26 N.J. Eq. 247 | New York Court of Chancery | 1875
The bill in this cause is filed to restrain the defendants, the corporation of Jersey City and the board of chosen freeholders of Hudson county, the board of public works of Jersey City and the contractor for the work, from building a bridge or viaduct, in extension of Washington street, in that city, across the tide-water passage-way, between the dry land on the south side of that passage-way and the dry land on the north side. The city and county authorities are acting in conjunction in building the bridge, which is a necessary connection in the extension of Washington street to East Central avenue. Of the necessity of the connection there seems to be no room for doubt, for access from the dry ground on either side of the passage-way to that on the other side can, at that place, now only be had by the public, either by crossing the Hudson river to Yew York by one ferry and rocrossing by another, or by a detour of land of nearly three miles, or by being ferried over the passage-way in an old scow, kept there for hire for the purpose; the last mentioned means of communication being obviously of an unsafe as well as inconvenient character. The complainants, indeed, insist, that there is no public necessity for a bridge at that place, and that a bridge at Warren street, which is the next parallel street west of Washington street, and is distant about four hundred feet, will supply all the connection which is needed between the two parts of the municipal territory, •which are there separated from each other by the water pas
The complainants’ title to the relief sought by their •bill, is based on their claim to a right of way, granted •to them in 1863, by The Morris Canal and Banking Company, (which then claimed to have the right to make such grant,) and their right as riparian owners. By the grant referred to, the canal company and The Central Railroad •Company,, granted to Matthiessen and Wiechers, (under whom the complainants claim by grant,) and their heirs .and assigns, proprietors and occupiers of the sugar-house property, and of a block of land south of South street, one hundred and fifty feet in length, along the south side of ■South street, and two hundred feet on the east and west sides thereof, and in front of the premises conveyed to Matthiessen .and Wiechers by Solomon Alofsen, a passage-way for the .navigation of vessels doing business in connection therewith, .to and from the above mentioned block and the channel of .the Hudson river, by a canal, one hundred and fifty feet -.wide, along and from the south side of the block to the basin .of the canal company, and a convenient passage across the .same to the said channel; and agreed to keep the depth of .water in the passage-way as great as it then was, and that .they would, before the 1st of July following, dredge the passage-way to the depth of five and a half feet of water, at ordinary low tide, and forever thereafter keep and maintain .it at that depth. The state, in 1867, granted to the canal .company all its right, title and interest in certain land •covered with water, including that over which was the water passage-way granted by that company to the complainants’ grantors. This grant by the state was on the express condi
By none of these conveyances did the complainants acquire any title to the land whereon the abutments or the central pier of the proposed bridge or viaduct are to stand. The title to the laud on which the pier and the northerly abutment are, is in the canal company. The complainants’ claim is to an easement only; and whether the right of passage granted by the canal company, or that which was secured to the shore owners by the act of the legislature of 3 867, be considered, the easement is a public one. The canal company, in 1867, acquired by purchase the title to the land covered by water, over which, in 1863, they had granted and agreed to assure to Matthiessen and Wiechers and their heirs and assigns, owners and occupants of the property in the agreement mentioned, a water passage-way. Their purchase, so far, and only so far, as necessary for the grant of water passage-way above mentioned, which, without title, they had granted in 1863, enures by estoppel as against them, -to the benefit of the complainants. But the right of passage-way thus granted, was a public right, and the effect of the grant, was and is, merely to prevent the canal company and their grantees from interrupting or interfering with that right, as, secured' by the agreement, and to compel the company, as between them and the complainants and their grantees entitled to the benefit of the agreement, to maintain the passage-way. It was the public right of navigation, guaranteed to a limited extent, (for the whole width of the strait was about three hundred feet,) to a shore owner, against destruction or obstruction by the grantee of the state,
It is entirely competent for the legislature, under circumstances such as this case presents, to authorize the construction of a public work which will interfere with the enjoyment of such an easement, and that, too, without providing for compensation for the injury. Though the agreement speaks of the passage-way as a passage-way by means of a canal of one hundred and fifty feet in width, no canal has, in fact, been constructed. The state has authorized the work complained of in this case. By the 64th section of an act approved March 31st, 1871, entitled “an act to reorganize the local government of Jersey City,” it was enacted that the board of public works might extend Warren street southerly to the made ground which then was occupied by the Yew Jersey Central Railroad Company; and for the purpose of carrying out any power by that act delegated to them, the hoard was authorized to construct such piling, trestle work, crib work and bridging upon and over the land covered with water within the limits of the city, as might be expedient; and the title of the state to the land under water, so far as might be necessary for those purposes, was thereby granted to the municipal corporation; provided, that in the extension or construction of said street the work should be so done, and such draws should be made, that as little hindrance' as possible should be presented to the ebb and flow of the tide, and
The complainants allege that the construction of the abutments and pier is contrary to the requirements and prohibitions of the supplement, approved March 31st, 1869, to the act “to ascertain the rights of the state, and of riparian owners in the lands lying under the waters of the bay of New York, and elsewhere in this state,” approved April 11th, 1864, (Pamph. L., 1869, p. 1017); but, by the first section of that act, the premises in question in this suit, with the rest of the land granted to the canal company by the act of March 14th, 1867, are excepted from the provisions of the act. There is nothing in the proposed plan of the bridge to induce this court to interfere with the work.
The order to show cause will be discharged, with costs.