H. B. Anthony Shoe Co. v. West Jersey Railroad , 57 N.J. Eq. 607 ( 1898 )

The opinion of the court was delivered by

Van Syckel, J.

The complainant in its bill alleges that it is the owner of land abutting on the west side of Seventh street, in the city of Camden, upon which there is a shoe factory, and that the defendant company has laid and is using four separate parallel tracks on the said street in front of its premises, whereby complainant is practically excluded from the use of the street. The bill denies the right of the defendant to maintain its tracks in the street, declares they are a nuisance and prays that the defendant may be enjoined from the further appropriation of the highway to its uses.

The facts presented by the case are these:

Richard M. Cooper, in his lifetime, owned in fee a large tract of land embracing what is now called Seventh street and lands lying on both sides of it, also including th'e premises now owned by the complainant. In 1845 the executors of Richard M. Cooper conveyed to Hart and McCurdy a portion of the said tract lying on the southerly side of what is now Seventh street, in which deed Seventh street is described as a “ proposed street.” "With the exception of this language in the executors’ deed of 1845, there is nothing in the case touching the question of dedication of the street by the Coopers, and therefore, at the time of the conveyance to the defendant company hereinafter stated, there is no evidence to establish a dedication by the Coopers of the half of Seventh street owned by them.

In 1847 Hart and McCurdy divided the lands which they had acquired by the deed of 1845, each conveying to the other. In said deeds they described the land conveyed as running along Seventh street, but the street at that time had not been opened to the public or used as a street.

In 1854 the defendant company built its railroad, and its centre line was laid along the centre line of this paper street called Seventh street.

The railroad company took proceedings to acquire this land, on which their tracks were laid, by condemnation. Commissioners were appointed, who, by their report dated September 11th, 1854, awarded to McCurdy, the owner of the fee, the sum of $525. This sum was accepted by McCurdy, who, by his deed dated September 19th, 1854, conveyed to the railroad company, in fee, the one-half of the land embraced in what is now called Seventh street, being the strip of land on which its tracks are laid. Hart also made a like conveyance to the railroad company by deed of even date with that of McCurdy to the railroad company.

The complainant derives its title to the lot abutting on Seventh street from Hart and McCurdy, but by a conveyance long subsequent to the deed to the railroad company.

The railroad company, therefore, is the legal owner of the fee of that part of Seventh street on which the premises of the complainant abut, and the title of the complainant extends only to the exterior line of the highway.

When Hart and McCurdy, in their deeds to each other, described the land conveyed as running along Seventh street, there had been no dedication of the half of that street which was owned by the Cooper estate; as to that estate, it was only a “ proposed street.”

Dedication is a question of intention, and the owner is not concluded until his .purpose to surrender his land to the public use is clearly manifested.

At the time Hart and McCurdy made partition they knew that so far as the Cooper estate was concerned it was a “ proposed street only.” Speaking for myself, I entertain grave doubt whether an intention should be imputed to them to dedicate their half of the street irrevocably to the public before there was a dedication by the Coopers of the other half.

It is not necessary, however, to decide that question. The case can be disposed of on another ground, in accordance with a well-settled doctrine in equity.

Assuming that the defendant company has laid its railroad tracks in the public highway without authority and that they constitute a public nuisance, the complainant cannot successfully maintain this suit.

Where the injury complained of is an erection in front of complainant’s property and he owns the soil in the street upon which it is built, the injury is to his individual rights and not as part of the public, and the suit must be instituted in his name.

In this case, as has been before shown, the complainant has no title to the soil in the street in front of his premises or to any part of it. His injury, in legal contemplation, is not different in character from that which every other citizen sustains.

The complainant’s right to pass upon the street is that, and that only, which may be exercised by every other individual.

A suit cannot be maintained to restrain a nuisance which injures the complainant only in rights enjoyed by him as one of the- public. In such case an information must be filed for the public in the name of the attorney-general on behalf of the state, and it makes no difference as to the remedy that the individual would be much more inconvenienced by the nuisance than many others. Higbee v. Camden and Amboy Railroad Co., 4 C. E. Gr. 277.

Ia cases of nuisance it is well settled that a complainant cannot acquire a stable footing in a court of equity without showing some special injury to himself distinct from that done to the public at large. Allen v. Board of Freeholders, 2 Beas. 68; Van Wagenen v. Cooney, 18 Stew. Eq. 25; Halsey v. Rapid Transit Co., 2 Dick. Ch. Rep. 380; Township of Raritan v. Port Reading, 4 Dick. Ch. Rep. 12.

Under ordinary circumstances, where there is no special injury and where the remedy by indictment is sufficient' to abate the nuisance and to restore to the public use the entire highway, equity will not interfere. State v. Morris and Essex Railroad Co., 3 Zab. 360; Freeholders v. State, 13 Vr. 263; Attorney-General v. New Jersey Railroad Co., 2 Gr. Ch. 136; Higgins v. Mayor, &c., 4 Halst. Ch. 309.

The decree of the court of chancery dismissing the complainant’s bill should therefore be affirmed.