De Witt v. . Van Schoyk

Danforth, J. It is a sufficient statement of the case to say that the pz-emises now owned by the parties wez’e oz-igin *11 ally the property of Freeman, who held the same as one farm. He conveyed to Rickard and Borrill, and on the 10th of January, 1874, they were divided between Borrill and Rickard, Borrill taking the part lying “ east of a public highway running north and south, leading from Scutt’s to Merrill’s,” and Rickard taking west of the highway, and their lands were-described as so bounded. The plaintiff succeeded to the title-of Rickard, and the defendant to that of Borrill. In 1882-the defendant, without right, closed up this highway and began the construction of a new road upon the plaintiff’s land. If continued, its effect will be to change or confuse the identity of the boundary between the two farms, render its location, doubtful, subject the plaintiff to additional travel on her own land to reach the highway, and open over that land a road through which the public will be led to travel. These acts were found not only to constitute a public nuisance, but to cause special damage to the plaintiff. The trial court, therefore, sustained the complaint and awarded equitable relief as that to which the plaintiff was entitled. In some reasonable view the evidence sustains the findings of the trial judge, and, upon the facts found, we entertain no doubt that the conclusion of law on which judgment was given properly follows. It might be that the damage sustained or apprehended could be satisfied by a pecuniary award, but the plaintiff is entitled to have the land as she acquired it, nor should she be driven to repeated actions to maintain her right. Moreover, the acts of the defendant are in derogation of the-plaintiff’s title, and, being calculated to injure her in that-respect, would sustain an injunction, although no damage had actually happened. To remove a cloud upon title is a well recognized head of equity jurisdiction, and the court will, in like manner, interfere to restrain a defendant from proceeding-in an illegal act, which, if completed, will necessarily cast a. cloud upon that title and naturally diminish its value. (Oakley v. Trustees, etc., 6 Paige, 262.) The opinion of the General Term discusses, with much fullness, the points presented by the defendant and subsequently *12 repeated upon, this appeal. With the conclusion reached by the Special Term and with the approval of that conclusion "by the General Term, we concur. The judgment appealed from should, therefore, be affirmed. All concur. Judgment affirmed.