quired to pay him the rent for those months. An answer was filed by the receiver to this petition, and on the issue joined testimony was taken. The lease referred to in the petition was offered in evidence. It is under seal, dated September 28, 1892, and is between Herman Beck and Frederick Lisiewski, by which the premises in question are demised and leased unto Lisiewski for the term of three years from the 1st day of April, 1893, at the yearly rent of $600, payable monthly in advance. It appeared that one Wallenburg went into possession of the premises, but when, under whom, or on what agreement, did not appear. It also appeared that the rent of the premises from April, 1893, to and including June, 1894, was paid by checks of the Eagle Brewery of Newark directly to Herman Beck, the lessor, but why, or on what agreement, if any, did not clearly appear. A chattel mortgage upon the fixtures in the saloon, made by Wallenburg to the Eagle Brewery of Newark, was offered in evidence, which mortgage has been assigned by the brewery to other parties. The Eagle Brewery of Newark, on the 26th day of July, 1894, was, as an insolvent corporation, put in the hands of John R. Hardin as receiver. Wallenburg continued in the possession of the demised premises, and Hardin, as the receiver, without any express contract with Mr. Beck, paid the amount of rent reserved in the lease to him for the months of August, September, and October. In the latter part of October, Mr. Hardin, by letter, requested Mr. Beck to come to the brewery, in response to which he went there, and was informed that Mr. Hardin proposed to give up the demised premises after the month of October. Mr. Beck said, "Very well," but that it was a matter he would have to see his lawyer about. Wallenburg still continues in possession, and Mr. Beck has taken no steps against him to turn him out. The corporation involved in this case is an insolvent one. The court has put it into the hands of a receiver, in order that its property may be equitably divided among its creditors. This application, if granted, would make Mr. Beck a preferred creditor for the amount claimed to be due. The unpaid rents accrued, partly prior to the decree of insolvency and partly afterwards. Assuming, for the moment, that the company was liable for the rent for the month of July, which became payable on the 1st of that month, it was the owner of no property on the demised premises to which a lien for the rent could attach; and, if Mr. Beck had any claim whatever against the company for the rent of July, it was as a general creditor, for which he should have filed his claim, and shared with the other creditors. I am, however, at a loss to understand on what theory the Eagle Brewery of Newark is to be held liable for the rent. It cannot be for use and occupation (Revision, p. 570, § 3), nor can it under this lease. It is not named in the lease. The lease is under seal.

"The rule that an unnamed and unknown principal shall stand liable for the contract of his agent does not apply to a demise under seal. The relation between the owner of the land and those who occupy it is of a purely legal character, and the fact that the lesseetakes a lease for an unnamed principal, but in his own name, will not render the unnamed principal liable for the rent." Borcherling v. Katz, 37 N. J. Eq. 150; Walters v. Mining Co., 5 De Gex, M. & G. 629; Cox v. Bishop, 8 De Gex, M. & G. 815; Kiersted v. Railroad Co., 69 N. Y. 343. How was this situation changed by the appointment of a receiver, and by his action? No actual change in the possession of the property took place. Wallenburg continued there as before. The receiver took no actual possession of the demised premises. All that he did was to pay the rent reserved at the beginning of the months of August, September, and October. That imposed upon him no contractual liability to continue the payment of the monthly rent. It did not in any wise. alter, in my judgment, the rights or liabilities of the original parties to the lease. He did all that he was called upon to do by considerations of justice, and more than it seems to me he was legally required to do, by notifying Mr. Beck in a way that he would know that the receiver did not propose to pay the rent after that month. I think the petition should be dismissed.

FEENEY v. BARTOLDO. (Court of Chancery of New Jersey. Feb. 5, 1895.)

NUISANCE-INJUNCTION-DISTURBING NEIGHBOR.

Where a saloon keeper causes a piano to be played in his saloon each night from 7 o'clock till 10, and sometimes till 11 o'clock, to the music of which dancing, accompanied by loud noises, is indulged in. the effect of which is to prevent the occupant of an adjoining dwelling from sleeping, a preliminary injunction will, at the suit of such occupant, be granted, restraining the use of the piano after 9 p. m.

Bill by John Feeney against Negro Bartoldo to enjoin defendant from using a piano in his saloon. Application for a preliminary injunction granted.

S. M. Ward, for complainant. F. W. Freeman, for defendant.

BIRD, V. C. This is an application for a preliminary injunction, restraining the defendant from the use of a piano. The defendant is the owner of a saloon next adjoining the dwelling of the complainant. In this saloon the defendant makes sale of beer and other liquors, and on the 5th of January of the present year placed therein a piano, which has been played every night, except Sunday nights, from 7 o'clock until 10, and sometimes until after 11 o'clock. This is accompanied with dancing and loud noises by the customers of the defendant. The eff.ct of this musical and pedestrian performance is

to so greatly annoy and disturb the complainant and his wife and children that they are unable to sleep at night during the continuance of these noises. Hence the application for the interference of this court. That the defendant has a right to the ordinary and proper use of a piano in his saloon, and that his customers have a right to dance to the music as expressed by such instrument, there can be no doubt. There is no distinction between citizens in this respect. Every citizen

is permitted to possess himself of the instrument, and also to enjoy a dance. But it is equally well settled that every citizen, in the exercise of his individual rights in the use of his property, is limited to such use as will not interfere with the reasonable rights of others in the enjoyment of their property. With these fundamental principles, concerning which there can be no dispute, and with the cases of Thompson v. Behrmann, 37 N. J. Eq. 345; Walker v. Brewster, 5 L. R. Eq. 25, and Soltau v. De Held, 2 Sim. (N. S.) 133, as a guide, I do not see my way clear to deny the preliminary injunction, so far as to restrain the use of this instrument after 9 o'clock in the evening. This may abridge the supposed enjoyment of the defendant and his customers, but, if the allegations of the bill sustained by the affidavits annexed thereto are at all to be relied upon, the defendant's legal rights will not in any sense be impaired. If the defendant desires, he can, by application to the court, have the case promptly brought to a final hearing, and speedily disposed of, unless the complainant shall insist upon such delay as the ordinary practice of the court may tolerate. In case the complainant should in any sense resist a speedy hearing of the cause, the court would feel itself at liberty to dissolve the injunction. I will advise an order that an injunction do issue restraining the use of the piano by the defendant or his agents after the hour of 9 o'clock in the evening.

NATIONAL DOCKS & N. J. JUNCTION CONNECTING RY. CO. v. PENNSYLVANIA R. CO. et al.

(Court of Chancery of New Jersey. Feb. 5, 1895.)

RAILROAD COMPANY RIGHT TO CROSS ANOTHER ROAD REGULATION BY CHANCERY-EFFECT OF CONDEMNATION OF RIGHT STAY BY WRIT OF ERROR.

1. Where two railway companies possess a community of interest in the land upon which they cross each other, and disagreement or misunderstanding arises between them as to their respective rights of use of the same, the court of chancery will control and regulate the use of the land by them, according to their respective rights.

2. If the court of chancery is satisfied that the railway company which invokes its aid is proceeding in the acquisition of its right of way, and in the construction of its road, in good faith, and with apparent ability to expeditiously and properly perform its work at the crossing, it will not refuse it assistance in the

enjoyment of its right in the crossing merely because it has not yet secured a right of way over its entire route.

3. The right of a railroad company to enter upon condemned lands, conferred by the general railroad law (Revision, p. 925), upon payment of the amount found by the jury on the trial of an appeal from the report of commissioners, is not stayed by the suing out of a writ of error by the owner of the land.

4. Nor is such right of entry stayed or lost by the subsequent setting aside of the verdict of the jury, for error in the rulings of the judge at the trial.

ed.

5. Manner of the court's interference stat

(Syllabus by the Court.)

Bill by the National Docks & New Jersey Junction Connecting Railway Company against the Pennsylvania Railroad Company and another to enforce the right, acquired under condemnation proceedings, to construct a tunnel across property occupied by defendants as a car yard. On order to show cause. Heard on bill, answers, affidavits, and other records in other suits concerning the same subject-matter. Decree for complainant.

Charles D. Thompson, Charles L. Corbin. and John R. Emery, for complainant. James B. Vredenburgh and Samuel H. Grey, for

defendants.

MCGILL, Ch. The complainant is a railroad corporation, duly organized under and in pursuance of the provisions of the act to authorize the formation of railroad corporations and regulate the same, approved April 2, 1873 (Revision, p. 925), and its supplements, known as the "General Railroad Law." That which it is to accomplish is a direct connection, as its name indicates, between two railroads,-the National Docks and the New Jersey Junction,-within the corporate limits of the city of Jersey City. Its route is, approximately, a straight line between points upon the railroads designated, about half a mile apart. The route (beginning at the southerly end, and tracing it northerly) crosses meadow land and public streets for some 1,500 feet, until it reaches elevated land of the defendants, commencing at the northerly side of Railroad avenue, and rising above that avenue some 23 feet, and extending more than 500 feet in width northerly therefrom, upon which land the defendants have constructed a car yard. The route of the complainant's road is laid through this yard, and beyond it, northerly, reaches the New Jersey Junction Railroad. It is proposed to cross the yard by means of a tunnel constructed of masonry, which, in process of construction, will necessitate the opening of the surface of the yard for its entire width, and the disturbance of 21 railroad tracks of the defendants, located and used in the yard, over the route. The United New Jersey Railroad & Canal Company is a corporation of this state, and the owner of the fee of the property used for the car yard. It has leased that land, among other properties, to the Pennsylvania Railroad Com

N. J.)

pany, a corporation of the state of Pennsylvania, for a long term of years. The complainant insists that, by proceedings in condemnation against the two companies last named, it has acquired the right to cross the yard by means of the tunnel indicated, in a reasonable manner, consistent with safety and the least possible interference with the ordinary and legitimate use of the car yard by the defendants. The object of the bill is to secure to the complainant the proper exercise of this right, and, as a preliminary step, to obtain a mandatory injunction which will require the defendants to remove from those parts of its three most southerly tracks in the car yard, which lie over the route of crossing, cars which they continually store there, so that the complainant may safely commence its work of excavation for the tunnel. The insistment is that, by the condemnation proceedings, a right to cross the car yard has been acquired, the exercise of which, though it must to some extent interfere with the use of the property crossed for railroad purposes, must not so interfere as to be destructive thereof, or as to exceed the bounds of reasonable necessity. Hence, it is argued, the case presented is one where there exists mutual rights of use or easement in the same land, the enjoyment of which a court of equity will control and regulate, upon being satisfied of disagreement or of misunderstanding as to the use, between the parties concerned. This jurisdiction is established. Delaware, L. & W. R. Co. v. Erie Ry. Co., 21 N. J. Eq. 298; National Docks R. Co. v. Central R. Co., 32 N. J. Eq. 767; National Docks, etc., R. Co. v. State, 53 N. J. Law, 217, 21 Atl. 570; Jersey City, N. & W. R. Co. v. Central R. Co., 48 N. J. Eq. 379, 22 Atl. 728; National Docks, etc., R. Co. v. Pennsylvania R. Co., 52 N. J. Eq. 58, 66, 28 Atl. 71; National Docks, etc., R. Co. v. United New Jersey, etc., Canal Co. (N. J. Ch.) 28 Atl. 673.

The primary question in the present case is whether the complainant has duly acquired the right it asserts. It claims its right in virtue of proceedings in condemnation which were instituted by application for the appointment of commissioners, in March, 1889, by a petition which defined the character of the crossing then contemplated. The commissioners were appointed, and thereupon, upon the application of the defendants, the proceedings were taken in review, upon certiorari, to the supreme court (18 Atl. 574), and from thence, by writ of error, at the instance of the complainant, to the court of errors and appeals (21 Atl. 570). Pending this review, one of the commissioners died, and his place was filled by the appointment of another person, and that action also was reviewed upon certiorari, at the instance of the defendants. 23 Atl. 686. Thereafter two applications by the defendants to the United States circuit court further stayed proceedings. 51 Fed. 858, 56 Fed. 697, and 58 Fed. 929. In consequence of these several litiga

tions and the trial before the commissioners, the report of the commissioners was not made until the end of May, 1893,-more than four years from the institution of the proceedings. It awarded to the defendants $182,569 for their land and damages. From this award both parties appealed to the circuit court of Hudson county, and there, in September, 1893, the complainant, by amendment permitted by the court, changed its plan of crossing from a walled cut, which could be crossed by bridges, and necessitated a considerable elevation of the southerly side of the defendants' yard, to an arched tunnel, deeper in the ground than the cut, which materially reduces the elevation to which the southerly part of the yard will have to be brought. Upon trial under this plan, the jury, by its verdict, allowed the defendants $95,000 for their land and damages. Later, tender of the amount of this verdict, with interest thereon, was made by the complainant, and, the amount of the tender being refused, it was paid to the clerk of the circuit court. Thereafter an action, similar in object to the present suit, was commenced in this court. The defendants resisted the granting of the relief sought by it, urging, among other things, that the complainant had not secured the right to enter upon their lands, because it had paid the amount found as compensation to the clerk of the circuit court without the knowledge or consent of the court, evinced by its order, and hence had not paid the money into court; and, also, that as the public easement in Railroad avenue, at the point where the complainant's route crosses it, had been vacated by the municipal authorities, the northerly half of that avenue there was the property of the defendants, free from the public easement, and could not be entered upon by the complainant, without which entry it would be impracticable for the complainant to proceed with its construction. In both these contentions they were sustained by this court (28 Atl. 673), and thereupon the complainant's bill was dismissed, without prejudice, however, to another suit for the same relief, after the due payment of the amount of the verdict into court. From this decree of dismissal the complainant appealed.

Since this decree, the complainant has again tendered the amount of the verdict, with interest, and, upon its being refused, has duly paid it into court; and it has also, by condemnation proceedings, in which, upon appeal, there was a verdict of a jury, ascertained what the just compensation for the northerly half of Railroad avenue for its purposes, within its route, is, and has duly tendered that sum ($10,000), with interest, and, upon its refusal, has paid it into court. Thus it presents a completion of the title in the particulars in which it was formerly held to be incomplete, and removes the former objections to the relief sought.

The statute authorizes entry after just compensation shall first have been made, and provides a method for the ascertainment of

that compensation,-in the first instance, by the action of commissioners, and then, if an appeal is had from the commissioners' award, by the action of a jury,-and also prescribes how the compensation shall be paid, and there it stops. In dealing with an owner who is free from disabilities, the just compensation must be tendered and actually paid, if the owner will take it; but if there be disabilities, or it be refused upon tender, it may be constructively paid by its deposit in court for the owner. By such ascertainment, tender, and payment, the condemning company acquires the right to take possession of the land, and proceed with the work of constructing its road. Johnson v. Railway Co., 45 N. J. Eq. 454, 17 Atl. 574; Waite v. Railway Co., 48 N. J. Eq. 346, 22 Atl. 261; Packard v. Railway Co., 48 N. J. Eq. 281, 22 Atl. 227; on appeal, 48 N. J. Eq. 293, 22 Atl. 231; Jersey City, N. & W. Ry. Co. v. Central R. Co., 48 N. J. Eq. 384, 22 Atl. 728.

As this case stood at the filing of the present bill, a writ of error had been sued out to review the rulings of the circuit court, in accordance with which the verdict of the jury was rendered; and it was urged that, pending the determination of that review, the complainant's right to enter was suspended or incomplete. The sufficient answer to this proposition has been given by Vice Chancellor Pitney in Packard v. Railway Co., supra, that the statute (Revision, pp. 928, 929, §§ 12, 13) does not contemplate a stay upon the suing out of a writ of error, nor is there anything in the nature and effect of a writ of error to stay the complainant's exercise of its right.

Now, by supplemental answer, it has been made to appear that, since the bill was filed, the supreme court has determined that there was error in the trial at the circuit court, which has induced a reversal of the judgment entered upon the verdict, the setting aside of the verdict, and the adjudication that it shall be for nothing holden, that a venire de novo shall issue. In consequence this question is presented: Does the setting aside of the verdict affect the right to enter and proceed with the work of construction, which the complainant claims to have acquired by its tender and payment into court? In support of an affirmative answer, it is argued that the verdict having been adjudged to be erroneous, and having been set aside, it is demonstrated that the compensation tendered and paid into court was not just; and, therefore, that no right was acquired by the tender and payment relied on; and the appeals taken from the commissioners' report having superseded their award, as was held in Johnson v. Railway Co., supra, no right of entry can be obtained until a verdict, under correct instructions and rulings of the court, shall be had, and the amount ascertained by it shall be paid. On the other side, it is urged that, the amount found by the jury having been duly paid while the verdict remained unreversed, that which the

statute then established as just compensation was made, and a right thereupon vested, which subsequent reversal of the verdict cannot affect. The mere reversal of the verdict, for error at the trial, does not determine that the compensation found is not just. It decides only that questions involved in the process of reaching it were not properly submitted to the jury, and that, as they have or may have misled the jury, there must be a retrial. It may yet be decided that the sum paid by the complainant is adequate, or even more than adequate, compensation. That the legislature may prescribe a period in proceedings before an impartial tribunal authorized by it to ascertain just compensation necessary to be made to secure possession of the land by the condemning company is too well settled to need support by citation of authorities; and this, even though it be held that review of those proceedings may follow. Railroad Co. v. Clark, 119 Mo. 357, 24 S. W. 157. I think that such a period is fixed by the statute here involved. The statute provides that the condemning company shall not enter upon or take possession of any land until it shall have paid the amount assessed by the commissioners, in case the report of the commissioners is not appealed from, or "the amount which shall be found by the jury by whom the issue shall be tried," in case of appeal.

It is

to be noted that the amount to be paid is not the amount of a judgment found by the jury. Such a provision implies that the legislative design was to clothe the condemning company with ability to perfect its right of entry as soon as a verdict should be had, without waiting either for judgment upon the verdict, or the conclusion of proceedings in review. This language in the statute is immediately followed by a provision which permits the landowner to accept the award of commissioners without affecting an appeal therefrom, and the condemning company to pay the commissioners' award into court, and at the same time appeal from the award, and take possession of the land. So far as the power sought to be conferred upon the condemning company to hold the compensation in court pending its appeal is concerned, this provision has been held to be unconstitutional. Redman v. Railroad Co., 33 N. J. Eq. 165. But nevertheless it evinces a legislative purpose entirely consistent with, and which supports, the interpretation I have given to the language first referred to. The evident design was to expedite the completion of a beneficial public convenience by a summary determination of just compensation, the payment of which is to precede the entry upon the land and prosecution of the work. In the former application to this court for the relief now sought, Vice Chancellor Van Fleet said, in view of the proceeding in error then pending: "The sum which must be regarded as just compensation for the land taken in this case has already been finally determined, so far, at

N. J.)

least, as to invest the complainant with a right, on tender and refusal of the money, and its payment into court, to take such possession of the land as may be necessary to enable it to proceed with the construction of its road thereon, and the sum so paid has been tendered and refused. So far, I regard the complainant's case free from doubt or dispute." In Jersey City, N. & W. R. Co. v. Central R. Co., 48 N. J. Eq. 384. 22 Atl. 728, the same distinguished judge said: "As I understand the general railroad law, and the adjudications respecting its construction, the verdict of the jury that tries an appeal from the award of commissioners fixes finally and conclusively the sum which in that particular case must be regarded as just compensation, so far as may be necessary to confer upon the condemning company the right, on the payment of the money, to appropriate the property condemned. The award of the commissioners is the first step in ascertaining what is just compensation to the landowner, and the verdict of the jury that tries the appeal from such award is the last and final step." When the complainant paid its money this verdict remained unreversed, by force of the statute fixing the just compensation to be made; and, upon that payment, I think the right to enter upon the land and prosecute the work of constructing its road rested in the complainant, and now remains as immutable by a subsequent reversal of the verdict as the title of one who buys at a judicial sale in enforcement of a decree of a court of general jurisdiction which is subsequently reversed. Schultz v. Sanders, 38 N. J. Eq. 154; on appeal, Id. 293.

It was insisted in the next place that, in virtue of the appeal by the complainant from the decree in its former suit in this court, that suit is still pending in the court of errors and appeals, and that as this suit is of the same nature and effect, and between the same parties, notwithstanding the title here alleged depends upon another tender, and a different method of effecting payment into court, and the land in Railroad avenue has been taken by condemnation, this suit cannot be maintained. I need not consider the questions suggested under this insistment. The record and proceedings in the former suit are referred to in the bill in this suit, and were used upon the argument of the order to show cause. Upon inspecting that record, I find that since the argument before me the court of errors and appeals, by its decree, has affirmed the decree of this court, and has remitted the record to this court, so that the original bill in the former cause stands dismissed without prejudice to the present proceeding. The opinion of the court of errors and appeals is found in 30 Atl. 581.

It was next urged by the defendants that the proceedings for the vacation of Railroad avenue have been removed to the supreme court for review, and that, in case it shall be determined that they are illegal, then Railroad avenue will be an existing highway over v.30A.no.22-70

which the complainant cannot construct its railway upon the grade it proposes, which is above the highway but not high enough to permit free and uninterrupted use of the highway as the statute (Revision, p. 930, § 14) requires, and as the complainant has no right to cross an existing highway at such grade, and it is uncertain whether, if the proceedings for the vacation of Railroad avenue be set aside, a new and lawful vacation of it or change of its grade can be had, this court should not compel the defendants to submit to the inconvenience and damage they will sustain in the construction of a crossing which may never be available for the complainant's purposes. A proposition somewhat similar to this was presented to Vice Chancellor Van Fleet in the former suit, by contention that the injunction desired should not issue because the defendants' land in Railroad avenue, within the complainant's route, had not been condemned, and, the public easement having been vacated, the complainant could not enter upon it to reach the point at which it desired to commence work, and the issuance of an injunction to remove cars from three tracks over the complainant's route at the southerly side of the car yard would work the defendants inconvenience without benefit to the complainant. The vice chancellor agreed to the proposition. That position, I think, was more tenable than this. If it be conceded that the proceedings for the vacation of Railroad avenue are illegal, then there can be no doubt of the right of the complainant to reach the southerly side of the car yard at Railroad avenue, and work over that avenue with vehicles which may lawfully pass over a highway in the enjoyment of the public easement. But, if the vacation be legal, then the Railroad avenue condemnation proceedings, and tender and payments into court thereunder, give the complainant a special right of possession of the land condemned, for the purpose not only of crossing with its road, but also for the purpose of construction incidental to the maintenance and completion of that road. But, more than this, upon examination of the amended plan of crossing, I do not find that the elevation of the roadbed of the complainant through its proposed tunnel is stated. The maximum height of the crown of the completed arch is given, but the depth to which the walls may go is not limited. Hence, the roadbed at Railroad avenue may be constructed upon the present grade of that highway. With the consent of the municipality, such a crossing will be legal. This situation is then presented: The vacation proceedings have not been declared to be illegal. If they are illegal, the complainant may lawfully cross into its tunnel by procuring the assent of the municipality to a grade crossing, or it may secure a change in the grade of Railroad avenue, or a new vacation of that highway. It thus appears that the crossing condemned through the defendants' yard is not an impossibility. Under such circumstances, I fail to perceive any sufficient