Attorney-General ex rel. Board of Riparian Commissioners v. Hudson Tunnel Railroad

The Chancellor.

The defendants move to dissolve the injunction, on the ground of want of equity in the information. Part of the land in respect of which the aid of the court is sought, is held by the Delaware, Lackawanna and Western Railroad Company, under the lease from the riparian commissioners to the Morris and Essex Railroad Company; another part is held by the Jersey Shore Improvement Company, under like lease. Both leases are perpetual. The state has the reversion in fee in those parts, and holds the rest (so much as is between the exterior line of piers and the state line) in fee simple absolute. It appears by the affidavit of the president of the Delaware, Lackawanna and Western Railroad Company, and the president of the Jersey Shore Improvement Company, attached to the information, that neither of the above-mentioned compa*182nies has consented to the defendants’ taking any part of the premises held by them respectively' under lease. It appears, also, by the affidavit of the chairman of the Board of Riparian Commissioners, that that board has never made any grant, conveyance, or lease, or granted any license whatsoever to the defendants to construct their tunnel, or to do any act on or in .the land described in the information, and that the information is filed at the request of the board. That the defendants have no right to construct their tunnel in the land of the state without first obtaining consent of the Board of Riparian Commissioners, unless such right was conferred upon them by the act of March 21st, 1874, (Pamph. L., 1874,23. 1167,) by which the time for completing the first mile of their tunnel, and for completing the entire tunnel and railroad, is extended, is almost too obvious for remark. The general railroad law, under which the tunnel company was formed, provides (§ 37) that corporations formed under that act shall not take any land under water belonging to the state, until the consent of the riparian commissioners shall first be had and obtained, and those commissioners are thereby authorized to convey the land on such compensation as they themselves may fix. The act further provides that no corporation organized under that act shall be authorized to take, by condemnation, any lands belonging to the state. It is clear, then, that unless the right to occupy the land belonging to the state was, as the defendants’ counsel contends that it was, granted by implication, by the act of March 21st, 1874, the defendants have no right to occupy them. That act recognizes the defendants as a corporation under the laws of this state, and extends the time for the completion of their work, as above stated, and it does no more. It was argued, on the part of the defendants, -that because that act was passed subsequently to the general railroad law, and recognizes the defendants as a corporation under the laws of this state, and gives them time for the completion of their work, the legislature may be presumed to have thereby given the consent of the state to their occupation of so much of the *183land of the state as the defendants proposed, (as the legislature .must have known,) to occupy. It will be enough on this point to refer to the decision of the Court of Errors, in Stevens v. Paterson and Newark R. R. Co., 5 Vroom 532, 553, in which it was held that a statute giving a railroad company the right to lay their road along a river, and to acquire the rights of the shore owners, will not be construed to give, by implication, the right to take the land of the state lying below high water line. Said the court: “ The state is never presumed to have parted with any part of its property, in the •absence of conclusive proof of an intention so to do.” There is no evidence of an intention to grant the land of the state to the defendants, in the act of March 21st, 1874. On the ■case made by the information, the defendants have no right to occupy any part of the lands of the state. Nor can they •obtain any by condemnation. The Attorney-General insists that they can obtain none from the riparian commissioners; for, according to the information, they are prohibited, by ¡existing covenants made between them and their lessees, from ¡giving such consent. The state is entitled to protection ¡against the threatened injury to the reversion. That injury ¡consists in taking possession of part of the property for, and ¡adapting it to permanent and exclusive occupation as part -of a great work. The ground on which the injunction on this point rests, is, that the defendants intend, as their president states, when they shall have made condemnation as against the lessees, to proceed at once with the construction of their tunnel.

But it is urged, on behalf of the defendants, that the injunction should be dissolved, at least so far as it restrains them from proceeding to condemn the rights of the lessees in the premises. It is insisted that the state should not be permitted ,to interfere with the proceedings against its lessees. Were the proceedings against strangers, there would be no ground for, nor propriety in the interference. But it is urged on the •other hand, that the proceedings being against the lessees of the state, in respect to the land in which the state has a rever*184sion in fee, which may be affected if not by, yet by means of or through the proceedings in condemnation, and it appearing-by the information, that the proceedings must necessarily, in view of the covenant made by the state with the lessees, referred to in the information, be fruitless, this court should, in the interest of all parties, stop the proceedings against the-lessees. This is undoubtedly true, if the alleged impossibility exists. If it be assumed that the lessees will not consent to-the granting by the riparian commissioners to the defendants: of the right of way in the land under water beyond the-exterior line of piers, still this court cannot assume that the right of way cannot be obtained. The covenant may not be found to present an insuperable barrier to the defendants* work. It appears to be a covenant based on the provision in that behalf, contained in the fourth section of the supplement-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,” (Pamph. Laws,, 1869, yu 1017,) and to be to the effect that the state will not make or give any grant or license, power or authority affecting lands-under water in front of the lands leased to the above-mentioned lessees. And here important considerations in this controversy present themselves. Is this covenant to be held to absolutely deprive the state of all power of disposition over-the land in question? Will it not be construed to prohibit, only such grants, licenses, powers and authority as will interfere with the full and complete enjoyment of the leased premises, and as is reasonably to be presumed to have been in the-contemplation of the parties to the covenant? Will the grant, of right of way to the defendants, far down below the bottom of the river, in any wise interfere with the enjoyment of the-leased premises ? Besides these considerations, there is, alsoj, the query suggested in the opinion of the Court of Errors, in State v. Hudson Tunnel Railroad Co., decided at the November Term, 1875, 9 Vroom 548, whether the lessees may not be-deprived, by condemnation, of the benefit of the covenant, so> far as may ■ be necessary for the grant of the right of way to *185the defendants. I cannot assume that the defendants will not be able to acquire the right of way. There is even no ground for .assuming that the riparian commissioners, if they find! themselves free to do so, will not grant it.

The injunction should be modified so as to permit the defendants to proceed to condemn, as against the lessees. Otherwise, it will stand for the protection of the rights of the state. The defendants have declared their intention to proceed immediately with their work, after the conclusion of the proceedings for condemnation against the lessees. They not having'acquired the right to do so, as against the state, the rights of the latter should be protected.