Sumner v. Seaton

• Decision Date: 23 May 1890
• Citation: 19 A. 884,47 N.J.E. 103
• Parties: SUMNER v. SEATON.
• Court: New Jersey Court of Chancery

19 A. 884

47 N.J.E. 103

SUMNER

v. SEATON.

Court of Chancery of New Jersey.

May 23, 1890.

(Syllabus by the Court.)

Bill for injunction. On final hearing on pleadings and proofs.

The bill prays for a perpetual injunction against the defendant to restrain him from further prosecuting an action of ejectment brought by him in a court of law against the complainant, in which a finding against complainant had been made by the judge sitting without a jury. After the filing of the bill, judgment final was entered on the judge's finding, and the cause proceeded on that basis. The dispute is over a small strip of land adjoining the street, and immediately in front of complainant's dwelling, on the south side of Railway avenue, in the city of Elizabeth. The facts are as follows: Prior to 1865, Rah way avenue, for a distance of about seventeen hundred feet, including the frontage of the premises in question, was more or less serpentine in its course. In 1865 the municipal authorities passed an ordinance straightening the avenue for the space and distance above mentioned, giving courses and distances of the new side lines, and ordaining that "all of said avenue, as now existing outside of said above description, shall be vacated, and that the land and real estate necessary for such purpose shall be taken and appropriated;" and that "the whole amount of costs, damages, and expenses incurred in the prosecution and completion of said improvement shall be duly assessed according to the provisions of the act," etc., of March 4, 1863. The lines of the street, as altered, were shown by a map made by the municipal authorities, and filed in the proper department; and by that, and the evidence in the cause, it appears that complainant's grantor, Mrs. Elizabeth P. Smith, was the owner of a lot situate on the south side of Rah way avenue, extending from Bay way, an intersecting street, easterly about 500 feet, to Coursen's land. Opposite this frontage the lines of the street were moved to the northward so far that the southerly line of the new street was, for the whole stretch of 500 feet, north of the center line of the old street. The effect of this change—upon the assumption that the titles of the adjoining owners met at the center line of the street—was to cut off from the properties on the north side a strip of land formerly in the street, and leave it on the south side immediately in front of Mrs. Smith's land, and—supposing that the legal and equitable title of this strip still remained in the north-side owners—to cut her lot off from all access to the street. This strip was in shape the segment of a circle whose radius was about 800 feet, and had a width of about 6 feet at each end, and about 30 feet in the middle. The land opposite Mrs. Smith was owned, as to about 370 feet next to Bay way, by one Wetmore, and as to the remainder by the defendant. That part of defendant's land left south of the southerly line of the new street, in front of Mrs. Smith's land, is the land here in dispute, and is about 115 feet in length by 6 feet wide at the easterly end, and 15 feet wide at the westerly end. But on the official map the whole strip is marked as belonging to Wetmore. A commission appears to have been appointed by the city council under the ninety-fifth and ninety-sixth sections of the charter of Elizabeth, (P. L. 1863, p. 146,) to make an assessment of the damages that any such owner or owners of land and real estate taken and appropriated for the purpose of the improvement would sustain by taking and appropriating the same, which made a report November 12, 1866, by which they awarded to D. D. Buchanan for his land taken, $90, to W. S. Wetmore, for his land taken, $666; finding, in each of their cases, that their benefits to be derived from the improvement were greater than their damages; and awarding to George Seaton, the defendant, for the value of his land taken, $261, and for damages to him, $780, in all, $1,041; but how, or to what land, such damage was done, does not appear. Afterwards the council seem to have ascertained the total cost of the improvement at $2,324.67, and the same commission, under the 101st and subsequent sections of the charter, proceeded to make an assessment of the costs of the improvement on the lands benefited, and made a second report in March, 1867, by which they estimated the benefits to Mrs. Smith's lot, by the name of "Isaac T. Smith," her husband, at $500, and assessed against it $496.43 as her share of the costs. This report deals with all the properties on the line of the improvement, 11 in number, in the same manner, except the defendant's, as to which it is silent, and makes no assessment against him. It appears, however, that the damages awarded to him for the land taken from him by the first report were paid to him, and he executed a release under seal in these words:

"Know all men by these presents that I, George Seaton, do hereby acknowledge the receipt of —— to me paid by the city of

Elizabeth, for any damages sustained and awarded to me on account of the taking and appropriating land and real estate for straightening Hah way Ave.:

Damages...-...............................

$1,041 00

Interest from Dec. 6, 1806.................

618 30

$1,659 30

"And in consideration thereof I do hereby release, acquit, and discharge the said the city of Elizabeth from all further or other damages sustained on that account; and I do appropriate the land and real estate so taken for the purposes aforesaid; and suffer and permit said the city of Elizabeth to take, use, and occupy the same therefor. In witness whereof I have hereunto set my hand and seal, this tenth day of July, A. D. eighteen hundred and seventy-five.

"Signed, sealed, and delivered in the presence of D. W. LEED.

"GEOEGE SEATON. [L. S.]"

In due time after the filing of the assessment, a protest was filed against it by the husband of Mrs. Smith, in these words: "To the honorable, the mayor and city council of the city of Elizabeth: The undersigned respectfully protests against the present estimate of benefit and damage as reported by the commissioners of assessment for straightening Hah way Ave., because the damage to his property far exceeds the benefit, and he is left with no front on Rahway avenue, as W. S. Wetmore owns a strip of land between his property and Rahway avenue, as appears by the map. Therefore he is not at all benefited by this opening of the avenue, as it leaves him with no property therein. In any case, the amount he must expend in grading this land given to him, and in purchasing the piece of land now owned by W. S. Wetmore, lying between his land and Rahway avenue, should be considered as an element of his damage. ISAAC T. SMITH."

Notwithstanding this protest, the assessment was confirmed June, 1867. The protest above set forth was prepared and filed by Mrs. Smith's son, without consultation with her, and he swears that, upon further consideration, he concluded that the effect of the whole proceeding would be to vest in his mother the equitable title in the strip cut off from the north-side owners, and he abandoned further opposition to the assessment, and the amount assessed against his mother was paid by her. A few years after this proceeding—just how many does not clearly appear—a new fence was built by Mrs. Smith along the south side of the new street, in front of her land by which the strip cut off from the north-side owners was in closed as a part of her lot. In 1873, and some time after this inclosure, Mrs. Smith and her husband made a conveyance of the easterly part of her lot, with a frontage of 150 feet, to her daughter, the complainant, then recently married, and the husband of the latter immediately, and the same year commenced to make improvements on it. Complainant and her husband both swear that at no time prior to the fall of 1888 did either of them have any suspicion that any other person did or could claim any right or interest in any part of the premises so conveyed to the complainant, and that the improvements which they afterwards made were all made in the complete confidence and belief that the title of complainant to every part of her lot was perfect. The strip here in dispute had formed part of the old street, and there was nothing on the ground to distinguish it from that part of the old street which lay south of its center line. The improvements consisted of the erection of a costly dwelling about 100 feet from the street; grading and sodding the grounds, including the strip in question; building a new and expensive fence along the line of the street; planting shade-trees and shrubbery on the strip itself. These improvements were made between the fall of 1873 and the fall of 1877. Complainant continued in the uninterrupted possession of her lot, without any notice or demand from the defendant, until the fall of 1888, when he made known his claim, and commenced the ejectment suit. During the whole period he lived immediately opposite and saw and observed all that was done by the complainant and her husband. in the way of making the improvements above mentioned.

George Putnam Smith and F. G. Burnham, for complainant. Frank Bergen, for defendant.

PITNEY, V. C., (after stating the facts as above.) Complainant rested her right to relief on three grounds: First, that the effect of the proceedings to change the location of the street was to vest in her the absolute legal title to the strip in question; second, that if the effect was not to change the title at law it did in equity; and, third, that the defendant is estopped by his silence and acquiescence, while complainant was making her improvements, from setting up his title as against her.

As to the first point. Should the complainant satisfy the court that it is well taken, the result would be simply to oust the jurisdiction of the court, for the simple reason that the ground is available at law as a defense to an action of...