BIRD, V. C.
On bill for injunction.
H. J. Stanger, for complainant.
BIRD, V. C. The complainant asks for an injunction commanding the defendant to move a building which is over 100 feet in length, and which the complainant says has been standing on one of the streets of a village laid out by the complainant, called Pavonia. The complainant purchased a tract of land, and made a map of it, representing streets and blocks for building sites. The defendant, owning one or more lots adjoining one of these streets so projected, erected a large barn or shed partly on one of the streets. This was done about three years ago. No resistance was made thereto, and no effort has been made to secure its removal until the filing of this bill. Now the claim is that the placing of said building upon the said street, as so mapped, was unlawful, and is a nuisance. The prayer of the bill is that the defendant may be commanded to remove it.
I am not prepared to say that such a case is made as will warrant this court in exercising such an extraordinary power. I will not say that cases may not arise where this court would be justified in taking jurisdiction. It may be that such cases can be produced. In this case, while it appears that the complainant purchased the land, and laid it out in streets and blocks for building purposes, it does not appear that the street on which the alleged nuisance was committed was ever accepted by the public, or that it was ever used as a public highway, or ever claimed by any one as a public street except by the complainant, or that any houses or other structures have ever been built upon it except the one complained of. From the facts before me there is nothing to assure me that the defendant, in placing his barn on said street, did anything more than commit a trespass. But, supposing the alleged street to be a pub-lie highway in every sense, nothing has been presented to show that the complainant has suffered any special damage such as would warrant the special interference of this court. So far as it appears that any injury or wrong has been done, the public only are affected. With these conditions, were it ever so clear that this building, so located, is a public nuisance, and the attorney general were here, in behalf of the public, asking the aid of this court, it is most probable that his prayers would be unavailing.
In Morris & E. R. Co. v. Prudden, 20 N. J. Eq. 530-536, in the court of errors and appeals, in pronouncing the judgment of the court, Justice Depue said: "The remedy by indictment being so efficacious, courts of equity entertain jurisdiction over public nuisances with great reluctance, whether their intervention is invoked at the instance of the attorney general or of a private individual who suffers some injury therefrom distinct from that of the public;" quoting also the precise language of Chancellor Kent, who says that in such cases "the process of injunction ought not to be applied but with the utmost caution. It is the strong arm of the court, and to render its operation benign and useful it must be exercised with great discretion." Attorney General v. Utica Ins. Co., 2 Johns. Ch. 378; Attorney General v. New Jersey R. & Transp. Co., 3 N. J. Eq. 136; Hinchman v. Paterson Horse R. Co., 17 N. J. Eq. 75. Then, this being the law as to the attorney general,representing the public, it would be much more readily applied to an individual or to a corporation. As the case stands, there being no evidence that the street in question is a common and public highway, it is extremely doubtful whether the act of the defendant which is characterized as a nuisance by the complainant can be regarded in any other light than a trespass.
But it is said the defendant has not answered, and it will be proper for the court to exercise jurisdiction, and to compel the removal of the building. There is neither reason nor logic in this; nor is it according to the practice of this court to proceed in a cause without some show of jurisdiction, even though the defendant responds not to the bill. I believe the presumption is that the court knows what the law is; and if defendants act upon this presumption, and trust to the court the protection of their rights, such confidence ought not to be abused or trifled with.
I will advise that the complainant's bill be dismissed.
NOTE.
Acceptance of a highway by the public is necessary to establish its dedication. Rozell v. Andrews. (N. Y.) 8 N. E. Rep. 513; Maywood Co. v. Village of Maywood, (Ill.) 6 N. E. Rep. 866, and note; People v. Lohfilem, (N. Y.) 5 N. E. Rep. 784; In re Rebuilding Bridge, (N. Y.) 3 N. E. Rep. 679; Hugh v. Haigh, (Iowa,) 28 N. W. Rep. 650; Bell v. Burlington, (Iowa,) 27 N. W. Rep. 247; Eastland v. Pogo, (Wis.) 27 N. W. Rep. 159; Morse v. Zeize, (Minn.) 24 N. W. Rep. 287; Laughlin v. City of Washington, (Iowa,) 19 N. W. Rep. 819: Brakken v. Minneapolis & St. L. R. Co., (Minn.) 11 N. W. Rep. 124; State v. Horn, (Kan.) 12 Pac. Rep. 148.
As to what will constitute or prove an acceptance by the public, see Morse v. Zeize, (Minn.) 24 N. W. Rep. 287; Laughlin v. City of Washington, (Iowa,) 19 N. W. Rep. 819; Brakken v. Minneapolis & St. L. R. Co., (Minn.) 11 N. W. Rep. 124; Town of Lake View v. Lebahn, (Ill.) 9 N. E. Rep. 269; Mavwood Co. v. Village of Maywood, (Ill.) 6 N. E. Rep. 866; People v. Lohfilem, (N. Y.) 5 N. E. Rep. 784; Hoadley v. City and County of San Francisco, (Cal.) 12 Pac. Rep. 125; State v. Proctor, (Mo.) 2 S. W. Rep. 472.