Opinion
07-15-1896
MAYOR, ETC., OF BOROUGH OF BRIGANTINE v. HOLLAND TRUST CO.
A. B. Endicott, for complainant. W. B. Williams, for defendant.
Bill by the mayor and common council of the borough of Brigantine against the Holland Trust Company for an injunction. Heard on bill, answering affidavits, and rule to show cause. Injunction denied.
A. B. Endicott, for complainant.
W. B. Williams, for defendant.
GREY, V. C. This bill was filed by the borough of Brigantine against the Holland Trust Company, seeking an injunction to restrain the defendant "from erecting poles or stringing wires in, along, or over Division avenue or Brigantine avenue in said borough." At the hearing of the cause, the defendant filed its affidavits in response to the complainant's bill, in which it denied that it was contemplated by the defendant company to erect any poles in either First street south (which was shown to be the same as Division avenue), or on Brigantine avenue. It was, however, admitted that it was intended to run wires from poles already erected on Division avenue, connecting with the wires already stretched along the poles on Division avenue, and running from those poles across Division avenue, to the hotel of the defendant, for the purpose of carrying an electric current to that hotel, to supply electricity to electric lights. The counsel who appeared for the defendant company declared, without any qualification, that there was no purpose or intention on the part of the defendant company to erect any poles whatever on either Division avenue or on Brigantine avenue. The affidavit annexed to the bill, so far as it specifies the acts of the defendant upon which the claim for injunction is based, mentions only acts incidental to the stretching of wires upon poles, and does not state any facts which go to show any intention to set up additional poles. This comports with the affidavit filed by the defendant, and with the declarations of the defendant's counsel at the hearing, that there is no design on the part of the defendant to erect poles within the streets of the complainant.
As the complainant does not show any purpose on the part of the defendant to erect poles in the street, and the defendant fully denies such an intent, it remains that the only question to be determined in this matter is whether a preliminary injunction should issue, restraining the defendant from stretching a wire across the street of complainant without first obtaining the authority of the complainant to do so. The affidavits filed on the part of the defendant admit that it is the intention of the defendant company to stretch a wire across Division avenue, which shall connect with wires already stretched on the poles now standing in Division avenue, and to run the new wire across that avenue to the hotel of the defendant company, for the purpose of supplying it with electric lights. The wires already stretched on the poles on Division avenue are stated by the affidavits to be at an elevation of from 20 to 25 feet, and that they did not in any way interfere with the traffic upon Division avenue. To connect with these, the new wire must be of the same height. It is further stated that Division avenue itself is a stretch of land covered by water during a large portion of the year, except in specially dry seasons; that it has not been curbed or flagged or graded by the borough, or by anybody else; that it is not passable for vehicles or pedestrians, except on one side, where the defendant has erected a raised platform, some four to six feet above the surface of the ground; and that it is only over this that the guests of the hotel can get access to it. There is no contradiction of this explicit statement of the actual condition of Division avenue, except the general allegation in the bill, and the general affidavit that the contents of the bill are true. It was substantially admitted on the hearing that there had been a proffer of dedication of the streets in question, Division avenue and Brigantine avenue; but it was claimed that there had been no acceptance by the borough, and that no authority over the streets could be asserted on behalf of the public until actual acceptance of the dedication. Whether there was or was not actual acceptanceremained a matter of dispute, neither party showing proof of a conclusive character. But the affidavits do show, with the map admitted to be descriptive of the premises exhibited at the hearing, that there has been a proffer of dedication, such as would cut off the donor from the power of retraction; so that whenever, in the estimation of the local authorities, the wants and convenience of the public require the street proffered for the public use, the dedication could be consummated. The actual acceptance by a formal adoption is by our courts held to be necessary to impose on the public the duty of repairing and maintaining, but is not essential to consummate the dedication, so as to cut off the rights of the owner of the land. Hoboken Land & Imp. Co. v. Mayor, etc., of Hoboken, 36 N. J. Law, 540. I think that the act of dedication is so far complete that, if this were the only obstacle, the municipality would have power to bring a suit to assert and protect the public right in the dedication proffered, altheugh it may not have heretofore obligated itself to maintain or repair the street.
It was stated on the hearing, and not questioned, although it does not appear by the bill of complaint, that the borough of Brigantine obtained its municipal franchise under the borough act of April 5, 1878 (Laws 1878, p. 403). It was the powers thus obtained which are sought to be enforced by this bill. By the act referred to, the mayor and council of the borough were declared to have power "to pass, enforce, alter, or repeal ordinances to take effect within the limits of said borough for the following purposes, to wit: (1) To declare what shall be considered a nuisance in the streets, roads, lots, and places in said borough, and to prevent and remove all obstructions, incumbrances, and nuisances in and upon any street, road, lot, sidewalk, inclosure, or other place in said borough." There is no proof before the court that any ordinance had ever been passed which declared the stringing of wires or any like acts to be nuisances, or to prevent or remove such an obstruction or incumbrance. So far as any action by ordinance is concerned, there is nothing to show that any ordinance on the subject has ever been passed, or that the power above recited has been exercised. By the statute by which the legislature granted to the borough the power to declare what were nuisances, and to remove obstructions and incumbrances, it also prescribed the mode by which the borough should act in exercising the power. When the legislature creates the power, and by the same act directs the mode in which it shall be exercised, the municipal authority is, I think, bound to exercise it in the mode prescribed.
Municipal corporations have been sustained in ejectment suits brought to recover, for the benefit of the public, rights of way, public parks, etc. Den v. Dummer, 20 N. J. Law, 86; Methodist Episcopal Church v. Mayor, etc., of Hoboken, 33 N. J. Law, 13; Hoboken Land & Improvement Co. v. Mayor, etc., of Hoboken, 36 N. J. Law, 543. But these suits were brought in the assertion of general rights vested in the public, and not for the enforcement of powers specifically given, with a prescription of the mode in which they should be exercised. Where the act sought to be done is clearly one of those which the legislature has directed to be accomplished in a specified mode, the municipal corporation, in seeking to do the thing which it is authorized to do, should follow the mode prescribed.
But if it be conceded that the omission to act by ordinance, as directed by the incorporation act, does not preclude the municipality from asking this court to grant a preliminary injunction, it must, at least, be shown that there is a present exigency which makes this extraordinary remedy a necessity to prevent actual, and not merely theoretic, harm, and that the injury which is threatened is irreparable. This calls for an examination of the authority of the borough over the streets within its territory, and also an ascertainment of the extent of public right in those streets, their present condition, and the threatened intrusion, and whether such a case is shown as calls for a preliminary restraint. I think that whatever control over the public streets as highways may be exercised by anybody the borough may exercise, under the grants of power proffered in the act under which it was incorporated. What the extent of the public right upward above the surface of the highway may be is a much more extensive question. In our state, the thing taken from the abutting owner is a right of way over land, without any specification of how far up or down the right extends. There seems to be no reason that any more should be taken than the public can enjoy. If a supposed intrusion does not appear to interfere in any way with the uses which the public may make of the way, why deny to the abutting owner the use of that which the public cannot use?
In the case of Wandsworth District Board of Works v. United Telephone Co., 13 Q. B. Div. 904, the English court of appeal construed the "Metropolitan Management Act," which provided that "all streets, being highways, * * * shall vest in and be under the management and control of the vestry or district board," etc., "in which such highways are situate." The question presented was whether a preliminary injunction should issue to restrain the stringing of telephonic wires over a street at an elevation of 30 feet above the ground. Sir Fitz James Stephen, in the court below, was of opinion that the wire in question was not a nuisance to the highway, and that, apart from the question of property rights, the plaintiff was not entitled to have it removed; but he held that the act above quoted gave an absolute proprietary right in the streets to the plaintiff, and on that ground he allowed the injunction asked for, but directed that it should not issueuntil the determination of an appeal to be brought by the defendants. In the court of appeal, the law laid down by Judge Stephen was accepted, save his construction of the effect of the act above quoted; the court of appeal holding that the act vested the title to the street in the public only to the extent that it was or might be used as a street, and now usque ad coelum; that the question as to the meaning of the word "street" must be determined as a practical one at the time when the remedy was applied for; and that if the supposed intrusion upon the street was not, and was not likely to be, a danger to the street as such, no injunction ought to be granted merely on the ground that the stringing of the wire was a trespass on the property of the public. This case was thoroughly considered, and, although it arose under the provisions of an act of the English parliament,—and parliament is not limited by constitutional restraint, as is our legislature, —still, I think, the declaration of the law is very enlightening of the subject now before the court. The holding is that the right of the municipality in the street goes to the extent which the necessities or convenience of the public in the use of the street may require; that the stringing of a wire 30 feet above the surface of the street was not shown to be an intrusion upon any use which the public were making or might make of the highway; that the rule of absolute ownership usque ad coelum did not apply to the public streets, even where parliament had vested the street in the municipality.
In the case in hand, Division avenue, the street in question, is shown to exist almost wholly in the contemplation of the mind. It is covered by water during a considerable part of the year. It has not been curbed, flagged, nor graded; is not passable either for vehicles or pedestrians, except over a raised platform erected by defendant, which is from four to six feet above the surface. No buildings, except the defendant's hotel and a casino, appear, by the bill and affidavits, to have been erected on the avenue. If it were shown that the proposed stringing of a wire was in breach of any reasonable ordinance passed by the municipality regulating the use of the street, or if it occasioned any actual appreciable danger to the public or to the traffic in the street, this court might properly be asked to restrain the defendant by a preliminary injunction; but no such condition is exhibited.
In the case of Roake v. Telephone Co., 41 N. J. Eq. 35, 2 Atl. 618, an abutting owner filed his bill to restrain a telephone and telegraph company in erecting poles and stretching wires over lands in the avenue, in front of his lot, at a height of 25 feet above the ground. The defendants claimed to have acted under statutory and municipal authority. No special damage was in that case alleged, and the complainant seemed to rest his case solely upon his rights as owner. The court held that his rights, as exhibited by him, were debatable, and that a preliminary injunction should not be allowed.
I am of opinion that inasmuch as the bill of complaint does not exhibit the threatening of any present danger by the proposed erection of this wire, and does not show that any ordinance has been made as to the obstruction or incumbrance of the streets of the borough of which the stringing of these wires would be a breach, the complainant has not shown such case as would justify the issuing of a preliminary injunction, which should only go when the rights of a complainant are clear, and when the injury threatened is immediate and irreparable.
The rule to show cause and the restraining order must be dissolved.