The Jersey City news., 1892-02-20
THE cITY'S PLEA,
Brief of Messrs. Edwards
and Collins In the Great
South Cove Suit.
HOW THE CASE WAS WON.
A Legal Document Which Will In
terest the People of
Jersey City.
ADMIRABLE SUMMARY on THE SITUATION

Owing to the great interest felt by the
public in the important victory won for
the city in the South Cove suit by Messrs.
Edwards and Collius. THE NEWS today
gives the full text of the brief prepared
by counsel. It is as follows:-
This case comes befor the Court upon
formal finding of Mr.. Justice Dixon (who
sat without iury), in favor of the plain
tiff, subject to the opinion of the Supreme
Court upon special case, which either
party, for the purpose OF writ OF error,
might turn into special verdict OF find
ing.
The action was ejectment for tract of
land ceded by the State to the corpora
tion of Jersey City, April 4. 1879 lP. L.,
p. 1856, case. p. G). This land was at the
date Of this act. entirely covered by tide
water Cease, p. ID, line 2S).
This act. in Section 3, enacted that for
the titled conveyed, the city should pay
into the Treasury of the Slate. or give to
the State bond for such SUM of money,
and on such terms as to payment of inter-
est, as the Board of Riparian Commis-
sioners should fix, and that until the Civ
ing of such bond the city could not ente
on said lands. On November 19, 1879
lease, p. 81, the Riparian Commissioners
fixed price for the lands at $1,000, and
directed bond for that sum, payable i n
one year, with interest at z per cent, o
be given to the State. A resolution ac-
cepting the grant was passed by
the Board of Aldermen in 1872,
which resolution was vetoed by tn %
Mayor. upon the ground, among other s,
that the proper Board to take action in
the premises was the Board of Public
Works. The Aldermen, after getting the
opinion OF the Corporation Counsel that
such was the true construction OF the
Ch arter, directed the su bject to be certi-
| fed to 1.-The Board of Public Works for
tn cir consideration and then unanimously
sustained the Mayors veto, The matter
slept until 1885, when the Board of Public
| Works, with the concurrence of the
Board of Finance, passed resolutions
| formally accepting the grant. and direct
| ing bond to be given, in conformity
with tine terms imposed by the Riparian
| Commissioners Cease, p. IL, ct seq. The
| bond was given and afterwards paid
| Cease, p. 14). Almost Immediately the
present action of ejectment was brought.
In 1874, the Riparian Commissioners,
on the assumption that Jersey City had
failed to accept the grant, attempted to
| "vacate" the same. and subsequently, in
the same year, included this tract, so
ceded to Jersey City in their graut to the
Central Railroad Company Of twelve
large tracts Of land under water in the
Bay of New York, the Kill Won Kull, and
| Newark Bay. in the county of
Hudson; in the Arthur Kill in the city
of Elizabeth, and Staten Island Sound in
Union county; in the Arthur Kill and
Staten Island Sound in Middlesex county
| under the tdewaters of the Raritan
River in the City of Perth Amboy. The
| consideration for this grant was $300.000,
| but the tract in question formed an in
significant portion of the lands granted,
aud was evidently thrown in to round
| + boG VI for ha
! Commissioners could. AS will be noticed,
| the Commissioners also included in their
grant the well known ''West line grant,"
| it it had any power to grant it Cease, pp.
| 3S- 39).
The Central Railroad Company, or its
| possession of the tract in question since
this attempted grant of the Riparian
Commissioners, but took no step
toward any substantial reclamation
this suit-see map of 1866, offered by the
defendants. AT the time Of the begin
ming of this action the title, derived from
the Central Railroad Company of New
Jersey, was in the name OF the American
Dock and Improvement Company, the
present defendant; but counsel agree that
no distinction is to be made between the
title of the Central Railroad Company,
| John Taylor Johnson lin whose name at
one time the property was placed), and
| the American Dock and improvement
Com pany, the interest being all the same.
We can best present the plaintiffs case
| by considering the objections urged
against it's title, as set uD in the printed
brief used by defendants counsel before
/ Mr.. Justice Dixon, which presumably
will be followed upon this argument.
].
| The defendants claim that they have
| grant of those lands under the great seal
| of the State, and that 1t can only be i'm
| peached by direct proceeding, and in
| view of the intervening equities, only in
court of equitable jurisdiction.
To this we answer, that the act of the
| Legislature of April 4. 1879, was itself a
| solemn grant of the highest character by
| the sovereign power, and was prior in
point of time to the grant made through
the agency of the Riparian Commission.
| While the grant of the State cannot be
attacked colJaterally. yet where there are
| two grants, the we'll known maxim Prior
in tempore potion in jure prevails. This
| is self evident, and seems 30 have been as
sumed in American Dock and Improve
ment Company VS.. trustees OF Public
| Schools. IL Stew, p. 400.
| II there be any equities In favor of the
defendants they should have asserted
them by bill in chancery to enjoin this
| action at law until the alleged equities
| were adjudicated. The Court in this
action is only concerned in the legal
titles.
That the title vested in Jersey City go
| instanti the act was passed, although the
right to enter was postponed untiP the
giving Of the bond, is too plain TO need
argument. The language of our deed,
the act, is 1.-The State doth hereby grant
to the Mayor and Aldermen of Jersey
in fee simple" etc. That such was the
effect of this particular grant has been
expressly declared in the case of The
Eastou and Ambov Railroad Company
vs. The Central Railroad Company of New
Jersey, 23 Vr. 267-274, where Depue, j..
says:-''The operative words in the first
section, the State does hereby grant,
import grant in praesenti and confer an
immediate estate. When these words are
used in 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 trans
fer of title" Citing cases.) ''If
there be conditions subsequent an
nexed to such grant, no one but the
State or its representatives can take ad
vantage of a forfeiture arising from a
failure TO perform such conditions" Cit
ing case.) "1he third section of the act
is plainly a condition subsequent to the
vesting of the grant"
The case cited, in which this opinion
was delivered, involved the adjoining