Newark Express & Transp. Co. v. Del., L. & W. R. Co.

• Decision Date: 09 August 1916
• Citation: 98 A. 472
• Court: New Jersey Supreme Court
• Parties: NEWARK EXPRESS & TRANSPORTATION CO. v. DELAWARE, L. & W. R. CO.

98 A. 472

NEWARK EXPRESS & TRANSPORTATION CO.

v. DELAWARE, L. & W. R. CO.

Supreme Court of New Jersey.

Aug. 9, 1916.

Appeal from District Court of Newark.

Action by the Newark Express & Transportation Company against the Delaware, Lackawanna & Western Railroad Company. From a judgment for defendant, plaintiff appeals. Judgment affirmed.

Argued November term, 1915, before PARKER, MINTURN, and KALISCH, JJ.

J. Harry Hull, of Nutley, for appellant. W. J. Larrabee, of East Orange, for appellee.

KALISCH, J. The appellant, the plaintiff below, was engaged in the transportation of freight, by boats, on the Passaic river. It brought its action against the railroad company, the defendant below, for damages based upon the allegations that the railroad company which maintained a railroad bridge with a draw across the Passaic closed the drawbridge to navigation for three days so that certain of the appellant's boats were prevented from passing beyond the bridge, and that in consequence thereof the appellant was unable to move freight up and down the river, etc.

It was stipulated between the parties that the depth of the river where the bridge is erected exceeds 4 feet and 6 inches at mean high tide; that the railroad company closed the drawbridge for a portion of 3 days in the year of 1913, namely, on the 12th, 13th, and 14th of February; that the drawbridge was closed on the days in question for the purpose of enabling the railroad company to make necessary repairs; that such repairs could not be made without closing the drawbridge; that notice was given and published in the Newark Evening News, a newspaper circulating in Essex county, and the Jersey City Evening Journal, a newspaper circulating in Hudson county, in this state, on the 11th, 18th and 25th days of January, 1913, of the intention of the railroad company to make the necessary repairs between February 10 and 19, 1913; that the drawbridge was a lawfully existing structure prior to the passage of the act of Congress, approved March 3, 1899, c. 425, 30 Stat. 1151 (U. S. Comp. Stat. 1913, § 9971), known as the "River and Harbor Act"; that the railroad company did not obtain from the Secretary of War of the United States, and did not apply to him for, permission to close the drawbridge; that when application is made to the War Department of the United States for permission to close drawbridges over navigable waters under the jurisdiction of the United States for repairs the invariable reply is that there is no law of the United States that empowers the Secretary of War to authorize the closing of a bridge to navigation while repairs are being made, but, recognizing the fact that repairs are necessary, it has been the practice of the War Department to notify the owners and operators of bridges, when application is made for permission to close them for repairs, that no action will be taken against them for obstructing navigation during the reasonable time necessary for doing the work; it being understood that the parties thus closing the bridges may be responsible in damages for any injury inflicted upon private interests by such acts.

There was also admitted in evidence, by consent of the parties, a copy of section 5 of the act of Congress approved August 18, 1894, known as the "River and Harbor Act," and the amended rules and regulations to govern the opening and closing of drawbridges across Newark Bay, Passaic, and Hackensack rivers, and their navigable tributaries, and it was stipulated that the rules and regulations were in effect on the 12th, 13th, and 14th days of February, 1913.

Upon examination of the Harbor Act, we find that it imposes a penalty upon every person who shall willfully fail or refuse to open, or cause to be opened, the draw of a bridge across navigable waters of the United States for the passage of a boat, or boats, etc., and also points out a procedure for the enforcement of the act in the federal tribunal. We are unable to perceive any application of this act to the facts of the present case. Nor do we think that the rules and regulations promulgated by the Secretary of War have any pertinency to the issue before the court. The, rules concern the management of the drawbridge in its relation to the passing of trains carrying the United States mail and of vessels navigating the stream, and to general traffic over the bridge, but are silent as to obstructions caused for the purpose of making necessary repairs.

Upon the stipulated facts and on testimony taken in addition thereto the trial judge found that the railroad company had complied with the statutes of this state, and performed the work of repair without unreasonable delay, and that therefore the appellant was not entitled to recover any damages, and thereupon gave judgment in favor of the defendant.

It is conceded that the railroad company closed the draw to make the necessary repairs in compliance with the act of 1892 (P. L. 1892, p. 435), which is entitled "An act to amend an act, entitled, 'A further supplement to an act entitled, "An act respecting bridges,"'" approved April 10, 1846; approved March 24, 1874; approved April 3, 1891, and which reads as follows:

"That whenever it shall be necessary to repair or rebuild any bridge or viaduct in this state over any navigable river or water, the public authorities, corporation or person so repairing or rebuilding such bridge or viaduct, shall not be liable for damages occasioned by obstructing or stopping navigation thereby; provided, the said repairs or rebuilding and obstructing or stopping of navigation be done between the first day of February and the twentieth day of February and provided, further, that said repairs or rebuilding be prosecuted with all practical dispatch; and provided, further, that notice of such intended repairs or rebuilding be given at least three weeks prior to commencing the same by publishing a notice thereof in some newspaper circulating in the county adjacent to such bridge or viaduct." Section 1.

No such provision is found in the Revision of 1846, and its first appearance is made in the act of 1874 (P. L. p. 90), which is entitled:

"A further supplement to an act entitled 'An act respecting Bridges,' approved April 10, 1846."

During the period intervening between the years 1874 and 1892, the Legislature caused several changes to be made in the provision of the act of 1874, but these changes related to the time when and within which repairs, etc., to bridges could be lawfully made, and expressly excepted Monmouth county from the operation of the act of 1874. In the act of 1874, the lawful period fixed by the Legislature during and within which repairs, etc., could be made was between the 1st day of January and the 1st day of March. Then followed the act of 1891 (P. L. p. 312), which is entitled:

"An act to amend an act entitled 'A further supplement to an act entitled "An act respecting bridges," approved April 10, 1846, approved March 24, 1874.'"

This act appears to be in the same language as that of the act of 1874, with this exception, that it changed and limited the lawful period prescribed by the act of 1874 in which repairs, etc., could be done to days between January 15th and February 15th. In all other respects the two acts referred to are the same.

A comparison of the contexts of the act of 1892 with the acts of 1874 and 1891 will show that one of the purposes intended to be accomplished was to change and shorten the period of time at and within which needed repairs, etc., could be made on bridges over navigable streams, as fixed by the act of 1891, and to limit the time for the making of such repairs, etc., to the days between February 1st and February 20th. It is to be observed, however, that there is no exception of Monmouth county from the operation of the act as in the acts of 1874 and 1891, and that the act contains an express clause repealing all acts or parts of acts inconsistent therewith. But in 1896 the Legislature (P. L. 1896, p. 250) enacted a law entitled "A supplement to an act entitled 'An act respecting bridges' approved March 24, 1874," which differs from the acts above mentioned in the following respects: It fixes the time at and within which needed...