
    Anna M. Riehle. v. Albert C. Heulings.
    A complainant had, by final decree, established her right to an easement (a right of way appurtenant) over defendant’s lands, and-necessary to the enjoyment of the complainant’s property, and defendant was thereby directed to open the way and to permit complainant to use it, an ex parte order suspending the operation of the decree pending an appeal therefrom was, after argument, vacated.
    Motion to vacate order staying operation of final decree pending appeal. On affidavits.
    
      Mr. S. K. Bobbins, for complainant.
    
      
      Mr. F. Voorhees, for defendant.
   The Chanoeelok.

The controversy between the parties was as to the complain» i ant’s right to use a passage-way over the defendant’s lot, which adjoins hers. There was a final decree establishing her right, as claimed, and requiring the defendant to open the way (he had obstructed it) and to permit her to use it. From the decree the defendant appealed, and he obtained an ex parte order staying the operation of the decree pending the appeal. The complainant now moves, on notice, to vacate that order. The defendant insists that having appealed within ten days from the filing of the decree, he has a right to have the operation of the decree stayed pending the appeal. It was said in Schenck v. Conover, 2 Beas. 31, that in the exercise of the discretion of the court, on applications under the rule (which, in terms, refers to stay of process), if the court sees that if the decree should be reversed the party cannot be set right again, there is a strong reason for a stay of execution; but if, on the other hand, a stay of execution is unnecessary to protect the rights of the appellant under the appeal, and must operate prejudicially to the complainant, the court ought not to interfere. It was said by Lord Eldon in Monkhouse v. Corporation of Bedford, 17 Ves. 380, 382, that the execution of the decree would not be stayed in chancery, on appeal, unless the court saw that if it should turn out to be wrong the party could not be set right again, and Lord Justice Sir W. Page Wood, in Walford v. Walford, L. R. (3 Ch.) 812, said the correct course is to stay proceedings pending an appeal only when the proceedings would cause irreparable injury to the appellant, and he adds that mere inconvenience and annoyance are not enough to take away from a successful party the benefit of his decree. See, also, Van Walkenburgh v. Rahway Bank, 4 Hal. Ch. 725; Jewett v. Dringer, 2 Stew. Eq. 199; Central R. R. Co. v. Standard Oil Co., 6 Stew. Eq. 372, and Harrington v. Harrington, L. R. (3 Ch.) 564. The justice of giving to the successful party the benefit of his decree pending an appeal, is especially manifest where the subject of the controversy is the right to an easement. In this case the complainant’s right to an easement, necessary for the enjoyment of her property, has been-established, and it appears that no injury will be done to the defendant’s premises by the use of the way over them pending the appeal. There is no valid reason for denying to the complainant the full benefit of her decree pending the appeal. The order-staying the operation of the decree will therefore be vacated, with costs, and she will be permitted to have the full benefit of her lawful right to enjoy the way, notwithstanding the appeal.  