Sound Marine & Machine Corp. v. Westchester County

• Decision Date: 29 July 1936
• Citation: 15 F. Supp. 812
• Parties: SOUND MARINE & MACHINE CORPORATION v. WESTCHESTER COUNTY.
• Court: U.S. District Court — Southern District of New York

15 F. Supp. 812

SOUND MARINE & MACHINE CORPORATION v. WESTCHESTER COUNTY.

District Court, S. D. New York.

July 29, 1936.

Eugene M. Schwarzenberg and James H. Hickey, both of New York City (James H. Hickey, of New York City, of counsel), for libelant.

William A. Davidson, Co. Atty., of White Plains, N. Y. (Frank J. Claydon, of White Plains, N. Y., of counsel), for libelee.

HULBERT, District Judge.

The suit is in admiralty, which is sometimes assumed to possess all of the jurisdiction of a court of equity.

Karl M. Goldsmith owned a parcel of land, consisting of five lots on the south side of Mamaroneck Harbor, on the Rushmore Shore Front, Orienta Peninsula, town of Mamaroneck, Westchester county, N. Y., and the land under the waters of Indian creek in front of and adjacent to said premises, upon which was erected a wharf and buildings wherein Goldsmith conducted the business of building, repairing, and storing yachts. Eventually, the business was incorporated under the name of Sound Machine Shop, Inc. The certificate of incorporation, filed May 29, 1917, specified the corporate existence of the corporation as ten years. The real estate in question was not transferred to the corporation until January 25, 1926; meanwhile the corporate name was changed to the Sound Marine & Machine Corporation. More than two years after the date when the life of the corporation expired by limitation, a new corporation was formed under identically the same name and all of the assets of the libelant were transferred to it except the real estate, which was not so conveyed until 1935 (after the commencement of this action).

In 1929, the county of Westchester began the construction of a sewer, and sewer pipes, five feet in diameter, were laid across the channel affording access to libelant's property, which, when the sewer was completed, did not have ingress or egress at low tide for tugs, barges, or other water craft of greater draft than six feet. Hence libelant sues to compel the county of Westchester to abate such nuisance and lower said sewer and sewer pipes so that they shall insure a 10' access channel to its property, or, in the alternative, pay to the libelant the amount which its property has been damaged because of the alleged unlawful construction and maintenance of said sewer.

In its answer, the libelee set up that the libelant was neither the real party in interest nor the proper party to sue. It was contended by the libelant upon the trial that its directors were trustees for the purpose of winding up its affairs and could bring this action in the name of the corporation (chapter 552 of the Laws of New York 1932, § 3, amending General Corporation Law Consol.Laws c. 23 § 29), and only the Attorney General of this state could raise the objection of corporate existence. Thereupon the libelee expressly waived its objections (as it had the right to do, if so advised) and, at the close of the trial, attempted to waive any existing objection that this court is without jurisdiction in admiralty, by joining with the libelant in requesting a determination of the action upon the merits.

Originally, the main channel from Long Island Sound to the town dock at the village of Mamaroneck followed a course to the westerly and northerly of Harbor Island, and passed the property of Goldsmith. But, before the incorporation of the libelant, the United States government, pursuant to Congressional authorization, dredged a new main channel to the eastward of Harbor Island. The libelant contends, however, that the old main channel, now referred to as the access channel, retained the characteristics of a navigable channel, and was, in fact, maintained by the government as such, and produced from the local office of the Army Engineering Corps, several maps showing that the area had been dredged to 10' at M. L. W. in 1925 and 1931. The libelee, on the other hand, insists that when the new, straighter, and deeper channel came into existence and use, the old main channel was abandoned.

The evidence satisfies me that the dredging done in 1925, although by a government dredge, was under a contract with the village of Mamaroneck to obtain fill for an area of marsh converted into a park and bathing beach as part of a project of the village for beautifying the harbor, and, while the dredging thus done was in approximately the same area as was contained within the old channel lines, it did not conform exactly and was not dredged to any uniform depth. It is also clear that the dredging in 1931 was likewise done at the behest and for the benefit of the village of Mamaroneck, and had no relation to the maintenance of the so-called access channel as a government enterprise. Indeed, the proof is that, although the project at that time was to dredge the area to 8' at M. L. W. and the map indicates that it was dredged to 10' at M. L. W., it was actually dredged to 6½' at M. L. W. and the sewer outlet did not interfere with that dredging.

The evidence is very scant as to the draft of boats which, before the sewer outlet was built in 1929, had access to the property presently owned by the libelant, as compared with those having access since that time. Nearly half a century ago, the steamers Mary Gordon and Irene E. Davis, carrying both passengers and freight, operated from New York City to Mamaroneck. Each of these ships had a maximum draft of 8' loaded and used the old main channel, but they never navigated that channel at low tide and often waited "outside" six and seven hours for a rising tide. There was also some proof that a tug of the Scott salvage corporation had taken scows up the old main channel to libelant's premises on Indian creek, but it does not appear competently what the draft of the tug and scows or the stage of the tide was. At the suggestion of the court, the case was reopened and continued for some days for the purpose of supplying testimony of that very character, but taking the proof in the most favorable light to the libelant, the sewer outlet is now at least 5' below water and M. L. W. and there is a rise and fall of the tide of about 6 feet in that part of the Harbor.

The Rivers and Harbors Appropriation Act of March 3, 1899 (title 33 U.S.C.A. § 401 et seq.) provides in part as follows: Section 10 (33 U.S.C.A. § 403). "The creation of any obstruction not affirmatively authorized by congress, to the navigable capacity of any of the waters of the United States is hereby prohibited; and it shall not be lawful to build or commence the building of any wharf, pier, dolphin, boom, weir, breakwater, bulkhead, jetty, or other structures in any port, roadstead, haven, harbor, canal, navigable river, or other water of the United States, outside established harbor lines, or where no harbor lines have been established, except on plans recommended by the Chief of Engineers and authorized by the Secretary of War; and it shall not be lawful to excavate or fill, or in any manner to alter or modify the course, location, condition, or capacity of, any port, roadstead, haven, harbor, canal, lake, harbor of refuge, or inclosure within the limits of any breakwater, or of the channel of any navigable water of the United States, unless the work has been recommended by the Chief of Engineers and authorized by the Secretary of War prior to beginning the same."

It is conceded that the installation of the outlet sewer pipe was not specifically authorized by an act of Congress, but it is contended by libelee that since the area in question lies wholly within the state of New York, that sovereignty may do as it wills, subject to the paramount jurisdiction of the United States in connection with its control of commerce. Therefore, the libelee submits a permit of the Secretary of War, issued pursuant to section 10, supra, and also an easement from the commissioners of the land office of the state of New York covering the area of sewer construction under the waters of Mamaroneck Harbor and contends that it obtained proper authorization for the work and has complied with all pertinent provisions of section 10, supra, but the libelant argues that nothing short of an act of the Congress is sufficient and that "affirmative authorization" is lacking in this case.

The language used by Chief Justice Taft, writing for the Supreme Court in Wisconsin v. Illinois, 278 U.S. 367, 49 S. Ct. 163, 73 L.Ed. 426, in dealing with the very statute here involved, seems particularly in point. He said, 278 U.S. 367, at page 412, et seq., 49 S.Ct. 163, 169, 73 L. Ed. 426:

"The policy carried out in the Act of March 3, 1899, had been begun in the Act of September 19, 1890, c. 907, 26 Stat. 426 454, 455. Sections 9 and 10 33 U.S. C.A. §§ 401, 403 were the rearranged result of the provisions of sections 7 and 10 of the act of 1890. A new classification was made in sections 9 and 10 of the act of 1899, and substituted for section 10 of the act of 1890. The latter provided that the creation of any obstruction to navigable capacity was prohibited, unless `affirmatively authorized by law' (33 U.S.C.A. § 403a), and this was changed so as to read `affirmatively authorized by Congress.' 33 U.S.C. A. § 403. The change in the words of the first clause of section 10 was intended to make mere state authorization inadequate. Citing cases. It was not intended to override the authority of the state to put its veto upon the placing of obstructing structures in navigable waters within a state, and both state and federal approval were made necessary in such case. Cummings v. Chicago, 188 U.S. 410, 23 S.Ct. 472, 47 L.Ed. 525. The words `affirmatively authorized by Congress' should be construed in the light of the administrative exigencies which prompted the delegation of authority in the succeeding clauses. Congress, having stated in section 9 as to what particular structures its specific consent should be required, intended to leave to the Secretary of War, acting on the recommendation of the...