93 N.J. Eq. 620 | N.J. | 1922
The opinion of the court was delivered by
This is another phase of an old litigation.
Briefly, the pertinent facts are these:
Jersey City entered into a contract with Patrick H. Flynn for the construction of a new water supply, by the terms of which Flynn was to supply to the city the whole flow of the
The provision of the contract referred to, and which gives rise to the present controversy, is paragraph 4, and reads as follows:
“Fourth — Whenever the contractors shall deliver to Jersey City a valid release from 'the Morris Canal and Banking Company and its lessee, releasing all their rights to divert the waters of the Rockaway river watershed out of said river above said proposed reservoir site, the same to take effect upon their abandonment of .the navigation of said canal between Dover and Montville, under legislative sanction, for a sum therein to be named and to 'be paid upon such abandonment, then there shall be paid over by Jersey City to said contractors all of said sum of five hundred thousand dollars, except the amount named in said release, which last-mentioned amount the contractors authorize Jersey City to pay to said Morris Canal and Banking Company and its lessee upon the actual abandonment aforesaid.”
Ou May 12th, 1909, the Jersey City Water Supply Company obtained from the Morris Canal and Banking Company and its lessee, the Lehigh Yalffiy Railroad Compaq, and delivered to Jersey City an instrument which, after reciting, among other things, the agreement of July 8th, 1901, continued as follow?:
*623 “Now know ye, that we, the said Morris Canal and Banking Company and Lehigh Valley Railroad Company, lessee of the Morris Canal and Banking Company, * * * in consideration of the premises, and of the sum of one dollar ($1.00), to us paid upon the execution of this writing and to be paid to us on such abandonment of navigation, have released, and by these presents do release, unto the mayor and aldermen of Jersey City, their successors and assigns forever, all our rights to divert the waters of the Rockaway river watershed out, of said river above the proposed reservoir site mentioned in said supplemental agreement of July 8th, 1901, upon which site there has since been erected a reservoir below Boonton by the Jersey City Water Supply Company under its contracts with Jersey City. This release to take effect upon our abandonment of the navigation of the Morris canal, between Dover and Montville, under legislative sanction and upon the payment by the mayor and aldermen of Jersey City to us of the sum of one dollar ($1.00) as hereinbefore provided upon such abandonment.”
In the earlier litigation, to which we have referred, the Jersey GEy Water Supply Company sought to have adjudicated by the final decree its right to the present surrender to it of the $500,-000, its contention being' that, by the - delivery of the release aforesaid, its'right to the money had become perfect. This was refused upon the ground, however, that it was not properly embraced in the subject-matter of the litigation, and that the proper way to raise the question wa.s by a supplemental bill to be filed by the water supply company. Jersey City v. Flynn, 78 Atl. Rep. 391. See, also, Jersey City v. Jersey City Water Supply Co., 79 N. J. Eq. 215. That has been done, and the decree made thereon dismissing such supplemental bill is now before us on the present appeal.
On the final hearing, Vice-Chancellor Lewis considered that the delivery of the release did not entitle the water supply company to the present payment of the $500,000, and in this, we think, he was right.
The question at issue is, Has the water supply company, by obtaining and delivering to the city the so-called release of May 12th, 1909, fulfilled the condition of the fourth paragraph of the contract between the water supply company and Jersey City of July 8th, 1901, so as to be entitled to the payment of the $500,000 retained under the decree?
Of course, the determination of that question depends upon the true construction of the language of the contract.
So considered the rights of the parties under the contract are quite certain.
The purpose of the retention of the $500,000 was to protect Jersey City against the abstraction of water from the Rockaway river by the canal company and its lessee to such an extent as to reduce its daily supply below the figure fixed by the contract, and that protection could only be afforded by the actual termination of the canal company’s right of diversion under its charter.
As we have seen, the fourth paragraph of the contract provided that the $500,000 retained should be paid whenever the water supply company should
“deliver to Jersey City a valid release from the Morris Canal and Banking Company and its lessee, releasing all their rights to divert the waters of the Rockaway river watershed out of said river above said proposed reservoir site, the same to take effect upon their abandonment of the navigation of said canal 'between Dover and Montville, under legislative sanation.”
Properly construed, that means that the money should be surrendered to the water supply company as soon as a valid release was delivered, which should be presently effective — that is, one which should extinguish any future right of appropriation by the canal company. Now, the so-called release which was executed and delivered, although following the form of the con-ti act, does not comply with the manifest intent and purpose of the contract. By its terms it does not take effect until 'abandonment of the navigation of the canal between Dover and Mont-
The supplemental bill of the water supply company was therefore properly dismissed, with costs.
The water supply company further complains of that part of the decree of dismissal which allows-Jersey City a counsel fee to be taxed in the costs and) to be paid by the company.
But we think the allowance was proper. No complaint is made as to the amount of the fee, the sole contention being that it was improper, in view of the fact that the prevailing party is a municipal corporation, the argument being based upon the theory (without any evidence to support it) that the city “had not been put to any additional expense” by the litigation. But the mere fact that the successful party is a municipal corporation does not deprive the court of chancery of power to award a counsel fee to the successful party to be taxed in the costs and to be paid by the unsuccessful party. P. L. 1910 p. 427
The decree below will be affirmed, with costs.