Simpson v. Moorhead

• Decision Date: 18 January 1904
• Citation: 65 N.J.E. 623,56 A. 887
• Parties: SIMPSON et al. v. MOORHEAD.
• Court: New Jersey Court of Chancery

56 A. 887

65 N.J.E. 623

SIMPSON et al.

v. MOORHEAD.

Court of Chancery of New Jersey.

Jan. 18, 1904.

(Syllabus by the Court.)

Bill by W. P. Simpson and others against Charles H. Moorhead. Decree for complainants.

Mr. Hampton, for complainants.

W. A. Logue and C. H. Sinnickson, for defendant.

GREY, V. C. (orally). This is quite an interesting case. The complainants are a number of gentlemen who have associated themselves' together, for entertainment and sport, in a gun club, and have acquired in their private capacity the ownership of some uplands, and also of some considerable quantity of banked meadow, lying in the county of Cumberland. They complain that the defendant, Moorhead, conies upon their lands, of which the meadow part is largely overflowed by the tide at certain portions of the day, and guns for birds which come on the meadow and on waters thereof, and for birds flying over the same, thus interfering with and depriving the complainants of their land, and subjecting them to loss by reason of the lessened quantity of game, and also to the danger of accidental shooting, from the increased number of gunners on the lands; and they allege that the defendant declared his purpose to continue so to shoot on their lands, and intends so to do. They pray that he may be enjoined from hunting, gunning, shooting, or fishing on the said lands, or the waters thereof, and from entering thereon for any purpose whatsoever, during the term of the complainant's ownership thereof. The defendant files no answer, but presents affidavits in which he submits his rights and claims, and on them makes a very strenuous argument that no preliminary injunction ought to go in this case.

The lands described in the bill consist of two classes—one, lands which have been either conveyed or leased to the complainants, giving them the right of shooting, fishing, etc. Some of these were assigned by the defendant himself to one of the complainants, and by him Jointly to the other complainants. Another body of land, called the Lodge and Rorer meadow, is not within any of these leases made by the defendant, nor is it claimed to be. I think I may say at once that no injunction ought to go as to the Lodge and Rorer lands, for there is nothing in the bill or affidavits to show with sufficient certainty where they are. Unless the designation of these lands is given in such manner that the defendant would be apprised of their location with certainty, no injunction ought to issue to restrain him from going thereon. As to the other portion of these lands, it is admitted that, except the Robbins meadow, it is held by leases assigned by the defendant himself to one of the complainants. The defendant has had these lands in possession. He has transferred hisinterest to the complainants, and obviously knows where they are located. To the portion called the Robbins part, the complainants say they have and claim no right. As to the portion called the Cook meadow, the defendant says the complainants have no right, but it appears to be within one of the leases which the defendant himself formerly held, and which he has assigned to the complainants.

It is claimed that the terms of these leases, formerly held by the complainant, were mere licenses of a privilege of gunning and fishing; but they are not so expressed in the executed written lease.

The defendant also claims that, though he assigned them, they are not lawfully assignable, and therefore the complainants have no right. On looking at the leases, I find they are not mere conferences of privileges. The word of grant used is "lease," and that is sufficient to pass a term in the lands demised. It is true, the leases do mention a purpose for which the lands may be used; but they do not prescribe that that shall be the only use to which the lands may be put, and the effect of the leases is to pass title for a term of years in the lands themselves. So far as the challenge made of the assignability of the leases is concerned, the rule, I believe, is quite well established that unless a lease of lands expresses on its face a limitation of the power of the lessee to assign it, or to sublet the lands demised, the power to assign or to sublet during the term goes to the lessee. That is a general proposition applicable to the leases and assignments here under consideration. Therefore when the defendant, Moorhead, became the holder of the leases in question, he became entitled to assign them. That right he exercised by assigning them to one of the complainants, and for that he was paid money, and has so acknowledged by a writing under his hand and seal. The defendant's counsel has sought to go behind the leases and their assignments, and to inquire into the influences and negotiations which induced Mr. Moorhead to make them, and to show what he understood to be the rights he was granting. The written contract is not ambiguous, and cannot be avoided by parol proof of the antecedent negotiations and conversations. Mr. Moorhead does not allege that the assignments were made by him by any accident or mistake, or that fraud was perpetrated upon him, leading him to make them. They must stand as the written contract is expressed, and cannot be varied by parol testimony.

The complainants insist that the defendant not only intruded on the lands which he had assigned to the complainant Mr. Simpson, but that he has persistently declared that he intended and had a right so to do. It is quite clearly shown that he did so intrude, and that at the time he did it he believed and insisted that he had a right so to do. The proof quite sufficiently shows that, and the argument here made is also on the same lines. Disregarding the portion known as the Lodge and Rorer meadow, and the Robbins tract, and dealing only with the property which Mr. Moorhead assigned to the parties complainant, it is quite clear to me that he cannot be justified in going upon those lands, the leases of which he has assigned to the complainants. The defendant here and now says that he does not in the future mean to go on the assigned lands. The proof is quite clear that he did in fact go on those lands and use them for the only purpose for which they are now usable, and at that time he insisted that he had a right so to use them. Even yet it is argued for him that he has a right to go on these very assigned lands, because the tide ebbs and flows over them. His declaration of his future purpose is in conflict with his claim of right in the premises. At this time, and for the next few months, the only value of these lands will be the privilege of duck-shooting upon them. The defendant has, without right, exercised this privilege, and has insisted he had a right to exercise it for himself and his friends. If he is permitted to do this, the complainants Will be subjected to additional danger of accidental shooting, to the lessening of the quantity of game on their lands, and to the loss of that which they bought from the defendant himself—tbe right to possess the demised premises free from the defendant's intrusion. They ought not to be left dependent upon the grace of the defendant, who argues that he has a right to intrude, but at present does not think he will do so. He may again change his mind, and conclude to assert his claimed right to go upon lands under tide water, even if he has himself sold leases of them, which passed to the assignee the right to their exclusive possession. It is, I think, clearly shown that, as against the defendant, the complainants have an established right, during the terms of the leases assigned to them by the defendant, to possess and enjoy for all purposes the meadow lauds described in these leases. The situation when the bill was filed exhibited an intent, on the part of the defendant to insist on his right to intrude continuously, day after day, on the lands assigned by him, and to shoot ducks and other game thereon, now in season. The injury suffered by the complainants is within the class called irreparable, for which they cannot recover adequate damages at law. To be irreparable, it is not necessary that the money loss shall be so great that it cannot be repaired. The loss which the complainants will suffer is not probably of great money value, if the...