Middlesex Transp. Co v. Pa. R. Co.

• Decision Date: 04 December 1913
• Citation: 82 N.J.Eq. 550,89 A. 45
• Parties: MIDDLESEX TRANSP. CO v. PENNSYLVANIA R. CO.
• Court: New Jersey Court of Chancery

89 A. 45

82 N.J.Eq. 550

MIDDLESEX TRANSP. CO

v. PENNSYLVANIA R. CO.

Court of Chancery of New Jersey.

Dec. 4, 1913.

Suit by the Middlesex Transportation Company against the Pennsylvania Railroad Company. On demurrer to bill. Sustained, and bill dismissed.

George S. Silzer, of New Brunswick, for complainant.

Theodore Strong, of New Brunswick, for defendant.

BACKES, V. C. The object of this bill is to compel the defendant to maintain and operate a part of the Delaware & Raritan Canal at New Brunswick during the winter season until the elements make it impossible.

The bill was filed January 7, 1913, and avers that the complainant is a common carrier of freight by boat between New Brunswick and New York, and carries approximately 300 tons of freight, daily. Its dock at New Brunswick, of about 400 feet in length, is located on what is known as the lower basin of the canal, and was built in 1912. This basin is about a mile in length, about 125 feet in width, and extends from the upper lock of the canal proper to an outlet lock into the Raritan river, where the tide ebbs and flows to a rise and fall of about six feet A towpath divides it from the river. In the use of the basin, the boats of the complainant pass under a drawbridge at Albany street and through the outer lock into the Raritan river, both of which are operated by employes of the defendant, free of charge. The use of the basin is also free. The basin is a continuation of the Delaware & Raritan Canal, which commences at Bordentown and ends at the upper lock, and is operated by the defendant; tolls being paid for its use. Notice was served on the complainant by the defendant that the canal proper would be closed on December 20, 1912. It was not closed, but continued to remain and was open for use at the time the bill was filed. The complainant was informed by the bridge and lock tenders, employes of the defendant at the outlet lock and Albany Street bridge, that their employment would cease on January 1, 1913. The complainant received notice on January 6, 1913, that the water would be withdrawn from the lower basin on the following day, as soon as the boats of the complainant passed out of the basin. The basin can be used at any and all times until the weather becomes extremely cold and heavy layers of ice are formed. The defendant threatened to close the basin to the use of the complainant, and that it would probably remain closed until March 17th, the usual time when the same is opened. The closing of the basin would cause a loss to the complainant of approximately $500 a day. The defendant gave as an excuse for the closing of the basin that it is necessary to inspect and repair the wickets of the lock once in each four years. There are two locks at the outlet lock, one of which the defendant has permitted to fall into disuse, and that, if the same were in repair and in full service, one lock could be used while the other was being repaired. There is no reason for closing the basin, and that whatever repairs are necessary can be made after the basin would be closed by reason of the extreme cold weather. No right exists in the defendant to close the basin; that the same is a public highway to which the public has a free and open use at all times. The defendant has never received the right to close the said highway. The basin is maintained for the convenience of the defendant, subject to the free and uninterrupted use thereof of persons desiring to use the same as such public highway. The complainant has been in business about eight years, and during former seasons, when the basin was closed, it operated its boats from docks of the defendant company located on the Raritan river, which were torn down in the fall of 1911. There was a winter season when the canal and basin were closed, when the boats of the complainant did not lose a single trip, and at other times many trips were made after the complainant was barred from the canal basin. The defendant pretends that it is necessary to close the basin for repairs and for other purposes, which is untrue. It is not necessary at this time (the time of the filing of the bill), or at any time, for the defendant to close the lower basin, and it is only necessary that the same should be closed when closed by the elements. The bill prays that the defendant be decreed to keep the lower basin open for the use of the complainant's boats until the same is closed by the elements, and for an injunction to prevent the defendant from closing the basin to the use of the complainant, and that the defendant may be decreed to open and close the outlet lock and the drawbridge when necessary, for the complainant's boats to pass through the same. This recital of the bill is almost verbatim.

The canal, I assume, is the one built pursuant to an act to incorporate the Delaware & Raritan Canal Company, passed February 4, 1830 (P. L. 1829-30, p. 73), by that company, and I also assume that the Pennsylvania Railroad Company is operating it as lessee, although as to both of these matters the bill is silent.

The defendant filed a general demurrer to the prayer for discovery and relief, and assigned as special causes that the complainant has an adequate remedy at law, and that its right to relief must be first established by a judgment in an action at law, before it can be recognized or enforced in this court.

1. It will be observed that the bill alleges that the canal basin is a public highway, and that there is no need or reason for closing, and that the defendant has not the lawful right to close it during the winter season; and, inasmuch as it is the rule that a demurrer confesses to be true all matters which are well pleaded, it is claimed that the defendant is therefore concluded by these averments. But there is this exception to the rule: That, when facts are averred which run counter to facts of which the court takes judicial notice, the averments will be disregarded. Daniell's Ch. Pr. p. 546.

2. It is fairly inferable from the bill that the defendant's uniform course has been to interrupt navigation during the winter months, and that the threatened pursuit of this practice in the present year is the wrong complained of. The good faith of the defendant in the doing of this is not assailed. The contention is that to enforce any regulation in the use of the canal, no matter how needful in the conservation of the defendant's property, or reasonable in anticipation of zero weather, which would prevent navigation at a time short of the action of the elements, would be an unlawful invasion of the complainant's rights. That the canal, as well as the lower basin, which is a part of the canal, is a public highway, is declared by the act of incorporation and has been settled by the authorities in this state. Barnett y. Johnson, 15 N.J.Eq. 481; Morris Canal & Banking Co. v. Fagan, 18 N.J.Eq. 215; Bonaparte v. Camden & A. R. R. Co., Baldwin, 205, Fed. Cas. No. 1,617. It is, however, a public highway of a peculiar kind, with natural limitations upon its functions, and subject to reasonable regulations and control. The single circumstance of the use of water as the means of transportation repels the idea that a canal is to be maintained as a public highway during a season of the year when the use of that commodity is usually destroyed by the forces of nature, and it must be recognized that the policy of closing a canal to navigation during the winter season is well within the rights of the management Judicial notice is taken of the seasons and their natural influences upon things material, and it seems to me that the defendant's regulation of closing its canal during the winter months finds its warrant and justification in the likely effect the elements would otherwise have upon its property and operations during that period.

3. But even though I...