Dewitt v. Van Schoyk

• Decision Date: 05 June 1888
• Citation: 17 N.E. 425,110 N.Y. 7
• Parties: DEWITT v. VAN SCHOYK et al.
• Court: New York Court of Appeals Court of Appeals

110 N.Y. 7

17 N.E. 425

DEWITT

v.VAN SCHOYK et al.¹

Court of Appeals of New York.

June 5, 1888.

Appeal from general term, supreme court, Fourth department.

Complaint by Eliza E. Dewitt against Cornelius Van Schoyk and Charles Flint, to restrain defendants from interfering will a public highway, and to compel removal of obstructions therefrom. Relief granted, and defendants appeal.

Arthur More, for appellants.

E. H. Hanford, for respondent.

DANFORTH, J.

It is a sufficient statement of the case to say that the premises now owned by the parties hereto were originallythe property of Freeman, who held the same as one farm. He conveyed to Rickard and Borrill, and on the 10th of January, 1874, they were divided between Borrill and Rickard,-Borrill taking the part lying ‘east of a public highway, running north and south, leading from Scut's to Merrill's,’ and Rickard taking west of the highway; and their lands were described as so bounded. The plaintiff succeeded to the title of Rickard, and the defendant to that of Borrill. In 1882, the defendant, without right, closed up this highway, and began the construction of a new road upon the plaintiff's land. If continued, its effect will be to change or confuse the identity of the boundary between the two farms, render its location doubtful, subject the plaintiff to additional travel on her own land to reach the highway, and open over that land a road through which the public will be led to travel. These acts were found, not only to constitute a public nuisance, but to cause special damage to the plaintiff. The trial court, therefore, sustained the complaint, and awarded equitable relief, as that to which the plaintiff was entitled.

In some reasonable view, the evidence sustains the findings of the trial judge; and upon the facts found we entertain no doubt that the conclusion of law on which judgment was given properly follows. It might be that the damage sustained or apprehended could be satisfied by a pecuniary award, but the plaintiff is entitled to have the land as she acquired it; nor should she be driven to repeated actions to maintain her right. Moreover, the acts of the defendant are in derogation of the plaintiff's title, and, being calculated to injure her in that respect, would sustain an injunction, although no damage had actually happened. To remove a cloud upon title is a well-recognized head of equity jurisdiction, and the court will in like manner interfere to restrain a defendant...