De Witt v. Van Schoyk — 16 N.Y. St. Rep. 726

Majority

p. 726

Eliza E. De Witt, Resp’t, v. Cornelius Van Schoyk et al., App’lts.^[1]

(Court of Appeals,

Filed June 5, 1888.)

Headnote

1. Injunction—Court on equity will grant an injunctio to restrain ACTS THAT WILL CAST A CLOUD ON TITLE TO LAND.

A court of equity will interfere to restrain a defendant from proceeding in an illegal act which, if completed, will necessarily cast a cloud upon ' the title to land and naturally diminish its value.

2. Same—Act in derogation on title to land will sustain.

The premises now owned by the parties hereto were originally the property of F., who held the same as one farm. F. conveyed to plaintiff’s grantor the part lying “ east of a public highway,” describing it, and to defendant’s grantor the land west of said public highway, and their lands were described as so bounded. The parties hereto succeeded to the title of their respective grantor. Thereafter the defendant, without right, closed up this highway and began the construction of a new road upon the plaint- ■ iffs land. Meld, that the acts of the defendant were in derogation of the plaintiff’s title, and being calculated to injure her in that respect would sustain an injunction, although no damage had actually happened.

Appeal from a judgment of the supreme court, general term, fourth department, affirming a judgment in favor of the plaintiff entered upon the trial of the action at a special term of Broome county.

Arthur More, for app’lts ; E. H. Hanford, for resp’t.

It is a sufficient statement of the case to say that the premises now owned by the parties hereto were originally the property of Freeman, who held the same as one farm. He conveyed to Rickard and Borrill, and on the 10th of January, 1874, they were divided between Borrill and Rickard, Borrill taking the part lying “ east of a public highway running north and south, leading from Scut’s to Merrill’s,” and Rickard taking west of the highway ; and their lands were described as so bounded. The plaintiff succeeded to the title of Rickard and the defendant to that of Borrill. In 1882 the defendant without right closed up this highway and began the construction of a new road upon the plaintiff’s land. If continued, its effect will be to change or confuse the identity of the boundary between the two farms, render its location doubtful, subject the plaintiff to additional travel on her own land to reach the highway, and open over that land a road •through which the public will be led to travel. These acts were found not only to constitute a public nuisance, but to cause special damage to the plaintiff. The trial court, therefore, sustained the complaint and awarded equitable relief as that to which the plaintiff was entitled. In some reasonable view the evidence sustains the findings of the trial judge, and upon the facts found we entertain no doubt that the conclusion of law, on which judgment was given, properly follows. It might be that the damage sustained or apprehended could be satisfied by a pecuniary award, but the plaintiff is entitled to have the land as she acquired it, nor should she be driven to repeated actions to maintain her right Moreover, the acts of the defendant are in •derogation of the plaintiff’s title, and being calculated to injure her in that respect would sustain an injunction, although no damage had actually happened. To remove á cloud upon title is a well recognized head of equity jurisdiction, and the court will, in like manner, interfere to restrain a defendant from proceeding in an illegal act which, if completed, will necessarily cast a cloud upon that title and naturally diminish its value. Oakley v. Trustees, etc., 6 Paige, 262.

The opinion of the general term discusses with much fullness the points presented- by the defendant and subse-' quently repeated upon this appeal. With the conclusion reached by the special term, and with the approval of that conclusion by the general term, we concur.

The judgment appealed from should, therefore, be affirmed.

All concur.