Bouquet v. Hackensack Water Co.

• Decision Date: 18 June 1917
• Docket Number: No. 21.,21.
• Citation: 90 N.J.Law 203,101 A. 379
• Parties: BOUQUET v. HACKENSACK WATER CO.
• Court: New Jersey Supreme Court

101 A. 379

90 N.J.Law 203

BOUQUET

v. HACKENSACK WATER CO.

No. 21.

Court of Errors and Appeals of New Jersey.

June 18, 1917.

(Syllabus by the Court.)

White and Taylor. JJ., dissenting.

Appeal from Supreme Court.

Action by Maxime Bouquet against the Hackensack Water Company. Judgment for plaintiff for nominal damages, and he appeals. Affirmed.

Arthur T. Dear, of Jersey City, for appellant. Edwin F. Smith, of Jersey City, for appellee.

PARKER, J. Appellant, plaintiff below, claims to be legally aggrieved by the action of the trial judge in directing a verdict in his favor for nominal damages of six cents.

His case, as finally submitted, was that he owned land on the easterly side of the Hackensack river, a navigable stream, on which land was a dwelling house occupied by him and used for the keeping of summer boarders; and that prior to the summer of 1914 he had many boarders and did a profitable business, but in that year and thereafter the water in the river in front of his place was fouled by the act of the defendant, so that it was not so pleasant as it had been to look at or so available for fishing, boating, and swimming, and that in consequence the boarders, who had been attracted by the view and the boating, fishing, and swimming, were caused to remain away, whereby plaintiff suffered material loss. There was some claim of an odor from the water, but this was disregarded at the trial and is not now urged. The view taken by the trial court was that on the assumption that plaintiff's title I extended to high-water mark in the river, the rights, if they existed, of swimming in the river, boating on it, and looking at the view, were not special rights of plaintiff qua riparian owner, or of his guests claiming under his license, but were rights of a purely public character, and that in their infringement plaintiff suffered simply as a member of the public and could not claim special damage in a private action.

Our examination of the case satisfies us that plaintiff was in no way legally injured by this ruling. It is not claimed that he was entitled to recover in this suit as a member of the public, for the deprivation of benefits because his guests found the river no longer pleasant for boating, fishing, or swimming. The claim must rest, if at all, on the injury resulting to plaintiff as an abutting owner. But the right of an owner of the ripa of navigable water is that of access; and if that be unlawfully interfered with he may maintain a special action. Stevens v. Paterson & Newark R. R. Co., 34 N. J. Law, 532, 553, 3 Am. Rep. 269. Apart from this, he has no peculiar right to the use of the water or of the shore. 34 N. J. Law, 542, 543, 3 Am. Rep. 269; Whitmore v. Brown, 102 Me. 47, 65 Atl. 516, 521, 9 L. R. A. (N. S.) 808. Plaintiff, as owner of land on or near the river, may have more occasion to make use of the public rights of...