755, 767; Nat. Docks v. United Co's., 53 N. J. Law, 218-224, 21 Atl. 570. A case of that sort is one of equitable, and not of legal, cognizance. It appertains to the exclusive, and not to the auxiliary or concurrent, jurisdiction of chancery. Says Beasley, C. J., in the leading case (D. L. & W. R. R. v. Erie R. R., supra): "They [the two companies] are tenants in common of an easement, and if this court cannot protect the one against the injustice of the other, the party whose rights are invaded is clearly without any adequate remedy." But if the case is one of equitable cognizance, it would seem to follow that equity may use any remedy appropriate to the circumstances. Not only a remedy merely preventive, but also one that is mandatory-any remedy whatsoever, out of its store of remedies adequate to promote and secure the joint user in such a way as the law requires in view of the particular situation.

The test of jurisdiction would seem to be the existence of actual conflict. If there is no conflict, there is no jurisdiction. This court does not ordinarily compel a corporation to do its duty. Performance of a duty, neglected or contested, is enforced by the Supreme Court by mandamus. It would seem to have been this aspect of the matter that presented itself to the judges in N. Y. & Greenwood Lake R. R. v. Montclair, 47 N. J. Eq. 591, 21 Atl. 493. The case was one of demurrer to a bill, and, as will be seen by a reference to the facts stated in the preface to the opinion of the Chancellor (Montclair v. New York & G. L. Ry. Co., 45 N. J. Eq. 436, 18 Atl. 242), it appeared that the predecessor of the defendant company had constructed a bridge over a cut, the bed of which had been graded, but on which no rails had been laid. This bridge had been suffered to decay, and the question was whether the defendant company, as the successor of the original company, was under an obligation to rebuild it. The question was apparently one of legal duty, not of conflicting easements. It was in view of such a situation that Mr. Justice Reed said: "The doctrine that a court of equity will not act in any instance where the common-law courts possess adequate power to afford the relief asked for is fundamental. The power of the common-law courts to compel the performance of duties of the kind under consideration * is complete." Be this as it may, I must hold that, from whatever source derived, the power to compel railroad elevation over a highway, if that is the only way in which the joint user can be properly secured and enjoyed, exists in this court. Chancellor Magie was, as it seems to me, strictly logical when he held that, inasmuch as it had been decided that the second clause of section 29 was broad enough to confer the power to order the company to reconstruct its railroad bridge over a highway by length

embankment, it was also broad enough to authorize this court to order the defendant company to reconstruct its tracks across the highway by elevating or depressing them. If the generality of the language of the clause included the one, it necessarily included the other. But an affirmation of the jurisdiction of this court does not solve the question as now presented. The allegations of the bill are so general that they present little more than the abstract question whether, under any circumstances, this court would compel a railroad company to elevate or depress its tracks. The decision was that in a proper case it would. Whether it would or not was held to depend upon the special facts. ΤΟ these I now address myself.

Summer avenue is a residence street. The houses fronting upon it extend northward as far as the railroad. Further north there are still many vacant lots, both on the avenue itself and to the east and west of it, but the town is growing in that direction. There are six tracks laid across the avenue at grade. The general lay of the land in the immediate vicinity is level, and the tracks, if unobstructed by cars, moving or standing still, may be seen eastward and westward, by a person standing from 20 to 30 feet away, for about a quarter of a mile. From 1,000 to 1,200 people, and over 100 vehicles, cross daily between 6 o'clock a. m. and 6 o'clock p. m., and about a third as many at night. From 22 to 28 passenger trains each way pass over the crossing every 24 hours. The number of freight trains running through is small, but in the operations of the local yard, and in the making or breaking up of trains, freight cars frequently cross and recross the avenue. The yard and freight station are between Summer avenue and Washington avenue. The obstruction to travel seems to be mainly due to the freight cars. The gates are frequently lowered, and the delay amounts, at times, to several minutes. According to complainant's count, in the 24 hours between 6 a. m. of August 2 and August 3, 1907, the gates were down 30 times for 3 minutes or more. The report shows that the delay to travel thus occasioned resulted chiefly from the handling of freight cars. As the freight house and water tank, as well as the yard, are in the vicinity, the side tracks are seldom unoccupied, and the cars standing on them are a serious obstruction to the view up and down the tracks. The street crosses the railroad at right angles. It occupies the site of an old highway that was laid out many years before the advent of the railroad. This I think gives a general view of the situation. The question is whether such a situation calls for an elevation of the road at the point in question, under the rule laid down in the Central Railroad Case. It is admitted that it cannot be depressed; and, if elevated, the grade at Mount Prospect avenue, further to the westward, will have to

would be practically gone. The question is, then, one of fact, to be determined according to the circumstances of the case. In considering the question it must, however, be remembered, that it is no light thing to order a change in the grade of a steam railway. In the language of Church, C. J., in People v. N. Y. C. & H. R. R. Co., 74 N. Y. 302, "the grade necessarily embraces considerations of convenience, expense, and facility of construction and operation, and is fixed at a particular point with reference to grades at other points." The Legislature has therefore necessarily vested the company with a considerable discretion in determining what and where it shall be.

Coming to the evidence, it appears that there has as yet been no accident, although the situation, as it exists, seems to be such that one might easily occur, especially as the crossing is used daily by a considerable number of school children on their way to and from the public school. The only safeguard hitherto provided has been gates, raised and lowered by an operator in a tower, several hundred feet distant. But there is a complication in the case. The company has, without the consent of the city, placed on the crossing no less than six tracks. One of these is conceded to be merely for the convenience of a near-by factory (as to which, see Montgomery v. Trenton, 36 N. J. Law, 279); another for the convenience of another factory, but occasionally used for general freight delivery. Still another-the north siding-is used in connection with the defendant's yard, of which it seems to be an adjunct. Mr. English, in his evidence, calls it a "passing siding." He admits, however, that it has a dead end, and that it is used most of the day for the storage of coal and other cars. These three tracks, so far as they are laid upon the highway, seem to me to be unlawful structures. The right of the railroad over the highway is a right of passage, with the reasonable incidents of passage, nothing more.

its tracks as though they were within its terminal yards, and so used them constantly in its everyday concerns." Accordingly, an injunction was given against the use of the tracks for purposes other than of pas, sage. The case of State v. Morris & Essex R. R. Co., 25 N. J. Law, 437, is very much in point. There the railroad had been indicted for obstructing the highway, at or near the village of Rockaway, by placing its cars upon the streets and allowing them to remain there and obstruct its use. Green, C. J., said: "It is admitted that the freight could not be received and discharged at the Rockaway depot in its present location without, to some extent, impeding the public travel, and that the defendants have not willfully caused any obstruction beyond what their business at this depot required. The necessity of obstructing the highway results, not from the exercise of their corporate rights, but from the improper location of their depot. A station house and freight depot may be necessary to the operations of the company. It may be necessary that the cars should stand for half an hour, or an hour, to receive and discharge freight. But there is no necessity that the depot should be so located as to cause an obstruction of the highway by the cars. The company cannot, by its own imprudence, create a necessity for the obstruction, and then justify the nuisance on the ground of the necessity which they have created. Because a depot is necessary to the operations of the company they are not therefore justified in building it upon the highway, or so near it that their trains must injuriously affect public travel. The fallacy of the argument on the part of the defendants consists in assuming that placing the depot in its present location was a matter of necessity." In these two decisions is indicated the solution of the present question. The company in the case in hand has been doing just what the Court of Errors and the Supreme Court said, in the cases above quoted. from, it could not do. For its own convenience it has placed its switches, its sidings, its yards, its freight depot, and its water tank in such close proximity to the highway that it now finds it necessary to use it otherwise than as a way. Of the three remaining tracks, two are undoubtedly used for passage. The third, as I gather from the evidence, is used both for passage and for yard or station purposes. It cannot be lawfully used for the

three tracks first spoken of, where they cross the highway, be eliminated, and the unlawful use of the other enjoined, I do not think that the crossing, properly guarded, will be more dangerous, in an absolute sense, than most of the other grade crossings in the cities and many of the other municipalities of the state.

To sum up: The Legislature has not seen fit to abolish grade crossings except to the

interests of Tucker and Hodgdon finally became the property of Willis Tucker, now deceased, of whose estate the defendant Miles is the administrator. In carrying on lumbering operations the contractors have made certain improvements on the lands of the plaintiff, which the reasonable prosecution of the work rendered necessary and convenient. They also secured certain leases of lands and rights from third parties, which were used in carrying on the work. It is alleged that neither the contractors nor their successors have performed the conditions of the contract, but in 1903 abandoned the contract, and that in consequence thereof all the improvements made by them upon the lands and all leasehold rights acquired by them became the property of the plaintiff, upon the giving of a written notice to that effect to the defendants, which notice was given. In October, 1903, Tucker gave a personal mortgage of the improvements to the Tucker Lumber Company, one of the defendants, to secure the sum of $25,000. Miles has already removed some of the improvements, and threatens to sell or remove others. The prayer is that the improvements be decreed to be the property of the plaintiff, that an assignment of the leases from Miles as administrator to the plaintiff be ordered, and that Miles be restrained from removing or interfering with the property. By an amendment to the bill, the plaintiff seeks to recover damages for the nonfulfillment of the con

tract.

Drew, Jordan, Shurtleff & Morris, for plaintiff. Herbert I. Goss and Sullivan & Daley, for defendants.

WALKER, J. The principal contention involves a construction of section 5 of the agreement. The plaintiff claims, in effect,

that that section contains two distinct contracts or undertakings, viz.: (1) That the contractors should transfer and assign to the Glen Company all improvements made by them under the other provisions of the contract and all leases secured by them in the prosecution of the work, whenever they obtained a loan of money from the company, which property should be held as collateral security for such loan, and in case the loan was not paid when due the title to the property should at once pass to the company; and (2) that the property should at all times be deemed to be security for the contractors' performance of their agreements contained in the other sections of the contract, and in case of a breach thereof it should become the absolute property of the company, upon notice from it. There is no claim by the plaintiff that the contemplated loan was made, or that there was any transfer of the property; but it is insisted that, upon the failure of the contractors to perform their agreements relating to the lumbering operations, the

leases, was forfeited to the company and became its property, by virtue of the terms of section 5, without a formal transfer. In ac cordance with this theory, the plaintiff asks for a decree establishing its right to the property, ordering a transfer of the leases, and restraining the defendants from interfering with the property. But the language of section 5, upon a reasonable construction, does not support the plaintiff's contention. The principal purpose of the parties therein was to provide for a loan of money if the contractors should desire it, in order that they might carry on the work more conveniently and expeditiously. In an undertaking of this magnitude, large expenditures of money were required, and it was the purpose of the parties to make arrangements for that necessity at the request of the contractors. The company for its protection required a pledge or transfer of certain property, termed the "improvements and leases," to hold as collateral security if it made the contemplated loan. The collateral thus transferred was to stand primarily as security for the payment of the notes evidencing the loan, and it may be it was intended as security for the performance of the contractors' agreements generally; but, if it had this effect, until a loan was made no transfer of property could be insisted upon by the company, and, in the absence of a transfer to secure payment of the contractors' notes, the property could not be held as security for their other agreements. So long

as the contractors did not ask for the loan

of money to carry on their operations, the inference is that the company did not desire to insist upon specific security for the general performance of the agreements of the contractors. At least, it seems clear that the parties did not understand they were making two distinct and independent contracts of indemnity; one relating to the notes, and the other to other promises on the part of the contractors. If the intention was that the improvements and leases should be deemed to constitute a general security, without regard to whether a loan of money was made or not, it would be natural to expect some definite expression of that intention. A matter of that importance would not ordinarily be inserted incidentally and parenthetically in a paragraph dealing with an entirely different matter. It would not be left to be discovered by an involved inference which neither the language nor the subject-matter renders necessary. As it is not alleged that a loan was made, or that the property was transferred, it is not perceived how section 5 became effective, or how under it the plaintiff became entitled to the improvements and leases.

This result renders it unnecessary to consider the rights of the mortgagees of the property, as against the plaintiff, upon the allegations in the bill. Whether some of the