Harper v. McElroy

New Jersey Court of Chancery

Harper v. McElroy

42 N.J. Eq. 280

DecidedOctober 15, 1886

StatusPublished

This text of 42 N.J. Eq. 280 (Harper v. McElroy) is published on Counsel Stack Legal Research, covering New Jersey Court of Chancery primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Harper v. McElroy, 42 N.J. Eq. 280 (N.J. Ct. App. 1886).

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Opinion

Bird, V. C.

The bill in this case is presented by a lessee, asking for an injunction to restrain the grantee of his landlord from trespassing on one of two lots which he claims he rented, but for which the alleged trespasser has a deed of conveyance in fee. The complainant did rent one lot, and insists that he also rented the ad[281]*281joining lot, which extends from the rear of the first one to the Delaware river. This last one has been conveyed, and the purchaser has entered upon it, and has cut a sycamore tree and two pines. He has also commenced excavations for a house cellar. It is declared that the defendant threatens other similar acts of trespass.

It is admitted that an injunction will not issue unless the complainant’s right to the subject-matter in dispute, and also to the remedy, is clear. If there be reasonable or serious doubt, his prayer will be denied. The cases on this point are collected in Stew. Dig. p. 620 §§ 13, 15. This plain and most valuable rule forbids that I should make the order in this case absolute. There is a serious dispute between the complainant and his landlord, whether the rear lot was included in the verbal agreement to rent or not. The landlord is very emphatic that it was not, and says that he only gave the complainant permission to pass over the rear lot to the river. I think it appears that the rear lot was, all of the time, offered for sale; that the complainant not only knew this fact, but had made offers for it, or made inquiries about the price. These facts make one thing only quite plain, which is that the complainant had a license simply to pass over the rear lot to the river, which was revocable, at any time, by the owner. If he acquired any other right by his agreement, it is not established before me.

This view renders it wholly unnecessary for me to decide whether the trees cut were ornamental shade trees or not, and whether the threat to cut others should be restrained by injunction or not.

I will advise that the order to show cause be discharged, with costs.

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Bird, V. C.

The bill in this case is presented by a lessee, asking for an injunction to restrain the grantee of his landlord from trespassing on one of two lots which he claims he rented, but for which the alleged trespasser has a deed of conveyance in fee. The complainant did rent one lot, and insists that he also rented the ad[281]*281joining lot, which extends from the rear of the first one to the Delaware river. This last one has been conveyed, and the purchaser has entered upon it, and has cut a sycamore tree and two pines. He has also commenced excavations for a house cellar. It is declared that the defendant threatens other similar acts of trespass.

It is admitted that an injunction will not issue unless the complainant’s right to the subject-matter in dispute, and also to the remedy, is clear. If there be reasonable or serious doubt, his prayer will be denied. The cases on this point are collected in Stew. Dig. p. 620 §§ 13, 15. This plain and most valuable rule forbids that I should make the order in this case absolute. There is a serious dispute between the complainant and his landlord, whether the rear lot was included in the verbal agreement to rent or not. The landlord is very emphatic that it was not, and says that he only gave the complainant permission to pass over the rear lot to the river. I think it appears that the rear lot was, all of the time, offered for sale; that the complainant not only knew this fact, but had made offers for it, or made inquiries about the price. These facts make one thing only quite plain, which is that the complainant had a license simply to pass over the rear lot to the river, which was revocable, at any time, by the owner. If he acquired any other right by his agreement, it is not established before me.

This view renders it wholly unnecessary for me to decide whether the trees cut were ornamental shade trees or not, and whether the threat to cut others should be restrained by injunction or not.

I will advise that the order to show cause be discharged, with costs.

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Bluebook (online)

42 N.J. Eq. 280, Counsel Stack Legal Research, https://law.counselstack.com/opinion/harper-v-mcelroy-njch-1886.