King v. Miller

8 N.J. Eq. 559

• Court: New Jersey Court of Chancery
• Decided: June 15, 1851
• Status: Published

Opinion

The Chancellor.

The owner of a lot has the election to build on it as he pleases. The owner of the adjoining lot has the same right. If the one who builds first chooses to build on the line, the adjoining owner has no means of preventing it; and has no means of preventing the continuance of the building on the line. Where one has a right to put up a building on the spot where he erects it, and to continue it there, and the adjoining owner can do nothing to prevent its erection on that spot, and can do nothing to prevent its remaining there, it is simply absurd to say, that the latter can by lapse of time lose his right to build up to his line. The loss of a right by lapse of time, from an act done and continued by another, can only he in cases where the party against whom the time is running has soma means of preventing the act or its continuance. Where he has no such means, he is no default, and can, therefore, lose no right. And a person by doing and continuing an act on his property which he has a right to do, and which another has no means of preventing, can acquire no right injurious to the property of that other.

Motion denied.