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755, 767; Nat. Docks v. United Co's., 53 | embankment, it was also broad enough to N. J. Law, 218–224, 21 Atl. 570. A case ' authorize this court to order the defendant of that sort is one of equitable, and not company to reconstruct its tracks across the of legal, cognizance. It appertains to the highway by elevating or depressing them. If exclusive, and not to the auxiliary or concur- the generality of the language of the clause rent, jurisdiction of chancery. Says Beasley, included the one, it necessarily included the C. J., in the leading case (D. L. & W. R. R. v. other. But an affirmation of the jurisdiction Erie R. R., supra): "They [the two compa- ' of this court does not solve the question as nies) are tenants in common of an easement, now presented. The allegations of the bill and if this court cannot protect the one are so general that they present little more against the injustice of the other, the party than the abstract question whether, under whose rights are invaded is clearly without any circumstances, this court would compel any adequate remedy." But if the case is a railroad company to elevate or depress its one of equitable cognizance, it would seem tracks. The decision was that in a proper to follow that equity may use any remedy ap- case it would. Whether it would or not was propriate to the circumstances. Not only a held to depend upon the special facts. To remedy merely preventive, but also one these I now address myself. that is mandatory-any remedy whatsoever, Summer avenue is a residence street. The out of its store of remedies adequate to pro houses fronting upon it extend northward as mote and secure the joint user in such a way far as the railroad. Further north there are as the law requires in view of the particular still many vacant lots, both on the avenue situation.

itself and to the east and west of it, but the The test of jurisdiction would seem to be town is growing in that direction. There are the existence of actual conflict. If there is six tracks laid across the avenue at grade. no conflict, there is no jurisdiction. This The general lay of the land in the immediate court does not ordinarily compel a corpora- vicinity is level, and the tracks, if unobtion to do its duty. Performance of a duty, structed by cars, moving or standing still, neglected or contested, is enforced by the may be seen eastward and westward, by a Supreme Court by mandamus. It would seem

person standing from 20 to 30 feet away, for to have been this aspect of the matter that about a quarter of a mile. From 1,000 to presented itself to the judges in N. Y. & 1,200 people, and over 100 vehicles, cross daiGreenwood Lake R. R. v. Montclair, 47 N. J. ly between 6 o'clock a. m. and 6 o'clock p. m., Eq. 591, 21 Atl. 493. The case was one of and about a third as many at night. From demurrer to a bill, and, as will be seen by a 22 to 28 passenger trains each way pass over reference to the facts stated in the preface the crossing every 24 hours. The number of to the opinion of the Chancellor (Montclair freight trains running through is small, but V. New York & G. L. Ry. Co., 45 N. J. Eq. in the operations of the local yard, and in 436, 18 Atl. 242), it appeared that the prede- the making or breaking up of trains, freight cessor of the defendant company had con- cars frequently cross and recross the avenue. structed a bridge over a cut, the bed of the yard and freight station are between which had been graded, but on which no Summer avenue and Washington avenue. rails had been laid. This bridge had been The obstruction to travel seems to be mainly suffered to decay, and the question was due to the freight cars. The gates are frewhether the defendant company, as the suc- quently lowered, and the delay amounts, at cessor of the original company, was under an times, to several minutes. According to obligation to rebuild it. The question was complainant's count, in the 24 hours between apparently one of legal duty, not of conflict- , 6 a. m. of August 2 and August 3, 1907, the ing easements. It was in view of such a sit- gates were down 30 times for 3 minutes or uation that Mr. Justice Reed said: "The more. The report shows that the delay to doctrine that a court of equity will not act travel thus occasioned resulted chiefly from in any instance where the common-law courts the handling of freight cars. As the freight possess adequate power to afford the relief house and water tank, as well as the yard, asked for is fundamental. The power of the are in the vicinity, the side tracks are selcommon-law courts to compel the perform- dom unoccupied, and the cars standing on. ance of duties of the kind under considera- them are a serious obstruction to the view tion

is complete." Be this as it up and down the tracks. The street crosses may, I must hold that, from whatever source the railroad at right angles. It occupies the derived, the power to compel railroad eleva- site of an old highway that was laid out tion over a highway, if that is the only way many years before the advent of the railin which the joint user can be properly se- road. This I think gives a general view of cured and enjoyed, exists in this court. the situation. The question is whether such Chancellor Magie was, as it seems to me, a situation calls for an elevation of the road strictly logical when he held that, inasmuch at the point in question, under the rule laid as it had been decided that the second clause down in the Central Railroad Case. It is of section 29 was broad enough to confer the admitted that it cannot be depressed; and, power to order the company to reconstruct if elevated, the grade at Mount Prospect avits railroad bridge over a highway by length- enue, further to the westward, will have to

The first thing that strikes one is that it | R. [N. J. Ch.) 67 Atl. 1009) shall cross streets has not yet become the policy of the state, as either above or below grade, unless the govevinced by its legislation, to require cross- erning body thereof shall permit crossing at ings generally to be otherwise than at grade, grade. This is a further recognition of the although there has been some advance in lawfulness of grade crossings in cities, if that direction. In the beginning of railroad the cities agree thereto. With a view to construction the practice of laying the tracks the gr ual abolition of grade crossings by at the grade of the highways, unless unad- mutual consent it has provided that any muvisable from an engineering standpoint, was nicipality or township, or in the case of a universal. The cities were then small, the county road the board of chosen freeholders, trains slow and infrequent, and the tracks may enter into contracts with railroad comfew. As the cities grew and the trains and panies to abolish grade crossings. Laws 1874, tracks became more numerous, the state be- p. 45; Laws 1901, p. 116; Laws 1902, p. 402; gan to take precautions for the public safe Laws 1903, p. 661, 88 30, 31. The Legislature ty. In 1839 it was enacted that a bell should has gone a step further. It has enacted that be placed on the engine and rung at least on the initiative, either of a city of the first 300 yards from the highway. It was also class, or of a railroad company, application provided that a board with the inscription may be made to the reme Court for an “Look out for the Locomotive” should be order compelling the abolition of grade crosserected and maintained (Laws 1838-39, p. ings. If that court finds that the change is 170). By act March 26, 1852 (P. L. p. 532), | feasible, and that it may be made without the company was allowed to blow a steam unreasonable cost,' the matter is referred to whistle as a substitute for a bell. These commissioners to prepare a plan, and if the have been the only precautions that were plan be approved, the court apportions the generally deemed indispensable by the Legis- cost of the work. This act, it will be seen, lature where trains crossed highways at differs from the acts of 1901 and 1903 in grade. But the courts went further. They that its provisions may be put into operation held that under circumstances of special dan- by either party without the consent of the ger-for example, where there was a rail- other. Laws 1896, p. 139. In view of this road curve within a short distance of the legislation it is quite impossible to hold that highway, or where the company itself had grade crossings are, per se, illegal structures, erected buildings close to the tracks so as even in cities, or that streets are not safe, to obstruct the view—a duty to take special in the legislative sense of that word, merely precautions arose;, that the company must because they are crossed at grade by railprovide gates or a flagman. Penn. R. R. Co. road tracks. There must be something in v. Matthews, 36 N. J. Law, 531. But in a the situation so peculiar as to compel the long series of cases the courts have decided court to say that gates will not adequately that, if the element of special danger be protect the public; that flagmen will not; wanting, then neither the court nor the jury that nothing but track elevation will. And can require more than the Legislature has it cannot be maintained that the streets beseen fit to prescribe, viz., the ringing of a come unsafe and inconvenient when more bell or the blowing of a whistle and the erec- than one track is laid across them. In Altion of sign posts. N. Y. R. R. Co. v. Lea- len v. Jersey City, 53 N. J. Law, 522, 22 Atl. man, 54 N. J. Law, 202, 23 Atl. 691, 15 L. R. 257; it was held by the Supreme Court that A. 426. This is the law to-day.

the Erie Railroad could, against the consent What the Legislature has done toward and protest of Jersey City, lay another track further protecting the highways is this: It across Jersey street, one of its main thor. has authorized cities and other municipallo oughfares. ties to require by ordinance flagmen or gates The question, then, must be, as I have said, to be placed at designated crossings. Del. whether gates and flagmen and other expeLack. & West. R. R. Co. v. East Orange, 41 dients are, in the given case, so inefficacious N. J. Law, 127; M. & E. R. R. Co. v. Orange, that nothing but track elevation will give 63 N. J. Law, 252, 43 Atl. 730, 47 Atl. 363. to the public, in fact as well as in name, the This, of course, is a legislative recognition joint use of the highway. It is obvious that *that railroads may cross streets at' grade. a street may be so incumbered with tracks It has authorized the governing body of any that the public is practically shut out from township or municipality to petition this using it. As neither party is at liberty to court to order gates to be erected, or a flag- destroy the right of the other, the approman stationed at any grade crossing, or that priate remedy in such a case would appear to some other reasonable provision be made for be an injunction restraining the excessive protecting the crossing. Laws 1903, p. 664. use. Newark v. Central R. R. Co. (N. J. Ch.) 8 36; Palmyra v. Penn. R. R. Co., 62 N. J. 67 Atl. 1009; Newark v. D. L. & W. R. R. Eq. 601, 50 Atl. 369; Eckert v. Penn. R. R., Co., 42 N. J. Eq. 196, 7 Atl. 123. If, on the 66 N. J. Eq. 438, 57 Atl. 438. This is also a other hand, the number of tracks be not es. legislative recognition that railroads may cessive, it is still conceivable that the trains cross at grade. And it has also declared (sec- might run over them with such frequency tion 27 of same act) that any railroad there and speed, and at such an angle or with such would be practically gone. The question is, its tracks as though they were within its then, one of fact, to be determined accordo terminal yards, and so used them constanting to the circumstances of the case. In conly in its everyday concerns." Accordingly, sidering the question it must, however, be an injunction was given against the use of remembered, that it is no light thing to or- the tracks for purposes other than of pas, der a change in the grade of a steam railway. sage. The case of State v. Morris & EsIn the language of Church, C. J., in People sex R. R. Ob., 25 N. J. Law, 437, is 'very V. N. Y. C. & H. R. R. CO., 74 N. Y. 302, "the much in point. There the railroad had been grade necessarily embraces considerations of indicted for obstructing the highway, at or convenience, expense, and facility of con- near the village of Rockaway, by placing its struction and operation, and is fixed at a par-cars upon the streets and allowing them to ticular point with reference to grades at oth- remain there and obstruct its use. Green, er points.” The Legislature has therefore C. J., said: “It is admitted that the freight necessarily vested the company with a con- could not be received and discharged at the siderable discretion in determining what and Rockaway depot in its present location withwhere it shall be.

out, to some extent, impeding the public Coming to the evidence, it appears that travel, and that the defendants have not there has as yet been no accident, although willfully caused any obstruction beyond the situation, as it exists, seems to be such what their business at this depot required. that one might easily occur, especially as The necessity of obstructing the highway rethe crossing is used daily by a considerable sults, not from the exercise of their cornumber of school children on their way to porate rights, but from the improper locaand from the public school. The only safe- tion of their depot. A station house and guard hitherto provided has been gates, freight depot may be necessary to the operaraised and lowered by an operator in a tow-tions of the company. It may be necessary er, several hundred feet distant. But there that the cars should stand for half an hour, is a complication in the case. The company or an hour, to receive and discharge freight. has, without the consent of the city, placed But there is no necessity that the depot on the crossing no less than six tracks. One should be so located as to cause an obst UCof these is conceded to be merely for the tion of the highway by the cars. The comconvenience of a near-by factory (as to pany cannot, by its own imprudence, create which, see Montgomery v. Trenton, 36 N. J. a necessity for the obstruction, and then Law, 279); another for the convenience of justify the nuisance on the ground of the another factory, but occasionally used for necessity which they have created. Because general freight delivery. Stin another—the a depot is necessary to the operations of the north siding-is used in connection with the company they are not therefore justified in defendant's yard, of which it seems to be an building it upon the bighway, or so near it adjunct. Mr. English, in his evidence, calls that their trains must injuriously affect pub it a “passing siding.” He admits, however, lic travel. The fallacy of the argument on that it has a dead end, and that it is used the part of the defendants co ists in asmost of the day for the storage of coal and suming that placing the depot in its present other cars. These three tracks, so far as location was a matter of necessity." In they are laid upon the highway, seem to me these two decisions is indicated the solution to be unlawful structures. The right of the of the present question. The company in railroad over the highway is a right of the case in hand has been doing just what passage, with the reasonable incidents of the Court of Errors and the Supreme Court passage, nothing more.

said, in the cases above quoted, from, it In the case of Penn. R. R. Co. v. Angel, could not do. For its own convenience it 41 N. J. Eq. 328, 7 Atl. 433, 56 Am. Rep. 1, has placed its switches, its sidings, its yards, Justice Dixon portrayed a situation similar its freight depot, and its water tank in such to that I am now dealing with. He said: close proximity to the highway that it now In our judgment they (the legislative pro- finds it necessary to use it otherwise than visions) indicate that those rights are such as a way. Of the three remaining tracks, as pertain to the use of the avenue for the two are undoubtedly used for passage. The purposes of a way, not the purposes of a third, as I gather from the evidence, is used station yard. The primary privilege given both for passage and for yard or station puris that of passage. This and its reasonable poses. It cannot be lawfully used for the incidents cover the whole scope of the grant, latter where it crosses the avenue. If the The right of storing engines and cars, either three tracks first spoken of, where they for a longer or a shorter period, the right cross the highway, be eliminated, and the of making up or breaking up trains, are not unlawful use of the other enjoined, I do not embraced in such a concession. These are think that the crossing, properly guarded, strictly terminal and station purposes, and will be more dangerous, in an absolute sense, by providing for station yards the Legisla- | than most of the other grade crossings in ture has indicated its intention that business the cities and many of the other municipaliof that nature should be transacted there. ties of the state.

• Having a right of passage, it (1. e., To sum up: The Legislature has not seen the Pennsylvania Railroad Company) used fit to abolish grade crossings except to the

extent heretofore indicated. It still author- security for a loan, and the improvements and izes them, with the proviso, however, that leases were not security for the contractor's perwhere, in the future, any railroad shall formance of his agreement, but stood primarily

as security for the payment of the notes, ericross any street in any city, it shall cross dencing the loans, and, until a loan was made, above or below grade, unless the governing no transfer could be insisted on by the owner. body of the city grant permission to cross at

[Ed. Note.-For other cases, see Logs and Loggrade. In this state of the legislation upon ging, Dec. Dig. $ 8.*] the subject I think the court can go no fur

Young, J., dissenting. ther, in a case situated as this is, than to

Transferred from Superior Court, Coos enjoin the use in the highway of the three County; Plummer, Judge. tracks above referred to, and the unlawful

Bill in equity by the International Paper use of the fourth. On the evidence it would Company against Herman E. Miles, adminisseem that a flagman should be stationed at trator of Willis Tucker, deceased, and others. the crossing, but I doubt whether an order A demurrer to the bill was overruled subject to that effect could be made in this proceed to exceptions, and the cause was transferred ing. It would hardly come within the scope from the superior court. Case discharged. of the bill. The two cases relied upon by counsel for

The bill alleges the following facts: The the city (State v. St. Paul, etc., R. R. Co., plaintiff is the successor in interest of the 98 Minn, 380, 108 N. W. 261, and State v. Glen Manufacturing Company. November 24, Duluth, 98 Minn. 429, 108 N. W. 269) are not 1894, the Glen Company made a contract in point. There the necessity of a bridge, with Willis Tucker and Wilfred A. Hodgdon, which had in fact existed over the locus in by which the last-named parties agreed to quo for some time, was conceded. The ques-cut a large quantity of timber in certain tion was who should bear the expense of townships in Coos county; the operations to maintaining it. Here the necessity of the extend over several years. Section 5 of the overhead crossing is the very point in con- contract is as follows: "The company agrees troversy.

to loan to said Tucker and Hodgdon, for the The question whether the tracks that have purpose of making improvements upon said been found to have been illegally laid over lands or any of them, such sums, not exthe street should be actually taken up has ceeding in the aggregate ten thousand dolnot been argued. I presume that, if they | lars ($10,000), as said Tucker and Hodgdon cannot be used for any purpose, they would shall request, said Tucker and Hodgdon to naturally be removed. They would seem to give their joint and several promissory notes be illegal obstructions, and, if allowed to re- for the amounts so loaned, payable in four main, would be calculated to distract the at- or six months from their respective dates, tention of persons about to cross, who would the company agreeing to renew said notes not know on which of them to look for ap- from time to time at the request of said proaching trains. If, however, counsel de-Tucker and Hodgdon; provided that the masire to be heard on this subject, I will hear turity of the last extension therefor, or of them.

any of them, shall not be beyond four years The bill, although primarily designed to from the date of this agreement; and proenforce track elevation, is broad enough in vided, further, that said Tucker and Hodgdon its statements to warrant the giving of the pay interest thereon promptly as hereinafter relief indicated. There is a prayer, not only provided and keep their other agreements for depression or elevation of the tracks, but herein. All said notes and the renewals also for general relief.

thereof shall bear interest at the rate of six per cent. per annum payable semiannually,

Said Tucker and Hodgdon shall assign and (75 N. H. 150)

transfer all improvements made or which INTERNATIONAL PAPER CO. V. MILES may be made by them upon said lands or et al.

any of them, and also all leases of other (Supreme Court of New Hampshire. Coos. lands used in connection with this business, Dec. 1, 1908.)

to the company as collateral security for the LOGS AND LOGGING (8 8*)-CONTRACTS-Con payment of said notes and any renewals

thereof, which improvements and leases upon A contract to cut timber during several the default by said Tucker and Hodgdon in years bound the owner to loan money to the contractor to make improvements on the land, the payment of said notes or any of them, and bound the contractor to give his note for the according to the terms hereof, or of any other loans and to assign all improvements and leases of their agreements herein, shall after nineas collateral for the payment of the notes, which ty days' notice in writing by the company to improvements and leases on default in the payment of the notes, or any of them, “or of any said Tucker and Hodgdon of any such deother of” his “agreements herein,” should be fault become and be the absolute property come the absolute property of the owner. The of the company, but said Tucker and Hodg. owner made no loans to the contractor. Held. that the contract did not bind the contractor to don shall not be thereby relieved from liatransfer the improvements and leases, except as bility upon said notes or any of them." The


interests of Tucker and Hodgdon finally be- leases, was forfeited to the company and became the property of Willis Tucker, now de came its property, by virtue of the terms of ceased, of whose estate the defendant Miles section 5, without a formal transfer. In acis the administrator. In carrying on lum- cordance with this theory, the plaintiff asks bering operations the contractors have made for a decree establishing its right to the propcertain improvements on the lands of the erty, ordering a transfer of the leases, and plaintiff, which the reasonable prosecution of restraining the defendants from interfering the work rendered necessary and convenient. with the property. But the language of secThey also secured certain leases of lands tion 5, upon a reasonable construction, does and rights from third parties, which were not support the plaintiff's contention. The used in carrying on the work. It is alleged principal purpose of the parties therein was that neither the contractors nor their suc- to provide for a loan of money if the contraccessors have performed the conditions of the tors should desire it, in order that they might contract, but in 1903 abandoned the contract, carry on the work more conveniently and exand that in consequence thereof all the im- peditiously. In an undertaking of this magprovements made by them upon the lands nitude, large expenditures of money were reand all leasehold rights acquired by them be- quired, and it was the purpose of the parties came the property of the plaintiff, upon the to make arrangements for that necessity at giving of a written notice to that effect to the request of the contractors. The company the defendants, which notice was given. In for its protection required a pledge or transOctober, 1903, Tucker gave a personal mort- fer of certain property, termed the “improvegage of the improvements to the Tucker Lum- ments and leases," to hold as collateral se ber Company, one of the defendants, to security if it made the contemplated loan. The cure the sum of $25,000. Miles has already collateral thus transferred was to stand priremoved some of the improvements, and marily as security for the payment of the notes threatens to sell or remove others.

The evidencing the loan, and it may be it was prayer is that the improvements be decreed intended as security for the performance of to be the property of the plaintiff, that an

the contractors' agreements generally; but, assignment of the leases from Miles as ad- if it had this effect, until a loan was made ministrator to the plaintiff be ordered, and no transfer of property could be insisted upthat Miles be restrained from removing or

on by the company, and, in the absence of a interfering with the property. By an amend transfer to secure payment of the contractors' ment to the bill, the plaintiff seeks to recover notes, the property could not be held as sedamages for the nonfulfillment of the con- curity for their other agreements. So long tract.

as the contractors did not ask for the loan Drew, Jordan, Shurtleff & Morris, for plain of money to carry on their operations, the tiff. Herbert I. Goss and Sullivan & Daley, inference is that the company did not desire for defendants.

to insist upon specific security for the gen

eral performance of the agreements of the WALKER, J. The principal contention in

contractors. At least, it seems clear that volves a construction of section 5 of the the parties did not understand they were agreement. The plaintiff claims, in effect, making two distinct and independent conthat that section contains two distinct con

tracts of indemnity; one relating to the tracts or undertakings, viz.: (1) That the notes, and the other to other promises on the contractors should transfer and assign to the part of the contractors. If the intention was Glen Company all improvements made by that the improvements and leases should be them under the other provisions of the con- deemed to constitute a general security, withtract and all leases secured by them in the out regard to whether a loan of money was prosecution of the work, whenever they ob- made or not, it would be natural to expect tained a loan of money from the company, some definite expression of that intention. A which property should be held as collateral matter of that importance would not ordinasecurity for such loan, and in case the loan rily be inserted incidentally and parentheticalwas not paid when due the title to the prop-ly in a paragraph dealing with an entirely erty should at once pass to the company; different matter. It would not be left to be and (2) that the property should at all times discovered by an involved inference which be deemed to be security for the contractors' neither the language nor the subject-matter performance of their agreements contained renders necessary. As it is not alleged that in the other sections of the contract, and in a loan was made, or that the property was case of a breach thereof it should become the transferred, it is not perceived how section 5 absolute property of the company, upon no became effective, or how under it the plaintiff tice from it. There is no claim by the plain became entitled to the improvements and tiff that the contemplated loan was made, or leases. that there was any transfer of the property ; This result renders it unnecessary to conbut it is insisted that, upon the failure of sider the rights of the mortgagees of the the contractors to perform their agreements property, as against the plaintiff, upon the relating to the lumbering operations, the allegations in the bill. Whether some of the

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