Security Trust and Safe Deposit Co. v. N. J. Paper Board, &c., Mfg. Co.

and without the benefit of the deliberate opinion of the trial judge to which we are entitled by the constitution.

Our consideration of the question argued has led to the conclusion that the decree was rightly made.

It is to be observed that the bonds in question do not contain the agreement that the principal shall become due upon default of payment of interest. That appears in the mortgage alone. But when it appears that such instruments are executed simultaneously and in respect to the same transaction and they refer to each other, as is the case here, the terms of each are qualified by applicable provisions of the others and a stipulation of this sort in the mortgage becomes part of the obligation of the bonds. 2 Jones Mort. § 1179; Waples v. Jones, 62 Mo. 440; Schoonmaker v. Taylor, 14 Wis. 313.

It is settled in this state that an obligation for the payment of money at a specified place creates, not a conditional liability dependent upon presentment and demand of payment at that place, but an absolute liability to pay generally. In an action at law upon such an obligation presentment for payment at the place named therein need neither be pleaded nor proved. Adams v. Hackensack Improvement Co., 15 Vr. 638.

The bonds in question would therefore have become due on June 5th, 1905, without presentation at the banking-house at which they were payable, and thereafter an action at law could be maintained thereon.

In like manner the coupons attached to the bonds became due at the respective dates at which they were payable without presentation at the banking-house at which they also were payable, and thereafter an action at law could have been maintained thereon.

In any such action the fact that money to pay the obligations had been provided at the designated place could be interposed not as a complete but as a partial defence. Adams v. Hackensack Improvement Co., ubi supra.

If the obligation of these coupons could thus be enforced in an action at law, it is obvious that their non-payment was a default in the payment of the interest such as was contemplated by and contained within the covenant in question.

H. B. Anthony Shoe Co. v. West Jersey R. R. Co.

Had it appeared that money for the payment of these coupons had been provided at the banking-house named, so that, upon presentation, they would have been paid, another question would have been presented. In decreeing the foreclosure of mortgages which have become due by default in payment of interest under such a stipulation, the court of chancery enforces agreements respecting the time of payment of principal, intended to secure the prompt payment of interest, which the parties are competent to make and which it is not inequitable to enforce. Baldwin v. Van Vorst, 2 Stock. 577; Fisk v. Spring, 6 C. E. Gr. 175; Ackens v. Winston, 7 C. E. Gr. 445. But when the default has been brought about by fraudulent or inequitable conduct on the part of him who seeks to take advantage of it, the court will not enforce the agreement. McCotter v. De Groot, 4 C. E. Gr. 72; S. C., 4 C. E. Gr. 531; Wilson v. Bird, 1 Stew. Eq. 352.

It is, however, established by the proofs in this case that no money was provided for the payment of the coupons in question, and therefore the effect of such provision need not be considered. The decree must for these reasons be affirmed.

For affirmance-THE CHIEF-JUSTICE, DepuE, VAN SYCKEL, DIXON, GARRISON, LIPPINCOTT, GUMMERE, LUDLOW, COLLINS, BOGERT, NIXON, HENDRICKSON, ADAMS, VREDENBURGH-14.

For reversal-None.

57 607 f63L 99

H. B. ANTHONY SHOE COMPANY, complainant and appellant,

WEST JERSEY RAILROAD COMPANY, defendant and

respondent.

[Argued March 25th, 1898. Filed December 30th, 1898.]

1. Where the abutting owner of land on a street owns the fee to the middle of the street, he may maintain a bill to enjoin an unlawful erection on the street in his front.

H. B. Anthony Shoe Co. v. West Jersey R. R. Co.

2. Where he does not own the fee of the street, he cannot maintain a suit to restrain a nuisance which injures him only in a right enjoyed by him as one of the public.

3. Under ordinary circumstances where there is no special injury to the complainant, and where the remedy by indictment is sufficient to abate the nuisance, and to restore to the public use the entire highway, equity will not interfere even on behalf of the public.

On appeal from a decree advised by Vice-Chancellor Pitney, who delivered the following opinion:

The complainant is an abutting owner on the west side of a street called Seventh street, in the city of Camden, along a portion of which runs, longitudinally, the West Jersey railroad. He says this railroad company has laid an additional track, on the west side of its previous track, and immediately in front of his premises, which are on the west side of Seventh street, in such a manner as to interfere seriously with the approach to his premises. And it seems to me that the facts, as shown, support the allegation that the additional track does interfere so seriously with the approach to his premises that if his right in the premises were perfectly clear this court would enjoin the defendant company.

I have remarked already, in the course of the argument, that this is an action brought in a court of equity not to enforce an equitable right, but to protect a party in the enjoyment of a strictly legal right, on the ground that the remedy for the infringement of that right is inadequate at law. There is a large and familiar class of cases where this court does interfere to protect a party in the enjoyment of a purely legal right, and if the complainant's right here was perfectly clear, and well settled at law, my impression is that it would be a case within that class. But in order to bring him there it is perfectly well settled that his right must be clear at law, and this court interferes only in those cases where the right is clear at law. That doctrine was established in the case of Prudden v. Morris and Essex Railroad Co., 4 C. E. Gr. 387; S. C. on appeal, 5 C. E. Gr. 530, followed by the case of Higbee v. Camden and Amboy Railroad Co., 4 C.

H. B. Anthony Shoe Co. v. West Jersey R. R. Co.

E. Gr. 277, and in numerous cases since, and, although the propriety of its application in the Prudden Case has been seriously doubted by judges and members of the bar, yet the principle laid down has never been impugned and is as old as the occasion of the exercise of the jurisdiction now asked for.

Now the question is, whether the complainant's right is clear at law. And it arises in this wise: Somewhere in the forties the property here in question belonged to two brothers named Cooper, or one of them, who was the original proprietor of land in the neighborhood of the city of Camden. They laid it out in streets, on paper, and made a grant to Hart and McCurdy, describing the land which they granted as running to the centre of Seventh street, as proposed.

Later, Hart and McCurdy divided that land by a deed between them, or by some partition proceedings, in which Seventh street is laid down on a map, and the property here in question came to be owned by Mr. Hart by a grant which recognized, as between Hart and McCurdy, the existence of Seventh street and located it with substantial accuracy; but at that time it had never been used or opened as a street, had never been fenced or traveled as a street, but was a part of an unreclaimed common. In 1854 the West Jersey railroad was built from Camden to Salem and Cape May, and its centre line was laid along what the parties believed to be, and what I take for present purposes to be, the true centre line of this paper street called Seventh street. At that time it had never been accepted by the public, never been used by the public, never been recognized by the city of Camden as a street, and was purely a paper street, and, so far as actual dedication goes, it was limited to the grantees. As between all the grantees of Hart and McCurdy and anybody that they had conveyed to in the same way, it was binding between them. But the public had acquired no interest or right in it. So far as the evidence goes, it seems to me that no irretrievable step had been taken on the part of the owners by reason of which they could not have withdrawn the street from the public, so far as dedication was concerned.

In 1854 the West Jersey Railroad Company took proceedings

1

H. B. Anthony Shoe Co. v. West Jersey R. R. Co.

to condemn a strip twenty feet wide on the west side of the centre line of this Seventh street and the centre line of their road, as located and on file in the office of the secretary of state, according to law, for the use of their railway. They got an award of commissioners in the ordinary way, and that award of commissioners was accepted by Mr. Hart, who was the then owner of this particular block of land, and he gave a deed to the railroad company, which is dated on the 9th of September, 1854. It recites the award of the commissioners and then witnesseth that Mr. Hart, in consideration of $525, did "grant, bargain, sell, release and confirm unto the said party of the second part, their successors and assigns," the land in question,

"together with all the privileges and appurtenances to the same belonging; to have and to hold unto the said party of the second part [that is, the railroad company] for the use of the said railroad company for and during the continuance of the said railroad, to their only use, benefit and behoof forever."

It is claimed by the complainant that this deed must be construed in connection with the award of the commissioners, which was only of a right of way. I expressed the opinion during the argument that that was probably so. I shall adhere to that, although I am not at all sure that the right of the railroad company was not increased by that grant over and above what they got by the award of commissioners. I am not sure that it was not a conveyance of the fee, and I am not sure that I am right in not so holding; but for present purposes I do not think it necessary for me to determine the question whether or not that deed did increase the right of the railroad company. At that time, by the consent of Mr. Hart, who is the grantor of the complainant, in whose shoes the complainant stands, the railroad company had a right, under that deed, to build an ordinary railway on any part of that strip, and nobody could gainsay them. I am also of the opinion that they might have fenced it in, because I think it is well settled that a railroad company may fence in their right of way.

Although under the decision of the supreme court in Taylor v. Long Branch Railroad Co., 9 Vr. 28, affirmed in the case of