why the verdict should not be set aside and a new trial granted. The reasons upon which the defendant has relied in the argument are that the verdict is against the clear weight of the evidence; that the denial of a motion to nonsuit and to direct a verdict for the defendant was error. Under the reason first assigned, we have carefully examined the evidence returned on both sides with the exhibits, and will briefly state our conclusions upon this point. The case shows that the parties derive title from a common source, and that the only question in the case is as to the true location of the boundary between them. The premises are situate in the township of North Bergen, county of Hudson. The lots in question are situate in a block of land located upon a map referred to in the title deeds of both sides as "Map of Glahnville," etc., filed in the clerk's (now register's) office of said county on July 11, 1854. Glahnville was a section of New Durham, taking its name from that of one of the owners who laid it out in lots. The block in which the lots in question are located is bounded, according to the map, on the north by Fisher avenue, east by Fourth street, and west by Fifth street. The lots in question face on Fisher avenue, at the southeast corner of Fisher avenue and Fifth street, the defendant having the corner lot, 25 feet front, and the plaintiff the next adjoining lot on the east with frontage of 50 feet. The lots have a depth of 100 feet. The description in defendant's title deeds calls for: "Beginning at the southeasterly corner of said streets, running thence southerly along the easterly side of Fifth street (100) feet," etc. The description in plaintiff's deeds calls for: "Beginning at a point in the southerly line of Fisher avenue distant twenty-five feet easterly from the southeasterly corner of said Fisher avenue and Fifth streets as shown on said map," etc. The descriptions make no call for the adjoining lot, but the block is shown to be 200 feet in length, and by scaling according to the scale of the map, as ascertained by the surveyors from experiment, the width of Fifth street was about 33 feet and of Fourth street 38 feet. The streets seem to have been unimproved at the time of the survey and filing of the map, and are not laid down with reference to fixed monuments and the courses are not given.

The plaintiffs, in addition to the offer of their chain of title and maps, called their surveyor, who had made surveys in 1892 for other parties in that vicinity, and who in doing so noted the location of the fences on both sides of Fifth street, and produced his notes at the trial. Later, in 1906, the witDess had made a survey for the plaintiffs, after defendant's building had been erected, and again noted the location of the fence on the easterly side of Fifth street north of Fisher avenue, and testified that using his former notes, and extending the line of fence

on the easterly side of Fifth street north of Fisher avenue across Fisher avenue to the south of it, it struck the same line on which he had found the fence on the easterly side of Fifth street adjacent to the lots in question in 1892. The testimony tended to prove that, taking the location of this fence as on the easterly line of Fifth street, the defendant's building was over the plaintiff's westerly line to the extent above defined. The defendant in reply called two or more reputable surveyors, one of whom had occasion to make surveys in the vicinity and to locate the fence on both sides of Fourth avenue as early as 1890, and who had lately surveyed and measured the block and the lots in question, who testified that the easterly side of defendant's building was within the easterly line of its lot. In addition, the defendant called a number of witnesses, who testified that they had been familiar with these lots and the persons occupying them for more than 20 years before the plaintiffs had acquired their lot, the date of which was July, 1905, and that during the ownership and occupancy of these lots and the houses thereon by the predecessors in title of both of the parties to the suit they noticed that a fence existed and was kept up between the respective lots running from Fisher avenue back to the southerly line of the same. This was some evidence of practical location of the line now in dispute, and of acquiescence therein by such owners. The value of such evidence under the circumstances was recognized in the case of Spottiswoode v. Morris & Essex R. R. Co., 61 N. J. Law, 322, 339, 40 Atl. 505, 511, by Mr. Justice Depue, afterwards Chief Justice, who, in delivering the opinion, said: "The general doctrine of the law is that, where the true location of premises conveyed by a deed is doubtful, a practical location by consent of the parties will aid in the construction of the deed, and in some instances be conclusive as to the boundaries thus fixed, although the acquiescence be for a period less than 20 years." See, also, Jackson v. Perrine, 35 N. J. Law, 137; Baldwin v. Shannon, 43 N. J. Law, 596; Den v. Van Houten, 22 N. J. Law, 61. There was no attempt made apparently by the plaintiffs to contradict the evidence of practical location above alluded to. It was also in proof that before the defendant erected the building upon its lot the surveyor of the defendant in 1905 located the easterly line of defendant's lot by marks on the curb in front and on a building in the rear, and that, after the factory building was erected on the corner, he again examined these marks, and found that the easterly wall was three-quarters of an inch west of the line so marked out. It was also proven by the mason who excavated for the wall that the wall was placed upon the line of the old fence, which was then taken down.

As to whether the evidence of practical location and acquiescence in this case is suf

ficient to work an estoppel as against the plaintiffs we need not discuss, because the question is not before us. We think, however, that treating this evidence as only bearing upon the question of the true location of the line in controversy, in connection with the other proofs, the verdict of the jury is against the clear weight of the evidence. Having reached this conclusion upon the defendant's first ground of contention, we need not discuss the other grounds for reversal.

The result is that the verdict will be set aside and a venire de novo issued.

(75 N. J. L. 273)

VAN NESS v. NORTH JERSEY ST. RY. CO. (Supreme Court of New Jersey. Nov. 11, 1907.) 1. STREET RAILROADS-INJURIES TO PERSONS NEAR TRACKS-CONTRIBUTORY NEGLIGENCE OF INJURED.

The deceased approached a double track while one car was traveling north and another south, so that they passed at about the point which he was approaching. He waited until the north-bound car passed by, then crossed the track behind it, stepped in front of the southbound car, which was traveling rapidly and only a few feet from him, was struck down, and killed. Held, that the facts show contributory negligence on the part of the deceased.

[Ed. Note.-For cases in point, see Cent. Dig. vol. 44, Street Railroads, §§ 204-209.] 2. SAME.

It is the duty of a foot passenger crossing a street containing car tracks to look out while in a place of safety for approaching cars, and a failure to do so will bar a recovery for an accident contributed to by such negligence.

curred about half past 7 at night on the 26th day of May, 1906, while it was yet quite light. According to the proof on the part of the plaintiff, there was a car traveling north, and another one proceeding south, which passed each other at about the place of the accident. The plaintiff, in crossing the street, came first to the track upon which the northbound car was moving, and waited until it had passed. He then walked across this track, and stepped in front of the south-bound car, which at the time was traveling rapidly, and was only a few feet away from him. He was struck down, and killed almost instantly. At the close of the plaintiff's case, there was a motion to nonsuit, upon the ground, among others, that the facts proved made it clear that the accident was due to the contributory negligence of the deceased. The motion was refused, and in this refusal there was in our judgment error. If Mr. Van Ness had been at all observant of the situation, he must have known that the southbound car would be so close at hand, after the north-bound car had passed, as to make it dangerous for him to attempt to cross over the south-bound track until after the car upon it had passed by. His action in crossing in front of the south-bound car, if he had this knowledge, was negligent. If he did not have this knowledge, it was because he failed to take the reasonable precaution for his safety which the law required of him. As was stated by this court in Hageman v. North Jersey Street Ry. Co. (N. J. Sup.) 65 Atl. 834, it is the duty of a foot passenger crossing a street

3. TRIAL-REFUSAL OF NONSUIT-CURE OF ERROR.

Where plaintiff's evidence plainly showed contributory negligence, the error in refusing a motion for a nonsuit is not cured by the fact that defendant subsequently examined witnesses in its own behalf who contradicted plaintiff's evidence in many particulars, but did not alter the situation as to the contributory negligence of plaintiff's intestate.

[Ed. Note. For cases in point, see Cent. Dig. vol. 46, Trial, § 982.]

Error to Circuit Court, Essex County.

Action by Matilda L. Van Ness, administratrix, against the North Jersey Street Railway Company. From a judgment for plaintiff, defendant brings error. Reversed.

Argued June term, 1907, before GUMMERE, C. J., and REED, J.

Edward Kenny, for defendant in error. Hobard Tuttle, for plaintiff in error.

GUMMERE, C. J. This suit was brought by the plaintiff to recover from the defendant company the pecuniary loss sustained by the widow and next of kin of Levy Van Ness, deceased, by reason of his death. Van Ness was run over and killed by a trolley car of the defendant company while crossing Broad street, in the city of Newark, in front of the First Presbyterian Church, not far from the corner of Market street. The accident oc

observation while in a place of safety to discover approaching cars which may put him in danger, and a failure to perform this duty is such negligence as will bar a recovery for an accident contributed to by that negligence.

After the refusal to nonsuit, the defendant examined on its behalf a number of witnesses whose stories describing the accident were, in many respects, contradictory of the testimony by the witnesses produced on behalf of the plaintiff. Their testimony, however, does not operate to correct the error of the trial judge in refusing to nonsuit, for the contributory negligence of the deceased is as plainly evidenced thereby as by the testimony given by the witnesses on behalf of the plaintiff. The judgment, therefore, must be reversed.

(75 N. J. L. 275)

DAILEY et al. v. KIERNAN et al. (Supreme Court of New Jersey. Nov. 15, 1907.) LIMITATION OF ACTIONS-INJURIES TO PROPERTY-STATUTE CONSTrued.

Supplement of March 24, 1896, to the statute of limitations (P. L. p. 119), providing that actions for "injuries to persons shall be brought within two years." applies only to actions for personal injuries. and hence not to an action to recover for injury to a vessel caused by a negligent collision.

[Ed. Note. For cases in point, see Cent. Dig. vol. 33, Limitation of Actions, § 142.]

GUMMERE, C. J. This suit was brought to recover damages sustained by the plaintiffs from an injury received by a vessel belonging to them, which injury was produced by a collision between the plaintiffs' vessel and one belonging to the defendants, and which resulted solely from the carelessness of the defendants' servants. The collision occurred on November 6, 1901. The suit was instituted March 4, 1907. The defendants pleaded actio non, because the plaintiffs' cause of action did not accrue within two years next before the commencement of the suit. To this plea the plaintiffs demur.

The validity of the plea depends upon whether the supplement to the statute of limitations, passed March 24, 1896 (Pamph. Laws, p. 119), which provides that "all actions hereafter accruing for injuries to persons, caused by the wrongful act, neglect or default of any person or persons, firm or firms, individual or individuals, corporation or corporations within this state, shall be commenced and instituted within two years next after the cause of such action shall have accrued, and not after," applies where the injury complained of is inflicted upon property. If it does not, then the plaintiffs have six years next after the cause of action accrued within which to bring suit. The question presented is not difficult of solution. Every student of Blackstone will recall that civif injuries are divided into two classes-injuries to personal rights, and injuries to property rights. The statute, in terms, deals only with the former class of injuriesthat is, personal injuries, as distinguished from injuries to property rights-for, unless the word "persons" is a word of limitation in this statutory provision, it is meaningless.

The plaintiffs are entitled to judgment on the demurrer.

(73 N. J. E. 177)

MENGE v. MORRIS & E. R. CO. et al. (Court of Chancery of New Jersey. Sept. 20, 1907.)

1. EMINENT DOMAIN-TAKING PROPERTY FOR RAILROAD PURPOSES-INJUNCTION.

Injunction is the proper remedy to restrain a railroad company from taking complainant's property without compensation, not because an injunction will issue to restrain an ordinary trespass, but to protect the property owner's constitutional right against aggression.

[Ed. Note. For cases in point, see Cent. Dig. vol. 18, Eminent Domain, § 762.]

Where a railroad company may condemn land for railroad purposes, an injunction will be issued at the suit of a private property owner to restrain the company from taking or using the land without first making compensation only where the corporation is willfully proceeding in violation of the owner's constitutional right.

[Ed. Note. For cases in point, see Cent. Dig. vol. 18, Eminent Domain, § 762.]

3. SAME REMEDIES OF OWNER.

Where a railroad company has entered private property to appropriate the same without first having proceeded to condemn it, the property owner may sue at law every day for damages for the trespass, or he may maintain ejectment.

[Ed. Note.-For cases in point, see Cent. Dig. vol. 18, Eminent Domain, §§ 729, 731.]

4. INJUNCTION RIGHT TO BE PROTECTED CONSTITUTIONAL RIGHTS.

A constitutional right differs from a right conferred by the common law or by statute only in the fact that it is guarded from any attack or interference by the Legislature, or any other governmental agent, and is not entitled by its nature to protection by injunction to a greater extent than any other right.

5. EMINENT DOMAIN - RAILROADS — TAKING LAND INJUNCTION.

A railroad, under the belief that a satisfactory arrangement would be reached for the taking of complainant's land for a tunnel, delayed condemnation proceedings, and prosecuted the work up to complainant's property line before he made complaint to any court. The railroad proposed to tunnel through solid rock in complainant's land 50 feet below the surface without affecting the enjoyment of complainant's building, and without any intent to evade its duty to pay complainant compensation, which it stood ready, willing, and able to do. Held that, though defendant was a trespasser in taking complainant's land without first making compensation, an injunction restraining defendant's construction would be refused on condition that defendant pay a satisfactory sum into court to guarantee complainant just compensation, and diligently prosecute condemnation proceedings.

Bill for injunction by August Menge against the Morris & Essex Railroad Com pany and others. Injunction denied on condition.

James J. Murphy and Charles J. Roe, for complainant. Albert C. Wall, for defendants.

STEVENSON, V. C. (orally). In the case of August Menge, Complainant, and the Morris & Essex Railroad Company et al., Defendants, the conclusion I have reached is that the motion for a preliminary injunction will be denied upon condition that the railway company deposit forthwith, within a time to be named in the order, in the Court of Chancery, an amount of money to be fixed by the order, which will guarantee to the complainant the just compensation which he is entitled to receive for land which the railway company is now occupying, and which is proposes to take permanently for its railroad, and upon the further condition that the railroad company will diligently prosecute the present condemnation proceedings which it appears to have instituted, the complainant having the right at all times to apply again to this court in this cause for an

injunction in case of any violation of these conditions.

The principle which I apply to this case I shall endeavor briefly to explain, although I have had occasion to lay it down and apply it in another case very recently (the case of Nelson v. New Jersey Short Line Railroad Company, 67 Atl. 1032), in which case an appeal is now pending in the Court of Errors and Appeals. The Court of Errors and Appeals may make deliverance in that case which will necessarily lead to a different result in this present case, but all that I can do at present in this case is to follow the ruling which I made in that case after very careful examination of the authorities and consideration of them as well. No doubt it is true that as a general rule a private property owner is entitled to an injuntien to restrain a corporation from unlawfully taking his land, a railway corporation, for instance. The general principle is well settled that a railway corporation will not be permitted to take property for the uses of its railway without making just compensation first, and that the remedy of the property owner whose constitutional right is invaded, or threatened to be invaded, is by an injunction, and that the injunction will issue, as the authorities hold, not upon the same principles which apply to the issuing of an injunction to restrain an ordinary trespass. The injunction will issue to enforce the constitutional right of the property owner against dangerous aggression and in order to keep corporations within the limits of their powers. That is the principle which was enunciated in the case of Pratt v. Roseland Railway Company, 50 N. J. Eq. 154, 24 Atl. 1027, in which Vice Chancellor Van Fleet quotes with approval and adopts the following language from Mr. Kerr, in his Treatise on Injunctions: "A private person who applies for an injunction to restrain a public incorporated company from entering illegally on his land is not required to make out a case of destructive trespass or irreparable damage. The inability of private persons to contend with these powerful bodies, which have often large sums of money at their disposal and are often too prone to act in an arbitrary and oppressive manner, raises an equity for the prompt interference of the court to keep them within the strict limits of their statutory powers, and prevent them from deviating in the smallest degree from the terms prescribed by the statute which gives them authority." Now, this statement is from Mr. Kerr, and it was applicable to a right under an English statute. Some authorities think that the principle should be applied even more rigidly in this country, in view of the fact that the right which the court is asked to protect is a constitutional right. I do not quite follow the reasoning of the authorities in regard to this matter; but that is a view which has frequently been expressed. Vice Chancellor Van Fleet con

tinues: "Other authors state the rule in substantially the same way," citing High on Injunction and Lewis on Eminent Domain, and concludes in the following language: "This rule has been repeatedly recognized in this state, notably so by Chancellor Pennington in Ross v. Elizabeth Town & Somerville Railroad Company, 2 N. J. Eq. 422, and by Chancellor Zabriskie in Stevens v. Paterson & Newark Railroad Company, 20 N. J. Eq. 126, 129, and by Chancellor Runyon in the Morris & Essex Railroad Company v. Hudson Tunnel Railroad Company, 20 N. J. Eq. 384, 387. I think I am bound to regard it as the established law of this court. An injunction must issue restraining the corporate head from further constructing its railroad on the land in question, until it shall have made just compensation to the complainant for his estate in the same." The authority of this decision of Vice Chancellor Van Fleet certainly seems to have been impaired by what subsequently occurred. The case was a motion for a preliminary injunction, and was heard in the usual way on order to show cause. There is no suggestion that there was any final hearing in the Court of Chancery, and the Vice Chancellor's opinion concludes that an injunction—that is to say, a preliminary injunction-should issue. From the order for this preliminary injunction an appeal was taken to the Court of Errors and Appeals, where the cause appears to have slumbered for five or six years. The only report of the case in the Appellate Court is found in 58 N. J. Eq. 585, 47 Atl. 1132, from which it appears that the case was argued at the March term, 1899, but no decision appears to have been rendered. A reporter's note states that on November 14, 1898, an order was entered reversing the order of the Court of Chancery for a preliminary injunction and dismissing the bill of complaint, and directing that the record be remitted, in order that said decree might be carried into execution. Whether or not this decree directing that the bull should be dismissed was entered after a settlement by consent does not appear. It may be that the Court of Errors and Appeals, on reviewing a motion for a preliminary injunction, condemned the bill on its merits as if the case were heard on a demurrer, and, without giving the complainant an opportunity to amend, pronounced a final decree dismissing the bill in accordance with the practice followed by Chancellor Runyon in Dusenbury v. Newark, 25 N. J. Eq. 295, and some other similar cases. I have not examined the original files in the Court of Chancery and the Court of Errors and Appeals in order to learn precisely what action the Court of Errors and Appeals took in disposing of the case in the way I have mentioned. However this decree dismissing the bill on the merits came to be entered, I think that the general statement which I have read from the opinion of Vice Chancellor Van Fleet is recognized as

law in this state and very generally throughout the country. But, in my judgment, it applies only to those cases where the corporation is willfully and intentionally proceeding in violation of the constitutional right of the property owner. It is said that the purpose of the rule is to keep corporations in their place, to keep them from highhanded aggression; but there are very many cases which arise where, without any intent to violate the rights of the private property owner, the corporation unfortunately finds itself in the position of being a trespasser. Well, it has to take the consequences in such a case. It is liable to an action at law for damages. It may be liable to an action for damages every day. It may be liable to an action of ejectment. The question is whethe it is liable to an injunction which will paralyze its operation and may stop the construction of a great public work. I do not understand that the rule of practice laid down by Vice Chancellor Van Fleet and all other authorities leads to any such conclusion.

In the case of Nelson v. New Jersey Short Line Railroad Company, the case now pending in the Court of Errors and Appeals, the regular condemnation proceedings were started by the railroad company. They laid ou their route through a large farm, and, after paying the amount awarded by the commissioners into the Court of Chancery, they went to work laying their rails and constructing their roadbed. The owners of the farm (a number of tenants in common, according to my recollection) were made parties to the condemnation proceedings. There was, however, a man in possession of the farm who may have been regarded by the agents of the railroad company as a mere caretaker, or a mere employé of the owners. This man, by mistake, was not made a party to the condemnation proceedings. There was no question that the agents of the company had in good faith endeavored to make all parties entitled to any share of the award parties to the proceedings, but this person somehow was overlooked. It was a clear case of mistake. This man, then (the complainant, Mr. Nelson), filed his bill to enjoin the occupation of his property by the railroad company, and presented a lease for a year to himself from the owners, with the right to an extension. He had an undisputed right to the possession of the property. He had a legal estate in it. He was openly and notoriously in possession. The railroad company, however, had acted in good faith and had instituted condemnation proceedings to ascertain the value of the land, which means the value of the land itself, the sum total of all the possible estates of all the owners, including this tenant, Mr. Nelson, in the land taken, and had paid the entire amount of the award, about $6,000, into court. None of the substantial owners made any objection, or, if they made objec

tion, the proceedings had been conducted to a finish. The money in court represented the actual value of the whole land as between the railroad company and those who had been brought into the condemnation proceedings, but the whole proceeding was void as to Mr. Nelson, this tenant of the property, and he insisted that the well-settled, hard and fast rule was that the railroad company was liable to an injunction restraining it from taking his property without first making just compensation for the same. But, in view of the fact that the railroad company had the right to condemn the land which it had taken, and had in good faith instituted condemnation proceedings of which it had intended and endeavored to notify all the parties interested, and had paid the award of the commissioners into court, and that such award necessarily included a sum which represented the value of Mr. Nelson's entire leasehold estate, if it had any substantial value, I held that the general rule was not applicable, even though Mr. Nelson was not bound by the award, and was therefore not bound to accept any portion of the award as the ascertained value of his property and the ascertained extent of his damages. The application for the injunction was therefore denied, upon condition that the defendant corporation would forthwith deposit a sum of money in the Court of Chancery amply sufficient to cover all possible claims of Mr. Nelson, and also institute condemnation proceedings to which Mr. Nelson would be made a party.

I think it is a mistake to suppose that any man had an absolute right to an injunction merely because his constitutional right is invaded. What is a constitutional right? How does it differ from a right under the common law or under a statute? Is it more sacred? The distinguishing feature of a right created directly by a constitutional provision seems to be that such right is guarded from attack or interference of any kind by the Legislature, or any other govermental agent of the state. It does not follow, however, that, if a man has a constitutional right, the invasion of that right calls for any remedy different from that to which he would be entitled in case his right were based solely upon the common law, or upon a statute. It has been suggested that, unless a court of equity will in every case enjoin a corporation from appropriating or occupying property without first making the just compensation provided by the Constitution, the constitutional safeguard is nullified. In other words, it is claimed that the writ of injunction is practically the only method of enforcing the constitutional provision requir ing compensation to be made before the property is taken. This view, it seems to me, is clearly fallacious. Common-law rights are generally recognized and enforced by remedies which are compensatory. The instances in which rights are specifically en