Opinion
05-29-1906
HOBOKEN & M. R. CO. v. MAYOR, ETC., OF CITY OF HOBOKEN.
Charles L. Corbin, for complainant. James F. Minturn, for defendant.
Action by the Hoboken & Manhattan Railroad Company against the mayor and council of the city of Hoboken, on bill to restrain defendant from interfering with complainant in digging a tunnel under one of the streets of the city of Hoboken. Writ granted.
Charles L. Corbin, for complainant. James F. Minturn, for defendant.
PITNEY, V. C. (orally). The discussion in this case has run into questions which, if they have not already been decided, ought not to be decided at this time. I think they have been decided, but I am not sure of it. I think they have been decided in what has been called in the course of the argument the case in the Supreme Court of the United States (8 Sup. Ct. 643, 31 L. Ed. 543), and the case in the Supreme Court of this state, called the Elizabeth Case (22 Atl. 47), and in the case in this court called the Fourteenth Street Jersey City Case. The older opinion in the Hoboken Land & Improvement Company v. Mayor of Hoboken, 36 N. J. Law, 540, held that the streets laid out on the Loss map, ending at the water's edge, went by implication over improved land that was the result of filling in beyond the natural water's edge; that the owner of the ripa, who had subjected it to the easement of a street leading to the ripa, could not take away the right of the public to access to the water by filling up and extending the ripa away from the end of the original street as dedicated. The Supreme Court of the United States, in city of Hoboken v. Pa. R. Co., 124 U. S. 656, 8 Sup. Ct. 643, 31 L. Ed. 543, overruled that doctrine and held that the owners of the ripa could do that very thing in the very place, Hoboken, where the other question arose, and, as I understand it, under the very circumstances here involved. Now, the Supreme Court of this state, in Elizabeth v. Central R. R. of N. J., 53 N. J. Law, 491, 22 Atl. 47, following the Supreme Court of the United States, refused to adhere to the doctrine of the Court of Errors and Appeals in the Hoboken Land & Improvement Company Case, as declared In 36 N. J. Law, 540. I followed the Supreme Court of this State In Morris & Essex R. R. Co. v. Jersey City, 63 N. J. Eq. 45, 51 Atl. 387. That case went to the Court of Appeals and was affirmed on my opinion. Shortly after that was decided an attempt was made to reverse or change the result in the Elizabeth ejectment case by a bill filed to set aside the judgment on the ground of fraud, or something of that kind. I forget now just how and what it was, although at one time I did know exactly. It came before Vice Chancellor Emery, and the result, I believe, was that the original decision of the Supreme Court stands at this time. If Vice Chancellor Emery's decision has gone to the Court of Appeals, I have not heard what has become of it at all. I think it has been affirmed, but I am' not sure. Now, these questions I do not wish to determine now, because it would require time and ought to require a careful consideration, but, if the later decisions stand, as I suppose they do and believe that an examination will show they do, the defendant here has no case that ought to occupy the attention of the court.
Now, what is the present case? The complainant is rightfully at work on a piece of land that is not within the limits of any street as now used as such in Hoboken. It is said that it has been heretofore used as a street, as an extension of Ferry street, that just beyond where Ferry street now ends— practically ends, and is fenced in, but is not used by the public, except by a trolley line running over it—there was 20 years ago a public street; that it formerly extended 200 or 300 feet to the landing of the old ferries. Those ferries were owned by private individuals or a corporation, and the part in dispute was an extension of Ferry street down to the mouth of the ferries, precisely like the case in Elizabeth, precisely. But it was all made ground where once the tide ebbed and flowed. Now the complainant has a right by law to build a tunnel under that place, granting that it belongs to the city and is now rightfully a street, although the city has not been in possession of it for 20 years, and although it has been occupied by adverse interests for 20 years, and granting that the city may recover in an action of ejectment now pending.
Yet it is admitted by the counsel for the city, very properly, that the complainant, which is a tunnel company, has a right by statute to build its tunnel under that street. Now, In my judgment, that right includes the right to use the surface so far as is necessary to construct its tunnel, and, if it was a street in actual use, it would have a right to do it, temporarily, of course, so far as it could without disturbing the public travel, or unreasonably interfering with the public travel. I repeat that if the street were now in actual use, instead of being in private hands, the right of the complainant in pushingits tunnel for public purposes under that street would include the right, if necessary, to use the surface temporarily, so far as it was necessary for that purpose and so far as it could do so without obstructing the travel to an unreasonable extent. I think I have made myself plain. Now, what it proposes to do now is strictly in furtherance of its project of building a tunnel under that point to put in temporary supports to sustain a permanent structure there now in existence, the permanent structures of an overhead railway, an elevated railway track that comes down there and is carrying thousands of passengers every day to and from New York up into the heights of Hudson county. Now, it is obliged to sustain that iron pier, I believe it is, or post, or a series of iron piers and posts, and for that purpose it is obliged to drive piles 30 or 40 or 50 feet below the surface of the earth to get down to solid ground. Now, if there was a street now actually in use, and it was necessary to do that, the city of Hoboken could not interfere with its doing so, providing it did not obstruct public travel. Now what it proposes to do is not to obstruct public travel at all, because there is Hot any there and has not been for 20 years. Now what kind of right has the city of Hoboken—grant everything in its favor that the learned counsel has contended for —what right has it to obstruct this complainant in driving those piles for temporary purposes, which, when finished, will not protrude above the surface of the earth at all or interfere with the working of it as a street, if the city shall hereafter establish its right? What right has it? What kind of show has it in a court of equity to come in manu forti to stop this complainant from doing a work that counsel admits by the statute of the state of New Jersey it has a perfect right to do, and which work is absolutely necessary in order to carry out its project, and which work will not in the least obstruct the use of that street if the defendant succeeds in maintaining its ejectment. Now I think that states the case. It seems to me there is not the least ground for the defendant to come in and stop this work. It will not obstruct the city. It is not obstructing it now, and will not obstruct it if it recovers in its action and gets possession of this.
I therefore grant the Injunction.
Mr. Minturn: I would like to ask your honor a question. Tour honor stated they had a right to use the surface of the street so far as it might be necessary to carry on their underground work.
The Court: Yes, temporarily, so long as it don't obstruct the travel.
Mr. Minturn: I want to ask your honor whether your honor's judgment on that was whether they had the right to use the street without local permit or local authority.
The Court: The statute has given it to them.
Mr. Corbin: The council of Jersey City concluded we did have that right without permit; that is, Mr. Record's
The Court: I don't know precisely what the statute of New Jersey gives you, and if it is absolutely necessary from what it states here, I should say you had a right to do it, but you are not obstructing any public travel. That is the ground I put it on. What I said about the other was merely illustrating what I conceive to be the complainant's rights, admitted by the defendant. They are not obstructing any public travel, not interfering with the right of the public as at present exercised. They would be if they should let down the iron columns which support the elevated railway, which is a public highway.
Mr. Minturn: My only admission, of course, was that they had a right to go under the street to build their tunnel.
The Court: I understand that, but that right includes the other, in my judgment; but it don't make any difference in this case whether it does or not. They are not obstructing the public travel, and they are not changing the street in such a way that it would not be there ready for public travel if you succeed in your ejectment If I was obliged to decide the matter this morning, I should decide against the defendants on the merits, on the law; but I do not think I should be obliged to do it.