The opinion of the court was delivered by
Depue, J.
Mrs. Booraem, the appellant and the complainant in this suit, is the owner of a tract of land containing one hundred and six [562]*562city lots lying along the brow and extending to and covering a portion of the crest of Bergen Hill. On the 21st of August, 1882, Mrs. Booraem conveyed to John H. Bonn a strip of land extending across the entire tract from east to west. This conveyance was made to Bonn for the use of the North Hudson County Railway Company, and the premises are being used by the company as the location for the construction of an elevated railroad. The deed, after the description of the premises conveyed, and calling for a boundary upon the line of Ogden avenue extended, contained a clause in these words:
“Together with all the right, title and interest of said party of the first part to the lands covered by Ogden and Palisade avenues, in front of the land above described, subject to the easements of said avenues respectively; it being (Understood that Ogden avenue is extended for the same width across said ¡premises and dedicated as a public highway.”
At the date of this conveyance Ogden avenue was a public highway running north and south and having its southerly terminus at the northerly line of the strip of land conveyed to Bonn. To that line the avenue had been opened, guttered and improved by the municipal authorities of Jersey City. Before the conveyance the complainant had caused a map to be made, on which was traced an extension of Ogden avenue across over her lands, with a view of making sales of lots bounding on the same. This extension of Ogden avenue has never been accepted or recognized by the municipal authorities as a public highway, and the complainant’s lands are wholly unimproved.
The company located its railroad, and when this bill was filed was engaged in constructing it on a plan which would carry it across the avenue, as extended, at an elevation of seven feet and nine inches above the natural surface of the ground. The company began the construction of its road at the extension of Ogden avenue in May, 1884. The complainant’s bill was filed on the 27th of October of the same yéar, and at that time the structure had so. far advanced as that it was nearly completed. The complainant, in her bill, asks a decree perpetually enjoining the company from constructing its railroad across the avenue unless [563]*563'the same be an ordinary surface street railroad. Upon filing the bill a rule to show cause why an injunction should not be granted was allowed, with an interim injunction until further •order should be made. The rule to show cause was heard on bill, •answer and affidavits, and a decree was made discharging the rule to show cause and dismissing the complainant’s bill. The complainant appealed from the decree upon the ground that the.restraining order should have been continued and an injunction in -conformity therewith issued. No appeal was taken from that part of the decree which dismissed the complainant’s bill. The only question raised is, therefore, whether the denial of a preliminary injunction was erroneous.
The extension of Ogden avenue over the premises conveyed did not, ipso fado, become a public highway by the provisions in the complainant’s deed. Acceptance by the public authorities -or public user is essential to the creation of public highways. Holmes v. Jersey City, 1 Beas. 299. The reason of this rule is that private persons cannot impose upon the public the expenses of the opening or emendation of public highways. But the contention is that by force of the covenants and stipulations contained in this deed, an easement, or a right in the nature of an easement, was created in favor of the grantor, appurtenant to her other lands, which was distinct from the public right, and in nowise dependent upon the action of the public authorities in 'the adoption of the extension of the avenue as a public highway.
The premises are described as bounded on Ogden avenue extended, and are conveyed in express terms, subject to the easement of the said avenue. The purpose to extend the avenue over the premises is expressed in the present tense, indicating an intention that, so far as the rights of the parties are concerned, the extension shall be accomplished immediately, and the width of the proposed extension is defined as the same as that of the part of the avenue which was then opened as a public street. By this description the extension of the avenue was made a part -of the deed, as much so as if there had been a reference to a map -on which the avenue was delineated.
The complainant’s lands lie on the south of the premises [564]*564conveyed. Ogden avenue as an improved street terminates at the northerly line of the premises conveyed, and the property so conveyed lies between the lands retained by the complainant and the end of the improved street. The extension of Ogden avenue across the premises was obviously intended by the parties to afford means of access to the complainant’s remaining lands from the present termination of the avenue, and the language used in. the deed is such as is uniformly recognized as sufficient to create-an easement of a right of way inter partes by way of implied, grant. Nor do the additional words with regard to the extension of the avenue being dedicated as a public highway, impair the legal effect of the language of the deed as an implied grant of an easement. The creation of a public right to be enjoyed in futuro, whenever the public authorities should see fit to adopt the extension of the avenue as a public highway, is not inconsistent with the private easement which enured to the grantee immediately from the grant. Indeed, whenever a dedication as-a public highway is effected — as it usually is — by means of conveyances to private persons by reference to a proposed street over other lands of the grantor, the private rights of the several grantees precede the public right, and are the source from which the public right springs. By such conveyances the grantees are regarded as purchasers by implied covenant of the right to the use of the street, as a means of passage to and from their premises, as appurtenant to the premises granted, and this private right of way in the grantees is wholly distinct from, and independent of, the right of passage to be acquired by the public. There is some controversy whether the private right of way in grantees holding by such conveyances is merged in the public right, when the dedication is consummated by public acceptance, or whether it is merely suspended thereby and will revive if the public right be afterwards abandoned; but the authorities ■ agree that, by such a description, the grantees acquire a right of way as an easement appurtenant to their lands, although the words of grant indicate, also, a purpose to make the street a public highway, so far as private individuals can make it such by a dedication; and it is upon the theory that the owner of the [565]*565fee, by grants of rights of way in the street to his grantees, has parted with all beneficial ownership in the street, that the public authorities may take it for a public highway without any compensation to him. In re Seventeenth Street, 1 Wend. 262; In re Lewis Street, 2 Id. 472; Livingston v. Mayor of New York, 8 Id. 85; Taylor v. Hopper, 62 N. Y. 649; In re Eleventh Avenue, 81 Id. 436, 446; Alden v. Murdock, 13 Mass. 256; Thomas v. Poole, 7 Gray 83; Rodgers v. Parker, 9 Id. 445; Fox v.
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The opinion of the court was delivered by
Depue, J.
Mrs. Booraem, the appellant and the complainant in this suit, is the owner of a tract of land containing one hundred and six [562]*562city lots lying along the brow and extending to and covering a portion of the crest of Bergen Hill. On the 21st of August, 1882, Mrs. Booraem conveyed to John H. Bonn a strip of land extending across the entire tract from east to west. This conveyance was made to Bonn for the use of the North Hudson County Railway Company, and the premises are being used by the company as the location for the construction of an elevated railroad. The deed, after the description of the premises conveyed, and calling for a boundary upon the line of Ogden avenue extended, contained a clause in these words:
“Together with all the right, title and interest of said party of the first part to the lands covered by Ogden and Palisade avenues, in front of the land above described, subject to the easements of said avenues respectively; it being (Understood that Ogden avenue is extended for the same width across said ¡premises and dedicated as a public highway.”
At the date of this conveyance Ogden avenue was a public highway running north and south and having its southerly terminus at the northerly line of the strip of land conveyed to Bonn. To that line the avenue had been opened, guttered and improved by the municipal authorities of Jersey City. Before the conveyance the complainant had caused a map to be made, on which was traced an extension of Ogden avenue across over her lands, with a view of making sales of lots bounding on the same. This extension of Ogden avenue has never been accepted or recognized by the municipal authorities as a public highway, and the complainant’s lands are wholly unimproved.
The company located its railroad, and when this bill was filed was engaged in constructing it on a plan which would carry it across the avenue, as extended, at an elevation of seven feet and nine inches above the natural surface of the ground. The company began the construction of its road at the extension of Ogden avenue in May, 1884. The complainant’s bill was filed on the 27th of October of the same yéar, and at that time the structure had so. far advanced as that it was nearly completed. The complainant, in her bill, asks a decree perpetually enjoining the company from constructing its railroad across the avenue unless [563]*563'the same be an ordinary surface street railroad. Upon filing the bill a rule to show cause why an injunction should not be granted was allowed, with an interim injunction until further •order should be made. The rule to show cause was heard on bill, •answer and affidavits, and a decree was made discharging the rule to show cause and dismissing the complainant’s bill. The complainant appealed from the decree upon the ground that the.restraining order should have been continued and an injunction in -conformity therewith issued. No appeal was taken from that part of the decree which dismissed the complainant’s bill. The only question raised is, therefore, whether the denial of a preliminary injunction was erroneous.
The extension of Ogden avenue over the premises conveyed did not, ipso fado, become a public highway by the provisions in the complainant’s deed. Acceptance by the public authorities -or public user is essential to the creation of public highways. Holmes v. Jersey City, 1 Beas. 299. The reason of this rule is that private persons cannot impose upon the public the expenses of the opening or emendation of public highways. But the contention is that by force of the covenants and stipulations contained in this deed, an easement, or a right in the nature of an easement, was created in favor of the grantor, appurtenant to her other lands, which was distinct from the public right, and in nowise dependent upon the action of the public authorities in 'the adoption of the extension of the avenue as a public highway.
The premises are described as bounded on Ogden avenue extended, and are conveyed in express terms, subject to the easement of the said avenue. The purpose to extend the avenue over the premises is expressed in the present tense, indicating an intention that, so far as the rights of the parties are concerned, the extension shall be accomplished immediately, and the width of the proposed extension is defined as the same as that of the part of the avenue which was then opened as a public street. By this description the extension of the avenue was made a part -of the deed, as much so as if there had been a reference to a map -on which the avenue was delineated.
The complainant’s lands lie on the south of the premises [564]*564conveyed. Ogden avenue as an improved street terminates at the northerly line of the premises conveyed, and the property so conveyed lies between the lands retained by the complainant and the end of the improved street. The extension of Ogden avenue across the premises was obviously intended by the parties to afford means of access to the complainant’s remaining lands from the present termination of the avenue, and the language used in. the deed is such as is uniformly recognized as sufficient to create-an easement of a right of way inter partes by way of implied, grant. Nor do the additional words with regard to the extension of the avenue being dedicated as a public highway, impair the legal effect of the language of the deed as an implied grant of an easement. The creation of a public right to be enjoyed in futuro, whenever the public authorities should see fit to adopt the extension of the avenue as a public highway, is not inconsistent with the private easement which enured to the grantee immediately from the grant. Indeed, whenever a dedication as-a public highway is effected — as it usually is — by means of conveyances to private persons by reference to a proposed street over other lands of the grantor, the private rights of the several grantees precede the public right, and are the source from which the public right springs. By such conveyances the grantees are regarded as purchasers by implied covenant of the right to the use of the street, as a means of passage to and from their premises, as appurtenant to the premises granted, and this private right of way in the grantees is wholly distinct from, and independent of, the right of passage to be acquired by the public. There is some controversy whether the private right of way in grantees holding by such conveyances is merged in the public right, when the dedication is consummated by public acceptance, or whether it is merely suspended thereby and will revive if the public right be afterwards abandoned; but the authorities ■ agree that, by such a description, the grantees acquire a right of way as an easement appurtenant to their lands, although the words of grant indicate, also, a purpose to make the street a public highway, so far as private individuals can make it such by a dedication; and it is upon the theory that the owner of the [565]*565fee, by grants of rights of way in the street to his grantees, has parted with all beneficial ownership in the street, that the public authorities may take it for a public highway without any compensation to him. In re Seventeenth Street, 1 Wend. 262; In re Lewis Street, 2 Id. 472; Livingston v. Mayor of New York, 8 Id. 85; Taylor v. Hopper, 62 N. Y. 649; In re Eleventh Avenue, 81 Id. 436, 446; Alden v. Murdock, 13 Mass. 256; Thomas v. Poole, 7 Gray 83; Rodgers v. Parker, 9 Id. 445; Fox v. Union Sugar Refinery, 109 Mass. 292; Attorney-General v. M. & E. R. R. Co., 4 C. E. Gr. 386; 2 Smith’s Lead. Cas. (8th ed.) 178.
The principle on which the cases cited were decided is applicable to the case in hand; for a grantor may acquire an easement in lands conveyed by apt words in the deed to create such a right, which, by way of estoppel, covenant, or implied grant, will bind the grantee, and the deed will operate as a grant of the fee, subject to the grantor’s easement. Goddard on Ease. 108; Cooper v. Louanstein, 10 Stew. Eg. 285; Stetson v. Dow, 16 Gray 372. If the denial of the injunction by the court below rested on the construction of the complainant’s deed, the decree could not be supported.
But, on the other ground, there should be an affirmance. The application heard in the court of chancery was for a preliminary injunction, and the order brought up was an order discharging a rule to show cause for such an injunction, and dissolving the mterim stay. An injunction, if granted, would have seriously interfered with the construction of the public work in which the company was engaged. The complainant’s lands are unimproved, and access to them for present convenience can be had by another way. There is therefore no urgent necessity for present interference by the use of the injunction power. It also appears by affidavits presented on the part of the defendant that the present surface of the proposed extension of Ogden avenue is irregular, and that by properly grading the same the defendant’s structure will be twelve feet nine inches above grade, affording ample room for the passage of vehicles under it. A preliminary injunction iis never granted unless the act threatened to be done will inflict [566]*566irreparable injury on the complainant. Citizens Coach Co. v. Camden H. R. R. Co., 2 Stew. Eq. 299. On this ground the decree should he affirmed.
Decree unanimously affirmed>