Opinion
12-13-1894
BATEMAN v. HOLLINGER et al.
D. J. Pancoast, for the motion. W. E. Potter, opposed.
Bill by Luther Bateman against Harrison Hollinger and others for an injunction to restrain defendants from interfering with oyster fisheries which complainant claims as private property. Preliminary injunction dissolved.
D. J. Pancoast, for the motion.
W. E. Potter, opposed.
GREEN, V. C. This bill is filed by Luther Bateman, as the owner, by grant from the state of New Jersey, of lands under the waters of Delaware Bay, fronting upland of which he is the owner. The grant was made to him June 26, 1886, after which he, by the proper and usual use of poles and stakes, duly marked and pointed out the area of his land, which he planted with oysters. Between the 2d and 24th of April, 1894, various persons went in boats and took oysters from the oyster beds so planted by him on his land so granted by the state. These lands under water, granted to the complainant, with others likewise granted to other persons, are said to be natural oyster beds, and a controversy has arisen among those who are engaged in the oyster business in the vicinity, on Delaware Bay, as to whether a grant of riparian rights gave to the grantee an exclusive right for oysters on lands which were once natural oyster beds. The acts of those who trespassed upon the planted oyster bed of the complainant were in defiance of any such exclusive right on the part of the complainant by virtue of his grant. The defendants named in the bill are Harrison Hollinger, Charles McClain, James O. Sheppard, Charles M. Howell, William T. Whittaker, and Benjamin Campbell. It is not alleged that either of these defendants personally engaged in any trespass upon the complainant's oyster beds. Indeed, it is positively stated that none of them, with the exception of Charles M. Howell, had the courage to go upon said grounds; but it is not. charged that even he went. The defendants are sought to be held responsible by the charge that they had formed the plan of inciting such persons as possessed the legal right of using vessels for the purpose of planting and catching oysters in Delaware Bay and Maurice River Cove as they could influence to make a raid upon the lands of the complainant and others, the grantees of the state of lands under the tide waters of Delaware Bay, and to take away the oysters of complainant and others so planted, growing and situate and marked as before stated, and to appropriate them to the use of the several raiders. The defendants filed their answer, and in it deny that before or at the time charged in the bill they had formed a plan for Inciting a raid on the oyster grounds of the complainant and others; that a large number of persons have been arrested, and held to bail, charged with illegally dredging upon the oyster grounds in Delaware Bay claimed by certain alleged riparian grantees; but the defendants deny that any such personshave been incited by them, or any of them, to commit the acts complained of. They further say that the complainant and a few others, under and by virtue of certain alleged riparian grants, have recently set up a claim to own in fee simple large tracts of the best natural oyster grounds in Delaware Bay and Maurice River Cove, and have attempted to exclude the public therefrom; that this action on the part of the said claimants has met with 'opposition on the part of the great body of the oystermen on said bay and cove, amounting to many hundreds, who were accustomed for many years, up to the date of such recent claim, to catch oysters on said grounds, in the exercise of a common and public right, without objection or hindrance on the part of any one; that conspicuous among the said claimants of the right of a private oyster fishery in the public waters of Delaware Bay is one Peter C. Crosier, in the said bill named, who claims one of the largest natural grounds in the said bay, and that upwards of a year ago, in order to make a case to test the question of these opposing claims, several of the oystermen of Delaware Bay, by the advice of counsel, after notice to said Crosier, went upon the oyster grounds claimed by him, and took a lot of oysters, and thereby challenged him to bring an action for the said taking, so as to settle the right in court; that the said Crosier refused to bring a civil action for the oysters so taken, but preferred a criminal charge against one or more of the parties concerned in the said taking, which has never been brought to trial; that the said Crosier, and the said complainant, and others claiming to own fisheries in said bay, were and are acting in concert in upholding their alleged rights as owners of private oyster fisheries, and they have purposely avoided taking such action as would make a case at law for the settlement of said dispute between them and the other oystermen of said bay as to their respective rights in the premises; that this fact led a number of the said oystermen of Delaware Bay, a short time ago, to openly and visibly go upon the said disputed grounds, and take a considerable quantity of the oysters growing there, with the view of compelling the said claimants to forego their claim, or support it by proceedings in the courts; that the result of this movement, styled a "raid" in complainant's said bill, is the filing of this bill of complaint, and the institution of about 50 criminal proceedings against that number of oystermen, wherein* indictments were found for illegally dredging upon said claimant's alleged private oyster grounds, which said indictments have all been challenged for legal insufficiency, and the question of their illegality is now before the supreme court of this state on certiorari. The answer is verified by the oaths of all the defendants, the affidavit stating "that the said defendants did not incite the so-called 'raid' set forth in the complainant's bill of complaint, but the alleged raid took place under the circumstances set forth in the said answer, and that the grounds in dispute are those on which oysters naturally grew, and from which they were taken by the public, as set forth in said answer."
However Interesting and Important the consideration and solution of the controversy might be, this court has no jurisdiction to pass upon it, unless the acts which are brought to the door of the defendants invoke some established and recognized branch of equity jurisdiction. Ballantine v. Harrison, 37 N. J. Eq. 560. The acts which have wrought damage to the complainant are simply trespasses, and the only ground, in such a case as this, to justify this court in taking jurisdiction, is that the trespass threatens to be continued, which might involve irreparable damage to the property of the complainant, or the bringing of numerous suits at law to enforce his legal remedy. It must, of course, in any event, be made clear that the defendants either personally committed the trespass, or were responsible for the acts of those who were personally engaged therein. The answer meets the charge of having incited what is called the "raid" by a square denial, supported by the affidavits of each of the defendants. This must be conclusive, unless the proofs on the part of the complainant, annexed to his bill, are so overwhelming as to overcome such denial of the answer, and affidavit annexed thereto. The complainant makes a general verification of the allegations of the complaint. He swears that the defendants, before or at the time of the annual meeting of the Oyster Association in 1894, had formed the plan of inciting persons to make a raid upon the lands of deponent and others, following the language of the bill heretofore quoted; but he in no place states any facts as to how he acquired any knowledge of any such conspiracy, or anything to indicate that it is anything more than a suspicion which he has formed from certain facts. In so far as his affidavit seeks to fix the responsibility of the alleged depredations on the defendants, it is open to the criticism that he swears to conclusions, not facts. He charges in his affidavit that these parties caused a tonnage tax to be levied on the oyster boats in pursuance of the plans. The answer meets this charge by stating that at the annual meeting of the oyster association held in March, 1894, at which the defendants were elected the executive committee, a resolution was unanimously adopted to leave to the executive committee the taxing of the boats to support all who would go upon the riparian grounds; and in the affidavit of Frank Cobb, annexed to the bill, it is stated that at this meeting of the association he saw Harrison Hollinger, James O. Sheppard, and Benjamin Campbell present; that the other defendants may have been present also, but he does not remember to have seen them; that at the meeting it was publicly stated that an additional tonnagetax was necessary to be assessed, for the purpose of defending all persons who might join in the raid upon the lands of deponent and others lying under tide water of Delaware Bay in the township of Down, and take oysters therefrom, from any proceedings whatever in the courts; and the said meeting voted that an additional tax should be assessed by the executive committee for the purpose of raising funds to defend and indemnify such persons, and it was publicly announced to the effect that all persons were invited to join in such raid or raids, and that they would be protected to the extent of the funds of the Oyster Association for their acts in respect thereof. The bill alleges, and it seems to be admitted, that at the meeting of the executive committee, after this annual meeting of the association, it was organized by the election of the defendant Harrison Hollinger as chairman and Benjamin Campbell as treasurer, and it was resolved that a. tonnage tax of one dollar and a half be levied on the vessels of those belonging to the Oyster Association. The answer says, with reference thereto, that the extra fifty-cents tax was a self-imposed tax by the members of the association, who were greatly interested in the question involved, for the express purpose of defraying the expenses incident to the ascertainment and enforcement of their rights in the premises, and, when collected, constitutes a fund in law and in equity to be used to that end, in a lawful manner, and that they have no intention to apply any part of the balance of the one-dollar tax to such purpose. The resolution of the committee was as follows: "That in view of instruction at the annual meeting, that the tonnage tax to be fixed at $1.50 per ton, and that fifty cents per ton of above amount shall be for the purpose of defraying the expenses incurred by the committee in prosecuting and defending any suits at law which may result from their efforts to properly protect the members of the association in their rights to the natural oyster grounds In Delaware Bay." The affidavit annexed to the answer says that the Oyster Association passed the said resolution as in the said answer set forth, and that the defendants, as the executive committee, passed the other resolution for the objects and purpose therein set forth, and no other. The bill further seeks to identify the defendants with inciting the alleged raid, by charging that they had inspired certain newspaper publications; but this is fully met by the answer, and denied, with the exception of two articles of no importance.
It seems to me that the answer fully meets the equity of this branch of the bill. As stated before, this rests on a threatened continuing trespass. The case, as it appears on the coming in of the answer, is that there is a serious dispute as to property rights between the complainant, and others situated as he is, on the one hand, and the defend ants, and others employed as they are, in the oyster business, on the other. There is no pretense that the defendants have personally committed any trespass on complainant's lands, or intend to do so. The only connection which they appear to have from all the proofs in the case is that they are the executive committee of the Oyster Association, to which all the parties in question belong, and among the members of which this contention exists. There is nothing to identify the defendants with the trespass on the complainant's lands, any more than any other member; nor does it appear that they took any leading part towards advising or inciting a violation of the alleged rights of the complainant. As members of the executive committee, they have passed a resolution to levy a tonnage tax to defray legal expenses, but that does not involve them as the instigators of the trespass complained of, nor do I see any evidence of a threatened continuation of the trespass. It is also to be said that there would appear to have been no difficulty in bringing this suit against the actual trespassers. From the affidavit of Mr. Bateman, Jr., and from the fact that criminal prosecutions have been instituted, those who actually went upon the grounds and took the oysters appear to have been known. Why they have not been sued or joined as party defendants does not appear, and the case presents the anomaly of asking an injunction against those who confessedly did not commit a trespass, or threaten its continuance, while the persons actually engaged are not made parties to the suit. The answer fully meets this branch of the case appealing to the jurisdiction of this court, and shows that whatever trespass has been committed was committed, not by the defendants, but by others, in the assertion of a claim of legal right, for the purpose of making a case for the trial of the disputed rights in a court of law. On the facts set out in the answer on this branch of the case I am of opinion that the injunction must be dissolved.
There is another branch, namely, that the defendants are enjoined from paying out any part of the money which has been raised by the tonnage tax in defense of any litigation with reference to the acts of persons charged with depredating the oyster beds. This Oyster Association is a voluntary association, which, by the act of March, 1882 (Supp. Revision, p. 110), so far as its voting power is concerned, is limited to captains of all vessels having a license to lawfully engage in the catching, planting, and growing of oysters in Delaware Bay and Maurice River Cove. By the act of March 14, 1890, captains and owners of such vessels are authorized to meet at an annual meeting of the association, and elect five of their number to be designated as the "executive committee," which committee is invested with the power to fix the amount per ton of the tax to be assessed and levied each yearupon the vessels of the association. It is not stated that any by-laws of this association have ever been adopted. By an act approved May 17, 1894 (P. L. 1894, p. 418), it is enacted (section 3) "that said executive committee shall be and they are hereby authorized to use and expend the moneys of said association, now in the hands of the collector of said oyster fund and such moneys as may hereafter come to his hands for such purposes, as will in their judgment promote the interests of the greater number of persons lawfully engaged in the catching, planting and growing of oysters in said Delaware Bay and Maurice River Cove; provided that no such expenditure shall be made except by a majority vote of the whole number of members of said executive committee, personally present and agreeing thereto." In so far as the money can be considered as a tax raised by authority of law, this act of the legislature would authorize the defendants, as the executive committee of the association, to expend it in the manner sought to be enjoined. In so far as it is to be considered as money belonging to the association, it is, according to the answer, a fund raised, not only by resolution of the executive committee, but by a unanimous vote of the association, for the very purpose of procuring money to be expended for the object now sought to be enjoined. Under such circumstances it ought not to be appropriated for any other purpose. Abels v. McKeen, 18 N. J. Eq. 462; Lady Lincoln Lodge v. Faist (N. J. Ch.) 28 Atl. 555. I am of opinion that the answer meets the equity of the bill in both branches, and that the injunction heretofore issued should be dissolved.