Hubbard v. Fort

• Citation: 188 F. 987
• Parties: HUBBARD et al. v. FORT et al.
• Decision Date: 02 August 1911
• Court: U.S. District Court — District of New Jersey

188 F. 987

HUBBARD et al. v. FORT et al.

United States Circuit Court, D. New Jersey.

August 2, 1911

McCarter & English and Bennett Van Syckel, for complainants.

Edmund Wilson, Atty. Gen., for defendants.

RELLSTAB District Judge.

The bill is filed by the receivers of the Hudson County Water Company, a New Jersey corporation (hereinafter called the Water Company), and attacks the constitutionality of certain acts of the New Jersey Legislature, and seeks to have the defendants, certain state officers, enjoined from enforcing such acts, and from interfering with complainants in carrying out certain contracts and engaging in interstate commerce in water.

The bill, so far as is necessary for present consideration alleges, in substance: The incorporation of such Water Company by the state of New Jersey, the appointment of complainants as receivers with power to institute suits for the protection and enforcement of the lawful rights and contracts of such Water Company.

That among the objects stated in such Water Company's certificate of incorporation were 'the acquisition of water from either surface or subterranean sources or by purchase and the storage, sale, and delivery of the same; the acquisition, construction, operation, and sale of waterworks and reservoirs, wells, pipe lines, and all other property real and personal, pertaining to the collection, sale and distribution of water,' the making of contracts by the Water Company with the city of New York to supply subterranean water for use and consumption on Staten Island in the state of New York. That Staten Island is separated from the state of New Jersey by a navigable tidewater stream known as Kill von Kull. That the boundary line between the state of New York and the state of New Jersey is located in the center of said Kill. That the Water Company acquired lands in New Jersey, sunk wells therein, and under municipal authority laid pipe lines therefrom to such stream, with the purpose of laying pipe lines in the bed of such stream to conduct the water from such wells to said island, to carry out its said contracts; that by grant contained in an ordinance of the city of Bayonne the Water Company holds the right to lay water pipes 'southerly through Ingham avenue, and under the property of the city at the foot of said Ingham avenue, to the southerly boundary line of said city, being the center of the said Kill von Kull * * * and that by grant made by the J. M. Guffey Petroleum Company to the Water Company * * * said Water Company purchased from the Petroleum Company a right of way to lay, maintain, and operate its pipes upon a strip of land twenty feet in width on the easterly side of Ingham avenue, and succeeded thereunder to the rights of the Petroleum Company, as owner of the upland and as grantee of the lands under water by grant from the riparian board of the state of New Jersey ' That all of said constructions and contracts are interstate commerce. That the Water Company obtained from the Secretary of War of the United States, under section 10 of the act of Congress approved March 3, 1899 (Act March 3. 1899, c. 425, 30 Stat. 1151 (U.S. Comp. St. 1901, p. 3541)), known as the 'River and Harbor Bill.' authority to lay its pipes in the bed of said stream, the following being a copy of such authority:

'War Department, Washington. 'November 17, 1909.

'45716 Engs.

'Sir: In answer to your application of the 4th instant, permission, revocable at will by the Secretary of War, is hereby granted the Hudson County Water Company (successor to the Richmond Water Company), its successors or assigns, in accordance with the recommendation of the Chief of Engineers, U.S. Army, to lay, maintain and operate two water mains across the Kill von Kull, from Bayonne, N.J., to Staten Island, N.Y., as shown on map attached hereto, subject to the following conditions:

'(1) That if at any time in the future it shall be made to appear to the Secretary of War that the structures herein authorized are unreasonable obstructions to the free navigation of said waters, said licensee will be required, upon notice from the Secretary of War, to remove or alter the same so as to render navigation through said waters reasonably free, easy, and unobstructed.

'(2) That the highest part of said pipes shall be at least thirty (30) feet below the plane of mean low water.

'(3) This permit is given in lieu of instrument dated December 9, 1904, authorizing the Richmond Water Company to lay two water mains across the Kill von Kull from Bayonne, N.J., to Staten Island, N.U., at the location shown on plans attached to said instrument, which is hereby revoked.

'(4) That the work herein permitted to be done shall be subject to the supervision and approval of the local officer of the Corps of Engineers, U.S. Army, whose address is Army Building, New York City.

'Very respectfully,

'Robert Shaw Oliver, Assistant Secretary of War.

'Mr. T. A. Beall, President.

'Hudson County Water Company.

'100 Broadway, New York City.

'(Map 45716-28 Engs. hereto attached.)'

That by virtue of said authority 'and of other grants hereinbefore set forth the said Water Company was authorized and possesses the full right to lay and maintain said pipes in the bed of said Kill von Kull. That by virtue of the authority bestowed by the United States Constitution upon Congress to regulate commerce between the states the Congress of the United States was authorized to enact section 10 of the act of March 3, 1899, above (hereafter) quoted, and the Secretary of War, upon the recommendation of the chief of engineers, was likewise authorized and empowered to give the licenses above mentioned, and that said Water Company, after securing such licenses, was justified in having dredging done in the bed of said Kill von Kull for the purpose of laying therein the said pipes as aforesaid, without the sanction or permission and in spite of the objection of the state of New Jersey, and that there was expended by the Water Company and its contractors a sum in excess of thirty thousand ($30,000) dollars in such work and dredging, extending over a period of about six months, before any interference or objection thereto by the state of New Jersey or any official thereof. ' That such work in the bed of said stream was forcibly stopped by defendants acting under the following state enactments:

'An act to prevent the diversion of well, subsurface, or percolating waters of this state by means of pipes, conduits, ditches or canals into other states for use therein.

'Be it enacted by the Senate and General Assembly of the State of New Jersey:

'(1) It shall be unlawful for any person or corporation to transport or carry through pipes, conduits, ditches or canals any well, subsurface or percolating waters of this state into any other state for use therein.

'(2) This act to take effect immediately.

'Approved April 7, 1910. ' Laws 1910, c. 98.

'A supplement to an act entitled, 'An act to ascertain the rights of the state and of the riparian owners in the lands lying under the waters of the Bay of New York and elsewhere in the state,' approved April eleventh, one thousand eight hundred and sixty-four.

'Be it enacted by the Senate and General Assembly of the State of New Jersey:

'(1) It shall be unlawful for any person or corporation to lay any pipe or pipes on any of the lands of the state lying under tidal waters without the

consent or permission of the Governor and the Board of Riparian Commissioners of this state first had and obtained in writing; provided, that nothing in this act contained shall be construed to apply to lands under the waters of the Atlantic Ocean.

'(2) This act shall take effect immediately.

'Approved April 7, 1910. ' Laws 1910, c. 103.

That the defendants 'have interfered with and prevented the construction and completion of said pipe lines which were to be used wholly and solely for the interstate carriage and transportation of subterranean water, and caused the construction of the same to be discontinued and the material therefore removed and the contractors of said Water Company to be driven from said work. ' That it is the avowed purpose of the defendants to prevent the transportation of subterranean water from the lands of the company beyond the limits of the state of New Jersey, to the destruction of the rights of said company under its contracts. That prior to the enactment of said state legislation such company was enjoined by the state Court of Chancery from prosecuting said work in crossing said stream upon the alleged insufficiency of the title of said company, and the insufficiency of the authority obtained from the War Department of the United States permitting the laying and operation of said pipe line. 'That the subterranean water which the said Water Company and your orators as its receivers purpose to transport from the lands of said Water Company in the state of New Jersey to Staten Island is the property of and owned solely by the said Water Company, and that in said water the state of New Jersey has no right, title, or interest, nor any control thereof, and that the state of New Jersey cannot take and appropriate the same nor prohibit or prevent the use or sale thereof by the said Hudson County Water Company or your orators as receivers without the exercise of the right of eminent domain and compensation therefor, and that the so-called 'Laws' above referred to were really and solely designed for, and are now being used by the defendants for, the purpose of taking and destroying the property of the Water Company, without compensation, by preventing the use thereof.'

The bill charges that said statutes of New Jersey, so far as they apply to the Water...