    On final hearing on pleadings and proofs.

      Mr. John L. Semple, for the complainants.

      Mr. Edward A. Armstrong, for the defendant.
   Walker, Chancellor.

This is a bill filed by George P. Nroecker and George W. Tucker, of the city of Camden, as complainants, on behalf of themselves and numerous other residents and property owners of said city, among whom are those whose affidavits are annexed to the bill, to enjoin the defendant, the Camden Coke Company, from operating its works in said city in such a manner as to produce smoke, cinders, gases, soot, dirt, tar, odors and vapors offensive and injurious to the health and comfort of the complainants and their families, and to the depreciation of their real estate.

The complainant George P. Kroeeker, before and at the time of the committing of the grievances in the bill mentioned was, and still is, the owner and occupier of a hotel and saloon with a dwelling-house attached, on the easterly side of Front street, in the city of Camden, where he carried on the business of a hotel and saloon keeper. He was also the owner of several other dwelling-houses in the same immediate neighborhood. The complainant George W. Tucker, and the other complainants, were also then owners or occupiers of houses and lands in the same immediate neighborhood. The defendant, the Camden Coke Company, was incorporated for the purpose of carrying on the business of the manufacturing and selling of coke, made from bituminous coal, by the Otto-Hoffman coke oven process, or otherwise, and the sale of all other by-products thereof, such as tar, ammonia and gas, and then carried on the business at a manufactory in a more or less densely peopled section of. the citjr, situate on the westerly side of Front street, directly opposite the premises of the complainant George P. Kroeeker, on a tract of land owned by the defendant, abutting on Front street, bounded by the DelaAvare river, Walnut street, Front street and the property of the Atlantic City Railroad Company, comprising an area of upwards of a city block.

The main issues raised by the pleadings are:

Whether or not before, and at the time of the filing of the bill, the defendant caused to issue and proceed from its manufacturing plant offensive, noxious, unwholesome smoke, cinders, gases, soot, dirt, tar, odors and vapors, which spread and diffused themselves into, over and upon the complainants’ premises, houses, places of business and lands, and impregnated and corrupted the air in and about the same, and settled and were deposited in and upon the said premises, respectively; and caused such loud noises to issue and proceed therefrom as to destroy their sleep.

The plant of the defendant company is 'used for the making of foundry and domestic coke, and gas for the supply of Camden and thirty-three other muncipalities named in the answer, scattered over a considerable portion of this state extending as far south as Woodbury, and as far north as Plainfield and Baritan, and also in manufacturing and selling the by-products mentioned.

The plant at first consisted of one hundred, but afterwards was increased to one hundred and fifty, Otto-Hoffman bj^-product coke ovens, ■ the roofs of which are on a level with the second stories of the surrounding houses, together with the necessary apparatus for charging the ovens with coal, and discharging them, consisting of three machines commonly called "pushers,” and three machines commonly called “larries” for carrying the coal; also in conjunction with these ovens there is a coal storage bin, called a Berquist coal bunker, of a capacity of fifteen hundred tons, with the necessary coal handling apparatus for delivering the coal into the bunker' either from the boats which bring it, or from the ground, as the case may be; and the bunker is provided with a crusher for crushing the lumps of coal and eoke.

The coal when brought to the plant is unloaded from tire boats by means of what is known as the clam-automatic bucket, having a capacity of a ton and a half, which drops into the boat, taires the coal up automatically, and hoists it up and delivers it into the bunker or on to a coal storage pile near the river, and is operated by steam power; and in the same manner the coal is loaded from the storage pile into the bunker and unloaded into the larries when required for the ovens; and likewise in the same manner the coke is loaded into the bunker and discharged therefrom on lie coke storage pile bordering on Front street.

The method of operating the ovens is as follows:

The coal is taken from the coal bunker into a larry, being a mechanical carrier, and is transported over the tops of the ovens to the ovens which it is desired to charge. Each of these ovens is fitted with six caps or charging holes, and there are six corresponding outlets in the larry; the larry being brought over the oven to be charged, the caps are removed and the coal is discharged into the oven by means of the operator on the larry raising a lever opening all six shoots at one time. The average charge of these ovens is about seven and three-tenths tons of coal. As soon as the coal is charged into the oven a mechanical leveling machine is operated from the side to level the coal in the oven.

During the time these caps are removed and the oven is being charged and leveled, some of the resulting gas, of necessity, is dissipated in the air.

The coal, when once placed in these ovens, is kept there for at least twenty-four hours, and during all that time no gas can escape into the atmosphere. The process of charging and leveling an oven consumes, on an average, about live minutes, but it is not done in each oven of tener than once in twenty-four hours.

In the manufacture of such gas at this plant there is used, on an average, about nine hundred tons of bituminous coal each day, and the plant is in continuous operation, day and night, every day in the year.

Upon the plant there is stored considerable bituminous coal in greater or less quantities, but at no time exceeding more than fourteen days’ supply, which would be about twelve thousand six hunderd tons.

This coke plant was started in operation in the year of 1903 and has been in continuous operation ever since.

The courts of this state have frequently exercised their restraining power against persons so using their property as- unreasonably to interfere with the property and personal-rights of others, so that the principles of law and equity which must govern this ease have been fully considered and are well settled.

In the case of Cleveland v. Citizens Gas Light Co., 20 N. J. Eq. (5 C. E. Gr.) 201, a suit for injunction to restrain the defendants from erecting or carrying on their gas works, Chancellor Zabriskie (on p. 205) declared the principle to be that:

“Any business, however lawful, which causes annoyances that materially interfere with the ordinary comfort, physically, of human existence, is a nuisance that should be restrained; and smoke, noise, and bad odors, even when not injurious to health, may render a dwelling so uncomfortable as to drive from it any one not compelled by poverty to remain. Unpleasant odors, from the very constitution of our nature, render us uncomfortable, and when continued or repeated, make life uncomfortable. To live comfortably is the chief and most reasonable object of men in acquiring property as the means of attaining it; and any interference with our neighbor in the comfortable enjoyment of life is a wrong which the law' will redress. The only question is what amounts to that discomfort from which the law will protect.”

And in describing the criterion for determining whether or not a particular use of property is a nuisance, he further said:

“The discomforts must be physical, not such as depend upon taste or imagination. But whatever is offensive physically to the senses, and by such offensiveness makes life uncomfortable, is a nuisance; and it is not the less so, because there may be persons whose habits and occupations have brought them to endure the same annoyances without discomfort. Other persons or classes of persons whose senses have not been so hardened, and who, by their education and habits of life, retain the sensitiveness of their natural organization, are entitled to enjoy life in comfort as they are constituted. The law knows no distinction of classes, and will protect any citizen or class of citizens, from wrongs and grievances that might perhaps be borne by others without suffering or much inconvenience. * * * This, then, is the question before me: whether the proposed works of the defendants would produce such annoyance as would render such families,'composed of women and children, as well as men, uncomfortable; not whether men accustomed to follow their occupations in places where they are surrounded, and unavoidably, by much that is offensive, may not be so accustomed to odors of like nature as not to be annoyed by these.”

In Laird v. Atlantic Coast Sanitary Co., 73 N. J. Eq. (3 Buch.) 49, which was a bill by complainants, as residents and owners of property, to abate or enjoin a nuisance created by noxious odors alleged to be diffused through the air, partly by means of smoke, and partly in the ordinary mode, it -was held that the operation of a crematory and fertilizer plant, in which ordinary garbage and other waste matter was subjected to a burning process, and the residue, in the shape of ashes, used in connection with other elements to make a fertilizer, in such a manner that, under certain conditions of the atmosphere • and direction of the wind, the smoke arising from the cremation, and odor due to tire method of handling the elements of the fertilizer, compelled those residing within a distance of from two thousand to two thousand five hundred feet to keep their windows closed, and rendered their houses uncomfortable for habitation, and prevented them from sitting out of doors, constituted a nuisance.

In this last-mentioned suit, in considering the criterion for determining whether or not the particular use of the property was a nuisance, Advisory Master Pitney said (at p. 52) :

“With regard to the character for offensiveness and the intensity of the odor. The complainants and their families are not over sensitive people, but plain, ever-day folk, and their evidence must be considered accordingly. Their evidence was that in the conditions of the atmosphere and the direction of the wind, which I have mentioned, and especialty, and mainly in warm weather, the odor was very unpleasant, so much so that they felt constrained to close their windows and keep them closed. They were rendered uncomfortable, both at their meals and when sitting in their houses and on their piazzas, in the summer time. This situation of things is serious. They have the right to have the air come to them in a state of ordinary purity, so that they can comfortably enjoy, during the hot months, the ordinary currents of air. In all these cases it is a question of degree. In this case the evidence satisfies me that the degree of intensity was such that ordinary, plain' people would be rendered uncomfortable by it.”

In Seligman v. Victor Talking Machine Co., 71 N. J. Eq. (1 Buch.) 697; affirmed in 72 N. J. Eq. (2 Buch.) 946, which was a suit to abate a nuisance created by disturbing noises and vibrations, where the plant of the defendant company and cortfplainant’s dwelling-houses were each in the same block of land in the city of Camden, it appeared that by reason of a new method of distributing to its customers the records used in the talking machines, the defendant was compelled at certain times to operate its machinery continuously from six o’clock in the morning until a late hour at night, and finally, until four .o’clock in the morning. It was the noise and vibrations from this machinery of which complaint was made. The vibrations were shown to be of about the same character and intensity as those occasioned in the same building by the passage of trolley cars or of heavily-loaded trucks, the only difference being that those occasioned by the machinery were continuous. There Vice-Chancellor Garrison (at p. 699) said:

“I am satisfied from the proofs that, so far as making of noise or the causing of vibrations are concerned, the machinery in this factory is properly installed and carefully operated and does not cause any more noise and vibrations than usually accompany or are incident to the operation of any considerable amount of machinery using steam. In other words, I think that the situation is that of an ordinary manufacturing plant producing the ordinary noises of such an establishment, and if it were operated only during the hours of the day when such plants are customarily operated, it would not be subject to restraint upon the proofs in this suit.”

The vice-chancellor then states the case with respect to the criterion for determining whether or not the particular use of the property he was then considering was a nuisance with respect to noise, thus:

“This raises the question whether a manufacturing establishment, which has come into a city block theretofore free of annoying noises and vibrations, may operate its machinery with the usual noise and vibration accompanying the same, during the hours of the night usually devoted to rest, if the effect of such customary noise or vibration at the unusual hour, is to keep awake those dwelling adjacent to the plant?”

He then quoted the following from Vice-Chancellor Pitney in Gilbough v. West Side Amusement Co., 64 N. J. Eq. (19 Dick.) 28:

“So, the time when a noise is made is also to be taken into account. Mankind needs sleep for a succession of several hours once in every twenty-four hours, and nature has provided a time for that purpose, to wit, the night time, and by common consent of civilized man the- night is devoted to rest and sleep, and noises which would not be adjudged nuisances, under the circumstances, if made in the daytime, will be declared to be nuisances if made at night, during the hours which a-re usually devoted by the inhabitants of that neighborhood to sleep.”

And in Seligman v. Victor Talking Machine Co., supra (at p. 700), Vice-Chancellor Garrison said:

“It is not disputed in the case at bar that the noises and vibrations complained of exist, and that when the plant was in operation at night they seriously affected some of those in the neighborhood. The gravamen of the defence is that those who were thus affected were persons of extraordinary sensibility, and were not such as the law would protect by injunction by reason thereof.”

And in reply to this argument of the defence, further continuing in stating the standard to guide the court, the vice-chancellor quoted Chancellor Zabriskie in Ross v. Butler, 19 N. J. Eq. (4 C. E. Gr.) 294 (at p. 298), as follows:

“The law takes care that lawful and useful business shall not be put a stop to on account .of every trifling or imaginary annoyance such as may offend the taste or disturb the nerves of a fastidious or over-refined person. But, on the other hand, it does not allow anyone, whatever his circumstances or condition may be, to be driven from his home, or. to be compelled to live in it in positive discomfort, although caused by a lawful and useful business carried on in his vicinity. The maxim sic utere iuo ut alienum non laedas, expressed the well-established doctrine of the law. It is not necessary, to constitute a nuisance, that the matter complained of should affect the health or do injury to material property. It is sufficient, in the language of Sir Knight Bruce, if it is 'an inconvenience materially, interfering with the ordinary comfort, physically, of human existence, not merely according to elegant and dainty modes and habits of living, but according to plain and sober and simple notions among the English people/ ”

And disposing of the case then before him, Vice-Chancellor Garrison (at p. 701) said:

“Confining the investigation solely to the witnesses who dwelt in the vicinity, and who were therefore subject to annoyance at night, there were produced by the complainant five witnesses, including -the four members of his own family, who dwelt upon the Market-street side of the block, and who were seriously affected by the noises and vibrations at night and were kept awake thereby. The defendant produced nine witnesses from the Market street front of the block who testified that they were not annoyed or disturbed by the night operations. From the Second street side of the block the complainant and defendant each produced two witnesses, those for the complainant testifying that they were seriously annoyed and kept awake, those for the defendant testifying that they were not. Three witnesses were produced by the complainant who dwelt in adjoining blocks and who testified to the annoyances occasioned to them by the noises resulting from the night operation of the plant.”

On this testimony the vice-chancellor disposed of the case, saying in commenting on the testimony" (on p. 702) :

“As before pointed out, the complainant and his family described effects produced upon them by the annoyances which I cannot help but believe were largely mental or imaginary. But this does not in any way militate against the proven fact that the annoyances did exist and keep them from obtaining rest, and did render their dwelling practically unfitted as a place for rest; and, as previously said, the charge of over exaggeration which properly lies against the complainant’s family in this respect, does not at all apply to the other witnesses produced by the complainant, each of whom was affected at night so seriously as to disturb his rest. The fact that others, either because they were differently situated with respect to the plant, or differently constituted physically, did not suffer a similar annoyance, does not deprive the complainant of his right to relief.”

In Rausch v. Glazer, 74 Atl. Rep. 39, which was a nuisance case heard before me, and in which the question was as to stenches emanating from a rendering establishment, I took occasion to observe that the nuisance being established by satisfactory testimony, was not overcome by testimony of the negafive kind; that testimony of some of the neighbors that they were not annoyed, did not disprove that the complainant and his family were annoyed.

In Reilley v. Curley, 75 N. J. Eq. (5 Buch.) 57, which was a suit to abate a nuisance created by noises only, in speaking with respect to the principle to be applied, Vice-Chancellor Garrison quoted Vice-Chancellor Learning in First M. E. Church of Cape May v. Cape May Grain and Coal Co., 73 N. J. Eq. (3 Buch.) 257, then-recently decided, as follows:

“While defendant is entitled to the enjoyment of its property in the pursuit of a lawful business, that business must be conducted with due regard to the well-recognized rights of surrounding property owners. When such business becomes creative of conditions which clearly render the appropriate enjoyment of surrounding properties impossible, the rights of others are invaded and equity will restrain the persistent pursuit of such injury.”

And m declaring that noise alone may constitute such a nuisance as to subject the one creating the same to restraint in equity, he said:

“Of course, the character and volume of the noise, and the time and duration of its occurrence, and the place where it occurs, and the surroundings thereof, are the important and determinative features.
“This case also reiterates the well-settled principle which lies at the foundation of all this branch of the law, and which has been heretofore stated, namely, that the degree of personal discomfort is the determinative feature, and ‘in measuring the degree * * * all the surrounding circumstances must be taken into account in judging whether the degree is of sufficient importance to confer a right of action/ ”

In the English courts the law is the same as in our own state, for there, smoke, noise and smells may severally constitute a ntdsance and be ground for an action for damages or for an injunction. Crump v. Lambert, L. R. 3 Eq. 409; Sturges v. Bridgman, 11 Ch. Div. 852; St. Helen’s Smelting Co. v. Tipping, 11 H. L. C. 642; Walker v. Brewster, L. R. 5 Eq. 25; Broder v. Saillard, 2 Ch. Div. 692; Lambton v. Hellish (1894), 3 Ch. Div. 163.

In Lambton v. Mellish, supra, which was a suit lor an injunction to abate a nuisance arising from noise caused by the acts of two or more persons, it was held that such acts, taken together, may constitute such a nuisance that the court will restrain them all from doing the acts constituting the nuisance, although the annoyance occasioned by the acts of any one of them if taken alone, would not amount to a nuisance. And the court (at p. 165) said in reply to the argument that an injunction will not be granted to restrain a man from doing that which is lawful and which, if taken by itself, is no nuisance:

“If a man shouts outside a house for most of the day, and another man, who is .his rival, * * * does- the same, has the inhabitant of the house no remedy ? It is said that that is only so much the worse for the inhabitant. On the ground of common sense it must be the other way. Each of the men is making a noise and each is adding his quantum until the whole constitutes a nuisance. * * * In my opinion, each is separately liable, and I think it would be contrary to good sense, and, indeed, contrary to law, to hold otherwise. It would be contrary to common sense that the inhabitants of the house should be left without remedy at law.”

And in Sturges v. Bridgman, supra, the plaintiff was a physician, and his house was on Wimpole street, and the defendant was a confectioner in large business on the same street, and his kitchen was at the back of his house and stood on ground which abutted on the garden of the physician. The defendant used a pestle and mortar in his back premises, and the noise and vibration for more than twenty years were not felt as a nuisance, and were not complained of. But afterwards, the plaintiff erected a consulting-room at the end of his garden and then the noise and Vibration became a nuisance to him. He accordingly brought an action for an injunction. Held (affirming the decision of Jessel, M. E.). that the defendant had not acquired a right to an easement of making a noise and vibration, and the injunction was accordingly granted.

When the case was before Jessel, M. R.—11 Ch. Div. (at p. 854)—be said:

“I think this is a clear case for the plaintiff. There is really no dispute as to this being a nuisance; in fact, the evidence is all one way, and, as has been often s'aid in these cases, the plaintiff is not bound to go on bringing actions for damages every day, when he is entitled to an injunction.”

In Crump v, Lambert, supra, the plaintiff was the occupier and the owner of a house in Walsall, in Staffordshire, and complained that the defendants had recently erected an iron factory adjoining his ground, the smoke, noise and effluvia proceeding from which occasioned a nuisance which he applied to the court to abate, and Lord Romilly, who was the master of the rolls— L. R. 3 Eq. (at p. 412)—said:

“I consider it to be established by numerous decisions that smoke, unaccompanied with noise or noxious vapor, that noise alone, that offensive vapors alone, although not injurious to health, may severally constitute a nuisance to the owner of adjoining 03' neighboring property; that if they do so, substantial damages 3nay be recovered at law, and that this court, if applied to, will restrain the continuance of the nuisance by injunction in all cases where substantial damages could be recovered.”

And in the same case (at ¶. 418), he said:

“The real question in all the eases is the question of fact, viz., whether the annoyance is such as materially to interfere with the ordinary comfort of human existence. The evidence shows, as indeed might have been expected from a house situated within the town of Walsall, although at the extremity of the town, that before the defendants erected their present works, a great deal of smoke and some noise occasionally affected the plaintiff’s property, and that smue or less of smoke is constantly in the neighborhood, arising from factories which have existed for more than twenty years; but after giving full consideration to all the evidence on this subject, I a3n opinion that the smoke of the defendant’s factory has produced a completely new state of things as regards the plaintiff’s house and grounds, and that the smoke and noise materially interfere with the comfort of human existence in the plaintiff’s house and grounds. Indeed, I think the evidence overpowering on this point, and that it is not really touched by the evidence adduced by the defendants.”

And he ordered (at p. JM) :

“An injunction to restrain the defendants, their servants, workmen and agents from1 allowing smoke and effluvia to issue from their said factory so as to occasion nuisance, disturbance and annoyance to the plaintiff, as owner or occupier of the tenement in the bill mentioned; and a similar injunction to restrain the defendants, their servants, workmen and agents from making, or causing to be made, noises in the factory, so as to occasion nuisance, disturbance and annoyance -to the plaintiff, as the owner or occupier of the said messuage in the bill mentioned.”

By the proofs in the case at bar the various grounds for equitable interference put in issue by the pleadings, are narrowed to three, and may be stated under the following heads— first, a nuisance said to be occasioned by smoke, cinders, soot and dirt; second, a nuisance said to be occasioned by offensive smells and vapors, and third,.a nuisance said to be occasioned by noisy manufacturing.

Por the sake of convenience, I will consider the proofs under the same three heads, to the end that there may be a separate adjudication on each particular thing or group of things said to have occasioned a nuisance.

First. Before further considering the proofs with regard to a nuisance said to have been occasioned by smoke, cinders, soot and dirt, the source or origin of the smoke (i. e., from what part of the defendant’s plant it was emitted) will be referred to, in view of the state of the evidence on that branch of the controversy, and. also the terms “cinders,” “soot” and “dirt” will be more accurately ascertained with respect to the source whence they originated.

A fact put in issue was whether or not any smoke was emitted from the defendant’s live smokestacks, and considerable testimony'’ was taken upon this subject. But I find upon the uncontradicted evidence of the defendant that it used a smokeless fuel under its boilers and coke ovens, and that, in consequence, the smoke emitted from these smokestacks was so inconsiderable in amount as not to be worthy of consideration, and it will not influence my determination on this subject. And I further find that the terms “cinders,” “soot” and “dirt” in the pleading and proofs mentioned, consist of small portions or minute particles of coal dust and coke dust.

The proofs are quite convincing that before and at the time of the filing of the bill, and afterwards down to the time of the completing of the taking of the testimony, the defendant generated large quantities of coal dust and coke dust by means of the coal handling apparatus with which the coal bunker is provided, during the handling of the coal and coke, from the time the coal was discharged from the boats on to the storage pile by the river, down to the time of the discharge of the coke from the coal bunker on to the coke storage pile along Front street, opposite the saloon of the. complainant George P. Kroeeker; that the defendant caused to be emitted large quantities of smoke from its ovens during the charging of the ovens with coal, and that this mingled smoke, coal dust and coke dust, was carried by the wind great distances over a large section of the city of Camden, spreading and diffusing into the houses and places of business of the complainants and others, within the circle upon which it fell, and over their back and side yards and grounds, and that thereby the complainants’ houses were made dirty and uncomfortable to live in, and their furniture and house furnishings were damaged and injured.

On the evidence, the pollution of the atmosphere and the magnitude of that pollution from this source, are not open to dispute.

I shall not attempt to summarize or give the details of the complainants’ thirty-two witnesses on this subject, inasmuch as their testimony is substantially uncontradicted, but will merely refer to the testimony of two or three of their witnesses for the sake of illustration, one of them being the complainant George P. Kroeeker, who is perhaps one of the worst sufferers, if not the very worst sufferer, from the matters considered under this head. He testified that he had seen pedestrians, passing along Front street, who were obliged to turn and go the other way instead of passing the defendant’s works, owing to the dirt and dust, when the wind was blowing in a certain direction; that the defendant’s operations would cause cinders and dust to come into his house, when the coal bunker and its accompanying coal handling apparatus was sieving coke in front of his property; that he had seen the smoke so bad that one could not see across the street; that it had been so thick that one could not even see across a room; that when the defendant was discharging soft coal from the boats on the river, if the wind was strong from that quarter, it took the dirt all over town; and that twelve hours after a fall of snow he liad seen the snow in the . neighborhood of the defendant’s works covered with such a thick crust of cinders, black and gritty, that he could not seé the snow.

Harry Charman, a witness on behalf of the complainants, testified as follows:

“Last September (4. e., September, 1910) I was standing (in Mr. Kroecker’s doorway) watching them load coke in a coal car and the wind was blowing right directly from the plant, and great volumes of fine grit from the coke, as they dumped it from the bucket to the car, would come over and go into his place; and while I was there he wiped his bar off during the time they were loading this car, which I think consumed twenty minutes, he wiped his bar off ten or fifteen times; you could write your name on his bar two minutes after he wiped it off. The engineer who was operating the steam shovel when he would empty the bucket, would have to run to get under a cover, under a screen or a canvas that was right in front of the cap, between the cap and the machine of the car, and wait until this volume of dirt and dust passed by, before he could go out and operate his engine.”

August Ereitag, another witness Yor the complainants, testified that he was a baker, and that in serving bread early in the morning in the neighborhood of the coke works, many a time he could not keep his eyes open owing to the soot and small cinders flying in his face coming from the coke plant and ovens, and he has seen it so bad that even a horse would not face it, but the horse would deliberately turn around and could not stand the soot and stuff that came in his face, the whole air seeming to be full of soot.

This testimony serves to indicate the originating points in the defendant’s works from which the things complained of emanate, and also to indicate the sphere of their distribution, and also the degree of intensity of the discomfort caused thereby.

In attempting to break the force of the complainants’ testimony under this head, the defendant introduced th'e testimony of its general manager, and assistant general manager and superintendent, with respect to th'e construction of screens after the commencement of this Suit, one along Front street, opposite the saloon of the complainant George P. Kroecker, and another on the coal bunker, which testimony I will set forth verbatim because of its importance in explaining the actual nuisance I am now considering.

(Here follows evidence omitted by direction of the chancellor.)

But such testimony, instead of overcoming the force of the complainants’ testimony has, I think, exactly the opposite effect.

The situation presented by the proofs resembles that before the New York court of appeals in City of Rochester v. Macauley-Fien Co. (1910), 199 N. Y 207, 211, involving smoke alone, where that court said:

’“The emission of smoke from a chimney when it includes dust, soot and cinders to such an extent that it is rendered very dark or black, must materially affect the purity of the atmosphere surrounding the place where it is so emitted. The pervading substances in the smoke necessarily darken the color in proportion with the amount thereof. As soon as the impelling force is removed such substances obey the law of gravity and fall upon the adjoining property. In a city .or closely populated community, where persons and property cannot be removed from the effects of the disagreeable contamination, it not only pollutes the air that must be breathed, but it mars the appearance, destroys the cleanliness, and affects the value of the property within the circle upon which such substances from the smoke so fall. The extent of the injury is a matter to be established by evidence, to include all the facts and circumstances relating to it, although doubtless it is a matter of common knowledge of which the courts may take judicial notice that some injury must result from substance-laden smoke pervading the atmosphere in which persons and property necessarily remain

It was attempted to be shown by the defendant in this case that there was more or less of smoke arising from other factories and from locomotives in the same neighborhood where complainants live, but after giving full consideration to all the evidence on this subject, and having regard to the smoke almost incessantly emitted from one or more of the defendant’s one hundred and fifty coke ovens, day and night, and especially having regard to the unceasing activity of the steam bucket dipping up and dumping down soft coal and coke, a ton and a half at a time, each time creating a cloud of dust, day and night, as well as considering the enormous quantity of coal and coke thus handled every twenty-four hours, I am of opinion that the smoke from the defendant’s ovens taken with the coal dust and coke dust produced by this coal handling apparatus, created a completely new state of things, as regards the complainants’ premises, and. that such smoke and dust materially interferes with the comfort of human existence in the complainants’ houses, and, as seen in Crump v. Lambert, supra, these are separately actionable.

I conclude, therefore, that at the time of the filing of the bill, and before and afterwards down to the completion of the taking of the testimony, the defendant’s works in this aspect of the case, that is, with respect to smoke, cinders, soot and dirt occasioned a nuisance of which each one of the complainants, being an owner or occupier of property in that neighborhood, has a right to complain, and from which they and each of them have a right to relief in this court.

Second. With respect to a nuisance alleged to have been created by gases, offensive odors, smells and vapors, it is not denied, but it is admitted by the answer, that during the time the six caps fitted for the charging holes of each oven are removed, and the ovens are being charged and leveled, some destructive distillation of the coal is going on, and that during this period the resulting gases from this destructive distillation must of necessity be dissipated in the air.

These ovens are located immediately in front of the dwellings of some, and immediately in the rear of the houses of others, of the complainants.

Passing on to the defendant’s testimony on this subject as given by its four most intelligent witnesses, all of them experienced gas engineers, namely, the general manager, assistant general manager, superintendent and assistant superintendent, with a view of ascertaining the length of the period of time this discharging in the air goes on, and the resulting effect:

(Here follows evidence omitted by direction of the chancellor.)

Up to this point, aside from the admissions in the answer, and the implications to be drawn from the large number of ovens operated continuously, night and day, with respect to gases escaping during the charging of the ovens, no clear view is given with regard to the character and intensity of the odors of which complaint is made.

But the complainants and their witnesses (numbering in all thirty-two, five of whom are physicians and members of the board of health) describe in unmistakable terms the physical effects of these fumes and vapors generated by the defendant’s plant, upon those who inhale them, not only such as are emitted during the charging of the ovens, but also at other times.

Their evidence was that in certain conditions of the atmosphere and especially when the wind was from the northwest or river side of the defendant’s works, and in the warm weather when windows and doors are kept open, the odor was very unpleasant, so much so, that they felt constrained to close their windows and keep them closed. This situation is serious. The complainants have the right to have the air come to them in a state of ordinary purity so that they may comfortably enjoy it.

On the evidence, the pollution of the air from this source, and the magnitude of that pollution is not open to dispute.

Without any attempt to go into details immaterial to the suit, it is proper to add, that T am satisfied, by a preponderance of evidence, that the defendant’s works as they were conducted in the year 1910, both before and at the time, of the1 filing of the bill and afterwards, created a nuisance with respect to gases, smells and odors, of'which each one of the complainants, being an owner or occupier of property in that vicinity, has a right to complain, and from which they all have a right to be relieved and protected by this court.

Third. Another of the allegations of the bill is that the defendant has in its service a large machine known as an “electric pusher” connecting -with the coke ovens, which at frequent intervals, both day and night, makes loud noises, which are a nuisance to the complainants and the neighborhood, and which disturbs and deprives them of their sleep. But the proofs taken by both parties extended beyond the noise resulting from the operation of this pusher, and comprehended all noises generally, caused by operating the defendant’s works. Accordingly, inasmuch as the bill prays for general relief, and the parties have thus acted, I wilL also deal with the ease in this aspect, as they themselves have done, distinguishing such noises as are merely temporary and occasional, from those which are permanent and enduring.

, For temporary inconvenience from noises caused by an occupier or owner of land in the execution of lawful works in the ordinary user of the land, are not.ground for an injunction. Harrison v. Southwark Water Co. (1891), 2 Ch. Div. 409.

On this subject the defendant’s testimony throws considerable light, both from the implications to be drawn from the magnitude of the apparatus in prosecuting defendant’s work, and the improvements made by the defendant in this respect since the commencement of this suit. Assistant General Manager Ernshaw, who has been with the defendant upwards of five years, testified as follows:

(Here follows evidence omitted -by direction of the chancellor.)

This testimony of witnesses on behalf of the defendant on the subject of nuisance created by noise emanating from the defendant’s works indicates that considerable noise is there created, and, read in conned ion with the testimony of the complainants’ witnesses who say that these noises keep them awake at night, shows that an appreciable amount of noise, far too much, especially at night, creates a nuisance in the neighborhood which the law will redress.

On the evidence upon the subject of noises, I am satisfied that those described as explosions were temporary and occasional, and had ceased long before this suit was commenced. But with respect to those noises of a permanent character, and the intensity thereof, there is practically no dispute of the complainants' testimony, especially concerning the extent and effect of the noise created by the defendant’s operations of the machines called pushers, motors and the steam bucket.

The testimony of the complainants and numerous witnesses called on. their behalf, who all dwell in the neighborhood, is, that the noises proceeding from these sources interrupt and disturb their sleep, practically rendering it impossible to sleep in the neighborhood, as already remarked.

I will not go further into details beyond saying that I am satisfied by á great preponderance of evidence, that such noises occasioned by the pushers, motors and steam coal bucket are so considerable as to make out a ease within the requirements of Reilley v. Curley and Seligman v. Victor Talking Machine Co., supra.

My conclusion is, with respect to noises of such a character and intensity as to disturb and deprive the complainants of their sleep during the night, that the defendant’s works as they were conducted both before and at the time of the filing of the bill, and afterwards until the completion of the testimony, created a nuisance of which all the complainants being owners or occupiers of property in that neighborhood have a right to complain and to be relieved by this court.

I have had much hesitancy on the subject of injunction on account of noise in view of the damage of a possible stop to the defendant’s business, if this plant be altogether restrained from operating after a certain hour at night, and until a certain hour in the morning, as was done in Seligman v. Victor Talking Machine Co., supra, where the defendant was restrained from operating its machinery “after the hour of ten-thirty p. m. and from commencing the operation of the same prior to six-thirty a. M.,'v but after careful consideration, I have concluded that the complainants have a right to have the defendant restrained from so operating its pushers, motors, coal bucket or other machines upon the premises in question between those hours as to cause noise of sufficient intensity to penetrate the houses of the complainants and destroy or disturb the sleep of those dwelling therein during that portion of the night.

The defendant sought to escape from the effect of the complainants’ testimony by introducing testimony to the effect that these things charged to be a nuisance, were not- at all unpleasant or disagreeable to other persons. But such testimony on the part of the defendant utterly ignores the rule, that the charge of a nuisance, if it be of things offensive to persons generally, cannot be escaped by showing that to some persons such things are not at all unpleasant or disagreeable, and such testimony is wholly opposed to the criterion established in Cleveland v. Citizens Gas Light Co., supra, where it is said that the thing charged to be a nuisance “is not the less so, because there may be persons whose habits and occupations have brought them to endure the same annoyances without discomfort,” and which was acted on in Laird v. Atlantic Coast Sanitary Co., Ross v. Butler, Seligman v. Victor Talking Machine Co. and Rausch v. Glazer, supra.

Again, the defendant sought to escape from the acts complained of by the so-called improvements made pending this suit. But the rule on this subject is that when one who is entitled to relief in equity against a private nuisance files a bill to enjoin the same, the defendant cannot, by partially abating the nuisance pending the suit, defeat the complainant’s right to that complete redress to which he was entitled when he sought his remedy. Carlisle v. Cooper, 21 N. J. Eq. (6 C. E. Gr.) 576; affirming 19 N. J. Eq. (4 C. E. Gr.) 257.

It was argued that this court ought not to maintain jurisdiction, but leave the complainants to their remedy at law. But, as was said by the master of the rolls in Sturges v. Bridgman, supra, “the plaintiff is not bound to go on bringing actions for damages every day, when he is entitled to an injunction.”

The defence of laches has not been set up by the defendant in its answer, and it could not have been set up with success, as was decided in Laird v. Atlantic Coast Sanitary Co., supra, in view of the proceedings by the complainants before the board of health.

The decree will be that immediately before and at the time of the filing of the bill, the defendant’s works were so conducted as to create and maintain a nuisance as to each and every one of the complainants, being owner or occupier of a tenement in the bill mentioned or referred to, and that the defendant, its servants, workmen and agents be restrained by injunction from allowing smoke, coal dust, coke dust, gases or vapors to be emitted or escape from its works so as to occasion a nuisance, disturbance or annoyance to the complainants or any or either of them, as owner or occupier of a tenement; and that the defendant, its servants, workmen and agents be also restrained from working any pusher, motor or steam bucket and machinery' .in its works between the hours of half-past ten o’clock p. M. and half-past six o’clock a. m.^o as to occasion a nuisance, disturbance or annoyance to the complainants, or any or either of them, as owner or occupier.

The complainants are entitled to their costs.


author: Walk.br, Chancellor.

text:
    Henry P. Dunham v. Bertha Florence Dunham.
    [Decided December 16th, 1913.]
    1. A pending divorce suit abates upon the death of either party, without surviving interest in anyone, and therefore it cannot be revived.
    2. A decree nisi of divorce may not be made absolute, and the marriage between the parties cannot be dissolved, by a final decree made after the death of one or the other of them.

      3. If a final decree of divorce be inadvertently entered after the death ' of either party to a suit for divorce, it will be vacated, set aside and for nothing holden.
    4. That a divorce suit abated by the death of petitioner before entry of final decree, did not authorize the dismissal, on application of defendant, of the original petition for divorce.
    On petition to vacate final decree of divorce.

      Messrs. James & Malcolm Q. Buchanan, for the defendant and present petitioner.
   Walk.br, Chancellor.

This was a suit for divorce on the ground of the wife’s adultery. She was personalty served with process of citation, but failed to answer and defend, and the cause was referred to a special master to take proofs. The master reported and recommended the granting of a decree of divorce according to the prayer of the petition. On October 3d, 1912, a decree nisi was entered in which it was adjudged that the petitioner, Henry P. Dunham, and the defendant, Bertha. Florence Dunham, “be divorced from the bond of matrimony for the cause aforesaid, and the said parties, and each of them, be freed and discharged from the obligations thereof, unless sufficient cause be shown to the court why this decree should not he made absolute, within six months from the date hereof.”

On April 4th, 1913, no cause being shown or appearing to the contrary, a final decree of divorce was made and filed in the cause, which adjudged that the decree nisi be made absolute and that the parties, petitioner and defendant, be divorced from the bonds of matrimony and the marriage between them dissolved accordingly and each of them freed and discharged from the obligations thereof.

On November 28th, 1913, the defendant, by the name of Bertha Florence (Dunham) Myers, filed a petition herein in which she alleged that she is the wife of Allan 0. Myers, having been married to him on November 2d, 1912 ; that previous thereto and until the death of Henry P. Dunham, the original petitioner in this cause, she was his wife and the defendant in this cause. Her petition then recites the making of the decree nisi on October 3d, 1912, and avers that the next day, October 4th, 1912, the petitioner, Henry P. Dunham, died in the city and county of New York; that notwithstanding his death a final decree of divorce in his favor against her was entered in this court in this cause on April 4th, 1913. Her prayer is that the death of the original petitioner be suggested upon the record, the final decree of divorce vacated and the petition therefor dismissed. Annexed to her petition is a copy of the will of Henry. P. Dunham, filed and propounded for probate in the office of the surrogate of New York count3r, and proof of the death of Dunham on the date mentioned.

On filing the defendant’s petition an order was made that the solicitor of the original petitioner, Henry P. Dunham, and also the persons named as executrix and executor’ of the paper-writing propounded for probate as the last will and testament of Dunham in New York, and also his heirs and next of kin, naming them, appear and show cause before the chancellor, on a day therein mentioned, why the prayer of the petition should not be granted. Service upon the respondents, in the manner directed by the order to show cause, was made, but on the return day none of the respondents appeared, except the late petitioner’s solicitor, who (no longer representing his deceased client) suggested, amicus curice, that a final decree of divorce had relation back to the decree nisi, and cited Prole v. Soady, L. R. 3 Ch. App. 220, as authority.

It cannot be denied but that Prole v. Soady, supra, is an authority for the assertion that a filial decree of divorce, following and based upon a decree nisi, when made, relates back to, and takes effect as and from, the date of the decree nisi.. But that case is no authority for entering a final decree of divorce after the death of one of the parties to the suit because of the fact that a decree nisi had been made during their joint lives. The adjudications which I have examined are all to the contrary. In the later English case of Norman v. Villars, 2 Ex. Div. 359, Lord-Justice Bret, referring to Prole v. Soady, remarked that the decree relates back to the decree nisi only when the latter is made absolute.

In Chase v. Webster, 46 N. E. Rep. 705, it was held by the supreme judicial court of Massachusetts that a decree of divorce nisi does not dissolve the marriage and that the death of either party before it has been made absolute, and before the time when it can be made absolute, puts an end to the suit. In the matter of Crandall, 196 N. Y. 127, the New York court of appeal held that an interlocutory judgment for divorce does not dissolve the marriage but contemplates and provides for a final judgment which shall accomplish that result; that an action for divorce is of a personal nature which, in the absence of statutory provision. abates with the death of the party bringing it; that the provision for the entry of final judgment on the death of a party after interlocutory judgment provided in the code of civil procedure, applies only to actions which do not abate by death.

In Hunt v. Hunt, 75 Misc. Rep. (N. Y.) 209, the supreme court of that state held that an action for an absolute divorce is a personál one and abates upon the death of the plaintiff. In that ease a motion to vacate a final judgment of divorce, and for a new trial upon the ground of newty-discovered evidence made by the defeated party after the death of the successful one, was denied for want of power and not in the exercise of discretion, the cause having abated by the death of one of the parties.

In Bryon v. Bryon, 134 N. Y. App. Div. 320, the court held that the provision of the New York code of civil procedure for the automatic entry of final judgment in the names of the original parties where one dies after the entry of air interlocutory judgment, applies exclusively to cases in which the cause of action survives; that an action for divorce does not survive the death of a party, and that if one dies after the entry of the interlocutory decree, the final decree thereafter entered is unwarranted, extra-judicial and ineffective; that nothing short of a final decree divorcing the parties deprives the wife of dower; an interlocutory judgment or proof of adultery is not sufficient.

The law in this state is different, and adultery on the part of the wife in certain cases at least will bar her dower. See the Dower act. Comp. Stat. p. 2048 §§ 14, 15.

It should be remarked that the original petitioner’s solicitor did not move the court for the entry of the final decree in this ease, and, therefore, no blame attaches to him -in that respect. Although section 21 of. the Divorce act of 1907 provides that a decree nisi shall become absolute after the expiration of six months from the entry thereof and that a final and absolute decree shall then be entered upon application to the court by the petitioner unless prior to that time cause be shown to the contrary, the practice was adopted, when the act went into effect, of entering final decrees of divorce at the expiration of six months after the entry of the decrees nisi, as though on motion therefor, because it was thought that the public interests would thereby better be conserved than to await application by solicitors, which, if tardily made, in some cases would embarrass clients, for, as is well known, the laity regard a decree nisi as becoming absolute at the end of six months and are generally unaware that the decree has to be confirmed and made absolute by the actual entry of a final decree.

One test as to the court’s power to enter a final decree in a divorce ease after the death of one of the parties, is this: Does the cause of action survive ? If so, it must survive to some other party as a representative of the deceased, who could, by appropriate proceedings, cause it to be revived. Now, it is certain that every cause abates by the death of one or other of the parties, and that it can be further proceeded with only upon- revivor. And, certainty, in a divorce case the cause of action cannot survive to any third party. That it abates without surviving interest in anyone, and that, therefore, it cannot be revived, must be apparent when we consider that parties are married only until death do them part or their marriage be dissolved by a decree of divorce. If, therefore, a marriage be already dissolved by the death of one of the parties there is left no marriage relation or status of marriage upon which a decree of divorce could operate, and a pending divorce suit abates without surviving interest or right of revivor in anyone. This point was expressly decided by our court of errors and appeals in Seibert v. Seibert, 86 Atl. Rep. 535.

The ’final decree, improvidently entered in this case, will be vacated, set aside and for nothing holden.

The present petitioner also applies to dismiss her husband’s petition for divorce, but cites no authority for such a step. As I understand it, when a suit abates the record remains as the parties made and left it. The application to dismiss the original petition for divorce will be denied.


text:
    Grace M. Porter v. Frank Hankey Porter.
    [Decided December 16th, 1913.]
    A desertion can only be regarded as continued within the meaning of section 31 of the Divorce act (P. L. 1907 p. If88) if the deserting party shall have been under restraint either by due process of law or his voluntary act; insanity not being a voluntary act, but an affliction regarded as an act of God, incarceration, by reason of insanity, does not fall within the letter or the spirit of the section.
    On petition for divorce. On exceptions to master’s report.

      Mr. J. Lefferis Gonard, for the exceptant.
   Walker, Chancellor.

This was a divorce case in which the petitioner charged the defendant with willful, continued and obstinate desertion, and prayed a divorce a vinculo matrimonii accordingly. The defendant was served with process of citation and a copy of the petition. At the time of such service he was confined in the New Jersey state hospital at Trenton as an insane person, and the clerk of this court was thereafter appointed guardian ad litem for him in this cause. The matter was referred to Richard C. Chamberlain, Esquire, one of the special masters of this court, to take depositions and other evidence and report thereon. This he did under date of November 5th, 1913, and, among other things, reported as follows:

“And I find and report that the petitioner and the defendant cohabited after their said marriage until the 25th day of August, A. d. 1900, and that on said last-mentioned date the defendant left the petitioner and has never since that date returned to her, offered to provide a home for her or contributed to her support.
“And I find and report that on the 15th day of March, a. d.' 1901, the defendant was incarcerated in the New Jersey state hospital for the insane, and was confined in that hospital continuously from that date until after the filing of the petition in this cause; that the statutory period of desertion in this state, as declared in Myles v. Myles, 77 N. J. Eq. (7 Buch.) 265, is the two years immediately preceding the filing of the bill or petition, and that during the whole of such period the defendant was confined in the New Jersey state hospital for the insane at Trenton, in this state.
“In Pile v. Pile, 94 Ky. 308, it was held that ‘involuntary absence while confined in an insane asylum is not desertion.’
“The New Hampshire statute provides ‘abandonment to constitute a cause of divorce, must continue for three years together’ (Pub. Stat. ch. 175 § 5), and in that state the supreme court held that ‘the time during which the defendant has been insane cannot be included in computing the statutory period. But for her insanity, it may be that she would have repented and returned to her husband.’ Storrs v. Storrs (N. H., 1894), 34 Atl. Rep. 672.
“And in Matchin v. Matchin, 6 Pa. St. 332, it was held that ‘general insanity is a full defence for all acts which by the statute are grounds of granting divorce. In regard to severity and desertion there could be no question. There is wanting the consenting will which is indispensable to give the acts the quality either of severity or desertion.’
“Under ‘An act providing lor divorce and for decrees of nullity of marriage, and for alimony and the maintenance of children (Revision of 1907); P. L. 1907 p. 474, divorces from the bond of matrimony may be decreed for ‘willful, continued and obstinate desertion for the term o'f two years.’
“And section 31 o£ the same act provides:
“ ‘Willful and obstinate desertion shall be regarded, held and construed to be “continued” within the meaning- of this act, notwithstanding that after such desertion has or shall have begun-, the deserting party has or shall have been imprisoned! in this or any other state -oir country upon oonviction by due process of law for a crime, misdemeanor or'offence, not political, committed in this or any other state or country, or for any other reason, shall have been under restraint, either by due process of law or his or her voluntary act.’
“If this section applies to an insane defendant charged with desertion, it simply declares the desertion to be ‘continued/ not willful and obstinate as required bj' the act; the desertion to be willful requires a consenting mind, and in this case the defendant is and was for move than two years immediately preceding the filing of the petition an insane person confined in an insane asylum, and without the consenting mind necessary to make the desertion willful and obstinate, and in consequence I find and report that a willful, continued and obstinate desertion for the term of two years did not exist at the time of the filing of the petition.
“And I accordingly report that in my opinion the petitioner has not substantiated the truth of the allegations of her said petition, with respect to the cause of divorce, and is not entitled to the relief prayed; and T do recommend that the petition be dismissed.”

The petitioner excepts to the master’s report, first, because it appears by the depositions offered by the petitioner that the defendant, on August 25th, 1900, deserted the petitioner within the meaning of the Divorce act; second, because the defendant’s desertion -was willfully and obstinately begun, and so continued by virtue of the operation of section 31 of the Divorce act; third, virtually the same exception as the second, being stated in a different formula, and fourth, that the master’s report is contrary to law and the evidence, and that the petitioner is entitled to the relief she prayed for, and that the master should have so reported.

My examination of this matter has led me to the conclusion that the master’s recommendation is correct, and the exceptions filed to his report will, therefore, be overruled and the petition dismissed, for the reasons stated by the master, except that I disagree with his conclusion that the provisions of section 31 of the Divorce act merely operate to continue a desertion, not making its continuance willful and obstinate. The section mentioned is one of construction, and its very object is to make a desertion, thereby continued, both willful and obstinate during its continuation. To my mind the section (31) does not operate at all upon the status of the defendant in this case, for this reason: A desertion can only be regarded as "continued” within the meaning of section 31 of the Divorce act if the deserting party shall have been under restraint, either by due process of law or his voluntary act. Now, insanity is not a "voluntary act,” but is an affliction regarded as an act of God. Incarceration, therefore, by reason of insanity, does not fall within the letter or the spirit of the section. The master holds that the desertion was not continued in a legal sense after the defendant became insane, for want of a free and untrammeled will, which alone could continue, willfully and obstinately, a desertion already willfully begun. This I affirm to be sound, but go a step further, and say, that the very statutory provision within which the desertion in this case is sought to be made "continued,” excludes the notion that it was continued within the meaning of the law, because the act which induced the restraint of the defendant and made his absence continued in fact, was entirely involuntary on his part.


text:
    Charles Mitsch v. Edward Owens et al.
    [Decided December 27th, 1913.]
    1. Section 59 of the Tax act of 1903 (P. L. 1903 p. 394) examined and construed, and held to provide for strict foreclosure of the. right to redeem and not foreclosure and sale of land already sold for taxes.
    2. The word “redeem,” as used in the Tax act of April 8th, 1903 (P. L. 1903 pp. 481, 4'S2 §§ 57, 59), relative to redemption from tax sale, means “repurchase,” which can be made only by a person interested in the land sold.
    3. In the construction of statutes, other statutes in pari materia must be regarded, and, when any term used' in the statutes is ambiguous^ that meaning will be given to it in which it was usedi in former legislation on the same subject.
    On application for decree upon bill to foreclose the right to redeem land sold for taxes.

      Mr. Waller A. Barrows, for the complainant.
   Walker, Chancellor.

The bill in this cause is filed to foreclose the right to redeem certain lands in the township of Riverside, Burlington county, which were sold for taxes under and pursuant to the provisions of an act entitled “An act for the assessment and collection of taxes.” P. L. 1908 p. 894.

The section of the act, under which the bill is filed, in terms permits the foreclosure of the “right to redeem,” but provides that that right shall continue until barred by “decree of sale,” and then goes on to make further provision with reference to the foreclosure of the “right to redeem.”

The sole question for determination is whether the decree should be one of strict foreclosure, so called, or for the sale of the property already sold for taxes.

In order to hold that the statute means strict foreclosure it will be necessary to excise the words “of sale” out of the clause which reads “decree of sale of the court of chancery.” This may be' done, if necessary, to give effect to the ascertained intention of the legislature. I am clearly of opinion that the two prescribed remedies in the statute—that is, foreclosure of the “right to redeem” and “foreclosure sale”—are mutually exclusive of each other, and that one must overrule the other.

The pertinent provisions of the Tax act of 1903 (P. L. 1903 p. S91i) are portions of sections 57, 59, which read as follows:

“57. The owner, mortgagee, occupant or other person having an. interest in the land sold' for taxes, may redeem the same at any time within two years from the date of sale, or at any time thereafter until the right to redeem has been) cut off in the manner hereinafter set forth, by paying to the purchaser or his legal representative or assigns, the amount of purchase money shown on the certificate with twelve per cent, interest thereon, together with such other fees and expenses as may be incurred by the purchaser under this act, and the purchaser ioni receiving such payment, shall restore to the owner said lands and the sale shall be void.” iji sjc ifc # * % % # *
“59. * * * The purchaser or his assigns may in addition to the foregoing remedy at any time after the expiration of the term of two years, whether notice to redeem has been given or not, file a bill in equity to foreclose the right of redemption, but on filing such bill the right to redeem shall exist and continue until barred by the decree of sale of the court of chancery; the title by a purchaser at a tax sale shall be void at the expiration of twenty years from the date of the tax sale unless the purchaser shall before the expiration of that term enter into actual possession of the land purchased or foreclose the right to redeem the same by notice or by proceedings in equity and' record the evidence thereof as above prescribed.”

The word “redeem” means “repurchase.” Pace v. Bartles, 47 N. J. Eq. (2 Dick.) 170. It is-perfectly apparent that a repurchase of land sold for taxes can be made only by the owner or other person having an interest in the land, and not by a mere stranger at a judicial sale. It is true that the interest of the purchaser of land at a tax sale remains a mere li'en on the premises during the period within which redemption is allowed to be affected (Burgin v. Rutherford, 56 N. J. Eq. (11 Dick.) 666), and it is the foreclosure of the right to redeem by which the owner’s estate is cut off and extinguished and the purchaser’s lien becomes an indefeasible estate in him.

In Frazier v. Johnson, 65 N. J. Law (36 Vr.) 673, the right to redeem from the purchaser of a tax title is considered, and (on p. 675) reference is made to the “important right of redemption.” It will be seen that what may be foreclosed under the Tax act, if effect is to be given to the expression “foreclose the right to redeem,” is that very right itself—the right to redeem—nothing more and nothing less.

In Cadmus v. Bayonne, 61 N. J. Law (82 Vr.) 494, it was held that the right to redeem is the right of the owner and that its form is strictly .prescribed.

If, however, a sale were had on a bill to foreclose the right to redeem, redemption, in effect, might be made by one of the public—a mere stranger to the title.

In my-judgment, the law does not intend to make provision that a total stranger may deprive the purchaser at a tax sale of his right to perfect his title, by strict foreclosure, on the one hand, or usurp the owner’s right to redeem, by permitting the land to be bought away from him, on the other hand.

Section 57 of the act provides that redemption may be made by payment by the owner to the purchase]’, and section 59 that the right to redeem may be foreclosed. If foreclosure means the foreclosure of the right to redeem, the provisions are harmonious. If it means another sale of the land already sold for taxes, they are inharmonious; permitting the owner to redeem by reimbursing the holder of the tax title in the one case, and in the other permitting a stranger to purchase the property away from both.

Originally, all foreclosures were of the strict kind—that is, the decree foreclosed the equity of redemption of the mortgagor after default in payment, and the lands thereupon became the absolute property of the mortgagee. The sale of mortgaged premises, on foreclosure, was a doctrine invented by courts of equity in order to do justice to both moitgagor and mortgagee, giving to the mortgagee, out of the proceeds of sale, his debt which was secured upon the mortgaged premises, and giving to the mortgagor the surplus money remaining after the satisfaction of the amount due the mortgagee.

The right of redemption of mortgaged premises also exists against the purchaser at foreclosure sale under a senior encumbrance in favor of a junior encumbrancer who has been omitted •> as a party to the suit. Tn a similar situation a purchaser at a foreclosure sale may anticipate a suit for redemption by a subsequent encumbrancer, and, upon bill of strict foreclosure, may require the latter to .redeem the premises by paying off the prior encumbrance, or be 'foreclosed of the right to redeem.

It will be observed that the initial provision of section 59 of the statute under consideration is, that the purchaser at a tax sale may file a. bill in equity to foreclose the right of redemption. This, standing alone, does not authorize a decree for sale of the premises purchased at a tax sale for the purpose of raising and reimbursing to the purchaser the amount which he paid for Ms tax title to the land. It is true the statute then proceeds to enact that the right to redeem shall exist and continue until barred by the decree of sale, but it proceeds further to make provision that the certificate of sale shall be void at a certain time unless the purchaser shall enter into actual possession or foreclose the right to redeem.

Now, admittedly, the right to foreclose the right to redeem is not the right to have a sale of the premises for the purpose of obtaining a money satisfaction for the amount paid by the purchaser upon acquiring the land at a tax sale; and the question is, how .shall this statute be construed—that is, whether it provides for a strict foreclosure or foreclosure and sale. Its language is inconsistent. It provides directly for the foreclosure of the right to redeem, and incidently provides that that right shall not be extinguished until sale on foreclosure.

In Mendles v. Danish, 74 N. J. Law (45 Vr.) 333, the supreme court held that:

“In construing a statute, where ambiguity exists or literal interpretation may lead to absurd results, resort may be had to the principle that the spirit of the law controls the letter.”

The right to redeem has a definite and conceded meaning. Section 59 provides for two methods of the foreclosure of that right, one by written notice to all persons interested in the land that unless thejr redeem within the term specified their right of redemption will be barred, or, whether notice to redeem has been given or not, the purchaser maj^ file a bill in equity to “foreclose the right of redemption.” Here are two methods of foreclosure, one by act of the party and the other by bill in equity. If two sorts of foreclosure are to be had for one and the same thing, namely, a barring of the right to redeem by notice, and a sale on bill in equity, the result will be incongruous, if not absurd.

The supreme court, in Wellman v. Bergmann, 44 N. J. Law (15 Vr.) 613, held:

“'Clear and unambiguous expressions of intention, in a statute, will control a literal interpretation which is inconsistent with other and overruling provisions in the same statute.”

And Mr. Justice Scudder, speaking for the court (at p. 616), said:

“I know the extreme reluctance with which courts change words found in a statute, but where it becomes necessary, in a case like this, that it should be done, ut res magis valeat quam pereat, they have not failed to do what the legislature obviously intended to do, and to give effect to their purpose; they have not allowed the mere error of a copyist to annul a beneficial statute. This is not guessing at legislative intention, in opposition to the words they have used, but giving effect to a purpose so manifest that no one can doubt it.”

If, as seen, the mere error of a copyist shall not be permitted to annul a beneficial statute, so, too, I take it, a slip of the draftman’s pen will not be permitted to annul or vary an intended beneficial provision in a statute.

It is perfectly apparent to me that the draftsman of the Tax act of 1903 had in mind a strict foreclosure of the right to redeem when he wrote into section 59 the provision that a purchaser might file a bill in equity to foreclose the right of redemption; and when he came to make a statement about the decree on foreclosure the though! of a sale on foreclosure of a mortgage came into his mind and he inadvertently wrote that provision (for sale) into the act. But that he intended a strict foreclosure is quite evident, from the subsequent phrase which he used in the same section, namely, “foreclose the right to redeem,” and it is significant that in that very clause he writes “foreclose the right to redeem the same by notice or by proceedings in equity.” That in that expression he meant the same kind of foreclosure—that is, strict foreclosure of the right of redemption, I have no doubt, and I am clearly of opinion that the same intention is to be ascribed to the legislature.

In 36 Cyc. 1109, it is stated that in the construction of statutes:

“Words may accordingly be rejected and others substituted, even though the effect is to make portions of the statute entirely inoperative.”

It- is a rule that in the construction of statutes, other statutes in pari materia must be regarded, and when a term or phrase used in any statute is ambiguous, that meaning will be given to it in which it was used in former legislation on the same subject (State v. Garthwaite, 23 N. J. Law (3 Zab.) 143), and, by analogy, resort may be had in this ease to the language of the court of errors and appeals in Frazier v. Johnson, supra (at p. 674), that it is difficult to see how a mere occupant having no legal or equitable interest in the lands sold, can find any footing to redeem from the purchaser of a tax title. In that ease (Frazier v. Johnson) there was no question of the meaning of a decree for sale on foreclosure of the right to redeem, as in this case, but the language of the court contains a very significant definition of what is the right to redeem. The section of the Tax act there under review was one providing for redemption; and, it is to be observed, that the court in construing it, scouted the idea that a stranger to the title had any right to redeem from the purchaser at a tax sale.

The legislature, of course, had a right, if it chose, to provide for a sale on foreclosure of the right to redeem, and if it had clearly manifested that intention, every court would be bound to give it effect. But, when foreclosure of the right to redeem is provided, and then a sale on foreclosure of the right to redeem, and then further enactment is made as to foreclosure of the right to redeem, all in. the same section, there is ambiguity, and conflict, and contradiction in terms; and in an endeavor to ascertain the true intent and meaning of the legislature, this court, in my opinion, lias the right to give the words “right to redeem” the meaning which the courts have heretofore ascribed to them, namely, the right of the owner to repurchase the land from the holder of the tax title.

I am clearly of opinion that the foreclosure provided in section 59 of the Tax act of 1903 was intended by the legislature to be a strict foreclosure of the right to redeem, and there will be a decree accordingly.


text:
    Alice McCloskey, executrix of the last will and testament of Ann Maguire, v. James J. Bowden. Alice McCloskey, executrix of the last will and testament of Ann Maguire, v. James J. Bowden, individually, and as executor of the last will and testament of Alice Maguire, and Mary F. Bowden, his wife.
    [Decided January 29th, 1914.]
    1. As the complainant may recover costs against the defendant who has been warned to do his duty before suit brought, so a complainant who had1 received a homo fide offer of a proper settlement before bringing suit, but brings suit more or less vexatiously, will not, in a court of conscience where the matter is discretionary, be allowed either costs or counsel fee against the defendant who is adjudged to pay practically the sum which, before the bringing of suit, he had accounted for and offered to pay. ■ ,

      2. Only a derelict trustee is made to pay the expenses of an accounting out of his io.wn funds.
    3. Upon a bill for an accounting- where the matters in- controversy were referred to a master, who finds for the complainant practically the amount for which the defendant offered! to account and- settle before suit brought, and, upon the equity of the case, there being nothing in! the testimony to show that the defendant endeavored to overreach or oppress the complainant in any way, the suit may be treated as an ordinary accounting by a trustee, or as practically an exception to the defendant’s account, and an application for the taxation of costs and counsel fee -against the defendant will be denied.
    On application for costs and counsel fee to be taxed against defendant.

      Mr. Peter P>aclce.s, for the motion.

      Mr. Martin P. Devlin, contra.

   Walker, Chancellor.

The defendant, Bowden, and his wife made a mortgage to Alice and Ann Maguire for $3,000. Alice died, and by her will bequeathed her undivided one-half interest in the mortgage, with the rest of her estate, to her sister Ann,, for life, with remainder to the defendant, James J. Bowden. Ann died, leaving a will in which she appointed the complainant executrix, and bequeathed to her a one-half interest in the mortgage, with the rest of her estate. The other half interest in the mortgage then passed to the defendant, Bowden, under the will of Alice, the life estate of Ann terminating.

Bills for an accounting were hied, one claiming the entire mortgage, and the other for an accounting of the income of the estate which was the property of Ann in her lifetime. The matters were referred to a master whose report concludes:

“And I find and report that the interest of the said complainant in the said bond and mortgage is $1,500, and that there is due from James J. Bowden, individually, to the said complainant the sum of $1,500. From this amount there should be deducted $537.72, which the account shows was paid to Ann Maguire during the continuance of the life estate, above and beyond the income p2-ovided by that estate, leaving as the balance due the complainant, February 22d, 1912, $962.28. To this should be added interest to date, December 4th, 1913, one year, nine months and twelve days, $102.95, making the total amount due Alice McCloske)1', $1,065.23.”

The sum thus found to be due by the master is approximately the amount, admitted by Mr. Bowden, the defendant, to be due before suit brought, and for which he offered to account and settle.

The complainant asks to have the costs of the accounting, including a counsel fee, visited upon the defendant individually.

The award of costs in equity resides in the sound discretion of the court, except where the statute otherwise directs. The language of Vice-Chancellor Grey, in Riley v. Fithian, 64 N. J. Eq. (19 Dick.) 259, is pertinent to the situation existing in this cause. He said (at p. 262) :

“In equity costs are not necessarily awarded to the successful party in the final decree. * * * The complainant, if successful in the cause, may appeal to the fact that the defendant contested the suit, with previous warning of the legal basis of the complainant’s claim, as a justification for the allowance of costs.”

The mle works e converso, and as the complainant may recover costs against the defendant who has been warned to do his duty before suit brought, so a complainant who has received a bona fide offer of a proper settlement before bringing suit, but who brings suit more or less vexatiously, will not, in a court of conscience, where the matter is discretionary, be allowed either costs or counsel fee against a defendant who is adjudged to pay practically the sum which, before the bringing of suit,'he had accounted for and offered to pay.

Ordinarily, the estate for which a trustee accounts is charged with the costs of accounting. Only a derelict trustee is made to pay the expenses of 'an accounting out of his own funds. And not every enforced accounting is made under the penalty of costs against the accountant individually.

In Sherman v. Lanier, 39 N. J. Eq. (12 Stew.) 249, an executrix and trustee, by order of the orphans court, was directed forthwith to state and settle her accounts, and the matter was referred to a master in chancery. To his report the accountant excepted. The orphans court overruled the exceptions and ordered the costs, though not counsel fee, to be paid by the ex-ceptant out of her private estate. Chancellor Runyon, sitting as ordinary (at p. 268), reserved the award of costs, to the extent that he held the accounting trustee liable only for the costs of those of her exceptions to the master’s report which were not sustained in the orphans court, and the rest of the costs of the exceptions he ordered paid out of the estate.

By analogy, and for the purpose of this motion, the present contest may be treated as one in which the complainant excepted to the defendant’s account and failed to sustain the exception. As a matter of fact, the complainant has not excepted to the master’s report, but, as stated, the master finds for complainant practically the amount for which the defendant offered to account and settle before suit brought, and, upon the equity of the case, there being nothing in the testimony to show that the defendant endeavored to overreach or oppress the complainant-in any way, the suit may be treated as an ordinary accounting by a trustee, or as practically an exception to the defendant’s account.

Upon what I deem to be the clear equity of this matter, the application for the taxation of costs and counsel fee against the defendant will be denied. The costs of both sides (which will include an extra allowance of $50 to the master, whose services in taking the accounting were very onerous) will be paid out of the estate—that is, out of the fund accounted for and adjudged to the complainant.