Borough of South Amboy v. Pennsylvania R. R. Co. 77 Eq. No recorded or other return in writing of the laying out of the old road, nor any applicable to it, appears in the evidence, but the bill of complaint avers that this Ridgeway avenue or highway was originally laid out to a width of fifty feet, and charges that the abutments encroach upon the highway, and asks that they be changed to the proper line of the street, and the roadway between them be widened accordingly. Its specific prayer for mandatory injunction (which I deem important to transcribe here) is that "the Pennsylvania Railroad Company and the United New Jersey and Canal Company may answer the premises, and may be compelled specifically to perform the duties imposed by law upon them, or either of them, with respect to the construction, maintenance and repair of the crossing of Ridgeway avenue, or Stevens avenue, in the borough of South Amboy by their tracks, and that your honor will prescribe the crossing to be reconstructed and the repairs to be made, and that they may be required to remove the abutments placed by them within the lines of the highway aforesaid, and to properly improve said highway to the full width thereof and make the necessary provision for the carrying away of surface water and drainage and sand soil now washed upon said highway beneath said tracks," concluding with the usual prayer for other and further relief. After hearing the evidence the learned vice-chancellor, without finding or determining, in express terms, that the highway at the crossing had been narrowed or encroached upon by the defendant, has, in effect, by the decree advised by him, so determined, as will presently appear. The terms of the injunction. decree, in respect to the matters we are now interested in, adjudge and command "that the defendants shall, within six months from its entry, separate the walls now constructed under the tracks of the defendant companies at the place set forth and described in the bill of complaint in this cause so as to leave thirty-three feet in the clear between said walls, said width being deemed by the court at this time adequate for public travel on said highway. Provided, however, that the defendants shall have the right to erect supports or columns through said passageway to occupy at the base thereof a space not greater than two feet in width, and to so erect the same as that there shall be a roadway of not less than twelve and one-half feet on the north ↑ Buch. Borough of South Amboy v. Pennsylvania R. R. Co. erly side of said passageway, and a roadway of not less than twelve and one-half feet and a sidewalk of six feet on the southerly side of said passageway, said sidewalk to be constructed immediately adjacent to the southerly wall of said passageway.” It will be seen, at a glance, that this decree is the equivalent of a judgment in ejectment at law, and will, if enforced, oust the defendants from the possession of their land, as effectually as if a writ of possession had issued from a court of law. It is important to observe at this point that there is no averment in the bill of complaint that any specific number of feet, or quantity of land, of the highway had been, previous to the filing of the bill, taken or appropriated by the defendants, nor does the prayer of the bill give any notice to the defendants that a decree and judgment of the court of chancery awarding the possession of any land to the complainants was asked for. The absence from the bill of complaint (in this peculiar statutory proceeding in equity) of any demand of possession of a defined quantity of land, as compared with the certainty of such demand of possession required in proceedings at law, gives rise to the suggestion of the jurisdictional difficulty encountered, and hereinafter to be considered. The defendants, by their answer filed in the cause, deny the jurisdiction of the court below in the premises, and insist that the complainants have a full, complete and adequate remedy at law; that the lawful width of the highway can only be determined in an action at law. At the hearing before the vice-chancellor the questions of fact presented by the complainants' evidence related mainly to the claimed encroachment by the defendants upon the old highway since the year 1857 up to the filing of the bill. As has already been stated above, there was no evidence that the old road was ever laid out as a public road, or that its courses or limits were ever fixed or designated by any map or return, or writing whatever. Nor was there any proof in the case of the existence of fences, or other visible monuments, defining either the lines or the limits of Ridgeway avenue at this crossing at any time. There was a mass of testimony, given by old witnesses from personal recollection, as to the user by the public. Borough of South Amboy v. Pennsylvania R. R. Co. 77 Eq. by wagons and otherwise, of the highway since the year of 1857. While evidence of this character was apparently sufficient to influence the learned vice-chancellor to conclude that the minimum lawful width of the avenue at the locus in quo was thirty-three feet, yet it seems to us that such evidence was too indefinite and uncertain to furnish foundation for the decree appealed from. We are of the opinion, moreover, that the proper forum for settling the width of the highway is a court of law, and the proper tribunal for its correct determination is a trial by jury. Where such a fundamental question is in dispute we think the twentyninth section of the General Railroad law has no application. We agree with the opinion below in its statements to the effect that the bill of complaint is not one to have a nuisance in a public highway abated by injunction, nor one to have conflicting easements regulated, but must be regarded as invoking only the jurisdiction conferred upon the court of chancery by section 29. There is, however, another reason, not adverted to in the opinion below, why, under the facts in controversy in this case, the bill cannot be sustained as one for the abatement of a public nuisance by injunction. The bill does not aver irreparable damage, nor is such claim made under the evidence. Professor Pomeroy, in his work upon Equitable Remedies (vol. 1 § 542), after stating that the same principle must govern the question as to the interference of the court, whether the case be one of public or private nuisance, and that the principle by which the court ought to be governed is "whether the extent of the damage and injury be such that the law will not afford an adequate remedy,” adds: "If there is a substantial dispute as to fact or law, and the question is in doubt, a trial at law will be required before equity will intervene." In the case of Attorney-General v. Heishon, 18 N. J. Eq. (3 C. E. Gr.) 412, it is said, in the opinion of Chancellor Zabriskie (after stating that the court of chancery has power to cause nuisances to be removed and abated, both public and private), "that it will only exercise that power when the fact of nuisance is beyond doubt, or has been settled by a verdict at law," citing cases at page 413. In the Heishon Case, as in the case at bar, the controversy was over a question of an encroachment of de 7 Buch. Borough of South Amboy v. Pennsylvania R. R. Co. fendant's erection upon a public street, but there was no record or survey of the laying of the street, and no proof of its width, and it was held that the facts in dispute should be determined by a jury, and that if the bill was retained an issue should be directed to try the question by jury whether Heishon's building extended beyond the true line of the street. In the case in hand the width of Ridgeway avenue at the crossing was not established by any record or survey of the laying out of the highway, but the facts respecting the width were in sharp dispute and grave doubt under the evidence. The learned vice-chancellor, after saying in his opinion that the court had to deal with the highway as it existed by user or presumed dedication when the railroad tracks were constructed over it, and after a very able and earnest effort to reconcile the mass of testimony before him respecting its lawful width at the crossing, arrived at the conclusion, from the weight of the testimony, that it was at least two rods in width. That he was in much doubt about the fundamental fact of the true width is evident from a reading of his opinion. A few of the many cases in this state supporting the principle declared above by Pomeroy and in the case of Attorney-General v. Heishon, supra, are: Carlisle v. Cooper, 21 N. J. Eq. (6 C. E. Gr.) 576; Attorney-General v. Brown, 24 N. J. Eq. (9 C. E. Gr.) 89; Outcalt v. George W. Helme Co., 42 N. J. Eq. (15 Stew.) 665; Todd v. Staats, 60 N. J. Eq. (15 Dick.) 507. From what has preceded it follows that the jurisdictional validity of the decree below must depend entirely upon the terms of section 29. It reads: "When any company shall not properly construct and maintain the bridges or other crossings of highways by its railroad tracks as required by law, it shall be lawful for the governing body of the township or municipality wherein such crossings are located. within a reasonable time, after notice to the company, to construct or repair such bridges or other crossings. and the cost thereof may be collected from the company, whose duty it is to make such construction or repair, by action in any court of competent jurisdiction; or in lieu of such construction or repair the township or municipality may proceed by a suit in equity to compel the specific performance of the duties imposed by law upon such company with respect to the construction, maintenance and repair of such bridges and crossings, and the court shall prescribe the crossing to be constructed Borough of South Amboy v. Pennsylvania R. R. Co. 77 Eq. or the repairs to be made; and in order to enforce obedience to its decree or mandate, the court may restrain the exercise of any of the franchises of the company or adopt such other remedies as may be in accordance with the practice of the court." Does this statute confer upon a court of equity authority to try and determine the question of encroachment by a railroad upon a public highway in cases where its width is in doubt or dispute or has not been settled at law? The case of Metuchen v. Pennsylvania Railroad Co., recently decided in this court and reported in 73 N. J. Eq. (3 Buch.) 359, and in the court of chancery in 71 N. J. Eq. (1 Buch.) 404, does not assist us in the decision of the point in which we are now interested. In that case the jurisdictional force of the twenty-ninth section was construed, but not in regard to the feature now in question. Vice-Chancellor Pitney, with characteristic acumen, held (71 N. J. Eq. (1 Buch.) 404, and this court subsequently in 73 N. J. Eq. (3 Buch.) 359, affirmed his holding for the reasons given by him) against the defendant's contention, which was, that the legislature had no power to confer on the court of chancery the right to give to a municipality "compulsory remedy by way of compelling specific performance by a railroad company of its duties in this behalf as contradistinguished from its power to give it a preventive remedy;" but the context of his opinion shows that he was then only concerned with the question of such power so far forth as it rested upon the ground of the specific performance of contractual duties owed by the railroad companies to the state, and he went on to say that section 29 "merely provides for the compelling of the specific performance of a duty resting upon the railway by virtue of its original contract with the state," * and that it seemed to him that the jurisdiction given by that section "is cognate to the familiar jurisdiction of the court to compel the specific performance of contracts." This ground, it is plain, can have no application to the case, sub judice. The defendants here cannot be said to have been under any contract with the state to surrender to it, for its use, their private rights. of possession in their own lands. The distinction between the cases will further clearly appear when we notice that in the * * |