Stockton v. Baltimore & N.Y.R. Co.

• Citation: 32 F. 9
• Parties: STOCKTON, Atty. Gen. of New Jersey, v. BALTIMORE & N.Y.R. Co. and others.
• Decision Date: 01 August 1887
• Court: U.S. District Court — District of New Jersey

32 F. 9

STOCKTON, Atty. Gen. of New Jersey, v. BALTIMORE & N.Y.R. Co. and others.

United States Circuit Court, D. New Jersey.

August 1, 1887

John P. Stockton, Atty. Gen., Barker Gummere, and Cortlandt Parker, for informant.

A. Q Keasbey and W. W. Macfarland, for defendants.

BRADLEY Justice.

This case was commenced by information filed by the attorney general of New Jersey, in the court of chancery of that state, praying for an injunction to restrain the defendants from erecting a bridge across Arthur Kill, between New Jersey and Staten island, in the state of New York, upon the lands of the state situate on the shore, and under the waters of said kill. The chancellor granted a preliminary injunction upon the bill and affidavits. The defendants have removed the case to this court, as one arising under the constitution and laws of the United States, and have filed an answer. Motion was then made to dissolve the injunction; but, after argument, the parties stipulated to submit the case as upon final hearing on bill and answer. There are no controverted facts in the case.

The Staten Island Rapid Transit Company, a corporation of New York, one of the defendants, claims the right to build the bridge in question, and to occupy the lands under water necessary for the support of its piers, under an act of congress, approved June 16, 1886, entitled 'An act to authorize the construction of a bridge across the Staten Island sound, known as 'Arthur Kill,' and to establish the same as a post-road. ' This act declares:

'Section 1. That it shall be lawful for the Staten Island Rapid Transit Company, a corporation existing under the laws of the state of New York, and the Baltimore & New York Railroad Company, a corporation existing under the laws of the state of New Jersey, or either of said companies, to build and maintain a bridge across the Staten Island sound or Arthur kill, from New Jersey to Richmond county, New York, for the passage of railroad trains, engines, and cars thereon, and to lay on and over said bridge railway tracks for the more perfect connection of any railroads that are or shall be constructed to the said sound at or opposite said point; and in case of any litigation concerning any alleged obstruction to the free navigation of said sound on account of said bridge, the cause may be tried before the circuit court of the United States of either of said states in which any portion of said obstruction or bridge touches, and that all railway companies desiring to use the said bridge shall have and be entitled to equal rights and privileges in the passage over the same, and in the use of the machinery and fixtures thereof, and of all the approaches thereto, for a reasonable compensation, to be paid to the owners of said bridge under and upon such terms and conditions as shall be prescribed by the secretary of war upon hearing the allegations and proofs of the parties, in case they shall not agree.

'Sec. 2. That said bridge shall be constructed as a pivot draw-bridge, with a draw over the main channel of the sound at an accessible and navigable point, and with spans of not less than two hundred feet in length in the clear on each side of the central or pivot pier of the draw; and said spans shall not be less than thirty-two feet above mean low-water mark, measuring to the lowest member of the bridge superstructure; and provided also, that said draw shall be opened promptly, upon signal, except when trains are passing over the said bridge, for the passage of boats whose construction shall not be such as to admit of their passage under the draw of said bridge when closed; but in no case shall unnecessary delay occur in opening the said draw after the passage of trains; and the said company or corporation shall maintain, at its own expense, from sunset to sunrise, such lights or other signals on said bridge as the light-house board shall prescribe.

'Sec. 3. That any bridge constructed under this act, and according to its limitations, shall be a lawful structure, and shall be recognized and known as a post-route, upon which, also, no higher charge shall be made for the transmission over the same of the mails, the troops, and the munitions of war of the United States than the rate per mile paid for their transportation over the railroads or public highways leading to said bridge; and the United States shall have the right of way for postal telegraph purposes across said bridge.

'Sec. 4. That the plan and location of said bridge, with a detailed map of the sound at the proposed site of the bridge, and near thereto, exhibiting the depths and currents, shall be submitted to the secretary of war for his approval, and, until he approve the plan and location of said bridge, it shall not be built; but, upon the approval of said plan by the secretary of war, the said companies, or either of them, may proceed to the erection of said bridge in conformity with said approved plan; and, should any change be made in the plan of said bridge during the progress of the work thereon, such change shall be subject likewise to the approval of the secretary of war. If the secretary of war shall at any time deem any change or alteration necessary in the said bridge so that the same shall not obstruct navigation, of if he shall think the removal of the whole structure necessary, the alteration so required, or the removal of the whole structure, shall be made at the expense of the parties owning said bridge. And if said bridge shall not be finished within two years from the passage of this act, the rights and privileges hereby granted shall determine and cease.

'Sec. 5. That the right to alter, amend, or repeal this act is hereby expressly reserved.'

The said Staten Island Rapid Transit Railroad Company proposes to build a bridge across Arthur kill, under and in conformity with this act, to connect its own road on Staten Island with another railroad through and across the state of New Jersey, for the purpose of interstate transportation; and, in pursuance of that design, has adopted a site for the location of the bridge, from a certain point in the city of Elizabeth to Staten island; and has caused the plan and location of said bridge, with a detailed map of the sound at and near the same, (as required by the act,) to be submitted to the secretary of war, who has approved the same.

The company, by its engineer and contractors, (who are made co-defendants in the case,) proceeded to make preparations for laying the piers and erecting the bridge according to the plan thus approved. Thereupon the attorney general of New Jersey, deeming the property rights and sovereignty of the state in danger of violation from the erection of the proposed bridge, filed the present information to prevent it.

The information states the ordinary doctrine that the state is owner of the shore and land under water of all navigable streams and arms of the sea within its borders; that this ownership was a part of the jura regalia of the king of Great Britain, by virtue of which he was seized and possessed of an estate in fee-simple absolute in said lands; and that, at the Revolution, this state, in its sovereign capacity, succeeded to the rights of the crown, and that this right of supreme dominion had never been ceded or surrendered to the United States; and that, without such cession or surrender, the United States could not take possession of said lands, or authorize other parties to do so, except by making compensation therefor, as provided in the fifth amendment to the constitution; and that, at the place of location of the proposed bridge, their ownership of the soil, on the part of the state, extended from ordinary high-water mark to the center line of the sound, being the boundary line between New Jersey and New York, as settled by agreement in 1833, and confirmed by act of congress, June 28, 1834.

The information further states that this ownership on the part of the state has been practically exercised by it for more than a century past, by regulating the enjoyment and disposition of the lands under the navigable waters within its limits, passing laws for the preservation and protection of the oyster fisheries therein, and authorizing the construction of wharves, with solid filling, to certain prescribed limits beyond low-water mark, and that for these privileges the grantees are required to pay and have paid a certain compensation to the state. It is contended by the informant that the act of congress cannot be construed as intending to give any authority to take any portion of said lands without compensation; that said act must be construed as a mere license or permission to erect the proposed bridge, so far as congress, the conservator of navigation, is concerned, leaving the companies to obtain from the state the usual authority to build the bridge on the territory and lands of the state; but that if the act should be construed as giving authority to erect the bridge without the consent of the state, and without compensation for taking its lands therefor, then it is violative of the constitution of the United States, not only for authorizing the lands of the state to be taken without compensation, but for enlarging the powers of a corporation created by the state itself, (if the bridge should be built by the Baltimore & New York Railroad Company,) and authorizing it to do what, by its own charter and other laws of the state, it is prohibited from doing.

The information further contends that the other corporation defendant, the Staten Island Rapid Transit Company, is not a corporation of New Jersey, and has no authority from the state to exercise any corporate franchises therein, and cannot lawfully do so, except by the comity of the state,...