Opinion
No. 52/124.
07-22-1922
WEEHAWKEN TP. et al. v. WEST SHORE R. CO. et al.
Albert Leuly, of West Hoboken, for complainant Weehawken Tp. George L. Record, of Jersey City, for complainants jitney bus owners. Frank Borden and E. A. Armstrong, both of Newark, for defendant Public Service Ry. Co.
Suit by the Township of Weehawken and others against the West Shore Railroad Company and others for injunction. Order to show cause dismissed.
Albert Leuly, of West Hoboken, for complainant Weehawken Tp.
George L. Record, of Jersey City, for complainants jitney bus owners.
Frank Borden and E. A. Armstrong, both of Newark, for defendant Public Service Ry. Co.
GRIFFIN, V. C. The bill in this cause is filed to restrain the defendants from interfering with the bus owners in the use of that part of the defendants' property at the West Shore Ferry for receiving and discharging passengers, as heretofore enjoyed by them, until the West Shore and New York Central Railroad Companies provide other suitable space for the purpose. Upon filing the bill, an order to show cause, with restraint, was granted, to preserve the status quo until the parties might be heard. This hearing has been had, at which the defendant Public Service Railway Company appeared generally and contested the complainants' claim.
The West Shore and New York Central, through counsel, asked leave to appear specially to make certain objections to the bill, which application was denied, and I am not aware that they, or either of them, have since entered a general appearance; therefore they will not be considered at this time. The case will be dealt with on the issues raised between complainants and Public Service Railway Company.
The place where these jitney busses receive and discharge passengers, as well as stand while awaiting the incoming ferryboats, is occupied by the tracks of the Public Service, laid many years ago. The bill alleges that, up to about 15 years ago, the Public Service used these tracks for receiving and discharging passengers on and from its cars, at which time it abandoned them and constructed a loop to the west of the locus in quo, and has not used the tracks in question since. The fact of nonuser is denied by Public Service, who says that one track has been used and the other was disconnected near the loop.
If the complainants prevail, the Public Service will be denied the beneficial use of its tracks, the right to lay which, and use the lands covered thereby, was granted by the owners. The pertinent facts are as follows:
On January 31, 1895, the West Shore & Ontario Terminal Company made its deed in fee to Charles B. Brush for a tract of land ranging in width from 22 to 25 feet, from the Branch road (boulevard) to a point near the ferries, which includes the premises in dispute. The deed expressly recites thatthe conveyance is made "for the purposes hereinafter mentioned and for no other purpose." Among these purposes are the construction of a railway on the land described, to be operated by electricity or cable, and to remove and rebuild a certain portion of the highway at grantee's expense. There is also an agreement that, if the premises cease to be used for the railroad purposes therein specified, or the grant should otherwise terminate, the grantee should remove from the premises all material and other structures placed on the premises under the agreement, and, failing so to do after 6 months' notice, the grantor is empowered to remove the same. All rights under the foregoing deed passed by mesne conveyances to the Public Service.
Within 4 years last past jitney busses have used the place in question, apparently without objection, for the purpose of receiving and discharging passengers of the West Shore ferries and parking their busses across the tracks while awaiting the arrival of the ferryboats. The Public Service, at the time the bill was filed, was engaged in replacing the broken connection in its tracks above referred to, and intend to run its cars over the same, which complainants say will oust them from the use of the places which they have heretofore used.
The bill prays:
"(1) That an injunction may issue out of this honorable court, restraining the said the West Shore Railroad Company, owner, and the New York Central Railroad Company, lessee, and the side Public Service Railway Company, from interfering in any way with the said bus owners in the discharge and receipt of passengers in the space now used by them in front of the said ferry house, until the said bus owners shall have had a reasonable opportunity to compel the West Shore Railroad Company to afford them other adequate and safe facilities for the handling of the said traffic."
Upon the foregoing facts, and the above prayer of the bill, it will be perceived this court is called upon to determine (1) the true construction of the grant from the West Shore to Brush, and the rights of the West Shore and Public Service thereunder; (2) the question whether there was an abandonment according to the terms of the grant; and, lastly, whether acquiescence in the use by the jitney busses gives to them a right to occupy and use the lands, and exclude the owner from the full beneficial use thereof.
Thus the complainant asks this court to try the legal title to an easement in the hinds of defendant, concerning which (to say the least) the right is substantially disputed. Such a case is solely within the jurisdiction of the courts of law. Borough of South Amboy v. Pennsylvania R. R. Co., 77 N. J. Eq. 242, 76 Atl. 1038. In this case the Court of Errors and Appeals cited Todd v. Staats, 60 N. J. Eq. 507, 46 Atl. 645, and quoted the rule therefrom as follows:
"When the fundamental right, on which the complainant prays equitable relief, is the legal title to an easement in lands of the defendant, and that right is in substantial dispute, the establishment of the right at law is necessary to justify the interference of a court of equity."
To the same effect are Imperial Realty Co. v. West Jersey & S.> R. R. Co., 79 N. J. Eq. 168, 81 Atl. 837; Thropp v. Public Service Electric Co., 84 N. J. Eq. 144, 93 Atl. 693; Lamphear v. Subers, 84 N. J. Eq. 391, 93 Atl. 194.
An order will be advised, dismissing the order to show cause. Counsel may attend before me at the Chancery Chambers in Newark on July 24, 1922, at 10 a. m., to settle the form of order.