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Leonard v. Hart

COURT CHANCERY OF NEW JERSEY
Dec 31, 1885
2 A. 36 (Ch. Div. 1885)

Opinion

12-31-1885

LEONARD v. HART.

R. S. Kuhl, for complainant. O. P. Chamberlain, for defendant.


On bill for injunction.

R. S. Kuhl, for complainant.

O. P. Chamberlain, for defendant.

BIRD, V. C. This bill is filed to obtain an injunction against the defendant, restraining him from obstructing an alleged private way over his lands. The complainant claims that he and his grantors have used the said way for over 20 years adversely to the defendant, and those under whom he claims. More than 20 years ago one of the grantors of the complainant purchased a small tract of woodland, and from time to time went to it and from it over the lands of the defendant by the way in question. Over this way he carted such timber as he saw fit to his farm and dwelling, which were wholly disconnected from the wood lot. The practice of carting wood and timber when desired by those who have owned the same farm and dwelling has continued without interruption or resistance in any way until the obstruction complained of in the bill. The proof is undoubted that the complainant and his grantors used the way in question in going to and from said wood lot for more than 20 years. The counsel for the defendant frankly, and fairly, too, admitted this, but insisted that, while there had been such user, it was not adverse in a legal sense. This brings us to the real defense in the case.

1. It is claimed that the said way was used by the complainant and his grantors under a license. The proof of this license rests upon the testimony of the defendant only. The person to whom he says he gave the license, then the owner of the farm, dwellings, and wood lot, is dead. The defendant says this license was given about 30 years ago; that the then owner would visit his wood lot once or twice a year, and in doing so would drive with his horse and wagon to the barn of the defendant, located hard by the said way, when he would tie his horse, and walk from thence to his wood lot; and that upon one of those occasions he said that he would not want to use the said way much, but only once in a while. If this amounts to a license, the defendant is justified in his defense. Wood v. Hurd, 34 N. J. Law, 87. But I can see nothing in the statements of the defendant that amounts to a license. Nothing appears that shows a formal asking or permission. It is only the ordinary conversation which might take place between neighbors at any time, under similar circumstances, without the assertion, denial, or granting of any rights or privileges. I must, therefore, conclude that this branch of the case fails.

2. It is insisted that whatever right may have been acquired by adverse user, it has been lost by the complainant, and those under whom he claims, consenting or submitting to a change in the location of theway at a given point. This change was made immediately opposite the barn of the defendant. The defendant built a new barn, and wanted to improve the approaches to it, to do which it was necessary to change the location of said way. He therefore made a change of about 14 feet. There was a gate there across the way as it originally laid. The defendant made and swung a new gate across the way when changed. Now it is said that the complainant and his grantors having consented to this change, and not having used the way as changed for 20 years, the claim by adverse user fails. I am not prepared to go the length required to sustain this view, under the circumstances of this case. The change, indeed, was slight,—it was made solely for the accommodation of the defendant himself, and by the defendant himself. I cannot understand upon what principle he can claim to take advantage of such an act. But there is one fact developed in the case which very conclusively answers both points presented by the defense. Not long previous to the institution of this suit the defendant was sworn as a witness in another cause, where, in speaking of this right of way, he said it was used by everybody who wanted to go through in that direction beyond the lot of the complainant's to a public road still further away. He made this broad declaration, saying that everybody used it who desired to, without any qualification. This would seem to conclude the controversy. I can find nothing to warrant me in supposing that the defendant was not at that time fully apprised of all the facts and circumstances connected with the use of the said way and the rights and demands of others as against himself. In my judgment, he cannot be heard in speaking to the contrary thereof now. He is bound by the declarations there most solemnly made.

I will advise that the injunction be made perpetual. The complainant is entitled to costs.


Summaries of

Leonard v. Hart

COURT CHANCERY OF NEW JERSEY
Dec 31, 1885
2 A. 36 (Ch. Div. 1885)
Case details for

Leonard v. Hart

Case Details

Full title:LEONARD v. HART.

Court:COURT CHANCERY OF NEW JERSEY

Date published: Dec 31, 1885

Citations

2 A. 36 (Ch. Div. 1885)

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