nies) all rights of way over the Preston | Cumberland street was a public street and tract or any part of it," and it was further agreed that any of the parties to the agree ment might fill in and grade the said road, and that the agreement should be binding upon successors, heirs and assigns. might be used by them for access to the lands of the railroad company located on its extension. The agreement with the Harrison Land Company, however, was made after the bill was filed. All the lands lying east of Fourth street, including the portion of Cumberland street laid out as a public street, are low lying marshy lands, wholly unimproved. The filling up and grading provided for by these permits will do something toward pre as materially accommodate the contractors. The contractors were allowed to intervene as co-complainants and join in the application for preliminary injunction. Complainants seek injunction against the town from vacating the street and executing a deed therefor to the Crucible Steel Company, and that the steel company may be restrained from preventing the use of Cumberland street. There has been no acceptance by the public of this extension of Cumberland street made by the parties, and the rights of the complainant over the extension of Cumberland street are derived solely under the agreement and by virtue of its express or implied cove-paring them for useful occupation, as well nants. But since the execution of the agreement, and by reason of the release thereby of any right of way to other public streets, complainant land company now has no right of way or access other than through this extension to any public highway or street of the town. Its property, however, has access to a river front on the Passaic river. The town of Harrison, by ordinance now on third and final reading before its common council, proposes to vacate this portion of Cumberland street 237 feet from Fourth street; the vacation, however, to be "subject to the agreement made the 17th day of May, 1901," between the parties above stated. Proceedings for the vacation were instituted by the application of the Crucible Steel Company, a party to the agreement, which | has purchased and now owns also part of the United Company's land north of the center line of the extension and also owns or controls the lands covered by the street to be vacated. For the vacation of Cumberland and other streets named in their application the Crucible Steel Company offered to pay to the town of Harrison $8,000, the town to give in return a quitclaim deed on all the streets vacated. Since filing the original bill, the streets other than Cumberland have been vacated, and the full sum of $8,000 has been paid to the town by the Crucible Steel Company, which also, in connection with this vacation of the other streets, agreed to defend the present suit and to bear the entire expense of defending it, whether Cumberland street should or should not be vacated. These facts are set up in the supplemental bill. [1] So far as the contractors' rights of passage over Cumberland street are the rights of passage over a highway which is common to | the public, and the injury to them, in legal contemplation, is not different in character from that which every other citizen sustains, they have no standing for special protection by injunction. H. B. Anthony Shoe Co. v. West J. R. R. Co., 57 N. J. Eq. 607, 617, 42 Atl. 279 (Err. & App. 1898); Young v. Pa. R. R. Co., 72 N. J. Law, 94, 62 Atl. 529 (S. Ct. 1905); Grey, Atty. Gen., v. Greenville & Hudson R. Co., 59 N. J. Eq. 372, 377, 46 Atl. 638 (N. | J. Ch. 1900). They must on this application stand therefore on their rights of access derived from the Harrison Land Company and depend upon its rights to enjoin the passage of the ordinance. As to these I reach the following conclusions: [2] First. So far as the municipality, the town of Harrison, is concerned, the complainant's right to a preliminary injunction depends upon the power of the municipality to vacate a portion of Cumberland street without first making compensation to complainant. The charter (P. L. 1873, p. 265, § 56) authorizes the common council by ordinance to lay out, alter, widen, or straighten, and also to vacate any street then or thereafter After the filing of the bill, Booth & Flinn, laid out, "and to take and appropriate for Limited, contractors, who had a previous such purpose any lands and real estate, upon permit from the Pennsylvania Railroad Com- making compensation to the owner or owners pany to deposit waste material on its lands thereof, as is hereinafter mentioned and lying on the southerly side of this extension provided." The subsequent section of the of Cumberland street, procured from the Har- charter (59), defining the method of ascertainrison Land Company a like permit to fill in ing and making compensation, extends only their lands and also permitting the con- to the taking and appropriating of lands or tractors, as the agent of the land company, to real estate for "opening or altering, widening fill in and grade the street known as Cumber- or straightening streets," and does not inland street or any portion thereof. Booth & clude "vacating." Complainant's land is apFlinn, Ltd., have a contract for the construc-parently damaged or injuriously affected by tion of a portion of the sewer for the Passaic the vacation of the street, but its land is Valley sewerage commissioners, and the se- neither taken nor appropriated, and therecuring of space for the deposit of material fore does not seem to come within the prois a material convenience in this construction. vision in section 56 for compensation. Unless At the time of securing the Pennsylvania such provision is expressly directed by statute tion be vacated without had, as against each other, to have Cumberland street continue as a public street; and there may also be a question whether a vacating ordinance thus restricted is a proper exercise of the power of vacating streets. But these are questions of legal right, first subject to review in the courts of law, and cannot be decided in this court on this application, which involves purely the right to a preliminary injunction against passing the ordinance as proposed. The power to vacate streets is, in its general nature, a legislative power, and the proposed exercise of it in this instance is purely legislative. compensation. | press limitation does release or destroy the Dodge v. Pa. R. R. Co., 43 N. J. Eq. 351, right which the parties under the agreement 355, 11 Atl. 751 (Van Fleet, V. C., 1887), affirmed on appeal for reasons stated 45 N. J. Eq. 366, 19 Atl. 622 (1889); Newark v. Hatt, 79 N. J. Law, 552, 77 Atl. 47, 30 L. R. A. (N. S.) 637 (Err. & App. 1910); Newark & B. R. Co. v. Montclair, 85 Atl. 1028 (Sup. Ct. 1913). In the vacation of streets, lands located on the street vacated are not in fact "taken and appropriated" by the municipality, which, on the contrary, only releases a public right or easement over the lands, and therefore it may be well claimed that the provisions of section 59 as to the method of compensation and proceedings for "lands taken" intentionally and properly excluded proceedings for the vacation of streets. And, in my judgment, this omission, construed in connection with section 56 extending the power for compensation only to "lands taken and appropriated," excludes complainant's lands from the protection of the provision. [4] It is well settled, as a general rule, that a court of equity will not enjoin the passage of ordinances which are within the scope of the powers possessed by a municipality. Cape May, etc., R. R. Co. v. City of Cape May, 35 N. J. Eq. 419, 421 (Van Fleet, V. C., 1882); 21 A. & E. Encycl. 951, note 1, citing cases. In the second place, the title posed to be vacated is now in the defendant, the Crucible Steel Company, one of the parties to the agreement set out in the bill. Complainant's right as against the Crucible Steel Company to the access over the lands included within the vacated street for ingress and egress to all parts of this "recognized way" to and through Cumberland street, of which the road or way was to be the extension, may remain notwithstanding the vacation. This question will properly come up for adjudication, not as the necessary result of the vacation of the street, but as the result of the obstruction of the complainant's access over the vacated street to the only public street, if the street be vacated and such obstruction made by the Crucible Steel Company. The above authorities, in my judgment, control this case on this point, and the cir-in fee to a portion of Cumberland street procumstances strongly urged by complainant, that the vacation of this portion of Cumberland street will cut off their access from any public street, if it be true, does not relieve the case from the operation of the rule affirmed by these decisions in relation to the power of municipalities to vacate public streets without compensation where none is provided by statute. The municipal authorities were not parties to this agreement by which complainant land company and others gave up the private ways from their lands to other streets. They cannot, therefore, merely for the reason that complainants have now no other access, be subject to any equities as to compensation on the vacation of a street to which complainant had no right of access previous to the agreement, and whose rights of access thereto rest only on the private agreement. The fact that the private ways claimed by the complainants and released by the agreement did lead to other public streets is important in answer to the present claim of a right to compensation for vacation, arising on the special ground of cutting off the sole access. [3] But complainant may not, by the passage of the ordinance in question, be certainly cut off from access to public streets, and for two reasons: First, complainant's right of access to the entire width of the portion of Cumberland street proposed to be vacated, which adjoins the land dedicated as a road, exists under the agreement set out in the bill, and complainant claims that, by virtue of this express agreement, it has, as against all persons bound thereby, a right to have the dedicated road constitute "an extension of Cumberland street" as it then existed. Now, the ordinance of vacation expressly provides that the vacation is made subject to this agreement, and the question fairly arises No preliminary injunction can therefore be granted in this case, and in view of the above decisions, H. B. Anthony Shoe Co. v. West Jersey R. R. Co., etc., my present view is that, in the absence of any special property right of the complainant which would be taken or appropriated by vacation of the street, the passage of the ordinance cannot be enjoined by this court, even at final hearing. The claim that the passage of the ordinance is solely in the private interest and benefit of the Crucible Steel Company and for the purpose of allowing it to occupy and use the street for its private purposes and upon a money consideration paid therefor is a claim or contention based on the rights of the public to an exercise of the power of vacation in the public interest and not for private interest. After the vacation is made, the special interest which the complainants have in the continuance of the public street as owners of lands injuriously affected thereby may be sufficient to allow them to question the vacation by certiorari. Beecher v. affirmed on errors 65 Ñ. J. Law, 307, 47 Atl. the winter season was not an unlawful invasion 466 (1900). of the rights of the users. [Ed. Note.-For other cases, see Canals, Cent. Dig. § 31; Dec. Dig. § 26.* vol. 4, pp. 3291-3306; vol. 8, p. 7678.] 3. EVIDENCE (§ 6*)-JUDICIAL NOTICE-SEA- Judicial notice is taken of the seasons and their natural influences on material things, including the fact that canals in New Jersey are closed to navigation in the winter. [Ed. Note.-For other cases, Cent. Dig. § 5; Dec. Dig. § 6.*] see Evidence, 4. INJUNCTION (§ 37*)-ESTABLISHMENT OF RIGHT AT LAW-NECESSITY. [5] Under our practice when the validity of an ordinance, contract, or other act, within the power of the municipality, is attacked, because of fraud or other improper motive, or abuse of legislative discretion, such as being solely for the benefit of private interest, it has always been by certiorari removing the complete act which is questioned to the Supreme Court. After the act, and generally not until then, can the question as to the character and operation of the motives for the exercise of admitted powers be fairly at issue or tried, and in all of the New Jersey Complainant transportation company opercases brought to my attention, where no ating boats through defendant's canal was not private property was entitled to protection entitled to restrain the closing of a basin, operated in connection with the canal, where comby injunction, the issue of the invalidity of plainant docked its boats, during specified winthe ordinance upon any of these grounds was ter months, prior to a determination at law that raised, tried, and decided on certiorari pro-defendant owed complainant the duty to keep ceedings, which either affirmed or set aside the basin open during such season. entirely the ordinance to all the public. North Baptist Church v. Orange, 54 N. J. Law, 111, 22 Atl. 1004, 14 L. R. A. 62 (Sup. Ct. 1891), is an instance where the validity of an ordinance opening a street was questioned after its passage on the ground that it was improperly induced by the promise of a citizen to pay part of the expense, and in many cases the Supreme Court, after the adoption of the ordinance or contract, has passed on the question whether it was an honest exercise of their discretionary legislative power. Ferguson v. Passaic, 60 N. J. Law, 404, 38 Atl. 676 (1897); Kraft v. Board of Education, 67 N. J. Law, 512, 514, 51 Atl. 483 (1902). The control in this case of the passage of the ordinance by an injunction dependent on a decision beforehand as to the motives for its passage would, in my judgment, be an unauthorized interference with the exercise of the legislative power given to the municipal body. (82 N. J. Eq. 550) Cent. Dig. § 85; Dec. Dig. § 37.*] MURRER. 5. EQUITY ($ 220*)—JURISDICTION-BILL-DE- 6. CANALS (§ 26*) - OBSTRUCTION-PUBLIC Where complainant operated boats through defendant's canal, but had no different rights therein than were common to the public in general, it could not maintain a bill to enjoin the closing of a basin attached to the canal during certain winter months on the ground that the obstruction was a public nuisance. [Ed. Note. For other cases, see Canals, Cent. Dig. § 31; Dec. Dig. § 26.*] 7. CANALS (§ 26*)-RIGHT TO RELIEF-ADEQUATE REMEDY AT LAW. Where complainant operated boats through defendant's canal, and defendant threatened to close a portion of the canal during certain winter months, which complainant alleged would result in a loss to it of at least $500 a day, complainant had an adequate remedy at law by application to the board of public utility commissioners as provided by P. L. 1911, p. 374, or by mandamus, or by action for damages, in the absence of any question as to defendant's abil MIDDLESEX TRANSP. CO. v. PENNSYL- ity to respond, and hence was not entitled to VANIA R. CO. enjoin the closing of the canal. [Ed. Note.-For other cases, see Canals, Cent. (Court of Chancery of New Jersey. Dec. 4, Dig. § 31; Dec. Dig. § 26.*] 1913.) 8. EQUITY (§ 241*)-BILL-Demurrer. Where, on demurrer to a bill, it appeared that, taking the charges as true, the bill would be dismissed on final hearing, the demurrer would be sustained and the bill dismissed. [Ed. Note. For other cases, see Equity, Cent. Dig. § 515; Dec. Dig. § 241.*] Suit by the Middlesex Transportation Company against the Pennsylvania Railroad Company. On demurrer to bill. Sustained, and bill dismissed. George S. Silzer, of New Brunswick, for complainant. Theodore Strong, of New Brunswick, for defendant. 2. CANALS (§ 26*)-"PUBLIC HIGHWAY" RIGHT TO USE-REGULATION AND CONTROL. Though a canal with a basin attached is a public highway, it is nevertheless a highway of a particular kind, with natural limitations on its functions and subject to reasonable regBACKES, V. C. The object of this bill is ulations and control, so that the policy of those operating it of closing it to navigation during to compel the defendant to maintain and op. erate a part of the Delaware & Raritan Canal | basin is maintained for the convenience of at New Brunswick during the winter season the defendant, subject to the free and ununtil the elements make it impossible. interrupted use thereof of persons desiring The bill was filed January 7, 1913, and to use the same as such public highway. avers that the complainant is a common car- The complainant has been in business about rier of freight by boat between New Bruns-eight years, and during former seasons, when wick and New York, and carries approxi- the basin was closed, it operated its boats mately 300 tons of freight, daily. Its dock from docks of the defendant company located at New Brunswick, of about 400 feet in on the Raritan river, which were torn down length, is located on what is known as the in the fall of 1911. There was a winter season lower basin of the canal, and was built in when the canal and basin were closed, when 1912. This basin is about a mile in length, the boats of the complainant did not lose a about 125 feet in width, and extends from the single trip, and at other times many trips upper lock of the canal proper to an outlet were made after the complainant was barred lock into the Raritan river, where the tide from the canal basin. The defendant preebbs and flows to a rise and fall of about tends that it is necessary to close the basin six feet. A towpath divides it from the for repairs and for other purposes, which is river. In the use of the basin, the boats of untrue. It is not necessary at this time (the the complainant pass under a drawbridge at time of the filing of the bill), or at any time, Albany street and through the outer lock into for the defendant to close the lower basin, the Raritan river, both of which are oper- and it is only necessary that the same should ated by employés of the defendant, free of be closed when closed by the elements. The charge. The use of the basin is also free. bill prays that the defendant be decreed to The basin is a continuation of the Delaware keep the lower basin open for the use of the & Raritan Canal, which commences at Bor- complainant's boats until the same is closed dentown and ends at the upper lock, and is by the elements, and for an injunction to operated by the defendant; tolls being paid prevent the defendant from closing the basin for its use. Notice was served on the com- to the use of the complainant, and that the plainant by the defendant that the canal defendant may be decreed to open and close proper would be closed on December 20, 1912. the outlet lock and the drawbridge when necIt was not closed, but continued to remain essary, for the complainant's boats to pass and was open for use at the time the bill through the same. This recital of the bill is was filed. The complainant was informed by almost verbatim. the bridge and lock tenders, employés of the defendant at the outlet lock and Albany Street bridge, that their employment would cease on January 1, 1913. The complainant received notice on January 6, 1913, that the water would be withdrawn from the lower basin on the following day, as soon as the boats of the complainant passed out of the basin. The basin can be used at any and all times until the weather becomes extremely cold and heavy layers of ice are formed. The defendant threatened to close the basin to the use of the complainant, and that it would probably remain closed until March 17th, the usual time when the same is opened. The closing of the basin would cause a loss to the complainant of approximately $500 a day. The defendant gave as an excuse for the closing of the basin that it is necessary to inspect and repair the wickets of the lock once in each four years. There are two locks at the outlet lock, one of which the defendant has permitted to fall into disuse, and that, if the same were in re pair and in full service, one lock could be used while the other was being repaired. There is no reason for closing the basin, and that whatever repairs are necessary can be made after the basin would be closed by reason of the extreme cold weather. No right exists in the defendant to close the basin; that the same is a public highway to which the public has a free and open use at all times. The defendant has never received The canal, I assume, is the one built pursuant to an act to incorporate the Delaware & Raritan Canal Company, passed February 4, 1830 (P. L. 1829-30, p. 73), by that company, and I also assume that the Pennsylvania Railroad Company is operating it as lessee, although as to both of these matters the bill is silent. The defendant filed a general demurrer to the prayer for discovery and relief, and assigned as special causes that the complainant has an adequate remedy at law, and that its right to relief must be first established by a judgment in an action at law, before it can be recognized or enforced in this court. [1] 1. It will be observed that the bill alleges that the canal basin is a public highway, and that there is no need or reason for closing, and that the defendant has not the lawful right to close it during the winter season; and, inasmuch as it is the rule that a demurrer confesses to be true all matters which are well pleaded, it is claimed that the defendant is therefore concluded by these averments. But there is this exception to the rule: That, when facts are averred which run counter to facts of which the court takes judicial notice, the averments will be disregarded. Daniell's Ch. Pr. p. 546. [2, 3] 2. It is fairly inferable from the bill that the defendant's uniform course has been to interrupt navigation during the winter months, and that the threatened pursuit of this practice in the present year is the wrong ant in the doing of this is not assailed. The legal right, a condition precedent to the contention is that to enforce any regulation in right of the complainant to bring his adverthe use of the canal, no matter how needful sary into a court of conscience is that the in the conservation of the defendant's prop- latter's conduct, which is claimed to be erty, or reasonable in anticipation of zero wrongful, shall appear to be unconscientious, weather, which would prevent navigation at and that this cannot be shown, unless it is a time short of the action of the elements, made to appear that the defendant has viowould be an unlawful invasion of the com- lated a legal right which had been previousplainant's rights. That the canal, as well ly established against him by a judgment at as the lower basin, which is a part of the law, or which, on the admitted facts of the canal, is a public highway, is declared by the case, appears to be free from doubt or quesact of incorporation and has been settled by tion. The complainants do not complain that the authorities in this state. Barnett v. the defendants have invaded their property, Johnson, 15 N. J. Eq. 481; Morris Canal and are there wantonly committing great and & Banking Co. v. Fagan, 18 N. J. Eq. 215; serious damage, nor that the defendants are Bonaparte v. Camden & A. R. R. Co., Bald- so using their own property as to cause irwin, 205, Fed. Cas. No. 1,617. It is, how-reparable injury to the complainants' propever, a public highway of a peculiar kind, erty; but their complaint is that the defendwith natural limitations upon its functions, ants refuse to give them such use of their and subject to reasonable regulations and (the defendants') property and servants as control. The single circumstance of the they are entitled to by law, and that they use of water as the means of transportation suffer irreparable harm in consequence. repels the idea that a canal is to be main- What the complainants want is that the court tained as a public highway during a season shall, for their benefit, control the defendants of the year when the use of that commodity not only in the use of their property, but in is usually destroyed by the forces of nature, the conduct of their business. Nothing short and it must be recognized that the policy of a case of the most extreme necessity, of closing a canal to navigation during the where the legal right is entirely free from winter season is well within the rights of doubt, the injury great and ruinous, and the the management. Judicial notice is taken of defendants' conduct wholly indefensible, the seasons and their natural influences upon would justify the exercise of so strong a things material, and it seems to me that the power by any judicial tribunal." Delaware, defendant's regulation of closing its canal etc., R. Co. v. Central Stockyard & T. Co., 45 during the winter months finds its warrant N. J. Eq. 50, at page 65, 17 Atl. 140, 152 (8 L. and justification in the likely effect the ele- R. A. 855), 46 N. J. Eq. 280, 19 Atl. 185. The ments would otherwise have upon its prop- discussion of the principle and the facts in erty and operations during that period. the case cited is singularly apposite to, and entirely dispositive of, the case made by the complainant's bill. Vice Chancellor Garrison, in Jacquelin v. Erie R. Co., 69 N. J. Eq. 432, 61 Atl. 18, illuminating the rule that the complainant's legal right must be clear before equity can intervene, says: "I understand that what is meant by this rule is, not that the precise question has even been settled by the courts of law of this state, but that the precise principle has been thus settled. The broad general principle has undoubtedly been settled in this state that common carriers are under a legal duty to serve the public, and in cases where, under their charters or under the statutes, a duty is manifested, the courts will compel them to perform such duty. [4] 3. But even though I should regard the defendant's administration as open to judicial attack, I am unable to discover a disturbance of any legal right of the complainant which this court may notice or redress, or any equitable grounds upon which its jurisdiction may be invoked. No statutory duty is involved. The grievance complained of is simply a threatened invasion of an asserted legal right, and the relief sought is the protection of that right, which right to protection is, as a matter of law, not clear and settled, and must, before it can receive vindication here, be first established in the law courts. "A court of equity may interpose, under some circumstances, to protect a legal right, as when a violation is threat* But the complainants in this case ened, or is being actually committed, which must go much further than this, and must will do irreparable damage, but it must be demonstrate that the courts in this state have made clearly to appear that the complainant established the principle that at common law has the right he claims, for, if he is without and in default of legislation a court of law right, the court is without jurisdiction. will hold it to be the duty of a common carThere can be no damage, irreparable or other-rier to locate stations at such points as the wise, where there is no violation of a right. | court shall determine, or at least not to disTo justify the interference of a court of equity in such a case, the legal right set up by the complainant must be clear, for, as was said by Mr. Justice Dixon, speaking for the Court or Errors and Appeals, in Outcalt v. George W. Helme Co., 42 N. J. Eq. 665 [4 Atl. continue stations at points where the court shall determine that they should remain. The complainants must show that our courts have established a principle which does not stop short of holding that the whole matter of regulating the method, manner, kind, and |