Opinion
08-30-1907
CITY OF HOBOKEN v. HOBOKEN & M. R. CO. et al.
James F. Minturn, for the motion. Charles L. Corbin, opposed.
Bill by the city of Hoboken against the Hoboken & Manhattan Railroad Company and another for an injunction. Order discharging order to show cause advised.
James F. Minturn, for the motion.
Charles L. Corbin, opposed.
HOWELL, V. C. The bill in this case is filed by the city of Hoboken against the Hoboken & Manhattan Railroad Company, hereafter called the "tunnel company," and the Jersey City, Hoboken & Paterson Street Railroad Company, to restrain them from interfering with what it claims to be two public streets, Ferry street and Hudson Place. The tunnel company has made an excavation for its terminal which is north of and adjacent to the Lackawanna Railroad Station in Hoboken, several hundred feet long and six railroad tracks in width, diagonally to the general plan of the acknowledged public streets of Hoboken at that point. At the westerly end the tunnel, or its approaches, run under the surface of a triangular piece of land which is claimed by the city to be a portion of Ferry street. At the easterly end the terminal station is being constructed under the surface of another triangular piece of land lying under Hudson Place, which is also claimed to be a public highway.
The bill sets out at considerable length and with much minuteness its title to those two triangular pieces of land as public streets and highways, claiming that the tunnel company and the street railway company have trespassed thereupon and have made excavations therein without the consent of the city, and it prays that the defendants may be enjoined from committing any further waste or destruction in said public places, and from trespassing upon Ferry street and Hudson Place without the permit of the city, and requiring the companies to remove their fences, buildings, and all other structures placedby them upon the streets. I understand the city claims the public use in Ferry street and Hudson Place by a dedication and acceptance; the dedication consisting of the throwing open of the strips of land to the public, and the acceptance consisting of long-continued public use of those strips as public highways. The dedication is not admitted by the defendants, but, on the contrary, is strenuously denied. They claim that those strips of land belonged and now belong to the Ploboken Land & Improvement Company, as did the Hoboken ferry, and that the land was merely an entrance from admitted public streets to the ferry and was really a part of the ferry itself. This claim was made so late as May 29, 1890, when the Hoboken Land & Improvement Company granted to the Hoboken Ferry Company a right of way over Hudson Place. It appears that at one time the high-water mark of the Hudson river was inshore of these two triangular pieces of property; that the land was filled out by the Hoboken Land & Improvement Company, which claims as owner; and that in 1885 the Hoboken Land & Improvement Company obtained a grant from the riparian commissioners, representing the state, for all the land injury to which is now claimed. The present defendants obtained their rights under this grant, according to the bill, in 1887. The bill attacks this grant collaterally, and declares the whole scheme of conveyance by the riparian commissioners to the Hoboken Land & Improvement Company to be and to have been always void.
It further appears that the work which the bill complains of was begun many months ago, and has been pushed as rapidly as circumstances would permit, and that as to the portion of the land complained about which lies within the supposed boundaries of Ferry street the defendants have entirely finished their underground construction, and are actually in possession of the land both above and under the surface of the triangular strip at that point. As to the Hudson Place triangle it appears that the defendants found it necessary to excavate to a depth of 22 feet at that point, and in order to do so they took up the stone pavement and substituted a planking, which does not appear to interfere with the public travel. In fact, it is alleged on the part of the defendants that this Hudson Place strip is now and for many years has been entirely and completely occupied by the street railway company as a terminal, and that it is covered with the tracks of the company. Sufficient facts appear on the face of the papers to show that the situation there could not be restored without destroying the construction already made, and interfering for a considerable time with public travel, and subjecting the public to considerable danger of accidents. So far as the Ferry street end is concerned, it appears that so early as 1905 the work had begun there, and that the street commissioner of the complainant forbade the further excavation at that point, and that shortly after this interdict the tunnel company brought suit in this court to restrain the city of Hoboken from interfering with their work. An injunction was granted by Vice Chancellor Pitney after a full consideration of the case, which is reported under the name of Hoboken & Manhattan Railroad v. City of Hoboken (N. J. Ch.) 64 Atl. 641. It appears, therefore, that the mischief which this bill is intended to reach has already been done, and that to undo it and restore the situation would require a mandatory injunction. It further appears that in the year 1900 the city of Hoboken brought an action of ejectment to recover possession of the Ferry street triangle, which action is pending in the Supreme Court of this state and has been continued from time to time by agreement of both parties.
But, if the court should find that the lands in question are public highways under the control of the city of Hoboken, the defendants claim that by virtue of the twenty-third section of the general railroad law (P. L. 1903, p. 645) they are authorized to make their underground construction under streets, and longitudinally under streets, without seeking or obtaining the permission of the municipality having control thereof, except when it is necessary to alter the position of a public sewer or water pipe. This proposition is denied by the complainant, which argues that it never could have been intended by the Legislature to authorize the longitudinal occupation of any portion of a public highway, even below the surface. It must be seen at a glance that to grant the writ prayed for at this stage of the proceedings would be to practically decide the whole case on preliminary affidavits. An injunction to stop the work at Ferry street, so called, would not stop it. It has already been accomplished. Besides, at that point the Supreme Court has taken jurisdiction of the real controversy, the title to the land or the right to possession thereof, and it would be impossible for this court to seize jurisdiction, or to attempt to deprive the Supreme Court of it, or in any way to interfere with the ordinary process of the common-law courts.
At Hudson Place the situation is much the same, excepting that no action of ejectment is pending in favor of the city against the defendants touching the title or possession of the strip which they are occupying at that point; and it may well be, as was suggested by the defendants' counsel on the argument, that the proper way to test the city's right there would be by a common-law action. In Hudson Place the excavation is already made. The underground walls and supports are being constructed. The street and the work are both protected by a planking at the street level, which does not appear to interfere with the free use of the street. In fact the public use of the street there is more or less subject to the right of the Street railway touse the point in question as a stopping place for its cars. To stop work there would leave the excavation covered with planking for months and until in the regular course a final hearing could be had. Besides which, the affidavits on the part of the defendants show that, if the work is stopped at that point, the waters of the Hudson river would shortly fill the excavation and render the whole place dangerous.
The proposition on the part of the complainant is that this court shall interfere by its writ of injunction to stop the progress of a great public work, which no one will deny will be of the greatest possible benefit to the complainant in this suit, a work which the exigencies of business and transportation have made necessary, a work the performance of which is sanctioned by the Legislature of two sovereign states. To do so this court would on a preliminary motion be obliged to decide the difficult questions of the dedication and acceptance relating to Ferry street and Hudson Place, the validity or invalidity of the riparian grant in an action in which the state is not represented, to override the view of the situation taken by Vice Chancellor Pitney in the former suit, and to hold for the plaintiff, under the general railroad law, a proposition which seems to me to be quite plain authority for the use of a public highway in the manner in which the defendants are using Ferry street and Hudson Place. And when we consider that the work in the so-called Ferry street is finished, and that travel is not seriously obstructed in Hudson Place, and that an action of ejectment is already pending in the courts of law to settle the Ferry street controversy, it will be seen that this court would go to a great length in stopping the important public work in which the defendants are engaged.
I will advise an order discharging the pending order to show cause.