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1 Robbins.

Fessler . Town of Union.

original dedication, since such continuation does not affect the questions here involved.

Nor does the declaration in the statute above cited, "that the pond and property surrounding the same shall also be town property," add in the least to the rights of the defendant.

It is a fundamental principle underlying all the cases above cited that the dedication once clearly made is irrevocable and unchangeable.

If, as I hold, the defendant was without authority to erect buildings on the square, then their so doing was a breach of the trust on which it held the right of possession and control of this property; and it is hardly necessary to say that the law ought to be, and is, that a trustee shall not be permitted to gain any advantage or increase his power by a breach of his trust unless it be, and that necessarily to a limited degree, where the breach has been approved and acquiesced in by the cestui que trust.

Here, at the request of the cestuis que trustent, all the buildings have been removed from the square with one exception, that of the hose house. Granting that for present purposes the complainant should be held to have acquiesced in that erection, yet it is quite clear, on general principles, that such acquiescence does not extend a hair's breadth beyond its actual limits on the ground.

A consent to the erection and maintenance of that building cannot by any correct principle be held to be a consent to the erection of another building in a different place. This seems too plain for argument.

We come, then, to the question of the complainant's standing in this court.

The general rule is that any encroachment on a public highway or public square is an offence against the public, punishable by indictment only, and that one or more of the public cannot maintain an action at law or in equity therefor unless he is so situated as to be injured thereby in a manner and to an extent peculiar to himself as an individual as distinguished from himself as a member of the public at large.

The complainant is the owner of ten lots, comprising a

Fessler v. Town of Union.

67 Eq.

boundary on the square in question of one hundred and fifty feet in the immediate neighborhood of the tower in question. It is within thirty feet of her house lot, and the existence in that place of the tower and the ringing of the bell in case of fire will, in my judgment, produce an effect injurious to the enjoyment of her property, different in a marked degree to that of the inhabitants generally of the town of Union, which is a closely built town of from fifteen thousand to twenty thousand inhabitants.

There may be a few other lot owners in the immediate vicinity who are interested in the same degree, or nearly so, as the complainant, and they may have the same standing as the complainant, but the fact that they have not joined in this suit, or brought a suit on their own account, cannot prejudice the rights of the complainant, if those rights are, as I suppose them to be, peculiar to her by reason of her vicinity to the square.

But, of course, if I am right in my conclusion that she has, by reason of her owning lands bounding on the square, a right in the nature of a private right, then she has a right in addition to her being a member of the public, which dispenses with the necessity of resorting to the doctrine of peculiar injury.

Next as to her right to maintain an action against a municipality.

No point was raised by counsel for defendant that his client was entitled to any immunity from action if, in point of fact, its action was unwarranted in law; and no case was cited by counsel on either side bearing precisely on this point, nor have I been able to find any.

Moreover, I find no case, in this state at least, where the municipal authorities have ever been charged with a breach of their trust in that behalf.

But I think, upon general principles, the complainant must have a right of equitable action, otherwise the inhabitants not especially interested in the existence of that square might unite and elect a common council which might be so far recreant to its duty and regardless of the rights of the landowners as to

1 Robbins.

Fessler v. Town of Union.

obliterate the square absolutely and devote it to business purposes.

Has the right of complainant been lost by laches in filing her bill?

The municipal authorities, being fully aware of their lack of right in the premises, proceeded without notice to the complainant to advertise in the public prints for bids for the erection of the tower in question. It does not appear, and there can be no presumption, that complainant saw any of those advertisements or had any notice of them. At that time she was an invalid. Her son-in-law, who lived with her and looked after her business, swears that he had no notice of the action of the municipality until he saw some of the material brought on the ground. He then, as above stated, protested verbally and employed counsel promptly.

It appears that the contract for the erection of the bell-tower was dated February 8th, 1901, and was filed with the town clerk February 19th, 1901. The tower was a skeleton constructed of iron, and its several parts undoubtedly were cut and shaped and prepared to be assembled before they were brought on the ground, so that it must have been some time later than the date and filing of the contract before they were seen by Mr. Worth.

For some reason, which may be inferred, Mr. Russ declined to proceed.

Messrs. Crouse & Perkins took up the case and prepared their bill and affidavits as soon as the circumstances would permit. The preparation of the bill required considerable investigation and compilation and necessarily occupied some time. It was filed April 10th, 1901.

I think the bill was filed with reasonable promptness.

An application was made for an injunction, but before the order to show cause could be brought on for hearing the structure was partially erected and no restraint was imposed. The order of discharge was made expressly without prejudice to the complainant.

The prayer is that the materials of the tower may be removed from the ground and for other relief.

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It appears that the structure is not an expensive one and that it may be taken down without serious injury to its parts and removed and re-erected in another place.

I think that the complainant is entitled to a decree against the municipality providing for the removal of the tower and of all its constituent parts, and that she is entitled to recover her costs besides a reasonable counsel fee, which I shall fix upon hearing parties.

G

v.

G

[Submitted November 16th, 1903. Decided November 21st, 1903. Filed July 9th, 1904.]

1. Marriage contracted by parties, one of whom is impotent, is not void, but voidable merely at the instance of the disappointed party, and may be ratified by such party.

2. Where a woman lived with her impotent husband for twenty years, and then, without suing for annulment of the marriage, separated herself and accepted a competent support from him for ten years longer, and until he discovered her in adultery and brought suit for divorce, such conduct on her part constituted an affirmance of the voidable marriage.

3. Alimony is only allowed when the husband has been guilty of a matrimonial offence, and impotence is not such an offence.

4. On petition for a divorce by the husband for adultery, and cross-bill by the wife charging impotence, conceding that adultery is an answer to the charge of impotence, each party is entitled to a simple decree, and the statute declaring that when each party is guilty of adultery neither shall have a decree, has no application.

5. On petition by a husband for divorce for adultery, followed by crossbill by the wife charging impotence, the husband, on proving his charge, having first filed his bill, is entitled to relief.

6. Where a husband sued for divorce on the ground of adultery, and the wife succeeded in defending on the merits without having set up the impotence of the husband, and thereafter received support from him for

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ten years, she was not entitled, in a subsequent suit by the husband for divorce for adultery, to set up the husband's impotence.

7. The statutory remedy for the wife for extreme cruelty of the husband is divorce a mensa et thoro and permanent alimony; but if the cruelty is sufficient to warrant a divorce a mensa she may separate herself from her husband, and such separation will constitute constructive desertion on his part, and if continued for the statutory period will entitle her to divorce a vinculo.

S. When a wife voluntarily separated herself from her husband on the ground of his cruelty, but received from him a competent monthly support, there was no such desertion on his part as entitled her to a divorce a vinculo.

9. A wife divorced a mensa et thoro is still under the obligation of chastity, and alimony is conditional on her performance of that obligation.

On final hearing on bill, answer, cross-bill and answer and proofs.

The petition is by husband against wife. It alleges that the parties were married in May, 1871; that they lived together until October, 1891, most of the time in this state, when they separated. It then charges that the defendant, at divers times. between the 10th of August, 1902, and the 4th of January, 1933, committed adultery with one L. at a certain house in the city of New York.

The defendant, by her answer, admits the marriage, the residence in New Jersey and separation as alleged in the bill. She then denies the adultery as alleged.

By way of cross-bill she says:

"1. That before and at the time of and ever since the marriage of this defendant to the said petitioner, the said G. was physically and incurably impotent, and ever since the said marriage he has never consummated the marriage relation with this defendant.

"2. That this defendant lived with the said G. until the month of October, 1891, in the hope that said G. would and could be cured of his said impotency; that she finally learned that he was hopelessly and incurably impotent.

"3. That during said time said G. brutally abused and maltreated this defendant and frequently choked her and beat her so that her life was greatly in danger, and during a short period just prior to her separation, in the month of October, 1891, from the said G., he insisted upon and endeavored to force her to have vile, unnatural and criminal intercourse

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