The complainant claims to be the owner of the fee in the alley by descent from her grandfather, J ames Eield. She admits that owners of the Pine street lots have right of way over it, but claims that, as owner of lot Eo. 809 Broadway, she is entitled to use and enjoy the way over the alley in common with them.
*227The defendant claims to be the owner in fee-simple absolute of the whole of the alley, without charge thereon of any right of way in favor of the complainant. It insists, also, that it purchased a relinquishment of any possible claim that the complainant might assert, by a written memorandum, hereinafter referred to, and that it has proceeded to erect its buildings on the faith of that settlement. It admits that it proposes to build upon the whole of the alley, which will exclude any use of it by the complainant as a way, and claims the right so to do.
The question of the defendant’s title to the land on which it is building need not be considered until the complainant’s right to the relief she seeks has first been determined; for even, if the defendant company is about to do a wrong, it must appear that the wrong threatened is prejudicial to- the complainant’s rights, else she has no status to make complaint. Miller v. Craig, 3 Stock. 175.
I have not found it to be necessary to consider the defendant company’s claim that it owns the land within the alley in fee, nor to determine the effect of the alleged purchase of a release of the complainant’s possible interest, for the reason that the defendant’s answer and accompanying affidavits insist that the complainant has neither title to nor right of enjoyment in the alley in dispute. This puts upon the complainant the burden of showing affirmatively that she has such a clearly established right as entitles her to the protection of this court. If she has no equity, it is of no significance how defective the defendant’s title may be.
The complainant bases her right* to a preliminary injunction upon several grounds. She alleges that the alley^vas dedicated by James Field to the use in common of the Pine street and Broadway houses. Do deed or plan of lots made by James Field is produced. His will contains no dedication. The earliest documentary proof which refers to the alley is a deed from the executors of Frank Williams, a grantee from James Field, dated in 1868, conveying the lot Do. 528 Pine street. ^The lot conveyed bounds on the north side of the alley, and the deed passes the free use of the alley, “in common with the owners and occupiers *228of the other properties fronting on Pine street whose outlets are on and through said allejr,” and does not indicate that the Broadway lot-owners were to share in the use of the alley.
The only evidence tending to establish a dedication of the alleyway by Janies Field, as alleged in the bill, is in the two affidavits of the complainant herself and her sister .annexed to the bill. These affidavits state that the
“alley was dedicated' by * * * James Field for the use, in common, of the abutting properties, of which said premises, No. 809 Broadway, is one, and has been used continuously since as an alleyway.”
The affidavits state no mode whereby a dedication was effected, nor do they narrate any incident having that result. They simply swear to- the legal conclusión that there was a dedication. Other disinterested witnesses, former owners of the Pine street houses, whose affidavits are annexed to the answer, state facts which repel the idea that there ever was a dedication of the alley in favor of the lot No-.- 809 Broadway.
It is quite impossible to say that, on this point, the complainant’s right is established with the certainty that is required upon the allowance of a preliminary injunction. Hagerly v. Lee, 18 Stew. Eq. 256, and cases there cited.
The complainant also- claims that she is the owner of an undivided interest in fee-simple- in the land within the area of the alley, and that attendant thereon there is a right to use the alley. She admits that the owners of the Pine street lots have a right of way there, but she insists that it is in common with herself, as owner of No. 809 ‘Broadway, succeeding her grandfather’s ownership of that lot. This claim is inconsistent with her assertion of a dedication of the alleyway by James Field, in his lifetime, for the use- bf the owners whose lots abut upon it. The refuting affidavits annexed to the answer tend to show that, while there probably was a dedication, it was solely and exclusively for the benefit of the- Pine street lots, and that the owners of No. 809 Broadway had no share therein, but were afterwards allowed, by mere parol license from the Pine street owners, to use the alley as a drain.
*229Eone of the proofs on the point of dedication, on either side, is conclusive. The complainant is bound to show a clear right, and has not done it.
The complainant also claims to have used the alley as a right of way for twenty-five years and that her father before her used it for twenty years. This claim is also- met by the defendant’s refuting affidavits, to the effect that the complainant enjoyed the privileges of the alley as a mere licensee of the Pine street.lot-owners. Pier claim on this contention is open to the same objection—it is not sufficiently well established to- justify the issuing of a preliminary injunction.
Another difficulty in the way of granting a preliminary injunction in this case- arises by reason of the complainant’s own conduct after the defendant company had begun the construction of its building over the alley. The affidavits annexed to the answer show that the defendant company had made contracts and commenced the erection of the building in question in such a manner as to occupy all the lands within the area of the alley. At this stage of the affair the complainant and the general manager of the defendant company had a conference and discussed the plans for the building and the closing up of the alleyway. The complainant was told that the defendant had planned to close the alley. She claimed she had a water-course through it. The defendant’s manager proposed to fix a drain to take care of all the water; the complainant assented to this, and the defendant company proceeded with its work. Afterwards, about June 11th, the defendant’s manager called on her and the substance of the previous conversation was repeated, and a memorandum, in writing, between the parties was made, in these words and figures:
“Camden, June 11th, 1902.
“In consideration of $31.25 I hereby relinquish all claim to alley in rear of my premises. Said alley being used in common for Pine street houses, upon which I claim to have a water right. Gately & Hurley Co. hereby agree to take care of drainage and always maintain- same.
“Gately & I-Iurley Co.,
“W. L. I-Iurley, Treas.,
“Annie E. Dobleman.”
*230The consideration—$31.25—was a debt which the complainant owed the defendant company.
The defendant company, after making the above arrangement with the complainant, continued its building work, putting in a drain to carry off water as arranged as part of the improvement. After the work had been going on for some weeks the complainant repudiated the writing which she had signed, and returned the $31.25, saying her husband was not willing that she should sell her rights in the alky, and that he had not signed the paper. She filed her bill in this cause on October 9th, 1902. The affidavit of the defendant company’s manager shows that at the time when the complainant attempted to repudiate the above-stated arrangement the defendant company’s plans had been made for the improvement in question, contracts had been given out and that the work on the ground was in actual construction and progress, so1 that it was impossible for the defendant company at that time to change it.
This narration of an attempted settlement between the parties, whether effectual or not (and upon this it is not necessary presently to pass), was within the knowledge of the complainant when she filed her bill and her own affidavit in support thereof. It is not in any way disclosed either by the bill or her affidavit. Her present application is for a preliminary injunction to stop the defendant company from doing the thing which she knew was intended to be done, and which had actually been in progress for several weeks, with her assent, and which cannot now be stopped without material injury to the defendant company. Without determining the effect of the arrangement stated upon the complainant’s legal rights, if any she has, its existence and non-disclosure by her in her bill of complaint ought certainly to prevent the allowance of a preliminaay injunction. ■
I will advise an order refusing the writ, with costs.