COLEMAN DU PONT ROAD, Inc., et al.
LASHER et ux. COLEMAN DU PONT ROAD, Inc., et al.
RODNEY FEED CO.
Coleman duPont Road, Incorporated, a boulevard corporation created and existing under the laws of the State of Delaware, and Francis V. duPont brought actions against Hiram Lasher and Bertha Lasher, his wife, and the Rodney Feed Company, a corporation of the State of Delaware, seeking either a mandatory injunction requiring defendants to remove building encroachments on plaintiff's right of way or enter into a lease with the plaintiff. The Court of Chancery in and for Sussex County, Seitz, Chancellor, held that plaintiffs were entitled to the mandatory injunction conditioned on the plaintiff's first offering to enter into a lease of lands in question with defendants on just and fair terms.
Orders in accordance with opinion.
[32 Del.Ch. 260] Daniel J. Layton, Sr., Georgetown, for plaintiffs.
Isaac D. Short, 2d, Georgetown, and Sidney Schwach, Milford, for defendants.
These are two actions seeking to have this court restrain the defendants from encroaching upon lands belonging to the plaintiff corporation or in the alternative to enter into a lease of said lands with the plaintiff corporation upon fair and just terms.
In 1911 the Delaware General Assembly passed a law authorizing the organization of ‘ Boulevard Corporations'. See 26 Laws of Delaware, Chap. 189, Rev.Code of Del. 1935, Chap. 65, Art. 10. On October 16, 1911, Thomas Coleman duPont and others, pursuant to the stated Act, filed Articles of Association in the office of the Secretary of State creating a corporation entitled ‘ Coleman duPont Road, Incorporated’, the corporate plaintiff in these actions. Reference to ‘ plaintiff’ will embrace only the corporate plaintiff unless reference to the individual plaintiff is necessary.
Its Articles stated that plaintiff was being created, inter alia, ‘ for the purpose of locating, building, constructing, maintaining and operating a Boulevard extending from a place in the Northern part of New Castle County, by as nearly a straight course as may prove feasible and desirable, through the State of Delaware to the Southern boundary thereof, and for the purpose of constructing upon said Boulevard a well built road for vehicular travel such as is required by said Act as amended, * * *’ .
Plaintiff acquired by grant or by condemnation a 200 [32 Del.Ch. 261] foot right of way extending from the southern boundary line of the State of Delaware near the town of Selbyville to the Kent-Sussex County line, near the town of Milford. It proceeded to construct a road for vehicular travel along and in the center of said right of way. On May 23, 1917 plaintiff deeded to the State of Delaware a strip of land 40 feet in width, being 20 feet on either side of the center line of its right of way, commencing at the Delaware-Maryland line near Selbyville and terminating at the south side of the road leading from Georgetown to Laurel near Georgetown. The balance of such land is still held by plaintiff.
Plaintiff did not construct a road for vehicular travel north of the Kent-Sussex County line nor did it acquire title to any lands north of Sussex County. The plaintiff has never constructed upon its right of way any utilities nor has it planted thereon any trees, grass, flowers or shrubbery.
As early as 1917 plaintiff began to charge property owners abutting on its right of way a fee for the privilege of crossing the right of way. Reference to plaintiff's ‘ right of way’ embraces that portion of the 200 foot strip in Sussex County not conveyed to the State of Delaware. As business establishments gradually grew up along the right of way plaintiff began to charge different fees to the abutting owners depending upon the use to which their property was put.
After some negotiation both defendants refused to execute leases with plaintiff and these actions followed seeking either a mandatory injunction requiring defendants to remove building encroachments on ...