with him; he may commit the matrimonial offense of desertion against her there, and leave her in such circumstances that she has no home to go to except that of her parents or relatives in the state of New Jersey. Great injustice has been done in many instances by a spouse acquiring an apparent, and in many cases simulated, domicile thousands of miles distant from his or her matri monial domicile, and calling upon the other spouse, who retains the matrimonial domicile, to defend a suit for divorce all that distance from his or her residence. Then it is so easy to impose upon and deceive the court in the matter of domicile, and so difficult to detect such imposition when the case is heard ex parte. Spouses who seek to establish a distant domicile for the purpose of procuring a divorce do not hesitate to swear, in the most positive manner, that they intend to remain and live permanently in the new domicile, and yet, as soon as their decree is granted, they return to their former residence. All judges who have dealt with such cases have observed this phenomenon. I have myself read the evidence underlying the decree of a Western court in several such cases, and in each, after swearing positively as just stated, the spouse returned at once to his former home and occupation. No doubt the same phenomenon was present in the case of Bell v. Bell, above cited. It may be that this question is of little practical importance in New Jersey, in one aspect. There is but one state which, so far as I know, does not include continued desertion among causes for divorce, namely, New York, and comparatively little injustice can arise by compelling a party to come from New York to New Jersey to defend a divorce suit. But in another aspect it is of great importance. If our courts assume to act upon a simulated domicile we cannot criticise other courts, however distant, for doing the same thing. We must observe the rule of comity, and do as we would be done by. It has been my rule, and I believe that of the other members of the court, not to grant a decree for divorce for desertion based upon a service out of the jurisdiction and a domicile not matrimonial, unless such domicile has been acquired under circumstances showing sufficient and controlling reasons for its acquisition, other than the desire to procure a divorce,-and certainly never when the avowed object was to obtain that relief. Such was the ratio decidendi in McGean v. McGean (N. J. Ch.) 46 Atl. 656. The court of errors and appeals, in affirming the decree in that case, does not disapprove of that ground, but saw fit to put its approval on another ground. 49 Atl. 1083. In Tracy v. Tracy (N. J. Ch.) 46 Atl. 657, I made some of the suggestions hereinbefore stated, and declined to advise a decree, on two groundsFirst, want of continued residence for two years; and, second, because there was no sufficient proof of the animus manendi. The

court of errors and appeals, in reversing that decree (48 Atl. 533), held that the petitioner had acquired a "residence" for two years, and so brought herself within the statute of this state. But the learned judge who spoke for that court did not notice or deal with the question of the power of the court to acquire jurisdiction of the defendant by service of notice upon him out of the state, based upon the residence there proven. I cannot believe that that aspect of the case was brought to their attention. The case of Atherton v. Atherton, in the supreme court of the United States, had not then been published, and the learned judge in his opinion in Tracy v. Tracy omits to refer to some of the leading cases defining domicile, particularly Harral v. Harral, 39 N. J. Eq. 279, 51 Am. Rep. 17. And on that subject I beg leave to say that the words "inhabitant" and "resident," used in the first section of the statute, do not naturally or necessarily imply that the party, in order to be an "inhabitant" or a "resident," must have any established domicile in this state. A person may reside in and be a resident of a place or state for years without acquiring a domicile. The word "inhabitant" was used by Judge Paterson in drafting the act of 1794, which first gave jurisdiction to this court over the subject-matter of divorces, and the word "resident" was first introduced in the act of February 3, 1818 (P. L. p. 20). It seems to be synonymous with "inhabitant." The object of the original act was, as I have said, to give this court jurisdiction of a new subject-matter, and not to define in what cases it should have power to proceed upon service of notice upon a nonresident out of the jurisdiction. (A careful study of the whole course of legislation shows this. The first legislation applied only to cases where both spouses were residents of this state.) And, if it had assumed to do so, its effort, as we have seen, would have been futile. The legislature has the power to declare certain conduct to be a cause for divorce when committed against a resident spouse or inhabitant of the state who has no domicile here. And if such party brings suit here, and is able to effect service upon the other party within the state, the court will have complete jurisdiction of both the subject-matter and the party defendant, and may make a decree binding in all jurisdictions, without regard to the question of the real domicile of either of the parties. Such a case was Pohlman v. Pohlman (N. J. Ch.) 46 Atl. 658. Now, as before remarked, I think there is a clear distinction between a residence of a nature sufficient to give the court jurisdiction of the subject-matter under our statute, and also for the purpose of making a case of desertion as a cause of divorce under the same statute, on the one hand, and the domicile which is necessary to give this court jurisdiction under international law to decree a divorce based upon service of process or notice upon a nonresi.

dent out of its territorial jurisdiction, which decree shall stand the test of criticism by the supreme court of the United States. And I am unable to find in the opinion of the court of errors and appeals in Tracy v. Tracy evidence that the court had that distinction called to its attention, or that it intended to intimate an opinion upon it. However, be that as it may, the opinion in Tracy v. Tracy carefully distinguishes that case from the McGean Case, and leaves the doctrine stated in the latter case in the opinion below undisturbed. Then there is the great authority of Chancellor Green, as expressed in his opinion in Brown v. Brown, 14 N. J. Eq. 78, a case, for present purposes, like the present, although it does not appear by the report-whatever the record may disclose that the jurisdiction there was founded on extraterritorial service, or that the attention of the court was called to the question I have | tried to discuss. After discussing the question of statutory jurisdiction of the cause he says (page 80): "Waiving all consideration of the question whether the wife can thus acquire a domicile distinct from that of her husband, whether she was not in law, at the time of filing her bill, a resident of the state of New York, the actual residence in this state was adopted under circumstances which warrant the conclusion that the change of residence was made for the purpose of obtaining a divorce. Sound policy forbids that the judicial tribunals of this state should thus be used by citizens of other states in evasion of their own laws, or to procure redress for which resort should be had to their own tribunals." It is true that his decree based upon that opinion was reversed upon appeal, but the opinion was not filed, and it may have been based upon a different view of the facts. Chancellor Zabriskie does, indeed, say of Brown v. Brown, in Coddington v. Coddington, 20 N. J. Eq. 265: "It is well understood that the last case was reversed in the court of appeals on the ground that the chancellor held that, notwithstanding the act of 1857, a residence of five years during the desertion was still required (the complainant had resided in the state more than three years during the desertion), and also because the chancellor held that a residence resumed in this state, seemingly for the purpose of bringing a suit, although there was an actual change of residence, was not sufficient under the requirements of the act." I think that an examination of the evidence will show that the original domicile of complainant before marriage was in this state, and that after desertion by her husband in New York she naturally enough returned to her original domicile. But, notwithstanding his reversal, we find the same great judge expressing himself to the same effect in incisive and graphic language in Winship v. Winship, 16 N. J. Eq. 107, at page 109. For these reasons I must decline to advise a decree for the complain

ant, and think that the bill should be dismissed. It is proper to add that the learned master acted upon the erroneous supposition that the case of McGean v. McGean was reversed by the court of errors and appeals.

Since preparing the foregoing, I have had the opportunity to read an opinion prepared by the chancellor in the case of Sweeney v. Sweeney, 50 Atl. 785, which discusses, from the standpoint of actual authority in New Jersey, the questions which I have dealt with, and comes to the same conclusion, and I am authorized to say that he also agrees with my view of the duty and the power of the court to proceed in such a case upon service out of the jurisdiction.

I append the following digest of the statutes creating Jurisdiction of the court of chancery over divorces:

are

The original act, passed the 2d of December, 1794 (Paterson's Laws, p. 143), provides "that the court of chancery shall have jurisdiction of all causes of divorce by this act directed and allowed, provided the parties be inhabitants of this state." There is no provision in it for acquiring jurisdiction of spouses out of the state. But it declares that the like process and course of practice and procedure shall be had and pursued in all causes of divorce as usually had and pursued in other causes on the equity side of the said court, except, etc. There was at that time no provision, so far as I am aware, for acquiring the jurisdiction of nonresident parties. I will refer to these provisions later. On the 4th of March, 1795, the legislature passed a supplement to the divorce act (Paterson's Laws, p. 160), providing "that in all divorce causes brought, or to be brought into the court of chancery of this state, if the party against whom complaint is or shall be made, hath or shall, after the cause of complaint hath arisen, remove without the jurisdiction of the said court, so that the process thereof cannot be served, or if served, the party cannot be compelled to appear and answer or plead, it shall and may be lawful for the chancellor, on bill filed and due proof that the defendant hath removed as aforesaid, to order a hearing on the facts charged in the said bill, and thereupon to pass a decree in the same manner as if the defendant had appeared and were present in court, provided nevertheless, that a copy of said order for hearing be published in one of the public papers in this state, and in one of the public papers of the states of New York and Pennsylvania, or served on the party against whom complaint is or shall be made, for the space of two months at least before the day appointed for the said hearing." These two acts show clearly enough that the legislature did not intend to give jurisdiction to the court of chancery over the subject of divorce except in those cases where the matrimonial residence at the time of the commission of the offense was in this state.

By the act of February 3, 1818 (P. L. p. 20), the legislature enlarged the jurisdiction by declaring that the court of chancery shall have jurisdiction, "provided the parties [complainant and defendant] were or shall be inhabitants of this state [at the time of the injury, desertion or neglect complained of, or where the marriage shall have been solemnized or taken place within this state, and the complainant shall have been an actual resident in this state, at the time of the injury, desertion or neglect complained of, and at the time of exhibiting the bill]." It will be observed that the word "inhabitant" is retained in the first part of the act, and the words "actual resident" are inserted in the latter part, which is an amendment to the original act. By the twelfth section the chancellor is authorized to proceed against a nonresident by publication, and by the thirteenth section the previous acts were repealed. This act was followed by the act of February 16, 1820 (P. L. p. 43; Rev. Laws 1821, p. 667). That act repealed the three previous acts above mentioned, and by its first section defined the jurisdiction. By that act the jurisdiction was enlarged by adding to the text of the act of 1818, after the words "provided the parties, complainant and defendant," the words "or elther of them," and by adding at the end of the first section of that act the words, "or where the adultery was committed in this state, and the parties, complainant and defendant, or either of them, reside in this state at the time of exhibiting the bill; provided such complainant shall make his or her oath or affirmation, to be annexed to the bill of complaint, that his or her complaint is not made by any collusion between him or her, and the defendant, for the purpose of dissolving their marriage, but in truth and good faith for the causes set forth in the bill of complaint." That act makes no provision for proceeding against absent defendants, but reliance was had upon the provision of that section which said that the like process and course of practice should be had in divorce cases as in other cases in the court of chancery. These were as follows: The act of March 12, 1798 (Paterson's Laws, p. 303) provides for the bringing in of nonresident defendants in foreclosure cases only. The act of June 13, 1799 (Paterson's Laws, p. 428; Id. § 16, p. 430), provides for proceeding against nonresident defendants only in cases where there are several defendants, and some of them reside out of the state, and some within the state. It does not provide for a case where all the defendants, or a single defendant, resides out of the state. The act of February 29, 1820 (P. L. p. 99), first provided for the bringing in by publication of any and all absent defendants in all causes (Rev. Laws 1821, p. 702). By act of December 13, 1824 (Harrison's Compilation, Pub. Laws, p. 69), the legislature provided that suit for divorce

may be brought by petition and citation as well as by bill. The next legislation was an act passed on February 22, 1843 (P. L. p. 84), which recites doubts as to the construction of the act of 1820, and declares as follows: "That the act to which this is a supplement, shall be construed so as to give to the court of chancery jurisdiction of all causes of divorce, and of alimony or maintenance, in cases of desertion, by the said act directed and allowed; provided the complainant or defendant shall be a resident of this state at the time of the filing of the bill of complaint, and the complainant or defendant shall have been a resident of this state for the term of five years, during which such desertion shall have continued." These sections were consolidated in the Revision of 1846, p. 922, as follows: "That the court of chancery shall have jurisdiction of all causes of divorce and of alimony or maintenance, by this bill directed and allowed, provided the parties, complainant and defendant, or either of them, were or shall be inhabitants of this state at the time of the injury, desertion or neglect complained of, or where the marriage shall have been solemnized or taken place within this state, and the complainant shall have been an actual resident in this state at the time of the injury, desertion or neglect complained of, and at the time of exhibiting the bill; or where the adultery was committed in this state, and the parties, complainant and defendant, or either of them, reside in this state at the time of exhibiting the bill; or where the complainant or defendant shall be a resident of this state at the time of filing the bill of complaint, and the complainant or defendant shall have been a resi dent of this state for the term of five years during which such desertion shall have continued; provided, such complainant shall make his or her oath or affirmation, to be annexed to the bill of complaint, that his or her complaint is not made by any collusion between him or her and the defendant, for the purpose of dissolving their marriage, but in truth and good faith for the causes set forth in the bill of complaint." act of March 20, 1857, it was enacted "that divorces from the bond of matrimony may be decreed for willful, continued and obstinate desertion for the term of three years," and "that all acts, or parts of any act, inconsistent with the provisions of this act, be and the same are hereby repealed." P. L. 1857, p. 399. It was held by Chancellor Green, in Brown v. Brown, 14 N. J. Eq. 78, that this act did not repeal by implication that clause in the first section of the act of 1846 which required a five years' residence in order to give the court jurisdiction, but the court of appeals held the contrary. By the Revision of March 27, 1874, the first clause of the Revision of 1846 was re-enacted, with two changes: Instead of the word "bill" in the first section

By the

the word "act" was inserted, and instead of the words "five years" the words "three years" were inserted. By the act of March 7, 1889 (P. L. 1889, p. 40), the first section was amended by inserting the word "two" instead of the word "three" in the statement of the length of residence and desertion necessary to confer jurisdiction of the subject-matter.

OPPENHEIM v. LOFTUS et al. (Court of Chancery of New Jersey. Dec. 20, 1901.)

EASEMENTS-PRIVATE WAY-INJUNCTIONS

EQUITY-JURISDICTION.

1. Where, in an action to compel the removal of an obstruction to a private way, defendant disputes plaintiff's right to the easement, but does not dispute the deeds under which he claims, and his rights under such deeds have been determined in suits with other parties, the action need not be sent to a court of law to first determine his title.

2. Where, in an action to compel the removal of a building from a private way, plaintiff claims title in fee, subject to the easement, in a part of the ground covered by the building, and such claim is based on deeds conveying land on one side of the way, described by metes and bounds, but not as bounded on such way, his title must first be determined in an action at law.

3. Where, in an action to restrain the obstruction of a private way, plaintiff's title to a portion must first be determined at law, and the right to the other portion is controverted, injunctions as to the latter will not issue until the title to the former is determined.

Bill by Myron H. Oppenheim against Thomas J. Loftus and others. Injunction pendente lite denied, and cause retained, pending decision at law as to title.

Wilbur A. Heisley and George T. Werts, for complainant. Nathan C. Horton, for defendant Loftus.

EMERY, V. C. The bill in this case is filed to compel the removal of a building erected by the defendants within the lines of what is claimed to be a roadway in the rear of complainant's lands. Complainant is the owner of property at Elberon, Monmouth county, fronting about 140 feet on Elberon avenue, 395 feet deep, and about 292 feet in width at the rear. He claims that along the whole line of the rear of his lot is a road called "Eaton Road," 50 feet in width, running north to an avenue running at right angles to Elberon avenue, and called "Park Avenue," and that he is entitled to ingress and egress to and from Park avenue along the whole rear line of his property, and over the entire width of 50 feet. The defendant, Mrs. Leftus has obstructed the entire road opposite a portion of complainant's property, by building a stable, which extends over the westerly half of the road as well as the easterly half, and prevents direct access to the road from that portion of complainant's property where his barn is located. Complainant's title to relief against the obstruction, as presented in his bill, is presented in a twofold aspect-First,

he claims that the road was laid out by deeds of the original owner of the property on both sides of the road, under whom both parties claim, and that by virtue of these original conveyances a private easement or right of way over Eaton road to Park avenue was created by grant in favor of complainant's lots, and all other lots on the westerly side of the road; and, second, that he has a legal title to the westerly half of the roadway, and to the center of Eaton road, subject to this easement. The answer of the defendant Mrs. Loftus admits the erection by her of the building complained of, but denies complainant's title, either to the easement or to the roadway itself, or that complainant has any interest in the roadway, and submits that the matters complained of are relievable at law, and that this court can grant no relief. Defendant does not, in her answer, set up any claim of title to the roadway, but at the hearing deeds were offered by the complainant, under which defendant Mrs. Loftus claims title to the whole roadway itself, as well as title to the lands opposite complainant on the easterly side of the road. The preliminary question to be decided in the case is whether, upon the pleadings and proofs as they stand, with reference to the legal title, complainant must first establish legal title by suit at law. In a previous case (Oppenheim v. Brand1) the question of the existence of the easement in favor of complainant's property, as based on the deeds now relied on, was considered by me, and I reached the conclusion that the complainant was entitled to the easement claimed, and by final decree I directed the removal by the defendant Brand of a building erected by him on the westerly half of the road, and which obstructed complainant's access to Park avenue, but which building at the time of the decree was located, not opposite complainant's property, but north of his line and at a point on the road nearer Park avenue. The question principally argued in that case was whether this relief could be given before the establishment of the complainant's title at law, and the decision of the question involved the application of the rule recently laid down in Todd v. Staats (Err. & App. 1900) 46 Atl. 645. That case decided that when the fundamental right on which complainant prays equitable relief is the legal title to an easement in lands of the defendant, and the legal right is in substantial dispute, the establishment of the right at law is necessary before equity can interfere, and that if the relief prayed is based on the existence of such right, and the right is denied by the answer, the cause in equity should be held for the establishment of the right at law. For reasons stated more at length in the conclusions filed in the Brand Case, I held that where the facts upon which the existence of the easement depended were not in dispute, e. g. where it depended upon

1 No opinion filed.

deeds not disputed, and where the legal right of the complainant upon these admitted facts had been already settled by the direct declsion of courts of law applicable to the admitted facts, the legal right could not be said to be in substantial dispute, and I further held that, in such cases, under the previous decisions of the court of errors and appeals, equitable relief upon settled legal rights could be granted without first sending the parties to law for the purpose of having an additional adjudication inter partes, based on rules already settled. Hart v. Leonard (Err. & App. 1886) 42 N. J. Eq. 416, 419, 7 Atl. 865, citing, under head 3, cases previous to that date; also the following cases, subsequently decided, and in which equitable relief, which was the ultimate remedy necessary, was granted without sending to law. Bailey v. Schnitzius (Err. & App. 1895) 53 N. J. Eq. 235, 32 Atl. 219; Newhoff v. Mayo (Err. & App. 1891) 48 N. J. Eq. 619, 23 Atl. 265, 27 Am. St. Rep. 455. In Todd v. Staats, the legal title on the admitted facts had not been already settled by decisions at law, and there was therefore a substantial dispute as to the legal right, and in Oppenheim v. Brand I did not consider the decision in Todd v. Staats as overruling, or intending to modify, the effect of the previous decisions. The decision in Todd v. Staats had been announced or promulgated after the filing of the bill in Oppenheim v. Brand, and the conclusions were filed shortly after the hearing, in order that they might be reviewed without delay on appeal. No appeal, however, was taken, and the present cause has been submitted by other counsel for defendant, upon the briefs and arguments submitted for defendant in the Brand Case, and without appearing before me, or in any way calling my attention to any distinction to be drawn between this case and the Brand Case. There are two obvious points of difference: First. The present bill presents for adjudication a claim of legal title to the westerly half of the road subject to the easement. In the Brand Case, this question of title to the soil of the roadway was not involved at the final hearing, and the decision was expressly based on the right to an easement. In the second place, the building here complained of has been erected by defendant partly upon the westerly half of the road, to which half complainant claims title, and partly upon the easterly half, to which complainant claims only an easement, and the bill seeks a removal of the entire building. In the Brand Case, the building was located entirely on the westerly half of the road. Under the evidence in the case, both these points of difference between the Brand Case and the present case are so vital that, in my judgment, so long as the complainant stands on his claim of title, as stated in the bill, his title cannot be considered as so settled in his favor by decisions at law that he is relieved from the usual rule of requiring that title to be first established at law. Complainant ac

quired the property in question by two deeds, one conveying a lot 100 feet in width on Elberon avenue, and 100 feet wide in the rear, and the other conveying 30 feet front on Elberon avenue and 292 feet in width in the rear. These deeds both convey by metes and bounds, which in fact reach to the westerly side of the road, and run along the westerly side of the road. But in neither of the deeds does the description in terms bound the rear line on the westerly side of the road, or in terms run along the road. The deed for the 100 feet strip runs "from the center of Elberon avenue 395 feet to the westerly line of a road leading to Park avenue, and located between the property hereby conveyed and a tract of land formerly known as 'Blythebeach Park.'" The second and third courses are

as follows: "Thence (2) south 20 degrees and 9 minutes, west 100 feet, to lands belonging to Theodore Runyon; thence (3) along Runyon's north line north 69 degrees 51 minutes, west 395 feet, to the center line of Elberon avenue." This description, it will be observed, does not bound the rear line of the property on the road, or refer to it at all, and, so far as the mere description in the deed is concerned, non constat that it bounds on the road at all. In complainant's deed for the second portion of his tract, which includes the 292 feet in the rear, opposite part of which the obstruction now complained of is erected, there is also a description by metes and bounds, which in fact locates the rear line at the westerly side of the road, but in the description of the deed itself there is no reference whatever to the road, or to its westerly line. The description, commencing in the center of Elberon avenue, at the southwest corner of complainant's first lot, runs "(1) south 69 degrees 51 minutes, east 395 feet" (without reference, it will be observed, to the line of the road as a monument); "thence (2) south 20 degrees 9 minutes, west 192 feet 6 inches to a stone in the southeast corner of Mrs. Runyon's lot"; and then follow the courses to the west and away from the road. It is not settled by our decisions at law that descriptions of this character, which do not purport to bound on the roads, convey to the center of the road, even if the roads are public highways, and certainly the rule cannot be considered as settled in reference to roads not admitted to be public highways, and in which the easement relied on is a private easement. The cases at law hitherto decided are all cases where not only were the lands in fact located on a public highway, but the lands were described as bounded by, or running along, the highway. Salter v. Jonas (Err. & App. 1877) 39 N. J. Law, 469, 23 Am. Rep. 229; Freeman v. Sayre (Sup. 1886) 48 N. J. Law, 37, 39, 2 Atl. 650; Ayres v. Railroad Co. (Err. & App. 1890) 52 N. J. Law, 405, 407, 20 Atl. 54; Association v. Shriver (Err. & App. 1900) 64 N. J. Law, 550, 554, 46 Atl. 690, 51 L. R. A. 425. In the deeds to some of complainant's earlier predecessors in title, the