Grey v. Mayor

• Decision Date: 05 March 1900
• Citation: 60 N.J.E. 385,45 A. 995
• Parties: GREY, Atty. Gen., ex rel. SIMMONS et al. v. MAYOR, ETC., OF CITY OF PATERSON.
• Court: New Jersey Supreme Court

45 A. 995

60 N.J.E. 385

GREY, Atty. Gen., ex rel. SIMMONS et al.

v. MAYOR, ETC., OF CITY OF PATERSON.

Court of Errors and Appeals of New Jersey.

March 5, 1900.

(Syllabus by the Court.)

Appeal from court of chancery; McGill, Chancellor.

Bill by Samuel H. Grey, attorney general, on the relation of Henry P. Simmons and others, against the mayor and aldermen of the city of Paterson. From an order overruling a demurrer to the information and bill, and from an order for an injunction, defendants appeal. Reversed.

Thos. C. Simonton, Jr., and Eugene Stevenson, for appellants.

Samuel H. Grey, Atty. Gen., McEwan & McEwan, James B. Vredenburgh, and John P. Stockton, for respondent.

VAN SYCKEL, J. The information and bill of complaint in this case was filed by the attorney general on behalf of the state, at the relation of owners and possessors of lands along the banks of the Passaic river, to restrain the city of Paterson from depositing or discharging its sewage through its drains or sewers into the Passaic river, and from constructing new sewers to discharge into said river, and from enlarging or increasing its present sewage system with outlets into said river. Thereupon a rule to show cause was granted why an injunction should not issue asprayed for in said information and bill. Upon the hearing of this rule, affidavits were presented by the defendants. To the information and bill the city interposed a demurrer. Upon the 28th day of March, 1899, the chancellor overruled the demurrer, and ordered an injunction, in which order it is recited that upon reading the information and bill of complaint and the affidavits annexed thereto, and upon reading the demurrer of the defendants to the said information and bill, and the affidavits presented by the defendants upon said order to show cause, the chancellor being of opinion that the defendants' acts in discharging sewage into the Passaic river in the manner set forth in said information and affidavits constituted a public nuisance, it is ordered that an injunction do issue enjoining and restraining the mayor and aldermen of the city of Paterson, until the further order of said court, from discharging sewage, or permitting sewage to be discharged, directly or indirectly, into the Passaic river, above tide water, through any public sewer or sewers of said defendant constructed or to be constructed, which do not now discharge directly or indirectly into said river. From the order overruling the demurrer, and also from the order for injunction, an appeal was taken to this court. The affidavits, therefore, which were considered by the chancellor in making the order for injunction are part of the case, as presented by the appeal to this court.

In 18(57, the legislature passed a supplement to the charter of the city of Paterson, by the seventeenth section of which it is provided "that the mayor and aldermen of the city of Paterson are hereby authorized to cause such surveys, maps and returns to be made, as may be necessary to enable them to prescribe and adopt, either for the whole or any part of said city, the location of streets and sewers or either, and the width thereof, hereafter to be opened or constructed therein, and when such location, width and grade shall be adopted, the surveys, maps, and returns, prescribing and defining the same, shall be recorded in the clerk's office of the county of Passaic, and thereupon no street or sewer shall thereafter within the district comprised in any such survey, map or return be opened or constructed, except in conformity therewith as to location, width and grade, and fully to accomplish the purposes contemplated by this section, the said mayor and aldermen may employ such engineers, surveyors and other persons, and provide for their compensation, and pass such ordinances as they may deem to be proper and may enter upon any land for making surveys and examinations." P. L. 1867, p. 653, § 17. It appears by the affidavits that in January, 1868, Gen. Viele presented a map and report of the city for a general system of sewage. The map and report were referred to a Joint committee of streets and finance, to ascertain what legislation would be necessary to enable the city to proceed with the work. Thereupon, under the direction of the public authorities, an act was drafted to enable the city to construct its sewers. On the 26th of February, 1868, an act of the legislature was passed entitled "An act to authorize the construction of sewers and drains in the city of Paterson." The second section of this act provides "that all such sewers and drains shall be constructed in conformity with the plans thereof adopted, or which shall be adopted, by said mayor and aldermen, pursuant to the' 17th section of the act approved April 4, 1867, entitled 'A further supplement to the act entitled "An act amending and revising the act to incorporate the city of Paterson By the said act the city was authorized to enter upon any lands for the purpose of making surveys and examinations, and to use the ground and soil under any street, highway, railroad, lane, alley, or court within the city for the purpose of constructing the works contemplated by the said act. By the last section of the said act, it was declared that it should take effect immediately, and be deemed to be a public act. Laws 1868, p. 126. Under the sanction of this legislation, a number of sewers which are now part of the sewer system of the city were constructed. By an act passed in 1871 (P. L. 1871, p. 808), the city charter was revised, and therein the power to construct sewers was continued. By the said affidavits it appears that all the sewers constructed under this legislation discharged into the Passaic river, and that at least up to the year 1872 the only system of constructing sewers which had been adopted in this country was by building them underground, with the outlet into the natural water course on the banks of which the city was built.

From this recital, I think it sufficiently appears that the city of Paterson had legislative authority to construct the system of sewers the use of which the complainants seek by their information and bill to restrain. Full power was conferred by this legislation upon the city of Paterson to adopt and execute its own plan of sewerage, so far as the rights of the state were concerned. If the power inhered in the legislature to bestow such authority upon the city, it is the settled law of this state that the municipal corporation is not responsible for those incidental damages that result from the proper exercise of its functions, and such exercise will not subject it to charge of maintaining a public nuisance. Beseman v. Railroad Co., 50 N. J. Law, 235, 13 Atl. 164; S. C. affirmed, 52 N. J. Law, 221, 20 Atl. 169. So far as the authority of the state can avail for that purpose, the legislative consent furnishes ample protection to the city for the appropriate exercise of granted power.

Since the decision of Stevens v. Railroad Co., in this court, reported in 34 N. J. Law, 532, it has been the conceded law that the title of the riparian owner on the navigable waters of the state, where the tide ebbs and flows, extends only to high-water mark, and that the state is the absolute owner of the bed of the waters beyond high-water mark. This adjudication leaves the riparian owners of lands on the Passaic river where the tide ebbs and flows without the right to relief. This question is discussed and settled in the opinion of this court in the case of City of Newark v. Sayre (N. J. Err. & App.; decided at the present term) 45 Atl. 985, and it is therefore unnecessary to refer to other authorities. But in that case the alleged injury affected only owners on tide water. The rights of those above the flow of the tide are in no wise involved in the decision of the Sayre Case. In Cobb v. Davenport, in our supreme...