Burrell v. Middleton

Leaking, Y. C. This court will not assume jurisdiction to try a controverted legal title to an easement of way. Todd v. Staats, 60 N. J. Eq. (15 Dick.) 507. But where the substantive right which complainant seeks to enforce or protect consists of an, equitable estate in lands, this court has primary jurisdiction. The right which complainant here seeks to enforce is of the nature last stated. If defendants, for a valuable consideration, agreed to bestow upon complainant a right of passage over the land of defendants, that agreement operated to vest in complainant an equitable estate in the land of defendants co-extensive with the terms of the agreement, and it is within the exclusive jurisdiction of this court to enforce the execution of the agreement by decree of specific performance, and to protect complainant against the violation of the agreement until the agreement shall have been executed by the delivery-of the necessary assurances of legal title. The statute of frauds will not operate as a bar to the enforcement of the parol agreement if the agreement has been in part performed in such manner as to render it a fraud upon the vendee to permit the vendor to avail himself of the statute to avoid his agreement. But such parol agreements are not favored and must be clearly proved. Vreeland v. Vreeland, 58 N. J. Eq. (8 Dick.) 387. I am unable, in view of the denials contained in the answer and the scope of the affidavits filed by the defendants, to regard the rights of complainant as established with that clearness which is necessary to warrant the issuance of a preliminary injunction. It may also be observed that a denial of the preliminary writ will [777] not, in this case, occasion irreparable injuiy to complainant. Should defendants hereafter deny to complainant the use of the way and complainant’s right be established at final hearing, such damages as complainant may suffer in the interim may be easily measured and recovered at law. The order to show cause will be discharged, with costs.