Manning v. Port Reading R. Co.

• Decision Date: 10 January 1896
• Citation: 33 A. 802,54 N.J.E. 46
• Parties: MANNING v. PORT READING R. CO.
• Court: New Jersey Court of Chancery

33 A. 802

54 N.J.E. 46

MANNING

v. PORT READING R. CO.

Court of Chancery of New Jersey.

Jan. 10, 1896.

Easement—Action for Obstruction—Effect of Judgment— Cesser—Change of Location—Estoppel.

(Syllabus by the Court)

Bill by Samuel R. Manning against the Port Reading Railroad Company to remove an obstruction. Decree for complainant on conditions.

The bill alleges that, in the year 1865, Mefford Runyon conveyed to the complainant the timber growing, and thereafter to grow, upon a piece of land In Middlesex county, and in the year 1867 conveyed to him in fee a parcel of land adjoining the first-mentioned property; that the complainant took possession of the parcels of land, and fenced them in one inclosure, and yet retains that possession; that the properties could be reached only by means of a private way, running from a public highway over lands lately belonging to one John L. Brewster; that such private way, as a means of access to the lands aforesaid, conveyed to the complainant, has existed from time without memory; that it existed when the land of Brewster belonged to Ephraim L. Runyon, who, in 1861, conveyed it to Ephraim D. Boice, who, in turn, in 1867, conveyed it to John L. Brewster and Herbert Murphy, Murphy subsequently conveying his interest to Brewster; that, in the year 1891, Brewster conveyed a strip of his land, which crosses the private way nearly at right angles, to the defendant, in order that that company might construct thereon its railway, the defendant agreeing to take the land by conveyance upon the same terms as it would have it if it had condemned it by proceedings for that purpose under authority of the general railroad law; that, among other things, the defendant agreed with Brewster to maintain a crossing over the railway between the portions of Brewster's lands remaining in his ownership and possession; that the defendant fenced the strip purchased of Brewster on both sides, and built its railway upon an embankment erected on the strip it purchased, which, at the point of crossing the private way, is 10 feet in height; that in July, 1893, the complainant commenced an action in tort against the defendant in the Middlesex county circuit court for damages because of the obstruction of his easement by the railway embankment from the time of the erection thereof to the commencement of that suit, which suit was removed to the court of common pleas for trial, and was there resisted by the defendant, under a plea of not guilty, after notice to Brewster, who had conveyed it with a covenant of warranty, to the end that he might defend the suit; that the trial of the issue resulted in a verdict of guilty against the defendant, and the complainant's damages were assessed at $95, besides costs of suit, upon which verdict judgment was duly entered; that upon such judgment the defendant sued out a writ of error to the supreme court, which was subsequently dismissed. The bill prays, among other things, that the defendant may be required by decree to abate and remove the obstruction to the private way or, at its own expense, provide and maintain for the complainant's use a proper and convenient passage through its embankment and under its railway, at the place where it intersects the private way. In its answer, the defendant denies that the complainant has the right of way claimed by him; alleges that, if he ever had it, he has lost it by nonuser; admits that it...