Opinion
12-14-1887
NEWALL, and others v. STAFFORDVILLE GRAVEL CO.
T. W. Carmichael, for complainants. Garrison & French, for defendant.
On motion for preliminary injunction by Newall and others to restrain defendant, the Staffordville Gravel Company, from building a railroad across, and committing acts of waste to, certain lands in dispute between the parties. The facts appear in the opinion.
T. W. Carmichael, for complainants. Garrison & French, for defendant.
On one side of the Tuckerton Railroad lie three tracts of land, —one of which being next to the said road, and the third of which being furthest therefrom, are owned by the defendant; the second of which, lying between the other two, is claimed by both the complainants and the defendant, and is the subject of this controversy. The controversy was precipitated by the defendant grading a roadway for a railroad nearly across the land in dispute, and threatening to lay ties and rails thereon for the purpose of running engines and cars from the Tuckerton Railroad to their tract of land furthest away from said railroad to a pit known as a gravel pit, for the purpose of carrying said gravel to the seaside resorts on the Atlantic coast, for improvements of streets and sidewalks and other like purposes. In addition to this, it may be said that the defendant, by its agents, expressed a determination to dig and remove gravel from the tract of land named in the bill. To prevent the defendant from proceeding with the construction of this railroad, and from digging and removing any gravel, is the object and prayer of this bill. The bill shows the title to be in the complainant; but, while this appears plain enough as expressed in the bill, it is denied by the answer, and the answer sets up a title in the defendants, with a claim of possession for a long period of time, being for 20 years. The complainants claim that their possession has been consistent with their title; the land being wild timber and brush land, wholly uncultivated, and without house or other evidence of habitation upon it. The defendant insists that it has driven across it whenever it had occasion to, and carted gravel from their own land over it; and, besides the assertion of claim of title and ownership for a long period, they have paid the taxes which have been assessed thereon for over 20 years.
The simple question therefore is, should a preliminary injunction go upon this order to show cause? I believe it is well settled that, in order to justify the granting of a preliminary injunction when the title to real estate is in dispute, it must appear that the acts complained of, and which are sought to be restrained, will either work irreparable injury to the complainant, or will tend to the destruction of the inheritance. The case has been one of great interest to me, and has elicited the most careful consideration, and I conclude that the injunction has been properly asked for upon both grounds; namely, the threatened removal of gravel, and the building of the railroad. To the extent that the soil is removed, it is a destruction to the inheritance; and it is alleged in the bill, and sustained by very strong proof, that the chief value of this land is the gravel that is buried beneath its surface. It is true, the defendants deny the existence of gravel upon the lands claimed by the complainants; but they do not show any search therefor, nor, what is more important, do they deny, or in any way contradict or overcome, the charges in the bill, which have been sustained by proof, that certain agents of the defendant have declared that the defendant intended to excavate gravel, and remove it from the lands claimed by the complainant. The material part, therefore, of the bill, in that particular, has not been answered or denied in any way by the defendant. The construction of a railroad may be said, with great truthfulness, to work irreparable injury to the owner of the inheritance. It may be, trespasses more grievous to be borne might be committed; but, certainly, grading land for railroad tracks, the laying of ties and heavy iron rails thereupon, and the running of trains, daily or otherwise, must be conceded by all to be very destructive of what an American understands to be his right of property. And if the complainant be in the right, the threatened acts of the defendant—the running of cars and engines—will be a continuing trespass, requiring a multiplicity of suits for redress. The principles which guide in such cases are found in Volley v. Passaic, 26 N. J. Eq. 216; Johnston v. Hyde, 25 N. J. Eq. 454; Stanford v. Lyon, 37 N. J. Eq. 94; Carlisle v. Cooper, 21 N. J. Eq. 577-580; Kerlin v. West, 4 N. J. Eq. 449; Cornelius v. Post, 9 N. J. Eq. 196; Lord v. Carbon Co., 42 N. J. Eq. 157, 6 Atl. Rep. 812; Hart v. Leonard, 42 N. J. Eq. 416, 7 Atl. Rep. 865. But in addition to this, very clearly, another familiar principle has been properly invoked in support of the complainants' claim; that is, that injunctions will go in such cases to restrain the action of a defendant, even where titles to land are in dispute, until those titles are settled by an action at law.
I will advise in accordance with these views.