The Trustees of the village of Watertown and F. W. White vs. Cowen & Bagg, 4 Paige Ch. 510

The Chancellor. The decision of the vice chancellor was correct in refusing to suppress the depositions of Huntington, the trustee, and of the other witnesses who were inhabitants of the village of Watertown. The remote and contingent interest of a corporator in a mere municipal corporation, is not sufficient to exclude him as a witness in behalf of the corporation. And Huntington, the trustee, although an agent of the corporation, has no other or greater interest in the event of a suit, brought in its corporate name, than any other inhabitant of the village.

The corporation, and not the trustee of the corporation, is the party to the suit. In this case, I am satisfied from the evidence, that the public square in the village of Watertown was dedicated to the use of the inhabitants of the village, by Coffeeu and the defendant Cowen, the original proprietors, as early as 1806.

The recent cases in the supreme court and in the court for the correction of errors, relative to the dedication of lands in the city of New-York for the purposes of streets, have settled the principle, that when the owners of urban property have laid it out into lots, with streets and avenues intersecting the same, and have sold their lots with reference to such a plat, it is too late for them to resume a general and unlimited control over the property thus dedicated to the public as streets, so as to deprive their grantees of the benefit they may acquire by having such streets kept open.

And this principle is equally applicable to the case of a similar dedication of lands, in a city or village, to be used as an open square or public walk. The case'of The City of Cincinnati v. The Lessee of White, (6 Peters' Rep. 431,) in the supreme court of the United States, is in this respect very much like the one now under consideration. In that case the equitable owners of a tract of land, before they had perfected their tille thereto by a patent from the government, laid out a part of the tract into a town, which now constitutes the scite of the city of Cincinnati.

And upon the plat of such town they laid out and designated a part of the land as a public common, or open square, for the use of the inhabitants of the town. This was held to be a sufficient dedication of the land to the public, to vest the title to this common, or public square, in the city of Cincinnati; although the city was not incorporated until many years afterwards. It is objected that the present suit is not properly brought in the name of the corporation of the village of Watertown.

The usual mode of proceeding in this court to restrain the erection of a nuisance, or any other unwarrantable intrusion upon or interference with the rights of the public, is by an information in the name of the attorney general. But in the case of the public square in the city of Cincinnati, the supreme court of the U. S. held that the right to the land vested in the corporate body, for the benefit of the citizens, upon the incorporation of the city.

And although I do not feel disposed to go the length in this case of holding that the legal title to the land is vested in the corporation of the village, yet I can see no valid objection to considering the corporation as the proper representative of the equitable rights of the inhabitants of the village to the use of the public square, so as to authorize the filing of a bill by the corporation,in this court, to protect those equitable rights against the erection of this nuisance.

The court of chancery in England granted an injunction upon the application of the corporation of the city of London, to prevent a nuisance by which the lives of the citizenswould be endangered. (The Mayor, &c. of London v. Bolt, 5 Ves. 129.) And in the state of North Carolina, a decree for a perpetual injunction, to restrain the erection of a nuisance which would endanger the health of the town of Tarborough, was made upon a bill filed by the attorney general and the inhabitants of the town, jointly, (The Attorney General and others v.

Blount, 4 Hawk’s R. 384.) The covenant in the conveyance to Hersey, not to erect or suffer to be erected, any tenement, edifice or structure on the street, highway, or common, owned by the grantor in front of the premises conveyed, was a covenant running with the land. It was the grant of a privilege, or easement, which passed to White under the conveyance from Hersey to him; and no separate assignment of the covenant was necessary to transfer all Hersey’s interest therein.

And this court has ah ¡ready decided that the grantee of such an easement is entitled ■to an injunction, to restrain the owner of the servient tenement from erecting buildings thereon in violation of his covin ant. (Hills v. Miller, 3 Paige’s Rep. 254.) I do not understand this covenant as only intended to prevent the erection of a tenement or building directly in front of the Hersey lot. The agreement, according to my construction of it, is, that the grantor will not erect buildings, or suffer them to be erected, on the common or public square, which is in front of the premises conveyed.

Under such a covenant the present owner of the Hersey lot has a right to insist that the whole public square shall be kept open; as the existence of such an open space in a populous village must of course enhance the value of the lots fronting on the same. And, if the owner of the public square had already dedicated it to the public, no special covenant was necessary to authorise his grantees to insist that it should be kept open for their benefit or their assigns.

If each of the complainants had a right to file a bill to restrain the erection of this nuisance, as they had a common right and the injury was the same or common to both, I see mo valid objection to their joining in one suit. But even if there was a misjoinder, the objection should have been made by demurrer, or in the answer of the defendants. It is too late to urge a mere formal objection of this kind for the first time at the hearing. The decree of the vice chancellor is therefore affirmed, with costs.

The whole case being thus disposed of on the merits, it would be useless to spend the time of the court in examining how far the case presented upon the bill and answer differed from that which is now presented upon the pleadings and proofs, with a view to the decision of the first appeal. For the sole purpose, therefore, of disposing of that appeal, the decision of which at this time can be of no use to either party except as to the mere question of costs, which in this case are in the discretion of the court, I shall direct the first appeal to he dismissed, and without costs.