52 N.J.L. 267 | N.J. | 1890
The opinion of the court was delivered by
The plaintiff founds the right on which this suit is based on the act of the legislature above recited. The material averments in the declaration are, in substance, that ■the plaintiff was seized and possessed of a tract of land adjacent to and bounded upon the tide-water basin established by the fifth section of the act; that by reason of the establishment of the said tide-water basin, and the ownership of lands adjacent thereto and bounded thereon, the plaintiff, in virtue of the provisions of the said act, became and was lawfully entitled to navigate the waters of said basin throughout Its whole extent, and to have and enjoy, by means thereof, (access to, through and across the same and all parts thereof 'to and from the land of said plaintiff adjacent thereto, and was entitled to charge, collect and receive wharfage, dockage :and other charges, ¡profits and emoluments incident to the use ■ of said basin and of such adjacent land of the plaintiff, and was entitled to have the waters of said basin throughout its whole extent free, open and unobstructed, so that the same ■could be freely navigated throughout its whole extent, and ■could also be dredged out and kept in order; that the defendant, contriving and unlawfully intending to deprive the plaintiff of its use and enjoyment of a large portion of said .tide-water basin, and of its access from its said land to said basin, and of the dockage, wharfage and other profit and •emolument to which said plaintiff was and would have been ■entitled for the use of said basin by other persons, did unlawfully cast and threw into the waters- of the said basin a large quantity of earth, stones, &c., and did fill up, obstruct .and exclude the water from a large part of said tide-water
The prefatory averments in the declaration with respect to the grant to the city, contained in the first section of the act, were introduced to designate the boundaries and fix the location of the tide-water basin. They serve also to present the constitutional question discussed. But so far as is disclosed on this record, the plaintiff's cause of action rests upon the averments contained in the foregoing abstract.
To the declaration the defendant filed a demurrer, specifying several causes of demurrer, of which those will be noticed ■that were relied on at the argument.
First. That the act- is in violation of section 7, article IV., •of the constitution, which declares that “ to avoid improper influences which may result from intermixing in one and the •same act such things as have no proper relation to each other, •every law shall embrace but one object, and that shall be expressed in the title;" that the said act embraces more objects than one, and that the plaintiff cannot maintain an action based upon a legislative act which is unconstitutional.
The constitution does not prohibit the union in one act of several subjects, using that term in a limited sense; the in
Prior to the act of 1872 the state was the owner of a tract of land lying under the tide-waters of Communipaw bay, part of which was within the limits of Jersey City. These lands were connected with the navigable waters of Hudson river and New York bay. On this tract the riparian commissioners had, in 1864, laid out a large basin. An examination of the several provisions of the act of 1872 makes it manifest that the object of that legislation was to appropriate-this tract of land, the property of the state, to public uses, for the purposes of navigation and commerce. To accomplish that end, the legislature ceded to Jersey City that part of the-premises lying in the cove adjoining the city, which is described by metes and bounds in the first section of the act.. The residue of the tract described by metes and bounds in the-fifth section was dedicated to public use. The cession to the-city was not of property to be owned and used by it, or disposed of by it in its discretion. The preamble of the act recites, that the attention of the legislature had been called to-the fact that Jersey City was without public docks, and that the riparian commissioners had recommended that a part of the large basin laid out in 1864 be conveyed to the city for-
By the act of cession the city took title upon a trust to hold to public uses, with a duty to improve the premises and a power to regulate and control the use, and to erect wharves for the emoluihent of the city.
The fifth section does not purpoi't to be a grant. ]Sfo grantee is named, and no words of grant are used. By this section the state established a tide-water basin and dedicated it to public uses. The gift is to the public, and ex necessitate rei for public uses. New Orleans v. The United States, 10 Pet. 662. That the lands dedicated might be utilized for suchi uses, the owners of lands adjacent to the basin were authorized to charge dockage, wharfage and other charges incident to the use. of wharves, and were empowered by implication to erect docks and wharves fronting on the basin. The privileges granted to the owners of adjacent lands are analogous to those which, by the law of this state, are incident to the ownership of lands lying on navigable waters, and were conferred in order to put the former on a footing with the owners of lands on tidal streams, with respect to the privileges incident to adjacency thereto.
Second. That the declaration did not contain the averments necessary to show that' the cession to Jersey City had taken effect. The argument under this head proceeded on two grounds—(1) that the cession to the city was conditional, and (2) that it required acceptance by the municipal government. Under the first of these subdivisions reliance was placed upon the third section of the act, which required payment by the city of a consideration, and on section six, which provided that a map and description of the premises should be made by the riparian commissioners and filed in the office of the secretary of state, and in the office of the clerk of the county of Hudson, as evidence of the title of the city to the lands so described and granted to it.
The operative words in the first section, “ the state does hereby grant,” import a grant in preesenti, and confer an immediate estate. When these words are used in a' legislative grant, unless there be other clauses restraining the operation of the words of present grant, they must be taken in their usual legal sense to import an immediate transfer of title. Railroad Company v. Smith, 9 Wall. 95; Shulenburgh v. Harriman, 21 Id. 44, 62; Leavenworth Railroad Company v. United States, 92 U. S. 733, 741; Glasgow v. Hortez, 1 Black 595. If there be conditions subsequent annexed to such a grant, no one but the state or its representatives can take advantage of a forfeiture arising from a failure to perform such conditions. Railroad Company v. Smith, Shulen-
The lands granted to the city are sufficiently identified by ■the description contained in the act. The map and description required to be made and filed by the riparian commissioners by the sixth section were simply evidence of title provided by law for the city’s convenience. Such a map and description were not necessary to perfect the city’s title. The •city took title under the present grant contained in the act, ■and the map and description were, to quote the language of the section, to be “ full and plenary evidence of the title under ■this act of the city to the lands so described and granted.” The neglect or failure of the riparian commissioners to make and file such a map and description would not defeat the grant. Railroad Company v. Smith, 9 Wall. 95; Glasgow v. Hortez, 1 Black 595. A collection of the decisions of the federal courts on the construction and effect of legislative grants will be found in 21 Myer’s Federal Decisions, in the sections from 1013 to 1410. They fully sustain the views here expressed.
Nor did the grant require an acceptance by the city. The legislature was dealing with a municipality with respect to a matter relating to municipal affairs. The legislature may at its own will create or extinguish a municipality, or impose ■upon it a new charter or an .amendment to its charter. It may also impose duties involving the outlay of money in improvements, such as -laying out and making roads, establishing public markets, wharves or docks and the like. Usually
Third. That the declaration disclosed no cause of action,, in that the allegations in it are of a public nuisance created-by the defendant, without an averment of special damage sustained by the plaintiff therefrom. It is the well settled rule,, that no action will lie for a public nuisance unless the plaintiff has sustained some special damage.
The fifth section of the act conferred upon the owners of' lands adjacent to the public basin privileges analogous to the-privileges of riparian owners in the public waters of the state_ Whether the paragraph in that section which purports to give that provision the effect of a contract shall avail to annex, these privileges as property rights beyond the control of subsequent legislatures, need not be considered in deciding upon the sufficiency of this pleading. No fact is disclosed by this-record which puts to the test the existence or validity of any contract with these landowners, or the. capacity of the legislature t.o embrace in an act appropriating the state’s lands to>
There should be judgment for the plaintiff on the demurrer.