(dissenting).
I do not question the soundness of the legal propositions stated in the opinion, but I deny their application to the decree under review.
*148The decree is that the poles intended for private lighting are larger than the defendant is lawfully entitled to maintain and that they be removed, to the end that others of a lawful size may be substituted in their stead. This decree, so fax as it adjudges the quesiion over which the court of equity took jurisdiction, is that the unlawful size of the poles intended for an unlawful purpose must be reduced to a size that is lawful for a lawful purpose, the rest is by way of execution. If this decree could be executed in any other way the court below would doubtlessly have adopted or permitted such method; no such method was laid before the court below or suggested to this court. The removal of the larger poles to make way for the smaller is therefore a mere incident to the execution of an otherwise valid decree.
To lay hold of such an incident of execution as if it were the point of the decree or the basis of the jurisdiction exercised by the court of chancery is, to say the least, most unfortunate, in view of the perfectly patent fact that the remedy by action of ejectment affords the complainant no relief at all from the dangers incident to tire unlawful maintenance upon his property of a deadly current of electricity. Such action at law with its varying fortunes of jury trial and its review and of appellate procedures may run on for months or years, during all of which time the complainant will be exposed to a source of danger from which, if it be unlawful, he should be promptly relieved. Equity can give this prompt relief; law cannot.
I am not suggesting that because of this fact we should extend the jurisdiction of equity over real actions or permit that exclusive domain of the law to be invaded; what I do assert is that in an injunction suit where that remedy alone can give relief we should not lay hold of a mere incident of execution as the ground for the assertion of a legal jurisdiction which when invoked will be entirely powerless to afford the required relief.
The complainant’s bill is neither in form or substance an action for the possession of land; what he seeks is not the possession of the few inches of his property on which the illicit pole is erected, but the protection of all of his property and possibly the lives of its occupants from an illicit use to which such pole is to be put and for which it is the preparation. The decree does *149not eject the defendant, for when executed it leaves it in possession of so much of the complainant’s land as is occupied by a pole intended for a lawful use; it is only by refusing to carry out the decree that the defendant may eject itself from complainant’s land, but that is the voluntary act of the defendant and not that of the complainant or of the court. If, as was said in French v. Robb, in speaking of such poles, “equity will restrain their misuse in the future,” why should not such misuse be restrained ab initio or as soon as such illicit character is clearly established ?
Such is the sole object of the present suit following the case of Taylor v. Public Service Corporation, 75 N. J. Eq. 371, which was affirmed by this court in 78 N. J. Eq. 300. A comparison of the ease cited with that now before us shows to a demonstration that, unless we are to have two contrary rules, the present reversal is based upon an incident of execution that in nowise affects or involves the jurisdictional question discussed in the majority opinion.
I think I have made clear the ground upon which I vote to affirm the decree of the court of chancery.
I am requested by Mr. Justice Trenchard and by Judge White to say that they concur in the foregoing views.
For affirmance — Garrison, Trenchard, White — 3. For reversal — The Chief-Justice, Swayze, Parker, Bergen, Minturn, Kalisch, Black, Bogert, Vredenburgh, Terhune, Heppenheimer, Williams-12.