
    Erie Basin Improvement Company, Appellant, v. W. Stebbins Smith and Others, Respondents, Impleaded with Mary Hickey and Others.
    First Department,
    December 30, 1909.
    Beal property—equity—fixing boundaries—when equity will take jurisdiction — practice — misjoinder — default — dismissal of complaint.
    Where the owner of a tract of land sues the owners of four separate parcels adjacent to its own, alleging that the center line of a brook which was the boundary between the lands has become obliterated through the fault of the defendants and praying that the line be fixed, equity will take jurisdiction in order to prevent a multiplicity of suits and because the line which was once established has become obliterated through the fault of the defendants.
    If the objectiou that there is a misjoinder of causes of action be not taken by demurrer, it is waived.
    The owners of only one of the parcels having answered and the trial court having dismissed the complaint as to them upon the ground that equity had no jurisdiction, it is error to refuse to receive proof as against the defendants in default.
    Appeal by the plaintiff, the Erie Basin Improvement Company, from a judgment of the Supreme Court in favor of the defendants, entered in the office of the clerk of the county of Hew 'York on the 30th day of March,. 1909, upon the decision of the court dismissing the complaint on the opening of plaintiff’s counsel upon a trial at the Hew York Special Term.
    
      Vincent E. JDonihee [Edward 8. Hatch with Mm on the brief],, for the appellant.
    
      Jacob Fromme, for the respondents.
   Laughlin, J.:

The complaint was dismissed on the ground that the suit is in equity and that a court of equity has not jurisdiction of the subject-matter of the action. The plaintiff is the owner of a tract of land in the borough of The Bronx in the city and county .of. Hew York, one of the boundaries of which, according to the record title, is the center line of Cromwell’s or Doughty’s brook. The premises lie between Cromwell avenue and Inwood avenue, southerly of One Hundred and Seventieth street, which in part forms the northerly boundary. The brook as it formerly existed would cross One Hundred and Seventieth street and running southerly and southwesterly would cross Cromwell avenue. Between One Hundred and .Seventieth street and Cromwell avenue for the entire distance the center line of the brook is one of the boundaries of the lands owned by plaintiff; and the land lying between the brook and . Cromwell avenue and One Hundred and Seventieth street is now divided into four parcels all bounding on Cromwell avenue on the west and on the brook on the east and southeast, and one only bounding on One Hundred and Seventieth street. It is alleged in the complaint that the center line of this brook is the boundary line between the plaintiff’s premises and the other four parcels of land, and that it has become so filled up and obliterated that it cannot be located by an inspection of the premises. The plaintiff has joined the owners of the other four parcels as parties defendant, and alleges that they have filled up and obliterated the brook or permitted this to be done, and are,' therefore, responsible for its obliteration as 'a boundary line. The owners of three of tire parcels have defaulted in pleading. The owners of the northerly parcel, whose land is bounded by Cromwell avenue on the west, One Hundred and Seventieth street on the north, the brook on the east and by one of the other parcels on the south, interposed answers, and the complaint was dismissed on motion of their, counsel.

Courts of equity exercise jurisdiction to fix and establish boundaries which have once been defined and established but have become lost or obliterated, upon either, of two grounds: First, where it appears that the owners of the ad jacent premises are responsible for the loss or obliteration of the boundary, and secondly,, to prevent multiplicity of suits, even though not between the same parties, as, for instance, where other owners are interested in or may be affected by the establishment of the boundary or monument. (Wake v. Conyers, 1 Eden, 331; Boyd v. Dowie, 65 Barb. 237; Hough v. Martin, 22 N. C. 379 ; Beatty v. Dixon, 56 Cal. 619; Osborne v. Wisconsin Cent. R. R. Co., 43 Fed. Rep. 824; 1 Story Eq. Juris. [13th ed.] 618, 623 et seq.) In the case at bar it does not appear that the defendants,,who are the owners of any one parcel, are interested in the other parcels or any of them, or in the establishment of ■ the boundary as between them and the parcel belonging to the plaintiff, with the exception that they are interested in the location of the center line of the brook at the division line between their respective parcels. Had a demurrer been interposed up op the ground of misjoinder of causes of action, it may be that it would have been sustained with respect to the joinder of the. causes of action against the defendants who are the owners of the two parcels to the south, for it does not appear that the re-establishment of the boundary as between them and the plaintiff will affect the issue as between plaintiff and the respondents ; but that objection not having been taken by demurrer, has been waived. (Code Civ. Proc. § 499.) The boundary of the plaintiff’s property at the intersection of the boundary line between the premises of the respondents and the premises next southerly, according to the record title, must be the same, point, for the lands on each side of the brook are bounded by the middle of the brook; and yet if the plaintiff should be left to separate actions at law against the respective owners of these two parcels, the center line of the brook at the intersection of the boundary line between the land of the respondents and the parcel next southerly might be adjudicated at different points, which would leave a break in the boundary of the plaintiff’s premises. It is manifest that that point of boundary should be fixed in an action in which all parties in interest may be heard, so that it may be binding upon all. The case is analogous to one where a monument at the comer of several parcels of land has been lost or destroyed and its former location cannot be established by evidence which is conclusive and could not lead to different results in separate actions against the respective owners.

We are of opinion, therefore, that equity can and should take cognizance of the case on the theory that it is. necessary to. prevent multiplicity of suits, although the possibility of conflicting adjudications in separate actions at law does not alone seem to be sufficient, according to the adjudicated cases, to warrant the interposition of equity. (Boyd v. Dowie, 65 Barb. 237; De Veney v. Gallagher, 20 N. J. Eq. 33.) On the allegations of the complaint equity also has jurisdiction to establish this boundary line upon the theory that it was once established and fixed and has become obliterated through the default of the defendants. Of course when the case comes to trial, none of the defendants excepting the respondents and the owner of'the adjacent parcel will be interested in the location of the center line of the brook between the premises of the plaintiff and-the premises of the respondents. The question as to -the extent of the relief that may be granted upon the trial is not now before the court, but it may well be that since equity acquires jurisdiction, it will determine the entire boundary, .so that further litigation may be rendered unnecessary. (De Veney v. Gallagher, supra; Boyd v. Dowie, supra.)

The court not only dismissed the complaint as to the respondents, but declined to receive proof as against the other defendants who defaulted in pleading. This, likewise, was error.

■ The judgment' should, therefore, be reversed and a new trial granted, with costs to appellant to abide the event.

Ingraham, McLaughlin, Houghton and Scott, JJ., concurred.

Judgment reversed, new trial-ordered, costs to appellant to abide event. •  