White v. Flannigain

Le Grand, C. J., delivered the opinion of the court. The order which we pass in this cause, makes it our duty, ⁵⁴⁰ under the act of 1832, ch. 302, to dispose of all the questions which may arise out of the record. Several objections have been urged to the equity set up in the bill of complaint. These are as follows: 1st.

That the street in question, is not such a street as gives to the complainant any right to its use. 2nd. That if■ it be such a street, yet the complainant has mistaken his remedy, which, it is claimed, is at law, and not in equity. 3rd. That the averments in the bill, are insufficient. We propose briefly to examine these points of objection in the order in which we have stated them.

It is alleged in the bill, and admitted in the answer, that the locus in question, and also the neighboring possessions of complainant and defendants, were originally the property of the late Thomas McElderry, and that it was divided, laid off, and sold to the present owners, as bounding on and calling for the streets delineated on the plot which accompanies, and is, in fact, a part of the pleadings in the cause. The question, then, is: what is the effect of such division and sale? We hold, that where a party sells property lying within the limits of a city, and in the conveyance, bounds such property by streets designated as such, in the conveyance, or on a map made by the city, or by the owner of the property, such sale implies, necessarily, a covenant that the purchaser shall have the use of such streets. The value of property within a city, is, as is well known, much enhanced by the number of its feet which may bound on streets, either private or public, and the fact is notorious, that proprietors of land, with the view of increasing the value of it, very frequently divide it so as to establish streets at points where there are none, under the authority of the corporation.

When a sale, therefore, is made in conformity with such plan, it seems to be but plain justice to insist that the vendor, and all claiming under him, should be held bound by the lines and designations by which thepro'perty has been sold. This doctrine is fully established by a ⁵⁴¹ number of adjudications, but a few of which, however, we deem it necessary to notice. In the matter of the application of the mayor, &e., in relation to the extension of Lewis street, in the city of New York, 2 Wendall's Reps., 475, the court say, they “are, therefore, of opinion, that when a building lot is sold, bounded on a street in the city of New York, designated as such upon the map of the city, or on a map made by the owner of lands, in reference to which sales are made, although the street remains at the, time unopened, under the authority of the corporation, a covenant may well he implied, that the purchaser shall have an easement or right of way in the street, to the full extent of its dimensions.” According to this authority, the sale made by the heirs of Thomas McElderry, gave to the purchasers, by virtue of an implied covenant, an easement or right of way to the forty-five feet street, designated on the plat to the full extent of its dimensions; a right in no way affected by the circumstance, that at the time of sale, the particular street 'was unopened. The same doctrine is recognised and established in Parker, et al., vs. Smith, et al., 17 Mass., 415 .

The court there say: “ The principal question in this case, arises upon the construction of the deed of Joseph Russell to Benjamin Taber, in which he conveys a piece of land in what is now the town of Ncav Bedford, bounding southwardly and westwardly on a wa.y or street. By this description, the grantor and his heirs are estopped from, denying that there is a street or way to the extent of the land on those two sides. We consider this to be not merely a description, but an implied covenant that there are such streets.” The defendants in the case now before the court, admit the sale, according to the pretensions of the complainant, and deduce their oAvn titles from the same source, exhibiting, by the conveyances under Avhich they hold, a recognition of the existence of the forty-five feet street. If, then, the case in 17 Mass., be law, and we regard it as such, the defendants, in the absence of all title but that derived from McElderry, are es- ⁵⁴² topped from denying there is such a street as that over which the complainant claims a right of way.

The principle of Parker vs. Smith, is re-affirmed in Emerson vs. Wiley, 10 Pickering, 316, in which it was held, that such a call for a street, is not mere matter of description, but an implied covenant that there is such a street. But, it is said, these views are in conflict with the doctrine laid down in Underwood vs. Stuyvesant, 19 John. Reps., 186. We think not.

That case was decided on the ground, that the streets therein referred to, were laid out on the contingency that they would he adopted by the local authorities. Wyman vs. Mayor of N. Y., 11 Wendall, 500. It is supposed, however, that the case of Howard vs. Rodgers, 4 Harr. and John., 278, is an authority conclusive against the appellant upon this question. On a careful examination of the record in that case, we find it is different, in an essential particular, from the statement in the printed report.

The object of Col. Howard, was to lay off a public square for the use of the State, in the event of the removal of the seat of government from Annapolis to Baltimore; and the record shews such to have been the public square contemplated by him, and not that it was, in any event, to be dedicated to the public use of the city of Baltimore. The case appears to us to be within the principle of the one in 19 John. Reps., where the lot was sold as binding on a street, and which the purchaser took subject to the contingency of its being adopted as a public street by the authorities of New York.

If the seat of government had been removed to Baltimore, and that lot had been selected for the public buildings, Col. Howard could not have resisted a claim to have it so dedicated. The lot sold to Rodgers, called for German street, which street bounds on the square intended for public uses. If German street had been then, for the first time, laid off on the plot mentioned in the record, Col.

Howard could not have rightfully closed, or refused to have opened it; his vendee having purchased under an implied agreement, that he should have that right of way along the front of his lot. And if, as we presume was the case, ⁵⁴³ German street was then a public street, the reference to it must be taken as merely descriptive of the location of Rodgers’ lot. The next question presented for our consideration is: whether equity will interpose, by injunction, to protect the right of way of the complainant? It is contended, on the part of the defendants, that even if the complainant be entitled to use the street in passing to and fro from his lot and wharf, yet he has mistaken his remedy in invoking the extraordinary forms of a court of equity, and that he would have sought redress, if entitled to any, at law, which is capable of giving him complete and adequate relief.

In support of this view, the case of Amelung vs. Seekamp, 9 Gill and Johnson, 468, and the case of Hamilton vs. Ely, 4 Gill, 34 , are relied on. We do not concur in the construction which has been placed on these cases by the court below, and by the counsel for defendants. We understand the case in 4 Gill, as merely affirming the principle previously laid down in the case in 9 Gill and John., which we take to be this: that a court of equity will not, as a general rule, interfere by injunction, to restrain a mere trespass, pending litigation at law, to try the title to land; but that it will so interfere under certain circumstances, which are, as enumerated by the Court of Appeals, under its late organisation :— 1st. To prevent irreparable mischief or ruin. 2nd.

To prevent a multiplicity of suits. 3rd. Where it is required by some peculiar circumstances. In the case of Amelung vs. Seekamp, the court adopted the views of Chancellor Kent, in Jerome vs. Boss, 7 John. Ch.

R., and also the views of Justice Story, in his work on Equity Jurisprudence. In the case of Jerome vs. Ross, Chancellor Kent very fully reviews the course of decisions in England, and in the State of New York, and, as we understand his opinion, recognises the following principles: 1st. That an injunction will not be granted to restrain a trespasser, merely because he is a trespasser. ⁵⁴⁴ 2nd. But that an injunction will issue where the injury is irreparable; or, where full and adequate relief cannot be granted at law; or, where the trespass goes to the destruction of the property as it had been held and enjoyed; or, where it is necessary to prevent multiplicity of suits in cases where the right is controverted by numerous persons, each standing on his own pretensions.

In the case before us it appears, that the wharf of the complainant, as laid down on the plot, has no outlet over the land, except by means of the thirty feet street; the twenty feet way and the locus in dispute. To the twenty feet way the complainant has no right, except such as grows out of the permission of the defendant Flannigain, which may be withdrawn by him, from all we can see, whenever it may suit his pleasure. There is nothing in the case to show the present condition of the thirty feet street; it may be wholly closed up by buildings or otherwise. The bill avers, that the complainant cannot have access to his lot and wharf along the forty-five feet street, except over the obstructions which have been placed on said street; and the defendant Flannigain admits, this street is closed up by obstructions placed there by himself, and points out the twenty feet way as the only one by which the complainant can approach his lot and wharf.

Considering this case, therefore, as presented by the bill and answer, we must regard the twenty feet way as the only one open to the complainant, and even that, as wholly dependent on the pleasure of the defendant Flannigain. In such a case as this, is it necessary that a suit should be instituted and prosecuted, to a successful termination at law, before a court of equity can interpose by injunction? A majority of the judges who sat in this case think not. Chancellor Kent, in his collocation of cases in Jerome vs. Ross, when speaking of the application of the remedy by injunction, says: “The practice has been introduced, and justly and reasonably applied to special cases, where irreparable ruin would have followed the refusal to injoin the trespass.

It was allowed by Lord Thurlow, in Fleming’s case, (cited, 6 ⁵⁴⁵ Vesey, 147,) where the defendant had worked from his own land into the coal mine of the plaintiff; and that case was followed by Lord Eldon, (6 Vesey, 147, 7 Vesey, 307,) on the principle, that irreparable mischief and ruin of the property, as a mine, would be the consequence, if the party was not stopped. On the same ground, the injunction is granted against diverting a water course from a mill, (1 Bro., 538;) against the destruction of timber, (10 Vesey, 290;) against the taking of stones of a peculiar value, (17 Vesey, 128.) But all these are cases of great and irremediable mischief, which damages could not compensate, because the mischief reaches to the very substance and value of the estate, and goes to the destruction of it in the character in tohich it is enjoyed.'” Now the principle on which the court interfered in these cases is, that the trespass produced a mischief which reached to the very substance and value of the estate, and went to the destruction of it in the character in which it is enjoyed. In the cases reported in 6 Vesey, 147, and 7 Vesey, 307, relief was granted on the principle, that irreparable mischief and ruin of the property as a mine, would be the consequence of the trespass. The case now before the court falls directly within the principle.

We have seen that the complainant is entitled under an implied covenant to a right of way over the forty-five feet street. Any obstruction which denies the exercise and use of this right, works irreparable mischief to the street, as a street. The thing ruined by the obstructions is a street, and, as in the case of the mine, the complainant, on the principle there recognised, has a right to the aid of a court of equity. What he complains of is, the destruction of the street.

He is entitled to the enjoyment of it as a street. His title is clear, and, as we have already observed, cannot, be denied by any one claiming under the heirs of McElderry. In the case of Hughes vs. The Trustees of Weston College, (1 Vesey, 188,) the commissioners of a turnpike company entered, took possession of, and were destroying, by digging for gravel, large garden grounds of the plaintiff, who was n gardener by trade. The turnpike act had specially excepted ⁵⁴⁶ gardens, as well as orchards, planted walks, &c.; Lord Hardwicke thought it a clear case of trespass, and of such a nature, that the plaintiff was entitled to seek his remedy by injunction, though he had his remedy at law.

The interposition in that case, was clearly on the ground, that the orchard and garden, as such, Were being destroyed. On such a case, although the party could have gone to law and had damages for the injury done him, yet, as these damages could not restore the thing, to wit, the garden, the court of equity gave him the relief sought. In judging of the application of the remedy by