189 F. 419 | U.S. Circuit Court for the District of New Jersey | 1911
The complainant is the assignee of a certain written instrument made by the state of New Jersey on April 30, 1881, to the Morris & Cummings Dredging Company. This instrument conveyed an interest in certain lands under the waters of the bay of New York in Jersey City. The assignment is dated February 24, 1904. Taxes have been assessed against these lands for the years 1883 to 1905, inclusive, aggregating the sum of $163,392.24; which taxes have not been paid. On April 19, 1906, the city collector of Jersey City gave notice that pursuant to a resolution of the board of finance of Jersey City, passed March 23, 1906, and section 13 of the act entitled “An act concerning the settlement and collection of arrearages of unpaid taxes, assessments and water rates or water rents in cities of this state and imposing and levying a tax, assessment and lien in lieu and instead of such arrearages and to enforce the payment thereof, and to provide for the sale of lands subjected to future taxation and assessment,” approved March 30, 1886, known as the “Martin Act” (Act March 30, 1886 [P. L. p. 149]), he would
The complainant contends that the taxes are illegal because, first, the lands belong to the state of New Jersey, and are not taxable; second, the lands are without the jurisdiction of the state of New Jersey; third, the lands are not within the taxing district of Jersejr City; and, fourth, the assessment was made upon real estate, and not upon the interest of the complainant therein. He also contends that the lien of the taxes has expired.
“That in case any person or corporation who by any legislative act, is a grantee or licensee, or has such power or authority, or any of his, her or their representatives or assigns shall desire a paper capable of being acknowledged and recorded, made by and in the name of the state of New Jersey, conveying the land in the proviso to the third section mentioned whether under water now or not, and the benefit of an express covenant, that the state will not make or give any grant' or license power, or authority affecting lands under water in front of said lands, then and in either of such eases, such person or corporation, grantee or licensee, having such grant and license, power or authority, His, her or their representatives or assigns, on producing a duly-certified copy of such legislative act to- said commissioners, and in case of a representative or assignee also satisfactory evidence of his, her or their being such representative or assignee, and requesting such grant and benefits as in this section mentioned, shall be entitled to said paper so capable of being acknowledged and recorded, and granting the title and benefits aforesaid, on payment of the consideration hereinafter mentioned; and the said commissioners or any two of them, with the Governor .and Attorney General for the time being, to be shown by the Governor signing the grant, and the Attorney General attesting it, shall and may execute and deliver and acknowledge in the name and on behalf of the state, a lease in perpetuity to*423 such grantee or licensee or corporation having such grant, license, power or authority, and to the heirs and assigns of such grantee or licensee, or to the successors and assigns of such corporation, upon his. her or their securing to be paid to the state an annual rental, of three dollars for each and every lineal foot measuring on the bulkhead line, or a conveyance to such grantee or licensee or corporation haring such grant, license, power or authority, and to the heirs and assigns of such grantee or licensee, or to the successors and assigns of such corporation in fee, ttpon his, her or their paying to the state fifty dollars for each and every lineal foot, measuring on the bulkhead line, in front, of the land included in said conveyance; provided that no corporation to whom any such grant, license, power or authority was given by legislative act' as aforesaid, in which provision was made for the payment of money to the Treasurer of the state for each and every foot of the shore embraced and contained in the act. nor the assigns of such corporation shall be entitled to the benefits of this section; and provided further, that the said commissioners shall in no case grant lauds under water beyond the exterior lines hereby established, or that may be hereafter established, but the said conveyance shall bo construed to extend to any bulkhead or pier line further out on said river and bay that may hereafter be established by legislative authority; in case any person or corporation taking a lease under this section. shall desire afterwards a conveyance of all or any part of the land so leased, the same shall he made upon the payment of the said sum of fifty dollars for every such lineal foot, as aforesaid, of the land so desired to be conveyed, the conveyance or lease of the commissioners under this or any other section of this act, shall not merely pass the title to the land therein described, but' the right of the grantee or licensee, individual or corporation, his. her or their heirs and assigns, to exclude to the exterior bulkhead line, the tide water by filling in or otherwise improving the same, and to appropriate the land to exclusive private uses, and so far as the upland from time to time made shall adjoin the navigable water, the said conveyance or lease shall vest in the grantee or licensee, individual or corporation, and their heirs and assigns, the rights to the perquisites of wharfage, and other like profits, tolls and charges.”
And section 8 of the same supplement (Id. p. 2/88);
“That if any person or persons, corporation or corporations, or associations, shall desire t'o obtain a grant for lands under water which have not been improved, and are not authorized to be improved, under any grant or license protected by the provisions of this net, it shall he lawful for any two of the said commissioners concurring, together with the Governor and Attorney General of the state, upon application to them, to designate what lands under water for which a grant is desired lie within the exterior lines, and to fix such price, reasonable compensation, or annual rentals for so much of said lands as lie below high-water mark, as are to lie included in the grant- or lease for which such application shall be made, and to certify the boundaries and the price, compensation or annual rentals t'o lie paid for the same, under their hands, which shall be filed in the office of the Secretary of State; and upon the payment of such price or compensation or animal 'rentals, or securing the same to be paid to the Treasurer of this state, by such applicant, it shall be lawful for such applicant to apply to the commissioners for a conveyance, assuring to the grantee, his or her heirs and assigns, if to an individual, or to its successors and assigns, if to a corporation, the land under water so described in said certificate; and the said commissioners shall, in the name of the state, and under the great seal of the state, grant the said lands in manner last aforesaid, and said conveyance shall be subscribed by the Governor, and attested by the Attorney General and .Secretary of State, and shall be prepared under the direction of the Attorney General, to whom the grantee shall pay the expense of such preparation, and upon the delivery of such conveyance, the grantee may reclaim, improve and appropriate to his or their own use, the lands contained and described in the said certificate; subject, however, to the regulations and provisions of the first and second sections of this act. and such lands shall thereupon vest in said*424 applicant; provided, that no grant or license shall be granted to any other than a riparian proprietor, until six calendar months after the riparian proprietors shall have been personally notified in writing by the applicant for such grant or license, and shall have neglected to apply for the grant or license, and neglected to pay, or secure to be paid, the price that said commission shall have fixed; the notice in the case of a minor shall be given to the guardian, and in case of a corporation to any officer doing the duties incumbent upon president, secretary, treasurer or director, and in case of a nonresident, the notice may be by publication for four weeks successively in a daily newspaper published in Hudson county, and in a daily newspaper published in New York City.”
Section 1 of another supplement, approved March 27, 1874 (Id. p. 2791):
' “That from and after the passage of this act It shall be lawful, for the riparian commissioners, or any three of them therein concurring, together with the Governor of this state, to fix and determine, within the limits prescribed by law, the price or purchase money, or annual rental to be paid by .any applicant for so much of lands below high-water mark, or lands formerly under tide water belonging to this state as may be described in any Application therefor duly made according to law; and the said commissioners, or any three of them therein acting and concurring, with the approval of the Governor, shall in the name and under the great seal of the state, grant or lease said lands to such applicant accordingly; and all such conveyances or leases shall be prepared by the said commissioners or their agents at the cost and expense of the grantee or lessee therein, and shall be subscribed by the Governor, and at least three of said commissioners, and attested by the Secretary of State.”
Section 1 of the “Joint resolution relative to the riparian commission,” approved March 17, 1870 (Id. p. 2796) :
“That the riparian commissioners may and shall, in all leases, as well those authorized by the eighth section as those authorized by the fourth section of the act of last year, relating to the subject' of lands under water; covenant on behalf of the state that the -state will at any time accept the ■capital sum of which the annual payment is the interest, at the rate of seven per centum per atmum, in lieu of all further annual payments, and make conveyance of the fee simple and may convey or lease to any exterior line hereafter to be fixed; and such lease or conveyance under said eighth section and this resolution shall, in all respects, be as effectual to pass all the perquisites of wharfage and other like profits, tolls and charges, as conveyances and leases under the fourth section would be.”
Section 1 of the act entitled “An act relative to the riparian commission,” approved April 6, 1871 (Id. p. 2796) :
“Whereas, applications are frequently made to said commission for grants and leases of lands which were heretofore, but are not now, under tide-water, and it is desirable to quiet the possession of those who so apply, but doubts have arisen whether such cases are now provided for by law; and it has been found by experience that grants and leases containing the grants and covenants authorized by the fourth section of the act approved March thirty-first, one thousand eight hundred and sixty-nine, entitled ‘Supplement to an act entitled “An act to ascertain the rights of the state, and of riparian owners, in the lands lying under waters of the bay of New York, and elsewhere in the state,” ’ approved April eleventh, one thousand eight hundred and sixty-four, and the joint resolution of one thousand eight hundred and seventy, are more readily accepted, and are more satisfactory, than those which d.o not contain the same.
“Section 1. That the said commissioners with the concurrence of the Governor and Attorney General, in all cases of application for grants or leases*425 of land now, or at the time of the application, or at the time of the lease or' grant, under tide water; arid in all cases of application for grants or lease» of lands which are not now, or shall not at the time of the application, or at the time of the lease or grant be under tide water, and in all cases of applications for leases or grants for all or any of such lands may, notwithstanding the first proviso of the fourth section of said supplement, or any other clause or matter in said supplement contained, grant' or lease, or lease first: with a covenant to grant, and grant afterwards, for such principal sum that the interest thereof at seven per centum will produce the rental, such lands, or any part' thereof lying between what was, at any time heretofore, the original high-water line and the exterior lines established or to be established, and grant or lease in all cases in which, in their discretion, they shall think such grant or lease should be made, such rights, privileges and franchises as they are authorized to grant in cases coming directly within the said fourth section, and enter into the same covenants in the name of the state, in all cases of grants or leases where they deem such covenants proper, as are authorized in grant's or leases under said fourth section, and insert such other covenants, clauses and conditions in said grants or leases as they shall think proper to require from the grantee or lessee, or ought to be made by the state: provided, that nothing herein contained shall authorize grants or leases in front' of a riparian owner to any other than such riparian owner, except, upon the proceedings and conditions in said supplement provided; and provided also, that the applications for grants or leases, and the certificates of said commissioners, Governor and Attorney General, may In the cases hereby provided for, vary from the provisions of the said supplement in such manner as to conform to this act, and any party who has already asked for or accepted a lease or conveyance may apply for and have the benefits of this act, notwithstanding such former application or former acceptance of a lease or conveyance.”
The instrument of April 30, 1881, recites that the Morris & Cummings Dredging Company, pursuant to the act of March 31, 1869, and other statutes and joint resolutions of New Jersey, being the owner of lands fronting on New York Bay, and “desirous of obtaining a lease for the lands under water hereinafter leased which lie in front of said lands,” had applied to the commissioners appointed under the act of March 31, 1869, and the Governor, “for a lease of the lands hereinafter leased”; that it has applied to them “to fix the price and reasonable compensation and the annual rental for the lease of so much of said lands under water as lie below high-water mark, and may properly be included in the lease, and the boundaries and the price, reasonable compensation and the annual rental to be paid for the same”;' that, in compliance with the application, the commissioners had “agreed to lease the lands hereinafter mentioned, and determined that the sum of $4,233.60 as the annual rental to be paid for said lands under water so designated, and did fix the sum of $60,480 as the price or reasonable compensation on payment of which a conveyance of all or any part of the said lands free from rent would tinder said act he made”; that the applicant had secured to be paid to the Treasurer of the state the above-mentioned annual rental; and that it had “applied to the said commissioners for a conveyance assuring to it, its successors and assigns, the land under water hereinafter described.” After this recital, the instrument proceeds to declare that: “The said' state of New Jersey, by the said commissioners, the Governor concurring, in consideration of the premises and of the rent, covenants and conditions hereinafter contained, doth -hereby bargain, sell, lease,, and convey unto the said the Morris & Cummings Dredging Company,.
This instrument must be construed in the light of the legislation by which it was authorized. That legislation, as we have seen, declared by section 4 of the act of March 31, .1869, that the commissioners are authorized to execute “a lease in perpetuity” to the grantee, his heirs and assigns, if an individual, or, if a corporation, to its successors and assigns, upon an' annual rental being secured to the state, and that such lease should not merely pass the title to the lands therein described, but the right to exclude the tide water by filling in or other'wise improving the same, and to appropriate the land to exclusive private uses, and to the right to the perquisites of wharfage and other like profits, tolls, and charges. By section 8 of the same act the commissioners are authorized to “fix such price, reasonable compensation or annual rentals for so much of said lands as lie below high-water mark as are to be included in the grant or lease,” and to execute “a
By this instrument the state parted with the whole estate as effectually as if the consideration had been paid in one sum. The instrument contemplated two methods of paying the consideration, an annual sum equal to 7 per cent, of the entire consideration, as directed by the joint resolution of March 17, 1870, and a lump sum, at any time at the option of the purchaser, whereupon another conveyance was to be executed and the annual payments cease. The right, title, and interest of the purchaser were the same whichever method of payment was adopted. So long as the purchaser made the annual payments, the estate vested in it was as absolute as if the entire capital sum had been paid in the first instance. The use of the words “lease” and “rent” does not change the quality of the estate where the whole interest is conveyed. Substance, not form, controls. A lease never conveys all that the owner lias. That at some time and by the very terms of the instrument itself the estate shall -revert to the lessor, his heirs or assigns, is of the essence of a lease. In the present case a default in the annual payments causes a forfeiture; but this is not the necessary result of the terms of the conveyance. It provides for such a contingency, but does not require it. The conveyance transferred the whole estate to the purchaser. Only his disregard of the terms can end it and cause a reversion. Cook v. Mayor and Counsel and City of Bayonne et al., 77 Atl. 1048, decided by the New Jersey Supreme Court since the argument in the present case, is directly in point. It was there said :
“An instrument calling Itself a ‘lease’ made by the riparian commission of this state for lands under water, pursuant to the statutes of 1869 and 1871 (.‘5 (leu. St. 1895, pp. 2780, 27961, which ‘bargains, sells, leases and conveys’ to the grantee ‘her heirs and assigns forever’ with habendum in fee and reservation of annual rental with right of re-entry and of distress in case of nonpayment expressly reserved, and covenanting for a further conveyance free and discharged of the rent on payment of a stipulated gross sum, is a grant in fee subject to a rent charge, and the land therein described is taxable in the hands of the grantee.”
The second contention, viz., that the lands are without the jurisdiction of the state, has been decided adversely to the complainant by the United States Supreme Court in Cent. R. R. of N. J. v. Jersey City, 209 U. S. 473, 28 Sup. Ct. 592, 52 L. Ed. 896.
None of these gives the boundaries of the township of Greenville. Section 2 of the latter act read in connection with section 1 thereof does give such boundaries, which are as follows:
“On the southeast by New York Harbor, on the west by the Morris Canal, and lands of James Currie, Esquire; on the northwest by Newark Bay and the Hackensack River; on the northeast by a road or lane known as Myrtle Avenue, with a continued line running southeasterly from • said Avenue to New York Harbor, and northwesterly from said avenue to the Hackensack River (this last boundary being the unadjusted - dividing line between the 'town of Bergen’ and the township hereinafter incorporated).”
As the locus in quo is admittedly in New York Harbor and contiguous to the upland formerly a part of Greenville, the ‘question whether it is a part of the taxing district of Jersey City depends upon whether it was a part of Greenville before its consolidation with Jersey City. “On the southeast.by New York Harbor” is the pertinent course. “Harbor” has a more extended meaning than “shore.” By the shore of a tide-water bay is usually meant the part between ordinary high and low water marks, alternately covered and left dry by the ordinary flux and reflux of the tides. Tyler, Raw of Boundaries, p. 33. A harbor is a port or haven for ships, a sheltered recess in the coast line of a sea, gulf, bay, or lake, most frequently at the mouth of a river (Cent. Dict, and Cyclo.), in which ships can moor and be sheltered from the fury of the winds and heavy seas. A finding that a harbor extends to a line inside of which large numbers of vessels may find protection from storms is correct. Rowe v. Smith, 51 Conn. 266-271, 50 Am. Rep. 16.
In McCannon v. Sinclair, 2 El. & El. Q. B. 53, held that where a parish comes down as far as the hank of a river, a navigable stream, there is a prima facie presumption that it extends as far as the middle of the river, and that a pier extending beyond low-water mark was subject to the poor rates. In Rex v. Eandulph, 1 Moody & R. N. P. Rep. 393, held that where two parishes are separated by a river, and there is no positive evidence of the boundary line between them, it is presumed that the boundaries coincide with the middle line of the channel. Luke v. Brooklyn, 43 Barb. (N. Y.) 54, affirmed 1 Abb. Dec. (N. Y.) 24, held:
“For tlie purpose of ascertaining whether particular property is situated within the city of Brooklyn, the line of low water, as the water flows in the East River, after the land, is reclaimed from the river, or by the erection of wharves and piers, and the filling in from the shore for the purpose, is to be deemed the dividing line between the cities of New York and. Brooklyn. The jurisdiction of the city of Brooklyn must from necessity follow the shore as it advances into t'he river or bay, whether the accretion proceeds from alluvion or artificial deposits and erections.”
Admittedly the county of Hudson, of which Jersey City is a territorial subdivision, extends to the line between New Jersey and New York, embracing the locus in quo. The language of Judge Pratt in Tebo v. Brooklyn, 10 N. Y. Supp. 749,
“The respondent concedes that the lands under water in Gowanus Bay form a part of the county of Kings, but claim that those lands fall within no town. To quote from respondent’s printed argument: ‘The county of Kings includes such land under water, the line running from Red Hook Point to the*430 west, along the southern 'boundary of New York County to the'centre of the main channel to the ocean, but the lands under water fall within no town.’ The idea that land may be within a county and yet fall within no town is so peculiar that clear evidence would be required to satisfy us that such has been the legislative intent. We do not find such evidence. On the contrary, ■ section 1 of the charter of 1854 [Laws N. Y. 1854, c. 884] seems to- assume that the city of Brooklyn is bounded by the hay of New York, clearly implying that Gowanus Bay is included within the limits of Brooklyn.”
- The territory of the .state extends to the middle of New York Bay or Harbor. The question of boundaries here is not between municipalities of the same sovereignty. There is nothing in the acts creating the township of Greenville out of the town of Bergen, or of the -town of Bergen out of the township of Bergen or of the township of Bergen out of the county of Bergen, or of the county of Bergen, that suggest a' legislative" intent to exclude from such boundaries a portion of the state’s territory lying between the upland and its exterior boundary lines in New York Bay. In such case the presumption is, first, that in the dividing of the state’s territory into counties, all of it, for government purposes,, was intended' to be included; and, second, that in the subdividing of the county of Bergen the same legislative intent was carried out.
- The fourth ground, “that assessment was made upon real estate and not upon the interest of the complainant therein,” is disposed of by the conclusion reached on the first ground.
The remaining .contention is that the lien of the taxes has expired; This ground is applicable only on a finding that the lands were taxable by Jersey City. As such taxability has been found, it follows that, if any of the taxes aré enforceable by sale of the land assessed, such sale cannot be restrained on this ground- The bill does not allege, and no claim is made, that complainant paid or offered to pay any of such taxes, and the answer specifically asserts that they were not paid, and the proofs do not show their payment. Section 151 of the act to reorganize the local government of Jersey City, approved March 31, 1871, declares: ’ '" ,
*431 “That all taxes and assessments which shall hereafter be assessed or made upon any lands, tenements or real estate situate in said city, shall be and remain a lien thereon from the time of the confirmation thereof until paid."
Counsel for complainant contends that this provision was repealed by the act of March 17, 1882 (P. L. N. J. p. 130). This act is amendatory of and supplementary to the general tax act of 1846. Query, whether this act limited in its operation to the .act of 1846 which did not apply to special charter provisions (Sheridan v. Stevenson, 44 N. J. Paw, 371) will impliedly repeal such special legislation of 1871 applicable to Jersey City alone, and which was not repealed by the amendments to the New Jersey Constitution inhibiting special legislation adopted in 1875. A determination whether the charter provision is repealed by this later enactment is not necessary, however, in this case. Under the tax adjustment act o'f' March 30, 1886, known, and herein referred to, as the Martin act, and which the record shows has been invoked by the defendants to adjust unpaid taxes, some, if not all, of the taxes challenged in these proceedings, may he made the basis of a new lien. Jersey City v. Speer, 78 N. J. Paw, 34, 72 Atl. 448, affirmed 76 Atl. 1037. Nor is it necessary to consider the further contention that “the lien of all of the taxes prior to 1888 has expired because of the, presumption that they are paid.”
In these proceedings the commission will be,presumed to have proceeded according to law. If in the readjustment of , the taxes the commission has included in its findings, taxes for years to which such presumption could be enforced, or for years the lien for which was lost at the time the premises passed into the ownership of the complainant, and could not thereafter be legally established against his ownership in such lands, an adequate remedy at law, by appropriate proceedings in the state courts, was at his command.
The present case presents no sufficient ground for the injunctive or other relief prayed, and the bill is dismissed.
Reported in full in the New York Supplement; reported as a memorandum decision without opinion in 57 Hun, 591.
