Fell & Throp Co. v. Pa. R. Co.

• Decision Date: 23 June 1890
• Citation: 20 A. 63
• Parties: FELL & THROP CO. v. PENNSYLVANIA R. CO.
• Court: New Jersey Court of Chancery

20 A. 63

FELL & THROP CO.

v. PENNSYLVANIA R. CO.

Court of Chancery of New Jersey.

June 23, 1890.

On bill for injunction.

Vroom & Lanning, for complainants. W. S. Gummere, for defendant.

BIRD, V. C. The bill in this cause is filed to restrain the defendant company from entering upon the lands mentioned in the bill of complaint, and digging up and removing the soil therefrom, and destroying and removing the buildings therefrom. The complainant claims title by deed and by adverse possession in itself and its grantors, or those in privity with it, for over 20 years. The defendant insists that the deeds under which the complainant claims do not include the land in question, and, so far as the possession is to be considered, it is, and has been for all the period named, permissive or by license, and not adverse. Upon the filing of the bill, an order to show cause why a preliminary injunction should not be granted was allowed. The question, therefore, is whether such a case has been made by the proofs as will justify the interference of the court at this time. The complainant is the owner of an extensive pottery plant, and portions of the buildings comprising such plant stand upon the land in dispute. The defendant, now having two tracks over which it runs its trains, desires the land in question for the purpose of making two additional tracks for the purpose of carrying on its business. I think the pleadings and proofs develop two grounds upon which courts of equity interfere preliminarily, viz., the destruction of the inheritance, and irreparable injury to the complainant. To these may be added that of estoppel, which, although not formally pleaded, may be considered of no little weight in the determination of the question now under consideration.

I do not think the complainant has succeeded in its efforts to show a paper title to the lands which it claims; but, as the testimony stands before me, I am bound to conclude that such title is in the defendant. All of the lands owned by the complainant and by the defendant were in 1836 owned in fee by the same person. Subsequent to that time, and by the year 1841, the lessors and grantors of the defendant took their title. By all of the conveyances under which the defendant holds, the lands are described by metes and bounds. The surveyor produced by the defendant swears that he had no difficulty in ascertaining the line bounding the land of the defendant. It was after the title was so conveyed to the defendant's grantors that the lands were first conveyed to those under whom the complainant claims, and through whom it established its title. Two of the lots so purchased by the complainant (and the true location of these is the most material at this time) are bounded in a similar manner in the title-deeds. The description of the one first mentioned in the bill is as follows, viz.: "Beginning at the southwest corner of Mercer street, and running thence (1) westerly along Taylor street two hundred feet to Jackson street; thence (2) along Jackson street southerly to the line of Camden and Amboy Railroad Company; thence (3) along their line eastwardly to Mercer street; thence (4) along Mercer street northwardly to the place of beginning." It does not appear that, in any of the conveyances, there was any effort made to extend the paper title beyond the line bounding the defendant's land as given above. It is in evidence, however, that a portion of the lands of the defendant was inclosed by a fence built over 30 years ago by those through whom the complainant claims, which fence has been maintained during all that period by the owners of the title which the complainant now has by its deed. The fact that those under whom the complainant claims have for so long a period maintained this fence, and enjoyed the possession of the land thus inclosed in connection with its own, is insisted upon by the complainant as being of the greatest importance in the consideration of the question before the court. This I think is so, but only in connection with other circumstances to be adverted to hereafter. I think it may well be doubted whether it can be safely relied upon as settled law to hold that, where title in one parcel of land is conveyed, and the grantor has possession of another parcel adjoining, his grantee takes possession of both, and holds adversely to the true owner, and may claim the benefit of the period of time during which his grantor had the possession or not. The negative of the proposition was declared in the case of Jenkins v. Trager, 40 Fed. Rep. 726. In every such case the purchaser has notice of the extent or limit of his title by his deed. But, as the case is presented to me, this particular question need not be decided; for other elements enter into it which cannot be overlooked.

The complainant's grantors erected buildings for the manufacture of pottery upon the two lots...