Cowperthwaite v. Wallworth

• Decision Date: 07 March 1930
• Citation: 149 A. 353
• Parties: COWPERTHWAITE v. WALLWORTH.
• Court: New Jersey Court of Chancery

149 A. 353

COWPERTHWAITE

v. WALLWORTH.

Court of Chancery of New Jersey.

March 7, 1930.

Syllabus by the Court.

Suit by Rollin C. Cowperthwaite against Joseph F. Wallworth. On hearing on question of jurisdiction.

Decision in accordance with opinion.

Ralph W. Wescott, of Camden (of Wescott & Weaver), for complainant.

Patrick H. Harding, of Camden, for defendant.

LEAMING, Vice Chancellor.

The motions which have been made herein raise the inquiry whether this court can properly proceed with the cause without the United States being made a party defendant under congressional authorization.

The bill asserts that defendant's building as now constructed interferes with the passage of light and air through certain windows in the westerly end of complainant's building, and prays for a mandatory injunction requiring defendant to remove so much of his building as will restore former conditions. The easement of light and air which the bill seeks to protect is alleged to have arisen through severance of ownership of an entire estate by a conveyance to complainant's predecessor in title. The bill further seeks an injunction pendente lite against the use of a chimney which forms a part of defendant's structure, which use is alleged to cause smoke to enter some of the windows referred to in the bill.

At the return of an order to show cause for restraint touching the use of the chimney, and at the hearing of the motions already referred to, it was ascertained that the structure which is alleged to cover two of complainants' windows is in use as a post office of the United States government under a five-year written lease from defendant, the lease antedating the bill, and that the chimney complained of is a part of that structure, and is not used by defendant, but is used solely by the agents of the federal government to heat the post office.

In these circumstances it seems impossible to afford complainant any relief under his bill, in the absence of the United States as a party defendant, since the United States, as tenant of the building and chimney which are alleged to offend, and as sole user of both, has a material interest in the very objects of the suit, and is necessarily affected by any decree that could be made under the averments of the bill. The United States cannot be said to be merely a party in interest in the subject-matter of the suit; its interests are in the very objects of the suit; and no decree of the nature sought can be executed without necessarily affecting those interests. See McLaughlin v. Van Kueren, 21 N. J. Eq. 381.

It is also disclosed that, in reply to a request of complainant for the United States to intervene in this cause, a reply was sent by the solicitor of the Post Office Department to the solicitor of complainant as follows:

"It is not believed necessary or advisable for the Post Office Department to intervene in this suit, as it does not appear that the convenience of this Department should bear upon the settlement of the controversy." Complainant now urges this letter as in...