Oliver v. Inhabitants of City of Burlington

• Decision Date: 20 June 1907
• Parties: OLIVER et al. v. INHABITANTS OF CITY OF BURLINGTON et al.
• Court: New Jersey Supreme Court

67 A. 43

75 N.J.L. 227

OLIVER et al.

v. INHABITANTS OF CITY OF BURLINGTON et al.

Supreme Court of New Jersey.

June 20, 1907.

(Syllabus by the Court.)

Certiorari by Edmund D. Oliver and another against the inhabitants of the city of Burlington and Henry L. Brown, to review a resolution of the common council of Burlington, Resolution set aside.

Argued February term, 1907, before GARRISON, SWAYZE, and TRENCHARD, JJ.

Norman Grey, for prosecutors. Ernest Watts and Edwin Robert Walker, for defendants.

TRENCHARD, J. The writ of certiorari in this case brings up for review the lease of a wharf by the city of Burlington to the defendant Brown. On June 5, 1900, the common council of the city passed a resolution providing for the lease, which was executed June 29, 1906. The lease granted to Brown "all that certain wharf and wharf buildings thereon erected, situate at the foot or northerly end of High street, and facing upon the Delaware river, in the city of Burlington aforesaid, and known as the 'Town Wharf,' with the appurtenances." The lease was for five years from June 5, 1900, at $500 per year.

The legality of the lease is challenged on the ground that the city was without power to make the lease. High street is the oldest street in the town, and was laid out in 1677. It runs at right angles to the Delaware river, and is the principal mercantile street. At its end and between it and the river, and extending the full width of the street, is a public wharf, known as the "Town Wharf." The trolley cars run down to the wharf. The title of the streets in the city of Burlington was in the proprietors, and passed to their grantees (Lewis v. Pennsylvania R. R. Co. [N. J. Ch.] 33 Atl. 932), and there has been no conveyance of the fee of High street to the city. The wharf in question has been used as a public wharf by the public and the different classes of boats on the river from the earliest times. It is shown on a map made in 1696. Appropriations for its repair were made by the city from time to time. On March 4, 1851, an "Act to incorporate the city of Burlington" was passed (P L. 1851, p. 149), the fifteenth section (page 153) of which provided that council might pass ordinances regulating wharves and docks and the rates of wharfage, and ordinances for such purposes were passed from time to time. The powers delegated to a municipal corporation by the Legislature, authorizing it to regulate wharves, and to charge and collect wharfage for their use, are public or legislative powers and incapable of delegation or of surrender by the municipality. A municipality cannot therefore surrender the powers by leasing the exclusive use and control of its wharves for any period of time, without express statutory authority so to do. 30 Am. & Eng. Ency. of Law (2d Ed.) 488, and cases there cited. In this state, the right of the public to have communication between the end of a street and a navigable stream kept open is well established. Hoboken Land...