Aborn v. Smith

Dubpee, C. J. We do not think this bill is maintainable under Public Laws, cap. 453, April 1, 1875, for that act only confers jurisdiction where boundaries once existing have been lost or have become obscure and uncertain. West Hartford Ecclesiastical Society v. The First Baptist Church in West Hartford, 35 Conn. 117 ; Perry v. Pratt, 31 Conn. 433, 441; Washington Co. v. Matteson, ante, p. 550. This is not a suit to reestablish a boundary which has been lost, but to determine one which has never before been defined. Is the bill maintainable under the general chancery powers of the court ? Ordinarily a coui't of equity will not settle a disputed boundary except where there is an equity superinduced by the act of the parties. This is because there is usually an adequate remedy at law, namely, the action of trespass and ejectment. But the action of trespass and ejectment is not applicable to tidal water fronts or flats; and it may therefore be argued that a court of equity may always be resorted to, to determine their boundaries. Moreover, the question of such a boundary frequently involves complex considerations not confined to the immediate parties, and it is for that reason peculiarly proper for a court of equity. And see Boyd v. Dowie, 65 Barb. S. C. 237, as to the effect of complexity in giving jurisdiction. But still further, in the case at bar there is an equity or distinct ground of jurisdiction alleged. The plaintiffs charge that the defendants have filled over the dividing line and encroached upon their water front, and threaten to continue such filling and encroachment. The bill prays not only that the boundary may be defined, but also that the defendants may be enjoined from filling or encroaching beyond it. We think the case alleged is clearly within the jurisdiction of the court. In De Veney v. Gallagher, 20 N. J. Eq. 33, a court of equity *596 asserted its right to settle a boundary and protect it by injunction, because the defendant had threatened and formally notified the plaintiff that he intended to remove ten inches of the wall of the plaintiff’s dwelling, on a claim that it was upon his land. The case of Stockham v. Browning, 18 N. J. Eq. 390, is still more closely in point. The court decided in that case that the owner of lands along tide waters in New Jersey has an easement in the shore in front of them, and the right to appropriate it to his exclusive use, but that until reclaimed he could not maintain ejectment for it, the fee being in the state. And for this reason, the defendant having encroached, the court held that the plaintiff was entitled to have the division line established and protected by injunction. And in Thornton v. Grant, 10 R. I. 477, as soon as it was clearly alleged that the defendant was encroaching upon the plaintiff’s water front, this court asserted its right to protect him by defining the boundary and enjoining any filling beyond it. And see O'Donnell v. Kelsey, 10 N. Y. 412, 415. Demurrer overruled.