determine its alleged encroachment on a street. No ordinance had been passed specially directing its removal, and the commissioners were proceeding merely as ministerial officers. In Manko v. Chambersburg, 25 N. J. Eq. (10 C. E. Gr.) 168 (1874) (Runyon, Chancellor), there was a direction by the borough to the complainant to remove his buildings as an encroachment, and a threat on its part to remove if he did not. No ordinance or resolution specially directing the removal seems to have. been passed. The removal was enjoined pending the trial of the right in the action itself. On a subsequent trial of the right at law, it was held that the borough had no right to the removal. Chambersburg v. Manko, 39 N. J. Law (10 Vr.) 496 (Court of Errors and Appeals, 1877). In Tainter v. Morristown, 19 N. J. Eq. (4 C. E. Gr.) 46, 58 (Zabriskie, 1868), the destruction of fences, shade trees and shrubbery was said to be an irreparable injury, which complainant was entitled to enjoin if unauthorized. At the argument I suggested to counsel that a certiorari of the ordinance, which would operate as a stay, might suspend the action of the superintendent pending the decision of the question, and that this application to a court of law might be first made. But the ordinance itself is general and does not specially apply to the complainant, and may be valid as against other persons who have erected fences since its passage, and it seems to be settled by the later cases at law that its validity on certiorari cannot be contested by complainant until judgment for penalties for its violation is obtained against him. Pennsylvania Railroad Co. v. Jersey City, 47 N. J. Law (18 Vr.) 286, 289 (Court of Errors and Appeals, 1888); Gas Light Co. v. Rahway, 58 N. J. Law (29 Vr.) 510, 511 (Supreme Court, 1896). The reason is that ordinances which are general and not necessarily unreasonable or invalid in toto as to all persons affected by them cannot be set aside altogether, which is the effect of a judgment against its validity on certiorari, and if the ordinance is invalid to a limited extent, and only against the prosecutor and others similarly entitled, the method for testing its validity is by objecting to the validity of the ordinance as against them in the penal suits brought for violation. The earlier cases, and also Morgan v. Orange, 50 N. J. Law (21 Vr.)

389 (1888), referred to by defendant's counsel, sustaining the writ of certiorari to such general ordinance before or without judgments in penal suits, have been said to be overruled by these later cases. Hamblet v. Asbury Park, 61 N. J. Law (32 Vr.) 502 (Supreme Court, 1898). The ordinances in question cannot, I think, be said to be certainly and necessarily unreasonable or invalid as to fences subsequently erected, and could not therefore, under the above cases, be set aside on certiorari removing the ordinances, even if invalid as against complainant. The other cases on certiorari to ordinances specially affecting property, referred to by the counsel for the city, are cases where the ordinances on their face affected the property the prosecutor was proved to own, or rights he was entitled to enjoy, and were set aside altogether. Outside of the general ordinances in this case, referring apparently to fences thereafter erected, there is no record or proceeding which the certiorari could remove. The notice by the superintendent is a mere ministerial act, and I know of no case at law which makes such mere ministerial proceedings the subject of judicial inquiry by certiorari. Manifestly the only ground of relief to complainant is the intention of the officer, admitted by the answer, to execute the notice and remove complainant's property under a claim of right. Such threat and claim is, in the absence of a remedy at law, ground for an injunction pending hearing, if the right of complainant is one of a character which requires it. The fence in question is a structure erected by complainant on his own lands and is maintained in connection with the use and enjoyment of his dwellinghouses erected on the lots. Rights of this character are constantly protected by injunction, and the propriety of an injunction, if there was no relief by certiorari, was not contested at the argument. The removal is threatened by a public officer of the city, claiming the right to destroy property of a private owner, under authority given to him by an ordinance of the city. Whether he has such authority is at least doubtful, and as against a municipality exceeding its statutory powers by a destruction of property of this character, used in connection with dwellings, the owner is entitled to have the question of right tried, either in this court or at law, and in the meantime to have

the present status maintained. As an injunction pending determination is the only method of securing this status, he is entitled to an injunction until final hearing. Whether on the final hearing the question of the application and validity of the ordinance will be finally determined, or the cause be directed to stand over pending determination by proper proceedings at law, is not now decided. Complainant should, I think, before final hearing, make the city a party defendant, in order that the city may formally adopt or repudiate the action of the defendant under the ordinance.

HENRY W. DOREMUS et al.*

v.

THE MAYOR AND ALDERMEN OF THE CITY OF PATERSON.

[Filed March 26th, 1904.]

1. The act of 1903, entitled "An act to relieve from pollution the rivers and streams within the Passaic Valley sewerage district," &c., is not a bar to the right of riparian owners whose lands are below the point of pollution to have an injunction against or compensation from the city of Paterson upon the principle laid down in Simmons v. Paterson, 60 N. J. Eq. (15 Dick.) 385.

2. If a bill by husband and wife, filed in respect to an injury to the wife's land, does not show that there is issue, upon the birth of which the husband would become entitled to an estate by the curtesy consummate on her death, such bill is demurrable. If such bill should show the birth of issue and an injury to the husband's right, the proper practice would be to make him defendant, he being a necessary party thereto.

On demurrer to amended bill.

Mr. George S. Hilton, for the demurrant.

Mr. Sherrerd Depue, for the complainants. *This opinion was omitted from its proper place.

The defendant demurs to the amended bill. The case stands thus. In Simmons v. Paterson, 60 N. J. Eq. (15 Dick.) 385, on information and bill filed, it was held that Jersey City had no standing to restrain the city of Paterson from polluting the Passaic river, but that if the riparian owners would, in the language of Mr. Justice Van Syckel, "amend their bill or file a new bill asking for an injunction, unless the city would consent to make such compensation for the diminution in the value of their lands as should be ascertained to be just, such equitable relief could be given to them."

Acting on this suggestion, the riparian owners did file a new bill, in which, however, were joined co-complainants not only riparian owners, properly so called, but two other classes of persons, namely, those whose lands adjoined, not the Passaic river, but the artificially constructed Dundee canal, the waters of which were drawn from the river, and certain lessees of mill power, to whom the Dundee company had leased water rights. I thought that under the authority conferred upon the Dundee company by its charter, which empowered them to lease rights in gross to water power, these two latter classes of persons were entitled to have those rights protected, the pollution of the stream being as injurious to them as to the riparian owners themselves. On appeal the court of errors and appeals adjudged otherwise. Mr. Chief-Justice Gummere said: "In the case now under consideration the city of Paterson is not seeking to acquire any right of the lessees or grantees of a lower riparian owner. They concede that such lessees and grantees have rights, but they contend that those rights are subordinate to the city's right to vent its sewage into the stream. This contention, in our opinion, is sound." The right of the riparian owner properly so called "to an injunction restraining the pollution of the river by the appellants, unless the latter make just compensation to him for the diminution in the value of his property occasioned thereby," was expressly reaffirmed.

*

*

Notwithstanding this reaffirmance the argument of the counsel of the city was largely based upon the assumption that the decision was erroneous. As, however, it cannot, at least, be ques

tioned here, I shall only notice those new points which have not been discussed before and which have not been concluded by the judgment of the court of review.

Counsel contends in the first place that the act of 1903 (P. L. 1903 p. 777) has taken away the complainant's right to an injunction, or, at the election of the city, to compensation. The argument on this act is that inasmuch as it authorizes the construction of a trunk sewer to commence at or near the valley of rocks in Paterson and to extend into New York bay, this sewer, when constructed, will afford an outlet for Paterson's sewage, and the nuisance which injuriously affects complainants' property will cease. His conclusion is that this being so, the court either cannot or ought not to exercise its injunctive power. The argument necessarily rests upon the assumption that the sewer will be constructed, and that Paterson will use it. Counsel for complainants suggests that Paterson, while making this argument here, is contesting the constitutionality of the act in the supreme court. He does not ask me to pass upon its validity, nor shall I attempt to do so. That is now being done by the supreme court. I will consider its provisions on the assumption that it is valid.

In the first place, it does not confer any powers upon Paterson. Its powers are vested in a board of commissioners.

In the second place, it is not, in terms, mandatory. Section 4 provides that the board "is hereby given full power and authority to make, construct, maintain and operate intercepting, main. trunk and outlet sewers," &c. Their authority to do any work is made by section 5 to depend upon the result of an investigation by them "whether the discharge into New York bay is likely to pollute the waters of said bay within the jurisdiction of the State of New York to such an extent or in such a degree as to cause a nuisance to persons or property within said state." They are to present the result of their investigation to the governor, with their opinion and the reasons therefor, and thereupon the same are to be considered by the governor and the attorney-general. No work is to be done unless the attorney-general shall in writing advise that no cause of action for damages or an injunetion will arise in favor of the State of New York or its inhabit