
    Walter H. Condict et al., complainants-appellants, v. Erie Railroad Company, defendants-respondents.
    [Argued June 20th, 1912.
    Decided November 18th, 1912.]
    On appeal from a decree of the'court of chancery advised by Vice-Chancellor-Stevens, who filed the following opinion:
    It seems to me plain that the complainant’s proper remedy is ejectment. He claims to have the legal title and to be in possession of a lot of land in Montclair, through which, forty years ago, the predecessor of the defendant, company constructed a tunnel. The possession which he proves is possession of the surface. The company does not deny his possession of the surface, but, bf its answer, says that since 1871 it and its predecessors have been the owners of the tunnel forty feet below the surface, and in the open, notorious and exclusive possession thereof to the extent that it was capable of being owned and possessed. It does not pretend that it ha,s a paper title.
    It appears, by the evidence, that the tunnel was constructed through complainant’s land in 1871, apparently without objection, but, because of the pecuniary embarrassment of the corporation, not through the. whole of the Orange mountain. It further appears that the tunnel has, to some extent, though not entirely, fallen in. The evidence does not show that complainant or his grantor ever entered upon the tunnel or that either complainant or defendant ever actually made any use of it. If defendant now has possession, it is because its predecessor once had possession and because the possession thus had has never been taken away. It is obvious that these are questions within the exclusive jurisdiction of a court of law. There is nothing to prevent complainant from trying them in a legal action. It is true that defendant company in addition to its defence that the action is legal sets up certain equities. These alleged equities may have to he passed upon, hereafter in this court, at defendant’s instance, but the legal question, which is the only question raised by complainant, must first be determined. There is no cross-bill. The bill, may be retained till the action at law is decided.
    
      Messrs. Condick, Con-diet & Boardman, for the complainants.
    
      Messrs. Cortland!, .& Wayne P writer, for the defendants.
   Per Curiam.

The decree appealed from will be affirmed, for the reasons stated in the opinion filed in the court below by Vice-Chancellor Stevens.

For affirmance,—The Oh cef-Justice, Garrison, Swayze, Tbenchard, Bergen, Voorhbes, Mjntuen, Kalisci-i, Bogert, Congdon, White, Teeacy—12.

For reversal—None.  