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7 Buch.

Bayonne v. Borough of North Arlington.

that the public easement extends not only to the use of the surface of the earth for purposes of passage, but also to the portion which lies beneath the surface wherever it is needed for water pipes, sewer pipes, gas pipes, or any other legitimate street use. It was so held in the case of Winter v. Peterson, 24 N. J. Law (4 Zab.) 524, a case cited by complainants' counsel, and it is so recognized generally by the bar and bench. Borough of Brigantine v. Holland Trust Co., 57 Atl. Rep. 438. If there was no ordinance or other interfering statute, it would seem as if the water company had a right without a permit from anyone to lay its pipe line across the three streets in question, so long as it did not unduly interfere with public travel or with the sub-surface use to which the high:way as such is subject. Question is made in this case as to the legality of the ordinance above referred to. The Borough act, which gives authority to boroughs to pass ordinances, in section 28 provides that the council of the borough

shall have power

"to prescribe the manner in which corporations or individuals shall exercise any privilege granted to them in the use of any street, road or highway, or in digging up the same for any purpose whatever."

It was argued, on behalf of the complainants, that the ordinance in question was not authorized by that statute, inasmuch as the ordinance did not prescribe the manner in which corporations or individuals should dig up the highway for its purposes, but quite on the contrary thereof, left it with the mayor of the borough to prescribe the manner in which it should be done, committing each individual case to his sole discretion, which might be exercised in one way on one street and in another way on the next one. The question of the validity of this ordinance, however, I must decline to pass upon, that being the peculiar province of the courts of common law.

About two months ago the water company filed its bill against the borough for the same relief which the complainants now ask in this suit on behalf of the water company.

The water company had then sought permission from the mayor and council of the borough and they had refused their con

Bayonne v. Borough of North Arlington.

77 Eq.

sent, except upon conditions which embraced the two reasons which are given by the mayor for his refusal of a permit in the case in hand, and I held that the conditions which they attempted to impose upon the water company were unreasonable, and that the conditions which might be imposed in granting an application under that ordinance were conditions which were necessary for the proper protection of the borough and its public highways; and I still think, after having heard a second argument on the same point, that the borough has no right to impose conditions which do not tend toward the protection of the interest which the borough has as guardian of the public easement in its highways. This seems reasonably clear from the opinion of the supreme court in Cook v. North Bergen, 72 N. J. Law (43 Vr.) 119; affirmed, 73 N. J. Law (44 Vr.) 818.

In my opinion, the reasons assigned by the mayor for refusing the permit are not sound in law, nor do I find that they are well founded in fact. Having attempted to give the specified reasons as reasons for his refusal, he thereby excludes from consideration any other reasons which may have influenced him, and he has therefore elected to stand or fall by the reasons which he has presented. There may be other good and sufficient causes which moved him to his determination, but they are not apparent, nor am I able to hazard a guess as to what they might be. He has undertaken, on behalf of the borough of which he is mayor, to safeguard the potable waters of the state upon the theory that it is his duty as the chief executive officer of his borough to see to it that no potable waters which originate in New Jersey shall be transported beyond its borders. In the former case, I held that such an arrogation of power was not within the scope of the duties of the chief executive officer of a borough; and in so far as his refusal is based upon this reason, it stands without foundation. His other reason, viz., that the water company intends to supply water to the Catholic cemetery, seems to be quite as devoid of a foundation. If, under the law, the water company shall eventually find that it has no right to sell water to anyone within the limits of the borough, it will not be permitted to do so, but it will be soon enough to make this inquiry when the attempt is made.

7 Buch.

Bayonne v. Borough of North Arlington.

I, therefore, am of opinion that the second reason given by the mayor is quite as fallacious as the first, and that his refusal must therefore appear to be without reason, and, consequently, void as a mere capricious exercise of a discretion which the ordinance clothes him with, and not a discretion which is based upon an examination of pertinent and relevant facts, and which flows from the exercise of a judgment that considers the legal rights of all interests involved.

I have no doubt of the jurisdiction of this court to act in the premises. The borough claims that if the water company has any remedy it is by way of mandamus. This position was well answered by the statement that mandamus will not lie to compel the exercise of a discretion. The reason is quite obvious. The only judgment that could be rendered in an action of mandamus would be that the officer should exercise his discretion. The court would not attempt to do so for him. This he claims he has done; hence the mandamus could be of no avail. Roberts v. Ilolsworth, 10 N. J. Law (5 Halst.) 57; Benedict v. Howell, 39 N. J. Law (10 Vr.) 221.

The case appears to me to be an ordinary one of an attempt to use an authority unreasonably and without a due consideration of the rights of the water company. Its effect is to practically destroy its right in the sub-surface of the highway upon avowed grounds that appear to me to be untenable, and hence to cause to the water company an injury which, if permitted to continue, would work an irreparable damage to it. An injunction may always go to restrain an illegal and excessive use of authority. 2 High Inj. $ 1309.

I, therefore, am of opinion that an injunction should issue in accordance with the prayer of the bill.

Koch v. Gorruflo.

77 Eq.

JULIUS KOCH

LINA GORRUFLO.

[Decided February 18th, 1910.)

A covenant by a grantee not to use the premises for any other purpose except for a private residence, is violated by constructing a dwellinghouse designed to accommodate two families and allowing two families to, occupy the same.

On final hearing on bill, answer, replication and proofs.

Mr. Frank Voigt and Mr. Frank E. Bradner, for the complainant.

Mr. Charles M. Mason, for the defendant.

HOWELL, V. C.

This suit is brought for the purpose of enforcing a covenant restrictive of the use of lands. The Mutual Land and Improvement Company owned the lands on both sides of a street in Newark called Hedden Terrace, the whole of which they have now sold. The complainant and defendant, respectively, own parcels of this land. They derived their titles through different intermediary grantees so that there is no privity of estate between them. The covenant is sought to be enforced by virtue of what Vice-Chancellor Green called the right of amenity, in the case of De Grey v. Monmouth Beach Club House, 50 N.J. Eq. (4 Dick.) 329. The covenant sought to be enforced reads as follows:

"That the said party of the second part, his heirs and assigns, shall not at any time prior to the first day of January, which will be in the year nineteen hundred and twenty. carry on, procure. cause, permit or suffer to be carried on. prosecuted, employed or maintained upon said lands, or any part thereof, any saloon or place for the sale, storage or

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other disposal of beers, wines or liquors, any manufacturing or other business of any kind whatsoever, nor use said premises for any other purposes except for a private residence and such stables and other outbuildings as may be needed or proper for use in connection with the use of said land for a private residence; and further, that no house or dwelling shall be erected upon said lands to cost less than thirty-five hundred dollars, nor shall any house or other building be erected thereon of more than two and one-half stories in height, nor shall any dwelling or other building be erected thereon including any piazza or erection whatsoever within fifteen feet of the line of said Aedden Terrace, nor shall any outbuilding other than a dwelling-house, be erected upon said lands within seventy feet of the line of said Hedden Terrace, and further, that not more than one house shall be erected on said lands herein described ; and further, that the foundation wall of any house to be erected hereon shall not be raised to a height of more than seven feet above the curb line of said Hedden Terrace; and it is further expressly understood and agreed that the said several covenants on the part of the said party of the second part above specified, shall attach to and run with the land, and it shall be lawful not only for the said party of the first part. its successors or assigns, but also for the owner or owners of any lot or lands adjoining or in the neighborhood of the premises hereby granted, deriving title from or through said party of the first part to institute and prosecute any proceedings at law or in equity against the person or persons violating or threatening to violate the same."

The complainant erected a dwelling-house upon the lot owned by him, taking care to preserve the restrictive covenant by the terms of which he claims always to have abided.

The defendant erected a dwelling-house upon her lot, and she and her witnesses claim that it was designed and constructed for occupation by two families, and that it is now and always has been what is known as a two-family house. Some time in the early part of 1909, and only a short time before the filing of the bill, she leased the first floor of the premises to a man named Fitzgerald, as a tenant. Fitzgerald subsequently moved out, and pending the suit a lease was made for the same portion of the premises to a man named Farrand, who is now occupying the same as tenant, and the question is whether the defendant has violated the restrictive covenant.

It was testified to that all the lots which were owned by the Mutu al Land and Improvement Company were sold subject to the same set of restrictions, and that the restriction in question was contained in the titles of both the complainant and defendant.

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