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Cohen v. Mayor and Council of Wilmington

Court of Chancery of Delaware, New Castle County

August 28, 1953

COHEN et al.
v.
MAYOR AND COUNCIL OF WILMINGTON et al.

Proceeding on motion to dismiss complaint to enjoin defendants from taking possession of certain property, and requesting court to declare rights of parties with reference thereto. The Court of Chancery, New Castle County, Bramhall, Vice-Chancellor, held that where plaintiff's complaint alleged that defendants had entered plaintiff's premises during plaintiff's absence, after plaintiff had been assured that no such action would be taken until he had been so advised, and had, without institution of condemnation proceedings, proceeded to trespass upon plaintiff's property and to seriously damage same, Court of Chancery would not assume, upon motion to dismiss, that damages which plaintiff might receive upon condemnation proceedings, which had not yet been instituted, would constitute adequate remedy at law.

Order in accordance with opinion.

Page 394

[34 Del.Ch. 40] Motion to dismiss complaint seeking to enjoin defendants from taking possession of certain property adjoining street in the City of Wilmington and requesting court to declare the rights of the parties with reference thereto.

Herbert L. Cobin, of Wilmington, for plaintiffs.

August F. Walz and William F. Lynch, II, of Wilmington, for defendant The Mayor and Council of Wilmington.

Howard E. Lynch, Jr., of Dover, and Frank O'Donnell, Jr., of Wilmington, for defendant State Highway Department of the State of Delaware.

[34 Del.Ch. 41] Howard L. Williams and H. James Conaway, Jr., of Wilmington, for defendant Henry C. Eastburn & Son, Inc.

BRAMHALL, Vice-Chancellor.

According to plaintiffs' complaint, the facts upon which this action is based are substantially as follows:

Plaintiff Harry Cohen, hereinafter referred to as ‘ plaintiff’, purchased the property at 800 Concord Avenue, Wilmington, in May of 1921, and has resided there continuously since that time. The property is triangular in shape, bounded on the east by Concord Avenue, on the north by West Twenty-fifth Street, and on the west by Franklin Street. The southerly tip of the triangle faces Baynard Boulevard. The main entrance to the residence faces Concord Avenue. Prior to the summer of 1952, the State Highway Department contemplated widening Concord Avenue between the B & O Railroad and Baynard Boulevard, the plans calling for the widening of the bed of Concord Avenue from approximately 26 feet to 50 feet, to be bordered by a pavement 5 feet in width. The effect of these plans would be to eliminate from plaintiff's lawn an area approximately 8 to 10 feet wide along Concord Avenue for a distance of approximately 190 feet and a portion of the lawn at the intersection of Concord Avenue and Franklin Street, and Concord Avenue and Twenty-fifth Street. When plaintiff objected to the State Highway Department to the widening of Concord Avenue, he was advised that it was not the plan of the State Highway Department to do any work on Concord Avenue east of the B & O Railroad and that in the event these plans were changed plaintiff would be notified. On January 20, 1953, without notice to plaintiff and while plaintiff was out of the City, the State Highway Department, through its agent, the defendant Eastburn, entered upon the premises of plaintiff, up-rooted certain valuable boxwood hedges, tore up the lawn, concrete walk and front steps, and put up a wooden bridge over a large ditch which had been dug around the property in the lawn. The complaint alleges that the defendants have threatened to continue with their plans over the objection of the plaintiff and will continue to do so unless prevented by this court.

Plaintiff prays that defendants be enjoined from continuing with the trespass on his property; that this court declare the rights of the [34 Del.Ch. 42] parties and that judgment be entered against defendants for such damages as may be proper under the circumstances.

A complaint will be dismissed on motion if it is clearly without merit. It will

Page 395

not, however, be dismissed for failure to state a claim unless it appears to a certainty that under no state of facts which could be proved to support the claim asserted would the plaintiff be entitled to relief. If the complaint states a claim upon which the pleader might recover, the complaint should not be dismissed without a trial or motion for summary judgment. Costello v. Cording, Del.Super.,91 A.2d 182; Morgan v. Wells, Del.Ch.,80 A.2d 504; Maher v. Voss, 7 Terry 418, 84 A.2d 527. See 2 Moore's Federal Practice, 2d Ed., ยง 12.08. In considering whether or not plaintiff has failed to state a claim under any state of facts which could be proved to ...


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