Wilson v. Hudson County Water Co.

• Decision Date: 14 January 1910
• Citation: 76 A. 560,76 N.J.E. 543
• Parties: WILSON, Atty. Gen. v. HUDSON COUNTY WATER CO. et al.
• Court: New Jersey Court of Chancery

76 A. 560

76 N.J.E. 543

WILSON, Atty. Gen.

v. HUDSON COUNTY WATER CO. et al.

Court of Chancery of New Jersey.

Jan. 14, 1910.

(Syllabus by the Court.)

Information by Edmund Wilson, Attorney General, against the Hudson County Water Company and others. Order to show cause made absolute.

Edmund Wilson, Atty. Gen., for the State.

Robert H. McCarter, for defendants.

WALKER, V. C. The Attorney General has filed an information on behalf of the state in which he shows that the J. M. Guffey Petroleum Company obtained from the riparian commissioners a grant of lands under the waters of the Kill von Kull at the foot of Ingham avenue in Bayonne. In the grant it was provided that that part of the land under water lying between the exterior line for piers and the exterior line for solid filling established by the commissioners appointed under our act of the Legislature and approved by the Secretary of War was not to be used for any purpose whatever except the erection of a pier or piers underneath which the tide might ebb and flow; and it was further provided that the state might grant or lease any of the lands of the state lying in front of the exterior line for solid filling or piers mentioned and referred to, for the cultivation of oysters or other fish, or for any other purpose whatever, provided that such grant should not operate to interfere with the reasonable use of, and access by water to, the lands under water thereby conveyed, or with the free and uninterrupted navigation between its lands and the main channel of the Kill von Kull. The information further shows: That the state has not made any grant or lease for any purpose whatever of any of its lands lying in front of the exterior line for solid filling or piers above mentioned, or piers in the grant to the J. M. Gutfey Petroleum Company, and that the state is the owner of all the land lying under the waters of the Kill von Kull to the middle thereof from the exterior line for piers referred to in the grant. That between the lastmentioned exterior line and the boundary line in the Kill von Kull between the states of New Jersey and New York is approximately 500 feet. That the defendant the Hudson County Water Company is now, and for some time past has been, dredging the land under the waters of the Kill von Kull in a line approximately parallel to Ingham avenue, Bayonne, and extending from the northerly shore of the Kill von Kull on the New Jersey side to and beyond the middle of the Kill, which middle is the boundary line between the states of New Jersey and New York, and that the dredging is being done for the purpose of placing submerged pipes 30 inches in diameter under the surface of the bed of the Kill, and that it is the purpose of the defendant to lay its line of pipes from the exterior line for solid filling granted to the J. M. Guffey Petroleum Company to the center line of the Kill von Kull, a distance of approximately 675 feet, without any lawful warrant or authority therefor. Upon tiling the information, duly verified, an order was made requiring the defendants the Hudson County Water Company and the J. M. Guffey Petroleum Company (which will hereinafter be called, respectively, the Water Company and the Guffey Company) to show cause why they and their officers, agents, and servants should not be enjoined and restrained from dredging, or permitting to be dredged, any of the lands of the state of New Jersey lying in front of the exterior line for solid filling, referred to in the riparian grant to the Guffey Company, for the purpose of laying pipes thereon, and from laying any pipe or pipes on any of the lands under the waters of the Kill von Kull from such exterior line to the middle of the Kill, which order contained an ad interim stay.

And now, on the return of the order to show cause, the Water Company, one of the defendants, files its answer, and moves the court to discharge the order and vacate the restraint. The answer sets up: That, prior to the issuance of the restraining order, the Water Company had been engaged in dredging the land in question for the purpose of placing two submerged steel or iron pipes underneath the surface of the bed of the Kill to enable it to transport water therein to Staten Island in the state of New York for the purpose of supplying the borough of Richmond in that state with water, pursuant to certain contracts made between it (the Water Company) and the city of New York, which pipes are to be connected with pipes belonging to the Water Company connected with wells on its lands in the township of Bellville, in the county of Essex in this state, for the purpose of transporting water pumped, and to be pumped, from the wells to Staten Island, and by virtue of its contractual obligations with the city of New York, a citizen of the state of New York for the pur pose of supplying it with water as a commodity, the Water Company is advised that, under the law of the land, it is justified and authorized to do the work threatened and complained of, and in so doing it will be engaged in Interstate commerce, and that the pipes so to be laid in the bed of the Kill von Kull, which is a navigable stream, partly in the state of New Jersey and partly in the state of New York, will be appliances and facilities of such interstate commerce. That, prior to the commencement of the work of excavation, and on or about December 9, 1904, pursuant to the terms and provisions of section 10 of the so-called "river and harbor bill" of the Congress of the United States, approved March 3, 1899 (Act March 3, 1899, c. 425, 30 Stat. 1151 [U. S. Comp. St. 1901, p. 3541]), the Water Company laid before the chief engineer of the United States army and procured his recommendation, and also procured from and by the authority of the acting Secretary of War a license to lay pipes in the bed of the Kill von Kull. That, by virtue of the authority bestowed by the Constitution of the United States upon Congress to regulate commerce between the states, Congress was authorized to enact section 10 of the so-called river and harbor bill, and that the Secretary of War, upon the recommendation of the chief of engineers, was likewise authorized and empowered to give the license above mentioned, and that the Water Company under that license is justified in dredging the bed of the Kill von Kull for the purpose of laying pipes therein without the sanction and permission, and in spite of the objection, of the state of New Jersey, and that its federal license is supreme and sufficient to justify it in digging the trench and laying therein the water pipes for the purpose above indicated. That, before commencing dredging, the Water Company procured from the Guffey Company a grant or license to lay pipes in, over, and along its riparian lands, and thereby procured and enjoys the right to lay the pipes in, over, and along the only private property in the state of New Jersey, or private rights, which the pipes, when laid, will in any way invade or affect. The defendant denies that the state of New Jersey is the owner of all the lands lying under the waters of the Kill von Kull from the exterior line for piers mentioned in the grant to the Guffey Company to the extent of being thereby endowed with any rights therein as against the federal government or its licensee when engaged in constructing an instrumentality of interstate commerce. And, finally, the Water Company claims a right under the Constitution and laws of the United States, and says that this case presents a controversy arising under such Constitution and laws, and that the effort of the informant to arrest or interfere with it in the execution of its plans is contrary to the Constitution and laws of the United States, and prays the benefit and advantage thereof.

As already said, the information alleges that the state is the owner of all the land lying under the waters of the Kill von Kull to the middle thereof; and, while the answer denies that the state is the owner of those lands to the extent of being thereby endowed with any rights as against the federal government or its licensee when engaged in constructing an instrumentality of interstate commerce, there is no denial of the fact of the state's ownership of the land. By the settled law New Jersey is the owner in fee of all the lands below high-water mark in navigable tide waters and arms of the sea within its boundary in virtue of its sovereignty as successor to the king of England. Arnold v. Mundy, 6 N. J. Law, 1, 77, 10 Am. Dec. 356; Gough v. Bell, 21 N. J. Law, 156; Attorney General v. Hudson Tunnel R. Co., 27 N. J. Eq. 176, 181; Simpson v. Moorhead, 65 N. J. Eq. 623, 56 Atl. 887. And such ownership extends from ordinary high-water mark to the center of the Kill von Kull, which is the boundary line between the states of New Jersey and New York. This is not denied by the Water Company, but is tacitly admitted in its answer. See, also, Stockton v. Baltimore & N. Y. R. Co. (C. C.) 32 Fed. 9.

There are no disputed facts, and the verified answer of the Water Company imports into the case the question of its alleged rights in the premises under the Constitution and laws of the United States and the action of the officers of the federal government in pursuance of powers conferred by act of Congress. The power to do the thing proposed is said to exist under section 10 of the act of March 3, 1899, which section reads as follows: "Sec. 10. That the creation of any obstruction not affirmatively authorized by Congress, to the navigable capacity of any of the waters of the United States is hereby prohibited; and it shall not be lawful to build or commence the building of any wharf, pier, dolphin, boom, weir, breakwater, bulkhead, jetty, or other structures in any port, roadstead, haven, harbor, canal, navigable river, or other water of the United States, outside established harbor lines, or where no harbor lines have been established, except on plans...