Millville Gas Light Co. v. Vineland Light & Power Co.

• Decision Date: 21 December 1906
• Citation: 72 N.J.E. 305,65 A. 504
• Parties: MILLVILLE GAS LIGHT CO. v. VINELAND LIGHT & POWER CO.
• Court: New Jersey Court of Chancery

65 A. 504

72 N.J.E. 305

MILLVILLE GAS LIGHT CO.

v. VINELAND LIGHT & POWER CO.

Court of Chancery of New Jersey.

Dec. 21, 1906.

(Syllabus by the Court.)

Bill by the Millville Gas Light Company against the Vineland Light & Power Company for injunction. Refused.

Edwin F. Miller and Gaskill & Gaskill, for complainant. Leverett Newcomb and French & Richards, for defendant.

LEAMING, V. C. The bill in this cause is filed by the Millville Gas Light Company to procure an injunction to restrain the Vineland Light & Power Company from laying gas pipes in certain highways in the township of Landis, Cumberland county. The cause has been submitted, at the return of an order to show cause for a preliminary injunction, upon the bill and its accompanying affidavits, on the part of complainant, and upon answering affidavits, on the part of defendant. Complainant is a corporation engaged in the business of manufacturing and supplying gas. its works are located in the city of Millville and its corporate rights are derived from an act of the Legislature of New Jersey entitled "An act to incorporate the Millville Gas Light Company," approved March 20, 1857. Defendant is a corporation engaged in a like business, with its gasworks located in the borough of Vineland. The city of Millville is about six miles distant from the borough of Vineland. The territory between these two municipalities is the territory now in dispute, and is known as the "Township of Landis." In 1857, the date of the passage of the act incorporating complainant company, Millville township included all the territory now comprising the present city of Millville, the borough of Vineland, and the township of Landis. Millville was then an unincorporated village. The township of Landis was set off from Millville township in the year 1864. The borough of Vineland was incorporated in the year 1880 and comprises one square mile of territory in the center of the township of Landis. The city of Millville now comprises all of the territory of the old township of Millville which is not included within the boundaries of the township of Landis and the borough of Vineland.

In November last complainant determined to extend its gas mains from the city of Millville through the township of Landis to or toward the borough of Vineland. it is averred by complainant that as soon as active preparations were made for this work defendant hastily began laying its mains through the township of Landis from the borough of Vineland toward Millville, and along the highways which complainant was to occupy, with a view to interfere with complainant's work and to appropriate the territory secured to complainant by its legislative franchise. It is this work of defendant which complainant now seeks to enjoin.

It is claimed on behalf of complainant that the act of March 20, 1857 (P. L. 1857, p. 452, c. 164), under which complainant is incorporated, granted to complainant a legislative franchise to lay gas pipes and mains in the highways throughout the territory then constituting Millville township, which territory, as stated, includes the present township of Landis and borough of Vineland. It is also claimed on behalf of complainant that defendant company is without right, either by legislative or municipal authorization, to conduct business as a gas company or to occupy any streets or highways for that purpose.

Legislative grants of franchises of the nature claimed by complainant, whether granted by special charters or under general laws, confer privileges which are necessarily exclusive in their nature as against all persons upon whom similar rights have not been conferred, for any attempted exercise of such rights, without legislative sanction, is not only an unwarranted usurpation of power, but operates as a direct invasion of the private property rights of those upon whom the franchises have been so conferred. Raritan & Del. Bay R. Co. v. Del. & Rar. Canal Co., 18 N. J. Eq. 546, 569; Pennsylvania R. R. Co. v. National Railway Co., 23 N. J. Eq. 441, 447; Jersey City Gas Co. v. Dwight, 29 N. J. Eq. 242, 250; Elizabethtown Gas Co. v. Green, 46 N. J. Eq. 118, 124, 18 Atl. 844; Pomeroy's Equitable Remedies, § 584. It follows that, if complainant is at this time entitled to exercise in the disputed territory the privileges set forth in the legislative act referred to, and defendant, as claimed, enjoys no legislative sanction for the conduct sought to be enjoined, complainant will be entitled to the relief prayed for.

Defendant, however, denies the title of complainant to any franchise in the township of Landis, and asserts, on its own behalf, a similar legislative grant covering that disputed territory.

At the hearing I expressed some doubt as to whether this court should entertain jurisdiction for preliminary relief, in view of the fact that complainant is not in the actual enjoyment of the disputed territory and the issues presented include a denial of the title of complainant to the rights sought to be protected. While the violation of franchises affords frequent instances for the exercise of equity jurisdiction, I am not clear that any entirely satisfactory ground can be found to justify a court of equity in granting injunctive relief in favor of a complainant for the protection of a franchise the title to which is challenged by defendant in a case where complainant is not in the actual enjoyment of the franchise claimed. In Whitechurch v. Hide, 2 Atk. 391, the chancellor refused to entertain a bill for the protection of a franchise until complainant should have first established his title at law. In Moor v. Veazie, 31 Me 360, 377, the view is entertained that a legislative grant of a franchise, emanating, as it does, from the people in their sovereign capacity will be regarded as the equivalent of a right established at law, but the franchise there in question was in the actual enjoyment of complainant. in Delaware & Rar. Canal Co. v. Rar. & Del. Bay R. Co., 16 N. J. Eq. 321, 378, the chancellor says: "An injunction is the proper remedy to secure to a party the enjoyment of a statute privilege of which he is in the actual possession, and when his legal title is not put in doubt" Where the basis of a bill is the refusal of defendant to yield to complainant the enjoyment of his legal estate in lands, and the title of complainant is in dispute, it is well settled that equity will not entertain jurisdiction until the title is first established at law. Hart v. Leonard, 42 N. J. Eq. 416, 7 Atl. 865; Outcalt v. Geo. W. Helme Co., 42 N. J. Eq. 605, 4 Atl. 669, 9 Atl. 683; Todd v. Staats, 60 N. J. Eq. 507,46 Atl. 645. The prevailing view, however, appears to be that, in the protection of certain...