lief she seeks, namely, an injunction restraining the defendant from in any manner interfering with her use of the street, and compelling the defendant to remove so much of the building as he has erected upon its site? That there can be an abandonment of both public and private ways is supported by abundant authority. On the hearing an offer was made, on behalf of the defendant, to show that the Mechanics' Mutual Loan Association, while the owner of "murderers' row," sued the county of Mercer for closing up the street or way in question, and that Peter Dehe, while the owner of the tract now owned by the complainant, made a deed of release to the county for the damages which he had sustained by the building of the approach to the Southard street bridge, which shuts off access from the alleged street to Southard street. Undoubtedly it was these proceedings, and the obstruction of the street or way, which led Albertson in 1895 to make a conveyance of the street to the loan association. He and the association certainly believed that all rights in the way were extinguished, and the association unquestionably conveyed to Hess and Ross, upon the understanding of all parties, that the easement, public or private, had been extinguished. The offer of the testimony adverted to was excluded, and I think properly so, as to the suit for damages, but not so as to the release from Dehe, as will hereafter appear. Surely, if the grade of Southard street had not been raised and an embankment thereby erected across the entrance to East Carroll street, so called, the complainant's rights would not have been lost by the conveyance of the fee of the street by Albertson to the loan association, and by it to Hess and Ross, and by their obstruction of it with their crematory, and the defendant's present obstruction with his building. If the way were a public one, its being obstructed for over 20 years would not extinguish the public's right. If a private one, the right has not been lost by nonuser, because 20 years of nonuse has not continued, coupled with an adverse enjoyment. The easement of way, whether public or private, over the locus in quo has been lost to the complainant, if lost at all, by reason of the changed conditions of and concerning the whole tract originally owned by Albertson, and of which her lands are a part, and by reason of the operations of the defendant upon the tract in question, without protest from the complainant and her predecessors in title, whereby an equitable estoppel, precluding the complainant from asserting the right to use the locus in quo as a way or street, has arisen.

True it is, that when only the foundations of the house, now partly erected upon the tract, were built, the defendant was warned to desist, and in the face of warning he proceeded with his building operation until stopped by the injunction of this court; but,

Southard street had been cut off between 1889 and 1905, a period of six years, by the presence of the abutment wall, built across it on Southard street by way of approach to the Southard street bridge, which wall showed a perpendicular face of some 17 feet, and the defendant, after acquiring the land, built a garbage crematory on part of this way, and by filling in with earth made a way from the crematory out onto Southard street. He was not obliged to make this embankment for the benefit of abutting owners. He made it for the benefit of himself. He was not required to maintain it for the benefit of abutting owners, and he removed it, or at least that part of it where the cellar walls of the building whose erection he has commenced are placed. The annexed diagram shows the exact situation of the locus in quo with reference to the whole premises originally owned by Albertson, more than one-half of which he conveyed to Dehe, and which property (Dehe's) is now in the possession of the complainant. The strip of land which was the street or way in question is a trifle larger than two ordinary city building lots. It is 25 feet in width by 204 feet deep. It is a cul-de-sac, but that would not prevent its becoming a highway. State v. Bishop, 39 N. J. Law, 226, 228. The city of Trenton never accepted the dedication of this so-called street, or worked or repaired it, which is not to be wondered at, and, since the county of Mercer has raised the grade of Southard street, through which street it laid and built the abutment wall across this way to the height of some 17 feet to the bridge beyond, it is safe to say that the city of Trenton never will have anything to do with the locus in quo as a street or public way. To do so would be absurd. Since the demolition of "murderers' row" there is no occasion for the use of this street as a way appurtenant to the lands whereon the tenements which composed that row were erected. This property, where stood the row, as I understand it, is now in the defendant. However that may be, so far forth as the complainant is concerned, the situation is as though all the land on the tract, formerly of Albertson, excluding the tract owned by the complainant and excluding the street, is in the defendant; for the complainant does not claim a right to use the way for access to any premises save her own. Now as a matter of fact her premises are 100 feet front on Southard street, binding northerly on the way in question and running round the same to the rear, forming an L, the rear portion being 71 feet wide and extending down to and haying a frontage of that width on Raywood alley, an alley 10 feet wide, which runs out into Southard street, 100 feet southerly from the southerly line of the way in question. The complainant not only has access to Southard street through this alley, but also

bridge north of the locus in quo and north of the terminus of the abutment wall.

The defendant denies that the complainant has any easement in the premises, and claims title in himself, which title does not depend upon prescription, but upon his deeds and the fact of an abandonment of the easement, public or private, whereby the rights of way over the street in question were extinguished. In Baldwin v. Trimble, 85 Md. 396, at page 402, 37 Atl. 178 (36 L. R. A. 489), the court said: "Whilst an encroachment on a highway is conclusively settled in Maryland to be a public nuisance which can never grow by prescription into a private right,

*

There is no danger,' he continues, 'in recognizing the principle of an estoppel in pais as applicable to such cases, as this leaves the court to decide the question, not by the mere lapse of time, but by all the circumstances of the case, to hold the public estoppel or not as right and justice may require.' In this case (Baldwin v. Trimble) the court went on to review the facts which in its opinion created an equitable estoppel against the public. There was no evidence that the road was ever laid out by the municipal authorities, or that it was ever accepted by them or kept in repair at public expense, but, if ever claimed by the public at all, it was finally abandoned, not because encroached on by abutting proprietors (which in fact was the case), but because no longer needed by the public. Being no longer needed and no long. er used, it was actually closed to travel, and permanent structures were built across its entire width for a distance of seven squares of its length. There seemed to have been no objection to the erection of buildings across the road, and the court remarked that it would be inequitable in the extreme to permit the public to reassert a claim to the bed of the road, after having actually abandoned it altogether, and to subject every individual who had innocently and in good faith expended money in the construction of buildings upon it, to an indictment for maintaining a public nuisance, and to the penalty of removing the buildings themselves, when there was no longer the slightest need for the road. The court further remarked, at page 404 of 85 Md., at page 178 of 37 Atl. (36 L. R. A. 489): "If ever there was a case where the doctrine of equitable estoppel ought to prevail against the public, it cer

ly hold-not that the appellant has acquired by prescription a right to that part of Lanvale road between his two lots-but, having title thereto under his deeds subject to an easement in the public, and the easement having been abandoned so that the public are equitably estopped to reclaim it, his title to the parcels of the road claimed by him, is merchantable." In the case just referred to (Baldwin v. Trimble) the abandonment of the road had existed for a period of 25 years, but I do not understand that the abandonment must be for such a period as would, under the statute of limitations, operate to defeat a private right of way. On the contrary, the rule is just the opposite, and every case in which an equitable estoppel is claimed depends upon its own particular facts. In Pope v. Devereux, 5 Gray 409, the Supreme Judicial Court of Massachusetts said, at page 412: "It is not the dura. tion of the cesser to use the easement, but the nature of the act done by the owner of the easement, or of the adverse act acquiesced in by him, and the intention which the one or the other indicates, that is material. Queen v. Chorley, 12 Ad. El. N. R. 515. And a cesser of use for a less period than 20 years, accompanied by acts clearly indicating the intention to abandon the right, is sufficient."

Of course a private way may be extinguished by an adverse possession for the full period of 20 years. Such a possession will defeat the title to an easement by analogy to, the statute of limitations. Street v. Griffiths, 50 N. J. Law, 656, 658, 14 Atl. 898. Nonuser, accompanied by acts on the part of either the owner of the dominant or the servient tenement which manifest an intention to abandon, and which destroy the object for which the way was created, or the means of its enjoyment, will effect an abandonment. Am. & Eng. Ency. of Law (2d Ed.) vol. 23, p. 42. In Queen v. Chorley, 12 Ad. & E. N. S., 513, Lord Chief Justice Denman remarked, at page 517: "The learned judge appears to have told the jury that no interruption by the public for a shorter period than 20 years would destroy the right [in a private way]. If this were laid down as a rule of law, or even as a conclusive presumption of fact, we think in the former case it was erroneous, and in the latter would be likely to mislead the jury, as turning their attention to a definite period of time as the ground for decision, when time might in truth be wholly immaterial, or only in part material.

The learned judge appears to have proceeded on the ground that, as 20 years' user in the absence of an express grant would have been necessary for the acquisition of the right, so 20 years cesser of the use, in the absence of any express release, was necessary for its loss. But we appre hend that, as an express release of the easement would destroy it at any moment, so

clearly indicative of an intention to abandon the right, would have the same effect without any reference to time. For example, this being a right of way to the defendant's malt house, and the mode of user by driving carts and wagons to an entrance from the lane into the malt house yard, if the defendant had removed his malt house, turned the premises to some other use, and walled up the entrance, and then for any considerable period of time acquiesced in the unrestricted use by the public, we conceive the easement would have been entirely gone. It is not so much the duration of the cesser as the nature of the act done by the grantee of the easement, or of the adverse act acquiesced in by him, and the intention in him which either the one or the other indicates, which are material for the consideration of the jury. The period of time is only material as one element from which the grantee's intention to retain or abandon his easement may be inferred against him; and what period may be sufficient in any particular case must depend on all the accompanying circumstances. This is the principle on which the judgments of all the members of this court proceeded in Moore v. Rawson, 3 B. & C. 332, and which was adopted in Liggins v. Inge, 7 Bing. 682, 693. It is true that those were cases between two individuals, and not be tween the public and one individual: that can make no difference." The doctrine of Queen v. Chorley has been approved in this state. Said Mr. Justice Depue, speaking for the Supreme Court in Horner v. Stillwell, 35 N. J. Law, 307, at page 314: "Even where the cesser of use has not been for 20 years, adverse acts on the part of the owner of the servient tenement, which have been acquiesced in by the owner of the easement, are material for the consideration of the jury on the question of abandonment. Queen v. Chorley, 12 Q. B. 573. Under such circumstances abandonment arises out of the principles of an equitable estoppel." The same learned judge, speaking for the Court of Errors and Appeals in Raritan Water Power Co. v. Veghte, 21 N. J. Eq. 463, cited Queen v. Chorley, at page 480, where he said: "Abandonment is a question of intention. Nonuser is a fact in determining it.

But

Its weight must depend upon the intention to be drawn from its duration, character, and accompanying acts." In Jordan v. City of Chenoa, 166 Ill. 530, 47 N. E. 191, it was held: "While the statute of limitations does not run in favor of an individual against a municipality holding streets and alleys for the general public under acceptance of a dedication, yet the doctrine of equitable estoppel arising from abandonment and nonuser may be invoked against it." City of Big Rapids v. Comstock, 65 Mich. 78, 31 N. W. 811, was a case in which the city filed a bill to enjoin the erection of a building that encroached 41⁄2 inches on a street; and it was held that equity would not grant relief, it

being out of all proportion to the nature and extent of the injury done, or likely to be sustained, by the encroachment. In Lyle v. Lesia, 64 Mich. 16, 31 N. W. 23, it was said: "Where a highway was surveyed, and more or less work done thereon for some 10 years, when a new road was opened, and the old one abandoned by the public, there being for 12 years no travel over it, except by stragglers and lumbermen on foot, and the teams of persons owning the land, who used the old road for their convenience in working the premises, and 6 years after such abandonment the landowner fenced in the land, which remained undisputed for 6 years, when the commissioner of highways assumed to enter upon the premises to repair the old highway, held, that an injunction was properly granted to restrain such action; there being no principle of equity that will sanction or sustain such attempt to rehabilitate an extinct road with the life it may have once had by reason of its user before its abandonment. Where a highway commissioner altered and practically vacated a highway, which action was accepted, and treated for 12 years as valid by every one interested, and by the public generally, held, in a suit by the landowner to enjoin the public authorities from reopening said road, that they cannot defend by showing the illegality of the action of the commissioner in vacating the road for want of the required statutory notice to the landowners."

Now, as we have seen, cases of this character that is, cases in which an easement is said to be extinguished by abandonmentform a law unto themselves; that is, each case depends upon its own particular facts as to whether or not there has been an abandonment, irrespective of any question of the operation of a statute of limitations. Abandonnent depends upon the nature of the acts done or acquiesced in, with reference to the obstruction of the way. The time of the cesser of the use may be wholly inmaterial, and the period of time in any given case must depend on all the accompanying circumstances. Now, further, the facts upon which an abandonment has been worked in this case are the building of the abutment wall, to a sheer height of some 17 feet, entirely across the way in question, thus completely obstructing it; the fact that it remained so obstructed for the six years between 1889 and 1905; that the complainant's predecessor in title, Dehe, or his devisee, had title to the premises during all that time; that the building of an embankment by the defendant from the top of the Southard street wall down to and past the crematory, which he erected partly on the strip in question, was a decided appropriation by him of the way to his own use. This he did during the holding of Dehe, whose rights in the way had become extinguished. Dehe and his devisee retained title until July, 1897, while the proofs show that the defend

ant acquired title and built the crematory in 1895. These further facts are pertinent: The embankment has been removed at the abutment wall, at least to the depth of the cellar of the building which has been partly erected, say to a depth of 6 to 8 feet, and, if opened as a street, the complainant would, like her predecessors in title, be able only, in traversing the way, to go up against a stone wall. The complainant has ingress and egress to and from her lands into Southard street just north of the locus in quo, and on the south into Raywood alley, and therefore no necessity exists for use of the way by her. The truth is there was an absolute physical extinction of the way for all practical purposes by the building of the Southard street bridge, with its abutment wall reaching across and closing up the way. It must be presumed to have been done by proper municipal authority. Its closing may have been the taking of private property for public use, and for which persons having an easement of way in the so-called street were or are entitled to compensation for the damages sustained.

This brings me again to the offer of the defendant to show that Dehe gave a release to the county for the damages he had sustained by the obstruction of the way by the building of the abutment to the bridge. I am now satisfied that I erred in excluding the evidence. Although the giving of the release by Dehe, while the owner of an easement in the locus in quo, did not create an estoppel by deed between him and the owner of the servient tenement, it was nevertheless an act in pais, recognizing the practical extinguishment of the easement, and is evidence of his abandonment of all claim to have the way open for use. Upon familiar principles the acts and declarations of former owners, made during the existence of their title, bind their successors in title. Horner v. Stillwell, 35 N. J. Law, 307. See, also, Raritan Water Power Co. v. Veghte, 21 N. J. Eq. 463. However, the erroneous exclusion of the release is harmless to the defendant, because without the proof that it would make, I conclude that he should prevail. If I thought otherwise, and if proof of the release of Dehe to the county were in my judgment essential to the defendant's case, I would continue the hearing and permit him to make proof of it. Whitehead v. Hamilton Rubber Co., 53 N. J. Eq. 456, 32 Atl. 377.

It would be stretching equity and good conscience too far, I think, to hold that this mere cul-de-sac, no bigger than a couple of city lots, should be opened by a mandatory injunction, so that the complainant could have the privilege of walking over it up against a stone wall, when, as seen, for six years it was absolutely obstructed by the wall, in consequence of which obstruction a row of houses, to which it was formerly tributary, were demolished because no longer

quiring title to the tract built his own embankment to give him access to Southard street for his own purposes, and afterwards removed the embankment, at least in part, and when the complainant has two places of ingress and egress to her premises, one of which is just north of the locus in quo. To paraphrase the language of one of the cases, there is no principle of equity that requires the court to rehabilitate this extinct way because of the life it once had, by reason of its user before abandonment.

The county of Mercer rendered absolutely useless, if it did not totally extinguish, this easement. The complainant's remedy, if any she has (and if the lapse of time and Dehe's release does not preclude her), is against the county for damages, rather than against the owner of the fee in the locus in quo, who is, under all the circumstances, an innocent purchaser for value, and who should not be required to keep the way open for the complainant's useless and purposeless enjoyment. I say the defendant is an innocent purchaser for value under the circumstances, and the circumstances justify the assertion. It must have been perfectly apparent to every one that by the building of the approach to the Southard street bridge the way in question, sometimes dignified by the name of a street, was effectually and permanently closed. It has been so acted upon. Of this there can be no doubt. The defendant acquired title for value in 1895, 13 years ago, and has been in undisputed possession till now. He built and operated a garbage crematory upon part of it, using an embankment, which he erected, as a way to the crematory over the lot in question. It was not when he removed part of the embankment, but when he commenced the erection of his building, that complaint was made. In my judgment he is entitled to remain in undisturbed possession.

It should not be forgotten that the complainant's devisor purchased from Dehe's devisee the premises, which have always surrounded the locus in quo on two sides. It does not appear when Dehe died, but he was alive during part, if not all, of the 6 years that the way was effectually obstructed by the abutment wall. When the complainant's devisor purchased of Dehe's devisee he saw, if he did not see before, the embankment built by the defendant, running down from the wall on Southard street to his (defendant's) crematory, which occupied 16 out of the 25 feet of the way in question. The complainant lays great stress upon the fact that her deed calls for a tract bounded upon the locus in quo, describing it as a street 25 feet wide and 204 feet deep. This "street" was so decidedly obstructed by the crematory, and was of such a peculiar character when her devisor took title, as to put him upon notice of all the antecedent facts and conditions which had obtained with refer

ally estopped by constructive notice, if he did not already have or then acquire actual notice, of the practical extinguishment of the easement. Raritan Water Power Co. v. Veghte, 21 N. J. Eq. 463, 478. Of course the complainant acquiring title by devise, took her lands in the exact situation in which her devisor left them.

The right the complainant claims cannot be for a way built by the defendant 17 feet high at Southard street, sloping down to the natural level of the ground some distance back, but a right to traverse a way on that level over its entire length. As already seen, the way was totally obstructed for all practical purposes, because ingress and egress to and from it to Southard street was extinguished by the presence of the wall, for 6 years, and for the 12 years thereafter, ending at the time of the filing of the bill; the way was not only obstructed, but appropriated by the defendant by his embankment and crematory. Therefore the obstruction, amounting to an extinction, of the way has continued for 17 years and upwards. In this obstruction and extinction the complainant's predecessors in title, and the complainant herself, have acquiesced. She cannot now be heard to say that the defendant's possession has not become an indefeasible right.

The complainant's bill must be dismissed, with costs.

M. REDGRAVE CO. et al. v. REDGRAVE. (Court of Chancery of New Jersey. Oct. 24, 1908.)

1. CORPORATIONS (§ 36*)—DURATION.

A corporation engaged in manufacturing toys could, under the corporation law (Laws 1896, p. 277, c. 185), continue its existence indefinitely by proper proceedings.

[Ed. Note. For other cases, see Corporations, Dec. Dig. 36.*]

2. JUDGMENT (§ 408*)-EQUITABLE RELIEFEXISTENCE OF LEGAL REMEDY.

Whether complainants were entitled to a larger estate in defendant's premises, under an agreement with him, than a monthly tenancy, as adjudged by the district court, will not be determined in a suit to enjoin the enforcement of the judgment, since, if true, complainants have a legal remedy.

[Ed. Note. For other cases, see Judgment, Cent. Dig. § 772; Dec. Dig. § 408.*]

3. JUDGMENT (§ 414*)-EQUITABLE RELIEFEQUITABLE NATURE OF GROUNDS.

Complainant corporation purchased defendant's business from him under his oral representations that complainant could use the building in the business as long as it chose, and thereafter asked him to sign a lease for the building at a stipulated rent, which he declined to do on the ground that they could use the building as long as they chose without it. fendant afterward obtained a judgment of ouster, which decided that complainant held only by a monthly tenancy. The business could be carried on elsewhere as well as in defendant's building, and there was but little machinery

De

in the building, and that easily moved. Whatever damages complainants or the corporation sustained by breach of defendant's agreement were recoverable at law. Held, in a suit to restrain the enforcement of the judgment of ouster and protect complainants' rights under the oral agreement, that, since to grant the relief would be to enforce in perpetuity an oral lease without mutuality of obligation or a provision for rent, and in view of complainants' subsequent offer to pay rent, and all the other circumstances, the enforcement of the judgment would not be restrained.

[Ed. Note.-For other cases, see Judgment, Cent. Dig. § 780; Dec. Dig. § 414.*]

Suit by the M. Redgrave Company and others against Montague Redgrave to enjoin the enforcement of a judgment, and for other relief. Injunction denied.

This is an application for a preliminary injunction to restrain the execution of a judgment of ouster or dispossession obtained in the district court of Jersey City by Montague Redgrave, the defendant, against the M. Redgrave Company, one of the complainants.

The bill charges: That Redgrave was engaged in the business of manufacturing games and toys at Nos. 9 and 11 Willow Court, Jersey City, N. J., a property owned by him; that he had been engaged in such business for 20 years preceding the incorpora · tion of the complainant company, which took place on the 10th of September, 1906; that they purchased from him his business and patents, issuing stock to him therefor; that the individual complainants purchased their stock upon the understanding that the corporation could occupy the building occupied by Redgrave and there carry on its business and remain as long as it, the corporation, pleased; that they presented a lease to him for five years, which he said it was unnecessary to sign, because the company could remain as long as it pleased; that the building is fitted for the business there carried on; that in the month of January, 1908, it was discovered that Redgrave had retained in his possession moneys of the company approximating $3,000, there being a dispute between him and the directors as to whether the sum was greater than $2,300; that Redgrave was deposed from his position as president and manager, and thereafter communicated with customers of the company and ordered raw materials of the character theretofore ordered by the company to be delivered at the premises; that on the 29th of May, 1908, a notice terminating the tenancy on the 1st of July, 1908, was served by Redgrave upon the company, and on the 20 of July a summons in dispossess proceedings, returnable July 8, 1908, was issued out of the Second district court of Jersey City; that on the 15th of July, 1908, this case was tried, and judgment for possession given in favor of Redgrave against the company. It is charged in the bill that the judgment is erroneous and illegal, because the district