The Jersey City news. (Jersey City [N.J.]) 1889-1906, 1899-04-01

THIRT TENTH ST.
Mr.. McDermott's Opinion
About the Fight Against
D. L. & w. R. R. Co.
RIPARIAN SALES CRITICIZED
City at Present Cannot Sue
cessful1y Contest Rights
Granted to Company.
RIPARIAN SALES CRITICIZED

to the recent dispute about Thirteenth
street. The opinion will be of interest to
all of the taxpayers and citizens in that
section. 1t is as follows:-
Hon Edward Hoos, Mayor, Jersey City,
My dear Sir-Replying to your commu-
nication, asking for the status of litiga-
ton to secure Thirteenth street TO the
the people of Jersey City, l have to re-
port as follows:-
The attempt to secure this street from
intrusion by the Delaware, Lackawanna
and Western Railroad was Instituted in
1882. The city authorities then attempt-
ed to prevent the Railroad Company from
laying tracks across the street east OF
Provost street. An injunction was OBJ
tained by the company which filed bill
in Chancery, claiming that the street had
not been opened for public use to the
Hudson River. An answer was filed by
the city, but no further proceedings were
taken to determine municipal rights in
that case, and it seems to have been
abandoned The present litigation was
commenced last spring, having its incep-
tion in the bill filed by the Delaware,
Lackawanna and Western Railroad Com
pany to prevent Jersey City from light
ing Thirteenth street east of Provost
street. Two hundred and sixty. pages
of testimony have been taken by the
complainants and their case was closed
this month. The testimony for the city
will be proceeded with as rapidly as pos
sible.
To proper understanding of the claim
of Jersey City that Thirteenth street is
a public highway, open to the Hudson
River, it is necessary to refer to certain
| facts, in a great measure undisputed, and
| to the adjudication of the State and
| Federal Courts.
In 1854 charter was granted by the
| Legislature to the Jersey Shore Improve
ment Company, under which that COM
| pany was authorized to improve lands,
then owned or to be acquired, and to fill
| in east Of the then high water mark 10
! any extent that would not interfere with
navigation on the Hudson River Under
| this charter the company proceeded to NJ!
| in the. cove east of Provost street, a bulk
| head being constructed across Thirteenth
and other streets as they would have then
| existed If continued to- the present exter-
ior line for solid filling. The bulkhead
constructed before 1860 was coineident or
nearly so with the line for solid filing
| subsequently established by the Riparian II
| Commissioners. In 1871 the Riparian
! the Jersey Shore Improvement Company
| of lands described as then or heretofore
| under the water of the Hudson. River and
| bounded as follows West by the original
high water line, east by the exterior line
| for solid filing north by the centre line
of North Seventh (now Fifteenth street;
street (now Twelfth street,. Claiming to
+ own this land, the Sta conveyed it to the
/ company by lease until 1881 for rental Of
81 sum mot of { s$s 4ss.ss - - : - -
IN 1881 before obtaining grant from
| the State of property described in the
Morris and Essex Railroad Company. Tile
| deed to the Railroad Company was for the
! expressed consideration of $1S00,C00. Seven
foF fayf she atan s aa o sass gram Nh Hhs sss
grant from the State to The Improvement
Company made. any reservation OF
the Tghts Of exsng the or pu6f 6edeae eS
| within the lines of the grant. On the
contrary, the. deed of the State is of all
| the lands within the boundary lines, to
/ the grantee ito appropriate the same to
/ its exclusive USE, Subsequent to the
making of this grant, the case of Hobo
ken v. Pennsylvania Railroad Company
| and others. 1924 u s.. 656, was decided in
| that case the City of Hoboken claimed
/ that John Stevens having, by map OF
! his property, known as the Loss Map, :.
made in 1904, dedicated certain streets
| shown on that map as running to the
/ Hudson River, he and his grantees We're
/ precluded, by such dedication, and by
4 public use, from denying the public right
after obtaining grants, from the state,
mark The U. S. Supreme Court de-
/ cided that ..le doctrine OF estoppel, IN
voked on behalf of the city, was not
applicable. Mr. Justice Matthews, de-
livering the opinion of the Court, said
."The estoppe1 cannot apply to the de-
| PENDANTS as successors to the title or
the State. The grant being iron from the the
i estoppel; for the State in respect to the
| easement claimed Is the representative
of the public, superior IN authority and
| paramount in authority to the City of
Hoboken. and. as we have already seen,
i the existence of the easement defeats the
1 grant of the State. The State, therefore,
being estopped by its grant, Is estopped
/ to deny its effect to extinguish the pub
lie right to the easement claimed. The
i right insisted upon in these actions by
4 the city Of Hoboken is the public right,
and not the right Of individual citizens,
4 abutting on streets made by Stevens
or his successors in the. title. The
public right represented by the
plaintiff is subordinate ,ns TO 70 me me
State may release the obligation 10 me
public. may discharge the land OF me
| burden of the easement and extingulsn
the public right to it's endowment what
aver It may do in that behalf conclusive
| ly binds the local authorities when as
j in the present cases, the rights of action
public right This decision Of the United
1 States Supreme Court was followed IN the
| case of city of Elizabeth v. Central r. Z
4 Co. "a vr.. 1876 1t will be seen by tbs 1i
\ parian Commissioners of the State OF
/ New Jersey embracing within its bound
! arv lines public highways and not reserv-
ways, yacates them the theory, stripped
~ legal verbiage being that the streets
belong to the public, the Riparian Com
4 m;ssioners represent the public, ana their
grant is the grant of the people VINO are,
by their own deed. estopped from SAYING
that they are entitled to use that which
they have granted away.
4 That the Riparian Commissioners OF
New Jersey should never have made a
lease or grant without reserysng All pub
lie RIGHTS in highways found within the
boundaries of such lease or grant is cieaf
! ~, EQdcr1t nave
decided that those Commissioners had the
| Dower to vacate public rights and thai
i they did so when they executed grants
4 similar to that given to the Jersey Shors
4 Improvement Company. w are therefore
met with the fact that exactly similar
grants made by the Riparian Commits
| siorers have been held to yacate stree,s
l axis5ing under the same conditions as are
i found with reference to Thirteenth street
east of the old high water marx, whlcf
5 mark was. on this street, O few feet easl
a of Provost street.
s. arguments and decisions in all the re
norfed eases affecting the title to riparian
u lands in this State, ! am satisfied that /
cannot now be successfully commended ina
any rights were reserved to the pubic Il
grants such as the one given 70 the y erse,
Ssharn Improvement Company, II tn
i Tjpariafl commissioners were empowere.
to make the deed given to that Yooinpan.
s / II would seen, that there does not nov
T exist any right in the public to us
Thirteenth street east OF the ancient higl
8 water line near PROVOST street II tna
: Is SO, the contest must be won by the cit,
q upon points not heretofore presented
=