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Hoffman Hardware Co. v. Naame

Decided: February 21, 1952.

HOFFMAN HARDWARE CO., A NEW JERSEY CORPORATION, FRANCES M. CARTER, GOLDIE BUCKSTEIN, JOHN A. MCDONALD, LIVIA DESIMONE, JOSEPH L. SOLOFF AND FREIDA MILLER, PLAINTIFFS,
v.
JOSEPH S. NAAME, ISABEL D. NAAME, RALEIGH NORTHSIDE REALTY CO., A NEW JERSEY CORPORATION, CITY OF ATLANTIC CITY, A MUNICIPAL CORPORATION OF THE STATE OF NEW JERSEY, AND THEODORE D. PARSONS, ATTORNEY-GENERAL OF THE STATE OF NEW JERSEY, DEFENDANTS



Haneman, J.s.c.

Haneman

[18 NJSuper Page 236] Plaintiffs herein seek a prohibitory and a mandatory interlocutory injunction to prevent the

defendants from the continued construction of, and to force the removal of an obstruction constructed by them at the intersection of an alleged private or public right of way with an admitted public street. Neither the construction of the obstruction nor its effect to prevent entrance to the alleged right of way is denied by the defendants.

The plaintiffs are the owners of various parcels of realty facing Atlantic Avenue, in Atlantic City, New Jersey, the rear lines of which abut the southerly line of realty owned by Raleigh Northside Realty Company and Isabel D. Naame. Upon defendant Raleigh Northside Realty Company's realty there is erected an apartment house. The distance between the southerly side of said apartment house and the northerly line of plaintiffs' properties is some 22 feet. It is over this portion of defendant Raleigh Northside Realty Company's land, in part, and other land owned by Isabel D. Naame, that plaintiffs claim a public or private easement or right of way by prescription.

The plaintiffs' affidavits disclose that since 1903 the occupants of the premises now owned by plaintiffs continuously used the strip in question, or some portion thereof, for vehicular access to their said premises.

The defendants, on the other hand, have submitted affidavits asserting that a railroad track was laid and used by the West Jersey & Seashore Railway on a portion of this strip; that the roadbed was too rough to be used by vehicles, and that there was insufficient space to the north of said tracks adjacent to defendant Raleigh Northside Realty Company's apartment house for use as a right of way. They as well allege that since some time in 1927 or 1928 the occupants of the stores now owned by the plaintiffs obtained permission to use the strip in question. It is to be noted that no dates or names are specified. The affidavit of Joseph S. Naame, in general terms, alleges that some time after 1927 he blocked the passageway at its Indiana Avenue entrance with his automobile and the automobiles of his employees, from time to time, and caused them to be removed at the

request of the owners of said stores (no specification of names or dates is given); that the defendant Raleigh Northside Realty Company, its employees, and the railroad company employees, removed vehicles parked in the way of the railroad; that he granted permission to some of the tenants of plaintiffs' premises to use the strip for access to plaintiffs' properties (no names or dates are given).

Nowhere is there a denial that the portion of the tract or strip southwardly of the tracks was used as alleged by plaintiffs.

The affidavits filed by defendants further allege that neither the plaintiffs nor their predecessors in title have used said strip as a right of way for 20 years preceding the filing of the complaint herein.

Generally, to warrant the issuance of an interlocutory injunction, the plaintiff must exhibit a right free from doubt or reasonable dispute. Allman v. United Brotherhood of Carpenters, &c. , 79 N.J. Eq. 150 (Ch. 1911), affirmed 79 N.J. Eq. 641 (E. & A. 1911).

Mandatory interlocutory injunctions are sparingly granted and then only where the basic right is very clear. But in a matter involving a disputed question of an easement, the relative conveniences and inconveniences to the parties is one of the principal guides in the determination of whether to grant or withhold an interlocutory injunction. Where, upon balancing such conveniences, it is apparent that irreparable damage is likely to result to the plaintiff and that the inconveniences to defendants is slight, an injunction may be granted to preserve the rights until a final adjudication of the questions involved. The purpose of such a restraint is not for the settling of the rights of the parties, but to preserve the property until the legal title is proved. Rockaway, &c., Corp. v. D., L. & W.R.R. Co. , 101 N.J. Eq. 192 (Ch. 1927), affirmed 103 N.J. Eq. 297 (E. & A. 1928).

Although defendants have denied the allegations of plaintiffs, these denials have been more or less categorical. They have failed in a number ...


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