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Poulos v. Dover Boiler and Plate Fabricators

Decided: March 11, 1949.

JULIA POULOS, PLAINTIFF,
v.
DOVER BOILER AND PLATE FABRICATORS ET AL., DEFENDANTS



Civil action.

Freund, J.s.c.

Freund

This proceeding was commenced in the former Court of Chancery to enjoin the defendants from closing a roadway and interfering with the use thereof, on the ground that an easement of right-of-way exists over lands owned by the defendants in the Town of Dover, Morris County, New Jersey.

Prior to the adoption of the 1947 Constitution of the State of New Jersey, such an action would not have been maintainable in the Court of Chancery. The rule then was that where the prayer for equitable relief was based upon the alleged existence of an easement over lands of another, and the existence thereof was in substantial dispute between the parties, it was essential for the plaintiff to first establish by a suit at law the validity of his claim in order to justify the interference of a court of equity. The reason for this rule was that the question as to whether or not such an easement existed was purely a legal one, which must be settled in a court of law, and not determinable by a court of equity. Indeed, counsel could not by mere silence or by express consent, confer upon courts of equity the power to determine litigated matters, which, under our judicial system, must be settled in a court of law; or, stated in another way, strip the law courts of jurisdiction conferred upon them under the constitution and transfer it to courts of equity. However, in an appropriate case, the bill in equity would have been retained and the issue of fact sent to a law court for trial. Imperial Realty Co. v. West Jersey & Seashore Railroad Co. , 79 N.J. Eq. 168 (E. & A. 1911). Ostrander v. United New Jersey Railroad and Canal Co. , 83 N.J. Eq. 645 (E. & A. 1914). Barry v. Tunick , 97 N.J. Eq. 281 (E. & A. 1924). DeLuca v. Melin , 98 N.J. Eq. 367 (E. & A. 1925). Long Branch v. Hoch , 99 N.J. Eq. 356

(E. & A. 1926). Weber v. L.G. Trucking Corp. , 140 N.J. Eq. 96 (E. & A. 1947).

Under the Judicial Article, Article VI, of the 1947 Constitution, there is no such distinct separation of law courts and chancery courts as theretofore existed. "The Superior Court shall have original jurisdiction throughout the State in all causes." Art. VI, Sec. III, Par. 2. It "shall be divided into an Appellate Division, a Law Division, and a Chancery Division." Id., Par. 3. "Subject to rules of the Supreme Court, the Law Division and the Chancery Division shall each exercise the powers and functions of the other division when the ends of justice so require, and legal and equitable relief shall be granted in any cause so that all matters in controversy between the parties may be completely determined." Id., Par. 4. Rule 3:40-2 governing Civil Practice provides "* * * If the primary right of the plaintiff is equitable or the principal relief sought is equitable, the action is to be brought in the Chancery Division, even though legal relief is demanded in addition or as an alternate to equitable relief" and Rule 3:40-3, "Motion to transfer an action from one of the trial divisions to the other trial division shall be made within 10 days after the pleadings are closed, and unless so made, an objection to the trial of the action in the division appearing on the complaint is waived; but the court on its own motion may make such a transfer at or before the pre-trial conference. * * *"

In the instant matter, no objection to trial before the Chancery Division was made by any of the parties within the time specified, and the matter proceeded to final hearing without objection. Therefore, by virtue of the constitution and the rules, this court is vested with authority to grant "legal and equitable relief" in this cause, so that "all matters in controversy between the parties may be completely determined."

The defendant, Dover Boiler and Plate Fabricators, is a wholly owned subsidiary of L. O. Koven & Brother, Inc., and The Hudson Realty Company, Inc. is a wholly owned subsidiary of The Delaware, Lackawanna & Western Railroad

Company, Inc., all of which corporations were named defendants. The Town of Dover and the Attorney-General of the State of New Jersey were also named defendants. I shall specifically advert to them later.

The defendants own a large tract of land in the Town of Dover, Morris County, New Jersey, lying south of the main line tracks of The Delaware, Lackawanna & Western Railroad and separated therefrom by a fence. Dickerson Street, a public street, runs generally east and west, parallel with and southerly from the main line railroad tracks, and terminates at or near the northwest corner of defendants' land. Parallel with the railroad tracks is an old building, approximately 550 feet in length, used by the defendant, Dover Boiler and Plate Fabricators, in the manufacture of boilers. Along the northerly side of this building is a railroad siding, and between the siding and the fence along the railroad tracks is a strip of land which has been used as a roadway and maintained by the boiler works. Easterly and southeasterly of the building lie the lands of the other defendants, which are vacant, although sometimes used for the storage of boilers and other fabricated equipment. To the south is a steep hill at or near the top of which the plaintiff owns a frame dwelling house known as No. 100 Park Avenue, Dover, New Jersey.

The roadway between the building and the tracks, and thence across the vacant lands, has been used as a right-of-way not only by the plaintiff, but by other persons living on Park Avenue, as a means of ingress and egress from their respective premises. Ten witnesses testified on behalf of the plaintiff; they were old residents of the town and vicinity, and testified from personal use of the roadway, as well as from personal knowledge. Their evidence established that the roadway was used continuously for upwards of 40 years, by persons whose homes were on Park Avenue; by merchants serving those residents; by the facilities of the Town of Dover, such ...


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