George W. Armbruster, Jr., Inc. v. City of Wildwood

• Decision Date: 29 May 1930
• Citation: 41 F.2d 823
• Parties: GEORGE W. ARMBRUSTER, JR., Inc., et al. v. CITY OF WILDWOOD.
• Court: U.S. District Court — District of New Jersey

41 F.2d 823 (1930)

GEORGE W. ARMBRUSTER, JR., Inc., et al. v. CITY OF WILDWOOD.

District Court, D. New Jersey.

May 29, 1930.

Bourgeois & Coulomb, of Atlantic City, N. J., for plaintiffs.

Cole & Cole, of Atlantic City, N. J., for defendant.

AVIS, District Judge.

The bill filed in this case asserts that George W. Armbruster, Jr., Inc., one of the plaintiffs, is the owner in fee of four certain tracts of land located in the city of Wildwood, county of Cape May, and state of New Jersey, lying easterly or oceanward of an avenue, known as Beach avenue, which avenue was originally laid out parallel, or practically parallel, with the high-water line of the Atlantic Ocean, and that the plaintiff Shore Resort Company is the owner of another tract of land similarly located.

The bill further alleges that the municipality, city of Wildwood, the defendant, has illegally constructed, or caused to be constructed, a certain boardwalk 40 feet in width upon a portion of the bed of Beach avenue, and extending from Cedar avenue on the north to Montgomery avenue on the south, a distance of between 2,300 and 2,400 feet, which prevents the plaintiffs from having a right of ingress to and egress from their lands on the oceanward side of the boardwalk of the city of Wildwood, and that the erection of the boardwalk on an alleged public highway is a purpresture, or nuisance, and that the plaintiffs are specially damaged thereby, not only because of the fact that it interferes with their ingress to and egress from their properties, but that they have a right to have Beach avenue, within the bounds hereinbefore referred to, opened for use as a public highway, and that its erection interferes with their right to light, air, and view.

The prayers for relief contained in the bill are:

(1) For an injunction commanding and enjoining the city of Wildwood to desist and refrain from continuing the existence of the boardwalk from Cedar avenue to Montgomery avenue.

(2) For a mandatory injunction to compel the city of Wildwood to remove the boardwalk between Cedar and Montgomery avenues.

(3) For an injunction commanding and enjoining the city of Wildwood from preventing and obstructing vehicular traffic over Beach avenue and the avenues running at right angles thereto by reason of the existence of the boardwalk.

(4) For an injunction commanding and enjoining the city of Wildwood from preventing and obstructing ingress to and egress from the lands of the plaintiffs by the presence of the boardwalk.

The facts appear to be that in 1881 or 1882 Holly Beach City Improvement Company, the then owner of a tract of land which included the lands in question in this suit, laid it out into streets and building lots, and caused a map of the same to be prepared and filed in the Cape May county clerk's office. On this map, Beach avenue is shown as being 70 feet in width, continuing uninterruptedly along the line of the lands now owned by the plaintiffs, and practically parallel with high-water mark of the Atlantic Ocean. At the time this map was prepared and filed, there was a tract of land to the easterly or oceanwardly of the easterly line of Beach avenue, which was about 250 feet in width between the easterly line of Beach avenue and high-water mark of the Atlantic Ocean. After the land was laid out and the map prepared, several residences or cottages were erected on the westerly side of, and facing, Beach avenue. It appears by the evidence that at the time the map was filed, Beach avenue was actually staked out, but it was never in any way improved.

Subsequently, about the year 1885, by reason of ocean tides a portion of the land oceanwardly of Beach avenue was encroached upon by the sea, and eventually the southerly portion of Beach avenue was washed away, and also some portion of Beach avenue bounding upon the property now owned by the plaintiffs. Later, as I recall the testimony, about the year 1917, the United States government erected a jetty at Cold Spring Inlet for the purpose of constructing a harbor, about three miles along the coast southerly from the city of Wildwood, and, according to the evidence, by reason of this erection the lands owned by the plaintiffs, and some portion of the ocean-front theretofore laid out and known as Beach avenue, filled with sand, became high land, and in the year 1929, it would appear from the testimony of the engineers, the high-water mark at Cedar avenue was about 175 feet easterly of Beach avenue, and at Montgomery avenue the high-water mark covered a portion of Beach avenue; that at Baker avenue, the first avenue northerly of Montgomery avenue, the high-water mark was 10 feet or more easterly of the easterly line of Beach avenue, and that the line of high water between these two extreme points was practically straight and uniform.

The boardwalk between Cedar and Montgomery avenues was constructed by the city of Wildwood in 1919. This was a wooden structure supported on piles; according to the testimony, 6 or 7 feet in the clear above the grade of the streets on the westerly or land side of Beach avenue. Later, in the early part of the year 1927, a concrete extension of the boardwalk was built southerly from Montgomery avenue to Cresse avenue. There is no contention in this suit, however, with relation to any obstruction by the portion of the boardwalk so built in 1927.

In the pleadings and brief of counsel for the defendant, the court's jurisdiction is challenged upon two grounds:

1. It is alleged that the bill is predicated upon the assumption of a legal duty on the part of the defendant to remove the public boardwalk because it is a purpresture upon Beach avenue, and that if this is true there is an adequate remedy at law by mandamus, and this court is without jurisdiction. It is evident that federal courts have no jurisdiction in original cases of mandamus.

"The circuit courts of the United States have no jurisdiction in original cases of mandamus, and have only power to issue such writs in aid of their jurisdiction in cases already pending, wherein jurisdiction has been acquired by other means and by other process." Covington & Cincinnati Bridge Co. v. Hager, 203 U. S. 109, 27 S. Ct. 24, 51 L. Ed. 111.

This power can be exercised only in aid of its appellate jurisdiction, except mandamus may be issued by the Supreme Court "to any courts appointed, or persons holding office, under the authority of the United States," In re Green, 141 U. S. 325, 12 S. Ct. 11, 35 L. Ed. 765; or in matters relating to interstate commerce and other cases strictly federal in their character, when it would appear that the federal courts have such jurisdiction, Stephens v. Ohio State Telephone Co. (D. C. N. D. Ohio) 240 F. 759.

The fact that mandamus proceedings cannot be prosecuted in a federal court, does not, and cannot, take away from this court its jurisdiction to give relief, if it is proper to do so under the equity jurisdiction of the court. The case is properly here by reason of diversity of citizenship of the parties, and the amount in dispute. This court will therefore take jurisdiction of the case so far as the objection concerns or relates to the claim that the suit is cognizable in a court of law, and that the remedy is by mandamus.

"The adequacy or inadequacy of a remedy at law for the protection of the rights of one entitled upon any ground to invoke the powers of a federal court is not to be conclusively determined by the statutes of the particular state in which suit may be brought. One who is entitled to sue in the federal circuit court may invoke its jurisdiction in equity whenever the established principles and rules of equity permit such a suit in that court; and he cannot be deprived of that right by reason of his being allowed to sue at law in a state court on the same cause of action." Smyth v. Ames, 169 U. S. 466, 516, 18 S. Ct. 418, 422, 42 L. Ed. 819.

Relief, if necessary, may be by mandatory injunction. Love v. Atchison, T. & S. F. Ry. Co. (C. C. A. 8), 185 F. 321; Longwood Valley Railroad Co. v. Baker, 27 N. J. Eq. 167.

2. The defendant challenges the jurisdiction of this court, claiming that a suit between the same parties and involving the same issues is now pending in the Court of Chancery of the state of New Jersey, which suit, it is alleged, was brought prior to the commencement of this suit in this court. The defendant claims and alleges that the state court first obtained jurisdiction.

The facts with relation to this contention are that the bill in chancery was filed by the city of Wildwood on September 3, 1929, against the complainants in this suit, praying for an injunction to restrain the defendants there, against the removal or destruction of any part or portion of the boardwalk; and that it be decreed that the complainant in that suit has the right, both at law and in equity, to maintain the boardwalk over Beach avenue, and further to restrain the defendants from taking any proceedings at law or in equity to effect the removal of the boardwalk. Upon the filing of this bill, a rule to show cause issued out of the Court of Chancery, returnable on September 17, 1929, with relation to preliminary restraint. No subpœna was issued or served on this bill until after September 17, 1929. The bill of complaint was filed in this court on September 4, 1929, and subpœna was both issued and served on September 4, 1929. The question then is, Which court first obtained jurisdiction?

In Lehigh Valley R. Co. v. Andrus, 91 N. J. Eq. 225, 109 A. 746, Vice Chancellor Backes said:

"Moreover, the defendant's action was begun first. The bill here was filed before his suit was started, but process was not served, and jurisdiction of the subject-matter and the parties was not acquired until long afterwards — approximately three months. The defendant is a nonresident. The filing of a bill and the issuing of process, not served, in an action in personam against a nonresident, do not commence...