Del., L. & W. R. Co. v. Breckenridge

• Decision Date: 20 October 1896
• Citation: 35 A. 756,55 N.J.E. 141
• Parties: DELAWARE, L. & W. R. CO. v. BRECKENRIDGE et al.
• Court: New Jersey Court of Chancery

35 A. 756

55 N.J.E. 141

DELAWARE, L. & W. R. CO.

v. BRECKENRIDGE et al.

Court of Chancery of New Jersey.

Oct. 20, 1896.

Bill by the Delaware, Lackawanna & Western Railroad Company against Henry R. Breckenridge and others for a mandatory injunction. Heard on bill, answer, replication, and proofs. Bill retained to await action at law.

J. Franklin Fort, for complainant.

J. M. Roseberry, H. S. Harris, and Mr. Sherman, for defendants.

EMERY, V. C. This is a bill for a mandatory injunction and other equitable relief against the continuance of trespasses on lands alleged to be in complainant's possession as lessee of the Morris & Essex Railroad Company, and against the continued forcible occupation and forcible detention of these lauds. The principal invasion of complainant's rights which is complained of is the laying of pipes for the transportation of oil beneath the surface of an undergrade crossing made by the Morris & Essex Railroad in the original construction of its railroad across a farm in Warren county, then belonging to one Cornelius Stewart, and over which crossing the railroad continues to be operated by complainant under the lease. Stewart conveyed to the Morris & Essex Railroad Company a strip of tend through this farm by deed dated March 26, 1864, the deed stipulating, among other things, for the erection of this undergrade crossing. Complainant claims that the Stewart deed conveys the exclusive title and right of possession to the soil under the roadway of the undergrade crossing, subject only to a right of way across the surface of the road. The defendant Breckenridge claims title to the roadway, and the right to lay pipe under the soil, his claim of title being based upon conveyances of lots or parcels of the original Stewart farm on each side of the crossing, made by the grantees of Stewart's title after his conveyance to the railroad company, and also upon conveyances subsequently made by the heirs or devisees of Stewart of the title remaining in Stewart to all of the lands described in his deed to the company, after his conveyance to the railroad company. The defendant Breckenridge claims that by the true construction of complainant's deed the title to the soil under the roadway of the crossing did not pass to the railroad company; and, further, that by his deeds he has the title and right to possession of the roadway, which title he holds in trust for the defendant the United States Pipe-Line Company. Under this claim of title the pipe-line company, about October 27, 1895, laid two pipes under the roadway of the crossing, and, for the purpose of preventing the forcible removal of the pipes by the railroad company, themselves occupied the whole of the undergrade crossing, inclosing it by fences and other obstructions reaching upon the embankments of the railroad, and retained possession of these structures by force. These structures were, as was agreed by counsel at the hearing, placed around the entrances to the undergrade crossing for the purpose of defense against the complainants in their attempts to remove the pipes, and not under any claim of right to put them there as a permanent structure, this intention being disclaimed in open court. On October 29, 1895, a bill was filed in this court by Breckenridge to enjoin the complainant from removing the pipes which had been laid, and an application for a preliminary injunction was made before Vice Chancellor Bird, who granted an ad interim stay against the removal of the pipes pending the hearing. The application for preliminary injunction was denied after argument, upon the ground that by the true construction of the Stewart deed the title to the soil under the roadway was in the railroad company, and the pipe-line company were trespassers. Upon the injunction being refused, the complainant thereupon attempted to remove the pipes and structures, but the defendants resisted the attempt, and retained possession of the whole crossing by force for that purpose. This bill was thereupon filed by the Delaware, Lackawanna & Western Railroad Company for the purpose of obtaining a declaration that the laying of the pipes for the purpose of transporting oil through them, and the erection of these structures, is a continuing trespass on the lands of the complainant, and also to compel the removal of the pipes laid, and to enjoin the future laying of the pipes or other trespass on the lands of complainant, or the interference with their peaceable and exclusive possession. Pending the hearing, a restraining order was granted on the application of complainant, and afterwards modified on application of the defendants; the effect being to retain the status quo, and to allow the pipes and structures to remain pending the hearing. The structures erected by defendants at the crossing still remain, but since the restraining orders the force of men has been withdrawn. Counsel upon both sides desire an adjudication upon the main question in dispute, viz. the right of the railroad company, under the deed from Stewart, to the exclusive possession of the soil under the roadway against the subsequent grantees or devisees of Stewart under whom defendants claim. On the facts now appearing, this is a pure question of the construction and legal effect of the deed to the railroad company. The defendants, in their answer, raise no objection to the jurisdiction of this court, and counsel on both sides at final hearing request the construction to be made, in order that the rights of the parties may be put in course for a final determination on appeal, and they have fully argued the question of construction. But it is apparent that this question of title, as now presented, is a question of purely legal title, asserted upon one side and denied upon the other, and, this being the aspect of the case, the preliminary question must necessarily be whether a court of equity has jurisdiction to determine this legal title.

Ballantine v. Town of Harrison (Err. & App., 1883) 37 N. J. Eq. 561, and Hart v. Leonard (Err. & App., 1886) 42 N. J. Eq. 416, 7 Atl. 865, are both cases where the jurisdiction was denied on appeal from decrees entered on final hearing, without (so far as appears by the reports) any objection taken in the court below to the jurisdiction; and these cases settle the rule that before deciding upon the question of legal title it must first appear that the court of equity has jurisdiction. This question must, therefore, be first examined. The first case—Ballantine v. Town of Harrison—makes irreparable injury the test of equitable cognizance over cases involving the tortious taking and holding of real property, and it was said (Chief Justice Beasley, page 562) that "no case could be found in our reports purporting to hold that the mere taking possession of lands and holding them vi et armis will form the basis for the arrest of the doing of such wrong by the arm of equity." In Hart v. Leonard, inadequacy of legal remedy is made a test, and it was declared that where the legal right of complainant, though formally disputed, is yet clear on facts which are not denied, and legal rules which are well settled, a court of equity would have jurisdiction where the bill is filed to ascertain the extent of the right, and to enforce or protect it in a manner not attainable by legal procedure. Complainant's counsel insist that the construction of the deed, and its legal effect in reference to the points now disputed, are well settled by several adjudications of our courts, and rely upon several cases as establishing the jurisdiction of a court of equity to enjoin continuing trespasses in such cases. But none of these cases in which injunctions were issued reach to the present case. In Morris & E. R. Co. v. Hudson Tunnel R. Co. (1874) 25 N. J. Eq. 384, the case principally relied on,— Chancellor Runyon, in directing an injunction against occupation of complainants' land, says (page 388) that if the complainants' proprietary rights had been invaded, they were entitled to protection, and that the trespass was of a continuous nature. But the decision was not placed upon the ground solely of such trespass to land, but upon the fact that the defendant—a railroad incorporated under the general law—was required first to make compensation, and that this right to compensation before entry was one to be protected by injunction. The later cases in the court of errors and appeals, above cited,—Ballantine v. Town of Harrison, Hart v. Leonard.—both put the right to protection by injunction in such cases on the protection of express constitutional or statutory right to compensation before...