Schoch v. Garrison , 74 N.J. Eq. 292 ( 1908 )

Leaming, V. C.

The question for consideration, is whether this is one of that class of cases in which a court of equity may, by decree of injunction, protect and enforce the legal rights in real estate now asserted by complainant. It is not alleged that defendant is pecuniarily irresponsible or unable to answer in damages. The bill in general terms alleges that irreparable injury will result to complainant if defendant is permitted to complete the structure complained of, but no specific averment of the bill discloses wherein such irreparable injury will arise. The bill alleges that the territory included within the boundaries of the riparian grant is chiefly valuable for catching king crabs, and an affidavit annexed to the bill states that the existence of the pound which defendant is erecting will prevent complainant from using or renting the land so occupied by the pound of defendant, and that defendant has not offered to pay complainant, but it is nowhere averred that the amount of any damages which complainant may suffer will not be easily ascertainable and recoverable. As no ground of jurisdiction peculiarly equitable is presented it is manifest that relief, if granted, must be based upon the existence of legal rights which are sufficiently clear and well settled to call for the exercise of the equitable remedy now sought. An exact and authoritative statement defining the limitation of equity jurisdiction in cases within the class to which the present case belongs is contained in Outcalt v. George W. Helme Co., 42 N. J. Eq. (15 Stew.) 665, 676, in which case the late Justice Dixon, speaking for the court of errors and appeals, said: “When the real gravamen of the bill is the uneonscientious refusal of the defendant to yield to complainant the enjoyment of his legal estate, as it is in bills like the present, for nuisance or for trespass, then (in the absence of other recognized grounds of equitable jurisdiction) a condition precedent to the right of the complainant to bring his adversary into the court of conscience is that the latter’s misconduct shall be admitted or shall have been established at law against him, for only such misconduct can be deemed unconscientious as well as illegal.”

Defendant does not deny the existence or validity of complainant’s grant, but asserts the right to exercise the common right to fish upon the land until complainant shall have made some appropriation of the land inconsistent with the exercise of the common right referred to. In the case of Polhemus v. Bateman, 60 N. J. Law (31 Vr.) 163, a riparian, grant, containing a reclamation clause similar to, but not exactly the same as complainant’s grant, was treated as insufficient to support an action of trespass quare clausum until after the grantee should have exercised the power of reclamation conferred by the grant. In the subsequent case of Burkhard v. Heinz Co., 71 N. J. Law (42 Vr.) 562, the same court had before it, in an action of ejectment, a riparian grant containing a reclamation clause identical with the grant now held by complainant. While in that case the court held the grant sufficient to sustain an action of ejectment against a defendant who had erected a permanent structure upon a portion of the land included within the boundaries of the grant, I find in the opinion of the court language which, I think, • may be fairly said to warrant a substantial doubt whether that court would have sustained an action under that grant against a defendant who had merely exercised a common right to fish in the sea before the grantee had made some appropriation of the land which was inconsistent with the exercise of such common right. If such a doubt touching the rights conferred by the grant held by complainant exists, it is plain that this case is not one falling within the class of cases in which a court of equity should extend relief for the enforcement or protection of legal rights in land. From the two decisions cited it is clear that, within the field of statutory powers conferred upon the board of riparian commissioners, the grants made by the state through that board must be construed as conferring such rights and privileges as the language of the grants may import. The clause touching the privilege of reclamation and appropriation cannot be without a purpose, and I am not prepared to say, in view of the suggestions contained in Burkhardt v. Heinz Co., supra, that it should be considered as well settled that such a grant is effective to terminate the common right of fishery before any act of possession or reclamation shall have been exercised by the grantee. Complainant’s remedy, if any exists, is at law.

I will advise an order discharging the order "to show cause. Should the parties desire toi be heard touching the retention of the bill until the termination of a suit at law, I will hear the parties on that question.