Bennett v. Scott ( 1929 )

The Chancellor.

This case appears to be one in which it is sought to try in the Court of Chancery a question which properly belongs to a legal tribunal for determination. The defendant claims a right by adverse user to maintain the cornice of his porch over the land of the complainants. This claim is contested by the complainants. The controversy has thus to do with purely legal rights concerning land. The sole justification for equity’s interference being the peculiar relief which it can afford by way of injunction, the case is one where the exercise of jurisdiction here ought, under well settled principles, abide the determination of the primary legal rights by a court of law. Taylor v. Wright, 76 N. J. Eq. 121, 79 A. 433; Hart v. Leonard, 42 N. J. Eq. 416, 7 A. 865; Scanlin v. Conshohocken Borough, 209 Pa. 48, 58 A. 122; O’Neil v. McKeesport, 201 Pa. 386, 50 A. 920; Godino v. Kane, 26 Pa. Super. Ct. 596. The form which the action should take at law is one that needs not to be indicated by me. I may say however that whether ejectment would lie at the suit of the complainants seems to be a debatable question if authorities outside of this jurisdiction are consulted. In Delaware one case is to be found where an action of trespass on the case was maintained upon facts similar to these. Pierce v. Lemon, 2 Houst. 519. Whatever may be the proper form of action at law, the legal controversy can be determined in a law forum under pleadings adapted to its presentation as the issue. When the legal titles are settled, this court, if the complainants shall have prevailed at law, may then proceed with the pending bill if necessary for' the complainants’ relief.

The bill will be- retained and the cause will stand over pending an action at law to be instituted by the complainants at the next term of the Superior Court in New Castle County for determination of the legal rights of the parties.

Order accordingly.