Opinion
Submitted October term, 1942.
Decided January 22d 1943.
1. The due enjoyment of an easement may be protected against interference, encroachment or obstruction, by injunction issued in the discretion of the Court of Chancery if no adequate remedy exists at law. The fact that an action for damages will lie at law does not preclude injunctive relief.
2. The ex parte affidavits relied on by both parties on complainant's motion to certain portions of defendants' answer, presented a legal and not a factual controversy, and the legal contentions thus presented were not well founded. The motion to strike was, therefore, properly granted.
3. Whether the Vice-Chancellor rested his final award of an injunction upon the preliminary informal affidavits or not, they need be given no weight since the bill and the remaining parts of the answer are sufficient to that end.
4. It was unnecessary, in view of the comprehensive allegations of the bill and the admissions in the answer, to proceed thereon with summary proofs to support the bill.
On appeal from a decree of the Court of Chancery advised by Vice-Chancellor Stein, who filed the following opinion:
"The bill of complaint seeks mandatory injunction to restore the entrance to premises Nos. 439-441 Springfield Avenue, Summit, to the same condition as existed prior to February 13th, 1942, so as to permit complainant and his tenant residing therein to use the stairway as a means of ingress and egress to an apartment.
"May 1st, 1928, complainant acquired title to premises known as Nos. 439-441 Springfield Avenue, Summit, New Jersey, consisting of a plot of ground and a two-story frame building erected thereon. The premises contain a store on the ground floor and an apartment on the second floor. The deed to complainant contained a covenant granting him the right to use the hallway in a brick building formerly owned by the defendant Eric Frederick Danisch, adjoining complainant's property on the west and facing Springfield Avenue. The covenant in the deed of conveyance to complainant is as follows:
"`Together with the right of ingress and egress forever for persons and vehicles to and from said premises over said alley about ten feet in width in the rear of the same; also the right to use at all times the hall in the building adjoining said premises on the West, known as Masonic Hall, for ingress and egress to the premises hereby conveyed so long as the said building on the premises hereby conveyed shall continue in its present condition.'
"Pending this suit Danisch conveyed said premises adjoining complainant's property on the west to the defendant Brookdale Dairy Co., January 2d 1942, and that conveyance contained the following clause: `Subject to covenants, easements and restrictions of record, if any.' The Brookdale Dairy Co. was by amended bill made a party defendant.
"The defendants Danisch and Brookdale Dairy Co. at the time each acquired title to said premises also had actual notice in other recorded instruments that the premises were subject to the rights and privileges of complainant to use said hallway. This appears by the covenants in such instruments recorded in the Union County Register's Office which read as follows:
"`The above described lands are conveyed expressly subject to the covenants, rights and privileges contained in a deed from the said parties of the first part hereto to the said Frank Cangemi dated April 1st, 1919, and recorded in the Office of the Register of Union County on April 2nd in the said year.'
"The premises of complainant and those of the defendants were commonly owned by one William H. Lawrence, Jr., who acquired title to same on or about August 5th, 1918. For some years prior to the time that Lawrence acquired title it was necessary in order to rent, use and occupy the second floor apartment of complainant's premises that a convenient and safe means of ingress and egress be provided therefor and accordingly the hallway in the building of the defendants was so used.
"Complainant acquired the right to use said hallway and stairway by express grant. He paid Cangemi as consideration for said lands and premises and for said right and privilege the sum of $30,000.
"Complainant's building is still a two-story frame building containing two stores and the apartment on the second floor. Some months ago an extension of approximately thirty feet was made to the rear of the store easterly from the building owned by defendants. The defendants because of this extension on February 13th, 1942, erected a partition over the door leading into the apartment on the second floor of complainant's building from said hallway and so prevented and barred the tenant residing therein from the use of the hall and stairway as a means of ingress and egress to said apartment, contending that the extension changed the `condition' of the building and thus extinguished complainant's right to use said hallway.
"The apartment on the second floor of complainant's premises has been for the past seven years occupied by one Salvatore Lo Negro for which he pays $30 per month. Prior thereto the apartment had been regularly rented and occupied by various other tenants.
"Upon the filing of the bill of complaint an order to show cause was issued, and on the return thereof upon reading and considering the bill of complaint and the affidavits of the complainant and defendants, intermediate injunction was issued. Later, defendants filed answer, whereupon complainant gave notice to strike certain portions of the answer upon the grounds that the same presented no ground of defense and are sham and frivolous. The answer admits the deed to complainant and the covenants therein contained creating the easement; that the premises of defendants are charged with and subjected to the rights and privileges of complainant to use said stairway and hallway as set forth in paragraphs 3 and 15 of the complaint, and by the remaining portions of the answer the defendants say that said right and easement has been forfeited and extinguished by the act of complainant in erecting the aforementioned extension to the rear of the store located in said building.
"The notice of motion to strike also contained notice of motion for a decree on bill and answer pursuant to R.S. 2:29-46. The motion to strike the portions of the answer set forth in the notice is granted since they do not constitute a defense to the bill of complaint, and the motion for decree on bill and the remaining portions of the answer will be granted.
"Complainant acquired the easement in question by grant in a deed of conveyance. Doctor Lawrence, the common owner of both tracts of land, testified that at the time he acquired title to the said premises there was located in the corner building a hall and stairway which had been used for some years prior thereto by the tenants of said building and the tenant of the Walter Building as a means of ingress and egress to Springfield Avenue; that he created the easement in his deed of conveyance to Cangemi for the purpose of making permanent a condition which had existed for many years prior thereto; that it was to perpetuate the use of the hallway as a means of ingress and egress to the second floor apartment of complainant's building that caused him to grant such right to Cangemi, complainant's predecessor in title. This right was granted by him notwithstanding the fact that there existed at that time a stairway in the rear of complainant's property, because that stairway in the rear is steep and persons using it were inconvenienced in getting to Springfield Avenue, the main thoroughfare in Summit; that it was his intention that the easement should continue to exist until the building now owned by complainant would be demolished or so completely altered as to change in its entirety the character of the same or if a new building was erected or the old building so improved that it contained a stairway of its own leading up to the second floor apartment thereby obviating the necessity of using the hall and stairway located in the corner building.
"The instrument granting the right of way must be read as a whole and so construed as to carry out the evident intent of the parties; but in case of ambiguity it should be construed most strongly against the grantor. Lidgerwood Estates, Inc., v. Public Service, c., Co., 113 N.J. Eq. 403, 408; 167 Atl. Rep. 197. So construed it is concluded that the building of the thirty foot extension to the rear of complainant's premises in no way changed the nature of the use or `condition' of the building as it existed when the easement was created. The `condition' mentioned in the grant was that the apartment on the second floor of complainant's premises was not accessible from the front of the building as it faced Springfield Avenue. That condition will be revived unless complainant is granted the relief he seeks. It was intended to remedy this `condition' that the easement was created in the deed of conveyance. An `easement is a property right which cannot be taken from complainant in a summary way and equity abhors forfeiture.' National Silk Dyeing Co. v. Grobart, 117 N.J. Eq. 156, 167; 175 Atl. Rep. 91. The due enjoyment of easements may be protected by injunction against interference, encroachment, or obstruction, issued within the discretion of the court if no adequate remedy at law exists. The bare fact that an action for damages will lie at law does not preclude injunctive relief. Hart v. Leonard, 42 N.J. Eq. 416; 7 Atl. Rep. 865.
"Injunction will issue."
For the complainant-respondent, Francis A. Gordon.
For the defendants-appellants, Jacob R. Mantel.
The issues appear sufficiently in the opinion filed in the Court of Chancery. We agree that the facts of the case bring it within the classifications noted in Hart v. Leonard 42 N.J. Eq. 416, wherein equity may decree injunctive assistance to protect and enforce legal rights in real estate. The decree (1) struck frivolous portions of the answer, (2) determined that the defendants' premises were charged with certain uses in favor of complainant's property, (3) finally enjoined the defendants from obstructing those uses, (4) particularized the rights of complainant and (5) fixed counsel fees.
On the motion to strike both sides seem to have relied upon the ex parte affidavits presented on the rule to show cause why preliminary injunction should not issue. Appellants do not question that phase of the procedure. Their contention thereon is that the proofs so submitted raised an issue which should have taken the case to final hearing; but we think otherwise. What they look upon as controlling allegations of fact we regard as merely argumentative disputes concerning the legal significance of the admitted allegations of the bill. A legal and not a factual controversy was presented; and the legal contentions thus asserted were not well founded. Therefore the motion to strike was properly granted. Western Realty Co. v. Kassoff, 100 N.J. Eq. 325.
As to the remaining points of the decision we do not understand that the Vice-Chancellor rested his final award upon the preliminary informal affidavits; and whether he did or did not we have given those affidavits no weight in that respect. The bill and the remaining parts of the answer are sufficient to that end. R.S. 2:29-46. It was unnecessary, in view of the comprehensive allegations of the bill and the admissions in the answer, to enter an interlocutory decree and to proceed thereon with summary proofs to support the bill.
The allowance of $250 to the solicitor and counsel for the complainant was reasonable and proper.
The decree below will be affirmed and, subject to this notation, for the reasons stated by the Vice-Chancellor.
For affirmance — THE CHIEF-JUSTICE, PARKER, CASE, BODINE, DONGES, HEHER, PERSKIE, PORTER, COLIE, DEAR, WELLS, RAFFERTY, HAGUE, THOMPSON, JJ. 14.
For reversal — None.