Shippen v. Paul

31 N.J. Eq. 439

• Court: New Jersey Court of Chancery
• Decided: October 15, 1879
• Status: Published

Opinion

The Chancellor.

The bill is filed for an injunction to restrain the defend•ants, who claim to be officers of the Highlands and Sea-bright Turnpike Company, from entering upon the lands of the complainants at Seabright, and pulling down and removing fences, outhouses and barns thereon, &c. The property in question, which it is the object of this suit to protect, is a strip of land of about -twenty-eight feet wide, in the rear of the lots of the complainants, on the ocean front of which are their sea-side cottages. The bill states that the tract of land of which those lots are part, and which contained about seventy acres, was bought by the •defendant, Mifflin Paul, as agent for William W. Shippen, •one of the complainants, and Samuel B. JDod; that Shippen .and Bod paid or secured to be paid all,the purchase-money ; that Paul took the conveyance in his own name, but executed and delivered to them a declaration of trust; that afterwards, part of the property having been sold, the residue was, by mutual releases or deeds of quitclaim, •divided between the three, Paul having, by an arrangement with Shippen and Bod, obtained an interest therein; and that on the making of that division, the declaration of trust was delivered up to Paul; that the deeds by which the partition was made excepted • sixty-six feet for a road or turnpike, as laid down on the map hereinafter mentioned; that, to show the interests and evidence the rights of the parties, a map was made and filed in the county clerk’s office, on which the road is laid down; that the road does not, on the map, run through the whole property (there appears to be a distance of about two thousand feet in a straight line from its northerly terminus on the map to the northerly line of the tract, the whole length of the tract in a straight line being about five thousand six hundred and fifty feet); that the three, Shippen, Hod and Paul, are owners, in equal shares, of the land reserved for the road; that about a year ago the complainants laid out a large sum of money in improving the road for public use along the rear of their lots; that in 1875 an act was passed incorporating the Highlands and Seabright Turnpike Company ; that though there was a pretended organization of the company, there never was a legal one; that though some contributions of money were made, intended for the payment of installments on subscriptions to the stock, no stock was, in fact, legally subscribed, and the company had no legal existence; that though the company pretended to construct its road from the Navesink bridge to the Seabright bridge, it did not, in fact, do so according to the requirements of the charter, and soon abandoned the enterprise, and for three years thereafter took no care of the road; that in the spring of 1879 a pretended re-organization of the company, at the instigation of Paul, was made, but it was merely a pretence, and that he is fraudulently endeavoring, by means of it and the pretence that the complainants have encroached on the turnpike, to compel the complainants to pay him a large sum of money for his own use.

The action complained of is the requirement of the turnpike company that the complainants shall remove, out of the situs of the road laid down on the map, fences and buildings placed there by them, which the company insists are encroachments upon its turnpike, and which it threatens to remove if the complainants do not do so. I do not deem it necessary to consider the question raised by the bill as to the organization of the company. Though the company claims to have constructed its road in 1875, the road appears never to have been used as a turnpike. • The company neither shows nor alleges that it has any title whatever to the land over which it asserts dominion. It does not appear to have acquired a right to it in any way. It does not' even set up a grant from Paul. It seems to rely on acquiescence. The fact that, by the reservation in the deeds to Shippen and Bod, the land laid down on the map as a public road is reserved for a public road or turnpike, would not give to any turnpike company that might see fit to occupy the land the right to use it for a turnpike without making compensation.

The answer states that the complainants, or some of them who owned lots at the time of the first organization of the turnpike company, encouraged the construction of the road as a toll and turnpike road, and all acquiesced in it. The statement is not verified, and it is new matter.

Again, it may be remarked, it appears by the answer that the design of the company in making the new organization, and requiring the complainants to remove alleged encroachments, is not to exercise the franchise of the company for the benefit of the public, but rather to compel the complainants to pay a debt which the defendants “claim is a lawful debt of the company due to Paul.

The answer states that the defendants are, equally with the complainants, desirous of making the road free, but that they insist that its debts should first be paid; 'and it further states that the company, through Paul, in July, 1878, proposed to the complainants that if they would pay Paul $3,000 on account of the principal of his alleged debt, not only would he release the debt and interest, but the company would consent that the road should be a free road, and would relinquish its franchises, which proposition the complainants rejected.

The injunction should be continued until the hearing.