Eaton v. Jenkins ( 1868 )

The Chancellor.

The complainant in his bill alleges, that the land upon which the defendants constructed the sidewalk, was his own private property, in or over which the public had no right or claim whatever. He alleges that his father and he had successively owned the land for thirty-five years continuously next before the laying of said sidewalk, and avers, “ that neither his father nor he ever dedicated to the public the land covered by the said pavement, or any part thereof.”

To this bill the defendants answer, “ that for sixty years the public have used said land as a public road or highway, without any let, molestation, or disturbance of the owners of said premises, and that said complainant and his father, for more than thirty-eight years last past, have acquiesced in such use by the public without any restraint or objection from them, or either of them;” “and that by such acquiescence by the complainant and his father, said complainant has actually dedicated said sidewalk to the public.”

Isaac 0. Wade, one of the defendants, who swears to the truth of the answer, says in his affidavit annexed to it, that he knew these facts of his own personal knowledge, and this part of the answer being directly responsive to the bill upon a matter of fact on which the whole equity of the bill depends, must be taken as true, and the injunction must be dissolved.

A great number of affidavits are produced by the complainant, upon this matter of dedication. But by the forty-third rule, no affidavits can be read on part of the complainant on this application, except in reply to new matter set up in the answer. This is not hew matter; and although there may be other matters set up in the answer that are new, that will not entitle the complainant tó read'any affidavits in reply to this, which is not new. The truth of responsive allegations in the answer, cannot be tried by the court upon counter^ affidavits, and affidavits in rebuttal,'on'a motion to dissolve an injunction.

Let the injunction be dissolved.