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(74 N. J. L. 623)

GLADNEY ▼. PENNSYLVANIA R. CO. (Court of Errors and Appeals of New Jersey. June 19, 1907.)

Error to Circuit Court, Camden County. Action by William Y. Gladney against the Pennsylvania Railroad Company. Judgment for plaintiff, and defendant brings error. Reversed.

Thomas L. Gaskill, for plaintiff in error. John W. Wescott, for defendant in error.

PER CURIAM. This is an action for personal injuries arising out of the same accident which was the foundation of the suit of Piver v. Same Company (decided by this court at the present term) 67 Atl. 109. For the reasons expressed in our opinion In that case, the judgment brought up for review by the present writ of error must be reversed.

(72 N. J. E. 951)

COWDREY v. COWDREY et al. (Court of Errors and Appeals of New Jersey. June 17, 1907.)

1. DOWER-BAR-GIFT OF HUSBAND-ELEC

TION.

The gift of a husband to his wife of land does not ipso facto bar her dower in the husband's remaining real estate, and any provision for an equitable jointure which operates to put the widow upon her election must be either expressly in lieu of dower, or the same instrument must make a disposition of some part of the estate which is clearly inconsistent with the existence of dower therein, so that in claiming dower the widow would defeat or interrupt some provision of the instrument.

[Ed. Note.-For cases in point, see Cent. Dig. vol. 17, Dower, § 129.]

2. WILLS CONSTRUCTION

DENCE-ADMISSIBILITY.

-EXTRINSIC EVI

Evidence outside of a will is inadmissible on the question whether a provision therein was in lieu of dower.

Vredenburgh, J., dissenting.

Appeal from Court of Chancery.

Suit by Katherine M. Cowdrey against Albert E. Cowdrey and others, and from the decree (64 Atl. 98) all parties appeal. Affirmed as to complainant, and reversed as to defendants.

Edwin B. Goodell, for Katherine M. Cowdrey. Woodruff & Stevens, for Albert E. Cowdrey.

PER CURIAM. This decree adjudges that the complainant, Katherine M. Cowdrey, is entitled to an estate in fee simple in certain real estate, the legal title to which was in her husband during his life. It was further decreed that the complainant was so entitled upon the condition that she execute a release to the heirs of her husband and their

assigns of her right of dower in her former husband's remaining real estate.

On the main question in the cause, namely, whether the paper executed by the husband on the day of November 14, 1904, established an equitable title in his wife, we concur in the conclusion of the learned Vice Chancellor that it did.

We also concur in his conclusion that the complainant was a competent witness to prove conversations and transactions with her husband.

We are, however, unable to see how the condition imposed upon the wife, that she shall release her right of dower in the remainder of her husband's real estate, can be supported. It may be admitted that in view of the relative value of the property settled upon his wife, and the remaining property of the husband, it would have been an act of wisdom on the part of the husband to have coupled such a condition with the grant. But he did not do so. The gift

of a husband to his wife of land does not ipso facto bar her dower in the husband's remaining real estate. So any provision for an equitable jointure which operates to put the widow upon her election must be either expressly in lieu of dower, or the same instrument must make a disposition of some part of the estate which is clearly inconsistent with the existence of dower therein, so that in claiming dower the widow would defeat, interrupt, or disappoint some provision of the instrument. 5 Amer. & Eng. Cycl. (1st Ed.) 916. There is no evidence that there was anything said by the husband respecting the matter of dower, even if such testimony was admissible, which it was not. Stratton v. Best, 1 Ves. Jr. 285.

So we are constrained to the conclusion that the decree must be reversed for the purpose of modification, by removing from it the condition respecting the release of dower. There were cross-appeals. The complainant succeeds in her appeal, and the defendants fail in their appeal. All concur in reversing on confirming.

VREDENBURGH, J., dissents.

(73 N. J. E. 129)

LEAVER v. GORMAN.

(Court of Chancery of New Jersey. June 4, 1907.) 1. COVENANTS RESTRICTIVE COVENANTS PERSONS LIABLE-WHO MAY ENFORCE. Equity will restrain the violation of a covenant entered into by a grantee, restrictive of the use of lands conveyed, not only against the grantee covenantor, but also against all subsequent purchasers with notice of the covenant, whether it run with the land or not; but, if the original grantor does not bind himself, then his grantee, having no right of action against him, cannot pursue any other grantee to whom the original grantor may subsequently convey the whole or a part of the remaining lands.

[Ed. Note. For cases in point, see Cent. Dig. vol. 14, Covenants, §§ 30, 49–51, 91-92.]

2. INJUNCTION LACHES-ENFORCEMENT OF RESTRICTIVE COVENANT IN DEED.

Complainant lost her right by acquiescence to enjoin defendant from running a bottling factory in violation of a covenant restricting the use of land where for several years she did not seek to enforce it, but did not lose the right to enjoin an extension of the business.

[Ed. Note.-For cases in point, see Cent. Dig. vol. 27, Injunction, §§ 197-201.]

Bill by Emma E. Leaver against John D. Gorman to enjoin breach of a restrictive building covenant. Injunction allowed in part, and refused in part.

Charles E. Cook, for complainant. Collins & Corbin, for defendant.

STEVENS, V. C. The complainant is the owner of two improved lots of land in Asbury Park-one on the north side of Sewell avenue and the other on the south. The defendant is the equitable owner of two lots on the north side of the same avenue, one a lot 24 by 100, known as "lot No. 141," and the other a vacant lot adjoining, 50 by 100, On defendant's first-mentioned lot for several years prior to 1901 there stood a livery stable. In 1901 the livery business was discontinued, and the then owner commenced to make and bottle mineral water, sold principally to summer residents of the resort. The manufacture, conducted on a small scale, changed hands and was finally acquired by defendant, who proposes to erect on his vacant lot a storeroom and other conveniences to be used in connection with this business. The complainant objects to this contemplated use, on the ground that Sewell avenue is a residence street, and that the deeds conveying lots on it contain (inter alia) a covenant against the erection of factories.

As is well known, the park was laid out by Mr. Bradley, its founder, about the year 1872. In nearly all the deeds which he made he caused to be inserted the following, or a very similar, covenant: "The said party of the second part, for himself, his heirs, executors, administrators, and assigns covenants that he and they shall never use said premises, or cause the same to be used, for the sale of intoxicating liquors or for any manufacturing purposes whatever, and that no hog pen shall ever be erected thereon." This covenant, so far as Mr. Bradley was concerned, was replaced by the similar and somewhat broader covenant contained in the quitclaim deed from Bradley to Sexton, the then owner, made in 1889; but, inasmuch as the complainant had acquired from Bradley title to one-half of lot 158 and lot 159 on May 1, 1876, the benefit of the covenant in the Taylor deed passed to her at that time, and was unaffected by the subsequent quitclaim of 1889. This covenant is contained in the deeds both in complainant's and defendant's chain of title, and the question is whether complainant is in a position to enforce the covenant against defendant.

The law has been so completely settled in a series of decisions (Brewer v. Marshall, 19 N. J. Eq. 537, 97 Am. Dec. 679; Lennig V. Ocean City Ass'n, 41 N. J. Eq. 606, 7 Atl. 491, 56 Am. Rep. 16; De Gray v. Monmouth Beach Clubhouse, 50 N. J. Eq. 329, 24 Atl. 388; Mulligan v. Jordan, 50 N. J. Eq. 363, 24 Atl. 543; Hayes v. Waverly & Passaic R. R. Co., 51 N. J. Eq. 345, 27 Atl. 648; Trout v. Lucas, 54 N. J. Eq. 361, 35 Atl. 153; Roberts v. Scull, 58 N. J. Eq. 396, 43 Atl. 583; Ocean City Ass'n v. Headley, 62 N. J. Eq. 322, 50 Atl. 78) that I bave only to apply the principle. The law is this: A court of equity will restrain the violation of a covenant entered into by a grantee restrictive of the use of lands conveyed, not only against the grantee covenantor, but against all subsequent purchasers having notice of the covenant, whether it run with the land or not. There is, however, this distinction: The original grantor in imposing the covenant upon the grantee either may or may not bind himself. If he does not bind himself, then his grantee, having no right of action against him, cannot pursue any other grantee to whom he may subsequently convey the whole or a part of the remaining lands. In the case of the lands in question Mr. Bradley chose to remain unbound. In none of the multitude of deeds offered in evidence does it appear that he covenanted to impose the restrictions in question upon the lands remaining in his hands. The consequence is that, while a subsequent grantee of Mr. Bradley of one lot could enforce the covenant against a prior grantee of another lot, a prior grantee could not enforce the covenant against a subsequent grantee. The complainant attempted to take the case out of the operation of the general rule by proving that it came within the exception to it, prevailing where a general scheme or plan is shown, according to which every purchaser is to be subject to, and to have the benefit of the covenant as against every other purchaser, prior or subsequent. In this attempt the complainant failed, for no such scheme obligatory upon Mr. Bradley was proved. It appeared, on the contrary, that in the case of this very street Mr. Bradley had, in several instances, exercised the right to convey without imposing upon himself this or a similar covenant. It so happens that in the case of defendant's unimproved lot the Bradley deeds under which complainant derives title were given before the Bradley deed under which defendant derives title. Consequently complainant is not in a position to enforce the covenant against the owner of this lot. As to the lot already used as a mineral water factory, it so happens that complainant's is the later title, and, consequently she is in a position to enforce the covenant unless she and her predecessors have lost the right to do so by permitting defendant and his predecessors to build up and carry on the business for the

past five years; and she possesses this right, scheme or no scheme, for the covenant required by Mr. Bradley of his grantee of lot 141 was undoubtedly intended for the benefit of the remaining land, of which complainant's predecessor in title afterwards obtained a part.

. I think, however, that complainant has, by her acquiescence, lost her right to an injunction, so far, at least, as to prevent the carrying on of the business as it has been carried on in time past. It is to be remembered that complainant has no legal right whatever. The burden of the covenant does not run with the land. Her right is purely equitable. In this respect it differs from that protected in Gawtry v. Leland, 40 N. J. Eq. 323. "Very little, in cases of this character," said Lord Eldon in Rogers v. Williams, 1 Furn. & R. 18, "is sufficient to show acquiescence, and courts of equity will not interfere unless the most active diligence has been exerted throughout the whole proceeding." On this principle Emery, V. C., denied relief in Trout v. Lucas, 54 N. J. Eq. 361, 35 Atl. 153. Tichenor v. Wilson, 8 N. J. Eq. 197, cited in defendant's brief, was the case of an interlocutory injunction, to the refusal of which different considerations apply, but Sayres v. Collyer, 28 Ch. Div. 103, seems to be very much in point. It was the case of a beer shop, against the use of which, as such, plaintiff was protected by covenant, which, however, he had not sought to enforce by legal proceedings until the expiration of three years. It was held that his acquiescence had barred his right to equitable relief. I think the proof of acquiescence in the case in hand is as strong, if not stronger, than the proof in that.

The reason why the complainant here did not proceed is apparent. The business, as conducted, was in no sense a nuisance to the neighborhood. It may be doubted whether it was not less objectionable than the livery business which had preceded it. No exterior alteration was made in the building. The proof shows that the neighbors were not disturbed. The husband of complainant was himself engaged in carrying on in this residence street the business of a plumber. just across the way. But it seems to me that, if the complainant's right is to be regarded as lost through acquiescence, this acquiescence can only be deemed to extend to the business as it has been conducted in the past, not to an increased business where more steam or other power may be employed, where more teams may be used, and more noise and vibration results. Bankart v. Houghton, 28 Beav. 425. I have refused an injunction restraining the erection of a storehouse on the adjoining lot, for the reason, already stated, that complainant has no standing to object to it. The erection of this storehouse and the equipment of it in the manner proposed will, however, give an opportunity for a considerable enlargement of the output 67 A

within the building in which the manufacture is conducted.

I think, therefore, that the defendant is, under the circumstances, entitled to an injunction to restrain an extension of the business in this building or on the lot on which it stands. Neither side should have costs against the other.

(74 N. J. L. 774)

MAYOR, ETC., OF JERSEY CITY v. NORTH JERSEY ST. RY. CO. (Court of Errors and Appeals of New Jersey. July 2, 1907.)

1. STREET RAILROADS-OPERATION.

The traction companies act of March 14, 1893 (P. L. 1893, p. 302; Gen. St. p. 3235), authorizes companies incorporated thereunder to acquire and operate actually existing street railways, whether or not they are at the time being operated with legal authority.

2. STATUTES LOCAL AND SPECIAL LAWS CONSTITUTIONAL LAW.

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SWAYZE, J. The city of Jersey City seeks by this action to eject the North Jersey Street Railway Company from a portion of Montgomery street. The railway company defends for that part of the street occupied by its street railroad, rails, ties, poles, and wires suspended thereon and used in the operation of its street railroad. A special verdict was found, upon which the Supreme Court ordered judgment for the defendant.

The street railroad was originally built by the Jersey City & Bergen Railroad Company, which was incorporated by a special charter in 1859 (P. L. 1859, p. 411). In 1893 this company leased its property to the Consolidated Traction Company, which was incorporated under the general act of March 14, 1893 (P. L. 1893, p. 302), for the formation of traction companies (Gen. St. p. 3235), and this company, in turn, leased the property in 1898 to the North Jersey Street Railway Company.

By the charter of the Jersey City & Bergen Railroad Company its corporate existence was limited to 25 years. An attempt was made to extend this term, first, in 1879, for 50 years, under the act of 1876 (P. L. 1876, p. 235; Gen. St. p. 972, §§ 302-304), and then, in 1902, perpetually, under the act of 1902 (P. L. 1902, p. 630). The original charter re

quired that, in constructing the railroad through Jersey City, the consent of the common council of that city should first be obtained, and that was done.

The plaintiff's claim is that all right of the Jersey City & Bergen Railroad Company ceased with its corporate existence in 1884, and its franchise then lapsed, so that in 1893 its only property in the streets was the rails and ties.

The Supreme Court thought it unnecessary to decide this question, and found sufficient authority in the traction act of 1893 to sustain the defendant's claim.

We are sensible of the gravity of the case, which involves an important part of the railway system of the defendant company and the security of many millions of bonds, and involves, also, the rights of a great municipality in the public streets; but we should reproach ourselves if the importance of the case led us to regard the questions at issue in any other light than as pure legal questions. Legal principles are the same, whether the interests involved are great or small, and all cases are entitled to the same careful consideration.

The arguments of counsel were directed to points, some of which we think need not now be decided. Whether an action of ejectment will lie in a case like this where the municipality is not excluded from the locus in quo is a point not covered by our previous decisions; but, since the plea of the defendant is for the purposes of the action an admission of possession (Ejectment Act, § 13; Gen. St. p. 1284), this question may be eliminated, and the right of the city to maintain this action may for the purposes of the case be conceded.

We assume, also, in favor of the city that the consent required by the charter of the Jersey City & Bergen Railroad Company was limited to 25 years and expired in 1884, and that the attempt to extend the corporate existence would not even if successful operate to extend the period for which the consent of the city was available.

The question raised as to the constitutionality of the acts of 1876 and of 1902, authorizing the extension of corporate existence in case they are to be construed as continuing the powers given by the original charters, is of great importance. It probably affects many corporations of this state, and no opinion ought to be hazarded until the occasion absolutely requires. The view we take renders unnecessary an opinion on this point.

We agree with the Supreme Court that the right of the defendant is properly rested on the traction act of 1893. To vindicate that right, it is necessary to hold that the act properly construed applies to the case, and that it is a valid enactment within the constitutional limits of the legislative power. We must first determine what the Legislature meant, and then whether the method

adopted to effectuate that intent was with. in its constitutional rights.

Stripped of the words unnecessary to be quoted for the present purpose, the first section authorizes corporations formed under the act to enter upon any highway upon which any street railway or other railroad operated as a street railway is or may be constructed, and to maintain and operate it with the consent of the owner and of the persons operating the same, to construct lines of street railway through any highway, either by extension of existing railways or by the building of new lines thereon, and to use and operate them when constructed. Two classes of highways are contemplated by the act-highways where there is already an existing street railway, and highways where new lines are to be constructed. In the first case the right is dependent upon the consent of those who own or operate the existing line; in the second case, upon the consent of the municipality. Since we assume in the present case that the consent originally given to the Jersey City & Bergen Company has lost its force, and no other consent of the municipality is shown, it is incumbent upon the defendant to bring Montgomery street within the first class, in which the statute authorizes it to operate upon obtaining the consent of the owner of an existing street railway. The question that arises is whether the statute refers to streets in which a street railway is actually operated or only to streets in which one is operated by legal authority.

The language of the act is in itself broad enough to include all existing street railways, whether or not they are operated as such with legal authority. That it was intended to include all street railways in actual operation is indicated by the use of express words, including railroads operated as street railways. There were in operation in Trenton and Atlantic City street railways operated by companies incorporated under the general railroad law. These railroads were without right in the streets. Thompson v. Ocean City R. R. Co., 60 N. J. Law, 74, 36 Atl. 1087; Tallon v. Hoboken, 60 N. J. Law, 212, 214, 37 Atl. 895. They were actually operated, not as steam railroads, but as street railways, and were included in the act of 1893. The Jersey City & Bergen Railroad itself was incorporated as a railroad, with the power of eminent domain and the right to use other means of locomotion besides horses, which were then the usual means of traction employed by street railways. It comes within the statutory language of a railroad operated as a street railway. It is the actual operation which by the very words makes the statute applicable. This construction which makes the act of 1893 apply to all cases where the existing conditions were similar tends to make it general in compliance with the constitutional

mandate, and is the construction which ought, therefore, to be favored, if there were an ambiguity in the words themselves. Besides the ordinary and natural meaning of the words and the need for generality in the legislation, other legislation indicates that it was the existence rather than the legality of the actual conditions that the Legislature had in mind. The first general act for the incorporation of street railway companies is the act of 1886 (P. L. 1886, p. 185; Gen. St. p. 3216, § 26). Section 24 of that act provided that no company not organized under a special charter or under the act itself, or then actually owning, controlling and operating a street railway, should thereafter construct or operate a street railway. This act recognized three kinds of street railways -those operated by companies with a special charter, those under the general law, and actual street railways operated by companies not incorporated either under special charter or the general law for that purpose, and hence without authority of law.

The reference to actual street railways in the act of 1886 is a distinct class from railways operated under a special charter or the general law is important because it indicates that, when the Legislature used the words "street railway," it must have looked rather to the actual facts than to the legal authority. The legal right might be only the property right in rails and ties, but the Legisla- | ture evidently thought those rails and ties might properly be called a "street railway." The language amounts to a legislative definition of those words. Such legislative usage corresponds, also, with the popular meaning. No one would hesitate to call by that name a line of road actually in use for the ordinary purpose of a street railway, whether operated by legal authority or not.

The Legislature itself has, moveover, removed all doubt on the subject by subsequent declaratory legislation. An act of 1896 (P. L. 1896, p. 357) enacts that any corporation attempted to be incorporated under the general railroad act prior to the passage of the general street railway act, which had actually constructed and had in operation a street railway, shall be deemed and taken to be a street railway company duly incorporated as such.

We may also confidently appeal to the wellknown object of the traction act of 1893an object apparent from its whole frame work. That object was to make possible the change in motive power from horses to other means of traction, especially electricity, the application of which to the purpose was then so recent. There is no reason to believe that the Legislature intended to make any distinction between lines of railway which were then actually serving the public and had the same need of improved methods of traction. Since 1893 there is no lack of reported cases where the rights of street railways have been in question. It is significant that the pres

ent question has not heretofore been raised. If we entertained any doubt of the proper construction of the act of 1893, we should be reassured by the construction placed upon it by the public authorities of the city and state for 10 years after its passage. The special verdict shows that the street railway in question was assessed as main stem for the purpose of taxation under the railroad tax act of 1884 (P. L. 1884, p. 142) from that date until 1898, that annually since 1898 the tracks, ties, poles, wires, and appurtenances have been assessed by the taxing boards of Jersey City, and that from 1901 to 1904 the defendant has paid taxes under chapter 195 of the Laws of 1900 (P. L. 1900, p. 502), commonly called the "franchise tax act." The assessment of the tracks, poles, and wires may have been only an assessment of so much personal property, regardless of their value as a completed plant, and the franchise tax may have been assessable without regard to the legal right to maintain this particular portion of track, but the assessment as main stem under the act of 1884 could only be made against property used for railroad purposes, and such an assessment after the expiration of the charter of the Jersey City & Bergen Railroad Company is a pretty clear indication that the taxing authorities of the state thought there was something more to assess than the bare physical equipment of rails, ties, poles, and wires.

The city authorities brought an action against the Consolidated Traction Company to recover car license fees of $10 per car per annum from September 25, 1893, to May 25, 1898. The city claimed these fees under the ordinance of 1859, by which consent was given to the construction of the Jersey City & Bergen Railroad. Although the action was not brought until 1903, and can, therefore, hardly be regarded as contemporaneous construction, it is proof that shortly before the present suit was brought the city authorities treated the railway as a street railway legally existing with the city's consent.

The plaintiffs attack the right of the Legislature to pass the traction act of 1893. It is not questioned that the Legislature has power to control the highways of the state, and may grant the use of them to street railway companies without the consent of the municipalities. The attack is upon two grounds: (1) That the act delegates to the owners, lessees, or operators of a street railway, whether legal or not, the power of creating a franchise to operate it perpetually, a power which the Legislature alone can exercise; (2) that it violates the constitutional provision against private, local, or special laws granting an exclusive privilege, immunity, or franchise, or granting the right to lay down railroad tracks.

The first objection overlooks the true source of the franchise. That source is the act of the Legislature. The Legislature, having

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