Motion — New Jersey v. City of New York

Supreme Court brief1931

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MAY 25 log)

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In the Supreme Court of the

~ United States

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STATE OF NEW JERSEY,

| ‘Plaintiff,

against |

THE } CIT Y, OF NEW YORK

ack ; Defendant.

' MOTION FOR LEAVE TO ANSWER. ANT D

, EN LARGEMEN T OF TIME To AN: SWER.

Mok * Nt

Artuur J. W. Hrity,

Corporation Counsel, :

Solicitor for Defendant.

wi New Yorx:

' M. BY Brown Printing & Binpina Co.,

37-41 Ch S

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Supreme Court of the United States

“OCTOBER TE RM—1928._ ite en gS

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No. “oy Original.

STATE OF New. Jersey,

apes Plaintiff, aN ATs

against MOET,

THE Ciry or New York,

: Defendant: . ‘\

— — @ cent ae ° are ‘ %/

ee - ’ . : »/

Notice, Ng eee ees

To: ° ie ' ne

Hon, WILLIAM A. Srevens..

_ Attorfey G eneral of the State of New Jersey,

Ifén. DUANE E.- MINArp, ete Bak

Assistant . Attorney. General of the State of

. New Jersey, |.

ven Solicitors for Plaintiff

Sirs: >

Pleans ba advised that’on Muriday. May 27, 1999. 29,

the annexed motion-will be presented to the Court

-and application made for the.relief therein pray ed. :

; Dated, New York, May 25, 1929.

ARTHUR J. W. Hity, aie

_Cerporation Counsel,

Solicitor for Defendant.

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4a. . IN THE es ea

> SUPREME COURT OF THE UNITED STATES, +

:,¥ Meer OcToBER TERM—1928,

Baa ae tian NW Me. 21, Original.

STATE OF NeW: JERSEY,

< Plaintiff,

4 . against hie

‘ THE Crry or New York, — .

Defendant. } eile

In Equity. -

|, Morion ror Leave 10 Answer. &np FoR ENLARGE:

ss « . MENT OF TIME TO ANSWER. hi

Comes now ‘the defendant; The City of New

York, by its Corporation Counsel and Solicitor and

shows as follows; to wit: . . ish :

zs - :

PCat EN lan IE ms Bien a wh Pen

1. That pursuant te leave of this Court granted:

on the 20th day of May, 1929, the State of New

Jersey has filed in this Court a bill of complaint”

against the defendant The City of New York, pray-

ing that this Court grant to the plaintiff the United

States’ writ of injunction perpetually restraining -

he deféndant from dumping garbage and other

matter into’the Ocean or other waters of the United

States off the coast of New Jersey and for other |

- “relief. j

Pa ISS Go

. 2. That the suit in equity of the State of New

Jersey so permitted, by this Court, to be com-

menced was docketed as number 21, Original, .

October Term—1928, on the 22nd day of May, 1929.

8. That-this Court’s subpoena ‘to answer the |

aforesaid bill of complaint was issued therefrom

py -thre“deferndamt—onMay 23rd, 1929. In and

. ‘by said subpoena the defendant was directed to ¢&

appear and answer before this Court on May 27th,

Rae

under date ‘of May 21st, 1929, and_was received

1929; and not within twenty days after the issu-

ance. and service thereof as provided in Rule XII

of the Rules of Practice for the Courts of wn

of the United States.

4. That, within the ‘brief. time ‘since the ie

fendant first. received a copy of the bill of com-

.' plaint herein, which was on or about May 9th, .

1929, less than.20 days before it is required to

answer thereto, the defendant has been. and is un-

able to-prepare its answer herein, which inability is

partially due to the necessary preoccupation of its

. Corporation Counsel and_ his Assistants in the

“preparation. of an answer on its: behalf in the

suit now pending in this Court; and brought by: ’

the same plaintiff against the State of New York

and this Anusiicipality as defendants.

5. ‘That ‘the plaintiff, as the defendant is ad.

- vised, consents to an. enlargement of the time of

‘ and extended

the defendant’ within which to answer herein. |

The. defendant prays, therefore, that it be per:

mitted to answer herein, that:its answer, when

prepared, be received and filed, and that its time -

wit

answer to

hich to present and offer for filing its

bill of ‘complaint herein be enlarged

r F alxty days from May 27th, 1929.

ss ' ARTHUR J. W. Huy,

Corporation Counsel,

J. JosernH LILLy,

- of Counsel.

Solicitor for Defendant. °

+ eRe | ee pa aes

= COPY ri - onARLES butt se

"SUPREME COURT OF THE UNITED. ‘STATES.

Onzoams en 1930.

mm m 2

"No. IB, Original.

STATE OF NEW JERSEY, Plaintif,,

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THE CITY OF NEW YORK, Defendant.

REPORT OF THE SPECIAL MASTER

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Me 5. SR yt reg hememaqer or pees re ee we opr TEER me a OT NOUN. VED _

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_ TOPICAL INDEX.

Bill:

Locality

Area “Affected .

‘Summer Resorts ......:.... eh ee Pawel be eGn bee bebdaden 11

ris on oa, oA OE TS ee SNS saree iatesee dubucss dence we a

te. SRE Re ben eiee beNs Pde ed a eedenesuces 13

oar ig, SO EE Ee OTERO Ie SE NEES aie 14

ee a eee PP PERE yr OC eM, pee ee ae

Removal and Expense com ees ee cksweekeanses Leer ices ee TS

_ Water and Fish Nets: ..... ere eo PF erases rats eres 17

Occur, when .... Lake KW WES bea CSE ee eee Ce er eee 18

Dumpin Be eae SANK bes CARS oD Ob hae CUE oe aR a Ee ,.- 18

History of Dumping ...........: eee yrisectudeoeechas 19

Complaints ..:.3.!...... AEE es Pepe ee ee re vrera °

Supervisor’s Reports .....0.0.0......... s endeee mee eer: F

esti sateen hd ano a0 aie Vanes eneneansass roe ae

.Appearance. and Movement SI OEHChs TERA AEE ae RRR we oe 24

_ Incinerators ::........ ae eet. er TET rere eek weuead 27

Some Issues or Facr...........00.....0..... peasibangocx. Ie

Some. QuEsTIons OF pan feeb es CERN s Dawdencnees a ae 36

Trespass PFROAHEY ASSAM ESSER ACAMOL 6 6 6 0b wh boa Wk LD 36

SS in25 nei havea Metis bees 4]

Nuisancé ......... wages CHAU aS aes ee re ee een e 49

PEN igo See eradees wun ieee

. Municipality: Degree TE Ce one a oe 54.

Jurisdiction ,...... PS ew hee ARE SECT Serer er? oe rere iin ae

‘RecoMMeEnpations_ vitae Was ae ues Sen whee wes tieca ves nee Mees 59

‘SUPREME COURT OF THE UNITED STATES.

_ Ocroser Term, 1930. °° ° Pgs

No. 18, Original.

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_ STATE: OF NEW JERSEY, | Plaintif,

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_._ THE CITY OF NEW YORK, Defendan.

_ REPORT OF THE SPECIAL MASTER. |

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" To the Supreme Court of the United States: .

In the above entitled cause this Honorable Court ap- -

pointed me as Special Master by its order dated October :

14, 1929, as follows: ; Serkc

hs ‘And it is further ordered that the Honorable Edward

K. Campbell be and he is hereby appointed Special Master

in this ¢ause. with-power to summon witnesses;. issue sub- - °

poenas and'to take such testimony ‘as may be. introduced

. and such as he-may desire to call. The master is direeted

to make findings of fact and conclusions of-law and to sub-

mit the same to this Court with all convenient speed, to-

gether with his recommendations for a decree. The find-

ings, conclusions and recommendations of the master shall:

be subject to consideration, revision or approval by the ©

Court.”’ | 2c tee :

The parties to the suit, by their respective counsel, ap-

peared before me in Washington, in compliance with my. £

request, in November, 1929, when a time was fixed for. the

i. taking of prodf. Public hearings began at Asbury Park, ~ :

New Jersey, on December. 11, 1929, continuing for three ie

days. Another public hearing was held at Asbury Park

on January 15, 16, and 17, 1930; and another at the same

place on. January 22, 23 and 24, 1930. At these hearings

more than one hundred, and : Sfty witnesses for the plaintiff

were examined.

- Public hearings were resumed in the City. of New York

on March 24, 1930, and continued through March 27, 1930. _

On April 8, 1930, a-public hearing was had at N ewark, New.

. \. Jersey, when witnesses were examined.

F Another : ‘public hearing was held: at Mudiiatin, D. C,, °

on December 0, 1930, and some additional proof was ad-

mitted without - objection. At that time at the request of

counsel and to afford time for prepara jon for-argument———__

____and_briefs-the-Special Master set February.4, 1931, as the .

date upon which arguments would be heard, and on the |

last named date counsel were-heard in oral argument. The’.

motion to amend the answer was then pending: ok,

Except’ to .call upon-the defendant to file a statement _

from its records showing. the quantities of garbage and

refuse dumped at sea for each of the years 1925 to 1929,

both. inclusive, I did not deem it necessary to eall other

a witnesses. : as oe

- Now pursuant to the shove- mentioned ordae T have re-

. ported the testimony and the exhibits received. by me as .

Special Master, by filing the ‘same in the office of. the

Clerk of this Court with: my. certificate, and I herewith *

submit to the Court my findings of fact, conclusions of law

and recommendations. ;

Respectfully submitted, ss

7 Epwarp K. Campsett,

_ Special Master.

SUPREME COURT OF THE UNITED STATES.

“Octoser TERM, 1930. “*

No. 18, Original.

‘STATE OF NEW JERSEY, Plaintif,

; 08. apie tet

THE CITY OF NEW YORK, Defendant.

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REPORT OF .THE SPECIAL MASTER

PLEADINGS.

The Bill.

: The State of New Jersey exhibited its original bill in...

the Supreme Court of the United States against. the City

of New York, a municipal corporation under the laws of °

_ the State of New York, by which the State seeks an in-

- junction restraining. the City, its eontractors-and agents

from’ dumping garbagé or refuse into the waters of the -

Atlantic ocean off thé coast of New Jersey and from defil-

ing the waters and/polluting the beaches of said State:

-(1) The Court’s jurisdiction is alleged ta depend upon

the ground that the suit is one in which a State is a party

within the provisions of Article III, Section 2 of the Con- *

stitution of the, United States.. a’ ; q

(2) The Bill describing the location of the State as &£

oe bordering on the Atlantic Ocean for more than one hundred

miles alleges that the portion of -ocean. frontage more di- .

rectly affected by the matters complained of extends from

Atlantic Highlands to Beach Haven, a distance of approxi-

_ Inately fifty miles, oceupied by a continuous succession of

" municipalities which because of’ their beaches are adapted |

‘to, and their inhabitants are engaged in and rely for their |

livelihood chiefly upon, the business of maintaining sum- §

ofits Oe . cit ee er woe

Siren HTS a Ke Pla et es aes

Suir nes

ot 3.m ©. sipeereernesa kG

AOE ey. SORE ht

pursuit_of-rest, recreation and pleasure.

"mer resorts to which great numbers of people come in the

_—~"(3) It is alleged that the plaintiff possesses, the sov-

ereign ownership of the lands along the shore and under.

- the waters of the ocean, below. highwater mark throughout |

its beach front within its territorial limits and that the

use of the said beaches and the adjacent waters are com-_

mon to the péeople.of the State. - Soe

(4). That. said seashore is famous as a summer resort

and has’ been greatly improved by piers, wharves, pa-

Vilions, bathing beaches and other conveniences for the

health and recreation for citizens of the .State and other

people resorting to these places and that along the sea-

shore’ and for ‘some miles landward the territory is im-

"_. proved : by hotels, pleasure’ resorts, country clubs, rési-’

‘dences and large estates. which are provided and main-

- tained at great expense for the benefit. of summer visitors *

and residents: That the waters of the pcean adjacent ‘to

the said shore -and beaches are largely. used for’ surf, -

-° bathing. and for pleasure boating, for fishing and, other.

" purposes, and. that. many millions -of dollars have been in-

_ vested within the beach section in hotels, bathing pavilions,

piers for landing and for pleasure, boardwalks, boulevards

and facilities for pleasure and profit, and that several thou- ”: ;

sands of people are constantly employed to maintain and

operate the same. '

(0) That ‘the section in question lies: between the two

_ ‘great metropolitan ateds of New York and Philadelphia

* and within easy access and commuting distance by rail or

motor vehicle of people within these areas; that. many per-

sons commute daily between. the seashore and their places |

of business, and the seashore is. visited by many thousands.

of; visitors and excursionists during summer months ‘and

over holidays and week ends, i BG batty Dog etn ch

(6). That the growth, prosperity and substantial prop-

erty values of the seashore communities in question are .

the result of enterprises dependent upon the population and ;

the suitability of said waters, beaches and ‘shore *ront fa;

cilities for fishing, boating, bathing and other seashore

recreations and pursuits, and that the continuance of wee

agencies depends primarily upon the ability of the Stat¢ or

its citizens and municipalities to keep the: waters whole-

some and the beaches and sea front property free from

pollution, contamination, and rico | and unhealthful

conditions. es

(7) That along the ‘eid séction i in question are 1 dated

many fish pounds, constructed under licenses granted/by the

“State or one of its departments and maintained by its ‘citi-. ti

zens who have- made investments in the fishing business of -

large sums of money; that the produttion of these fish

pounds in one year amounts to approximately 20,000,000

- pounds of fish, having a value of nearly a million dollars, «

and that: the peur’! gives employment to approximately.

500. men. .

(8)- It is aiged that the. defendant, with a ‘population Se: .

exceeding 6,000,000 of people and i increasing annually, dis- -

poses of garbage and other refuse by. transporting’ the’: same.

in barges towed out and dumped into the navigable waters

of. the United States off the complainant’ 's coast and that

“many barge loads are so disposed of daily and. ‘may con-—

stantly increase. The Bill specifies a number of articles

and things: composing the garbage and refuse,: much of

which, it is averred, is in a putrid and decayed: condition. —

It-is éileged that a considerable proportion ‘of said garbage

and. refuse floats upon and beneath the surface of the sea

in masses or islands which. obstruct and impede -fishing

boats and other craft until it is driven bys the wind and

tide upon the said beaches and cast. thereon by waves:

‘In heaps. and windrows and under or about. the piers,

wharves, adjacent boulevards and private ‘property, where .

‘it. decays and pollutes the sea and land unless and util

_ removed and’ disposed’ of by the municipality or citizens.

That this removal or disposition from ‘the beaches and

places affected requires large expenditures by the muni- —

cipality and other: large sums. ‘by citizens of te - State.

| That said garbage or refuse in the water and onal upon’

renders the ‘waters noxious, offensive and unfit for fishing,

a Seriously impairs: the usefulness, wholesomeness and safety

of said waters, beaches and short-front facilities and of .

‘the property of the plaintiff, of ‘the miunicipalities and its

citizens,'and thereby greatly damages the property, seri- |

_ ously menaces the health and safety of the plaintiff and.

_ out adequate remedy at law.» -

eS Take the. property of complainant and its citizens — -

. without due process of law in violation of Article XIV,

‘Section 1 of the Constitution; | Shak

oy graph 3 of the Constitution;

ests of the plaintiff and its citizens. Melee o

substantially a general denial of the allegafions of the © |

Bill. A Scenes eee as |.

the beaches and property of complainant and its citizens,

is poisonous and otherwise injurious to human beings and .

to the fish anid other forms of marine life; that it impedes

the opea navigation of the Waters of the United ‘States

clogs, tears and injures the nét of the fish pounds, and |

boating. or bathing, and that the dumping of garbage and. -.

refuse by the defendant creates a public nuisance which

its citizens; that said acts are and will be repeated and —

continued from day to day, and that the plaintiff is with- *

(9) It is further. averred that the acts complained of—

\(b) Regulate and destroy the commerce of the plaintiff -

and\its citizens in violation of Article I; Section 8, para-

vantages of their property. along the seashore: contrary

to its sovereign rights as a member .of the Union,. and, .

(d) It violates Title 83, Chapter IX, Section 407 of the. -

United States Code and other laws of the United States

and that said acts are otherwise detrimental to the inter- -

_ ANSWER,

The answer of the City of Néw York, except in its ‘ad- |

mission of the averments.as to its own population, was-:

Issue was joined upon this answer.

‘After the testimony was concluded and the day had been

fixed for argument before the Master, the defendant on,

to wit, February 2, 1931, filed its motion in this Court ‘for

‘leave to file its amended answer. This motion was allowed '

by the Court on irvine 4 24, 1931, by an order reading as

follows:

“The notion of the defendant for ee to file an

amended answer and to withdraw the answer heretofore

- filed in this cause is granted; provided that the plaintiff’s

reply to the original answer may, if desired, be deemed the

reply to the amended answer and that all proceedings here- |

tofore taken herein “shall stand and shall be regarded as

-having been taken as if the amended answer had been orig-.

inally filed and without reopening the evidence.’ ee

AMENDED ANSWER.

The answer denies many of the averments of. the bill,

~ and not admitting others séts forth ‘‘for a first defense’’:

(1). That the defendant has for many years last past,

dumped the. garbage arid some refuse collected by it in the

Atlantic Ocean, under the. ‘supervision of the Supervisor ~

of the Harbor of New York and in accordance with and

only after the issuance of perniits by said Supervisor |

under the authority conferred on him by the Act of June

29, 1888 (25 Stat. 209), as amended, and now Title 33, Sees.

441, 443° 449 and 451 of the U. S. Code) ‘‘at points eight,

twelve, and twenty miles southeast of Scotland Light Ship

and about ten, twelve and a half and twenty-two miles dis-

tant respectively from: New J ersey shore (being greatly in

‘excess of one marine league-from said shore) and not within

the navigable ‘waters of said State of New Jersey or 6f the

‘.} United States; that in view of the dumping of said garbage

formed. "

|. “and said refuse on the high seas by the said City of New

_ York in the manner and at the points aforesaid this Court

. has no authority to enjoin the said city, the defendant

herein, from said — of gibi or refuse 80 per-

»*

(2) And further answering and ‘‘for a second defense”’

the defendant alleges: «*6, That garbage and refuse in

large quantities,”’ including Various materials set forth in,

the answer, ‘‘has for many years last past been and are

being dumped into the Atlantic ocean from steamships antl .

.other floating equipment, both inside and outside of the —

entrance to New. York harbor and into the sea lanes for ves. |

sels ¢learing for ports south of New York and returning -

., therefrom at distances from two-and a half to eight miles

from the shore of New J ersey, from Highlands to Barnegat.

Lightliouse”’, and that great quantities of condemned food

‘stuffs are and have been for many’ years dumped at sea

at a: point about twenty-five miles southeast of" Scotland

- Lightship, and that private contractors havé, for many

years last past,. dumped, under permits issued by the

Supervisor of the-Harbor‘of New York under said statute, .”

' into the Atlantic ocean at points from three to eight miles

‘southeast of Scotland Lightship, ‘‘excavated and refuse if

materials from ‘deniolished buildings in the City of New ~

York, which’ materials often contain ‘large quantities of

. Yefuse, and other things mentioned; and that such private ©

. contractors and the United States Navy Yard have for

many years been dumping garbage into ‘said ocean either

at points from eight to twenty miles distant from said

Scotland Lightship-or nearer thereto under such permits.

issued by the Supervisor. of th® Harbor of New York; and’ |

' further: that insufficiently treated and unsanitary sewage -

from: the’ cities of Long Branch and Asbury Park for a

number of years last past has been and is being discharged :

into the Atlantic ocean at short distances from the beaches

_ of each of those-cities;and that all of the garbage, refuse.

‘ - and séwage and offensive matter is the same kind and char-

acter as that dumped by the City of 'New York at \points |

eight to twenty miles southeast af Scotlaxd Lightship and

_, from ‘ten to twenty-two ‘miles from New Jersey: shores,

/ That ‘‘such garbage, Tefuse, sewage and other offensive

, Matter discharged as aforésaid by private contractors, by

‘ oT

tlie United-States Navy Yard authorities and by. said New

Jersey citiés into the water of the Aflantic océan in large

quantities would float under the influenge of the tide and

wind into’ the water and on to the beaches of the State of

- New Jersey and its municipalities claimed to be polluted in

this action’? and ‘‘it.is impossible to determine whether

garbage or offensive materials in substantial quantity .

dumped by .the City of New York is deposited in the waters ©

of. New: Jersey and on its beaches or in greater quantities

than that deposited in the‘sea by other agencies than the

City of New York; and that if.any injuries or damages are we

suffered by New Jersey or its citizens or to their health,

safety or property it is not chargeable to the — of the _

defendant; and Ss /

(3) “Poy a third defense the. ‘defendant’ slice that;

the bill of. eo plaint does not state facts sufficient to con-

. stitute che of action | or -to entitle the plaintiff to any .

relief.’ 9

Sent PARTIES AND JURISDICTION.

This is an, original action brought by the. State of Naw

Jersey under authority of'a resolution of its. Legislature,

approved April 16, 1929, by direction of the Govertior of

the State.

- The defendant is the City of New York, a. domestic mu-

nicipal corporation, created by and er under the laws

of the State of New York.

The’ case presents a. justiciable’ controversy’ over whicli

.. this Court has jurisdiction.. (Act. ITI, See. 2, Const. of the.

~ U.S.) (Georgia v, Tennessee Copper Company, 206 U.-S., °

230; Missouri, v. Illindis, 180- U. S. 208; 200°U. S. 496.

New York v. New Jersey, 256 U. S. 296; Wisconsin ve Illi-

- nois, 278 U. 8. 367, 418).

FINDINGS OF F ACT. .

"The facts’ deemed to be established ee the evidence and

which may be oaeeres material to the contentions of the

parties relative to the locality. and area affected, summer

_ ° Fesorts and beaches, ‘fishing and boating; garbage condi- ..

tions and effects thereof on the beaches, and their removal,

effect on surf bathing and the frequency of garbage de--

posits and cause thereof; also some history, of the dumping ©

by defgndant of: garbage and refuse, at sea, and reports by

the Supervisor of. the Harbor of New York, the’ quantities

. of garbage or refuse ditmped, their movements, also rélative

to complaints of conditions caused by the deposits, and to

matters alleged by defendant in defense; and some other -

matters hereafter noted, are as follows :

GENERAL STATEMENT.

A ? (1) Locality.

The State of New Jersey on its easterly side borders on

the Atlantic Ocean for a distance of about: one hundred

miles. A reduced copy of a map in evidenee, showing the -

_ geographical location, .is made an exhibit to the bill. .

(2) Area Affected: - ee ee

_ (a) The part of the State affected more directly by the

matters complained of is that portion of the ocean front-. |

-age extending from a point at or near Atlantic Highlands .

southward to Beach Haven, a distance of approximately ;

fifty miles and inward from the shore at various distances.

- Within this fifty.miles of ocean frontage there are twenty-

nine separate municipalities of the State.. — Cte ee

_ (b) The State of New Jersey, as the proprietary owner’ -

of the seashore, has at different times conveyed to these _

several municipalities, and in. some instances by’ lease or .

- otherwise, to individuals designated, portions of the front--

age under water. No material changes have occurred since

1928 and in that year the ownership of the frontage under

water along the said fifty miles of coast line was as follows:

The State owns approximately 285,000 lineal feet be-

- tween Sea Bright and Beach Haven; the municipalities, ap-

proximately 13,000 lineal feet, and Se parties approxi-

- mately 64,000 lineal feet. : :

The aggregate resident population of these municipali-

ties exceeds 160,000. Their summer visitors exceed this.

: Be many times over. For instance, Allenhurst, a resi- ©

dential place, has a winter population, of 1,000,.and a sum- ~

_mer. population of 3,000. Bayhead has a winter population | |

of 300 and a summer population of some 6,000 or.8,000;

Bradley Beach (winter), 5,000, (summer), 30,000 to 40,000;

'. Ocean Grove (winter), 4,000, (summer), 35,000. to: 40,000.

The figures‘given are approximated. Other municipalities

show about the same general ratio, between. their winter

_ and summer populations.

The assessed value of property within ar 29. mmunici-

palities. for state tax purposes for the year 1929, including

hotels, boarding houses, private housés and places of busi-

ness, exceeded $139,000,000. te

| (3) Summer Resorts. 5

These municipalities’ are’ seashore resorts, inhabited and

maintained as such for the benefit of residents and visitors.

. Many thousands of visitors frequent them during the: sum-

mer season solely on account. of-the benefits and the at- :~

tractions of the sea and the beach for fishing, boating, bath-.

ing and other recreational purposes. There are visitors’ to

some of them at. ‘other’ ‘seasons of the -year than the sum:

mer who go there risk the benefits afforded by the ocean and

air. .

( 4) Beaches.

~ The beaches Along said frontage ink natural S

~ advantages for seashore resorts and from an early date

'- . have been well and favorably known and spatronized as

such. To these natural advantages have been added many

Acie SUA haa ase

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are

Shcsiendet a SoA ete AY

resorts. .

WIAA bind einai arid ge Maia eAE A 13a.“ ain on

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improvements for their protection and improvement, in tlie

_ erection of jetties and piers, board walks and- pavilions,

pools and bathing facilities, ocean front casinos, and. amuse-

ment facilities designed and constructed for the use and. ;

‘ enjoyment of residents and visitors. Upon these the State

and th municipalities’ and citizens have expgnded more.

than $14,000,000. Other projects. already planned eall for

Z eo large expenditures of money. These beaches are

within /easy access of people residing in the metropolitan

-areas Of New-York and Philadelphia, and conveniences of

travel to them are supplied by railroads, good roads, motor

cars and busses. Théy.are accordingly. visited by people

from these areas in great numbers aswell as by people

from other parts of the United States and from abroad

and.from all parts of New Jersey. A record kept of the

-humber of people brought by excursions run by two rail-

roads” entering’ Asbury Park, during a. period of years

Shows -that’in 1924 there were more than 256,000, and. in °

1929 more than 160,000. Its resident population is about

- 20,600.

Phe inhabitants of these municipalities depenil for their

livelihood chiefly upon the. business of: maintaiping stim- .

mer resorts. The ocean, with its. uses and suitableness for

bathing, for fishing-and boating is, the chief attraction which

they can offer visitors. People congregate -at’ them in

numbers in the pursuit of rest, recreation, health and pleas- _

ure. Clean beaches are of the utmost importance to the -

comfort of visitors and the prosperity of residents at these _ -

A large number of photographs were introduced and

filed as exhibits, showing the crowded condition of beaches

by people assembled theré to take part in or witness the

bathing and enjoy the beaches and ocean. | as

There are many private homes in the several towns and

boroughs. In many of these the owners reside during the

Summer and commute to their places of business in New

- York, Philadelphia or some place in New Jersey.

”

oes (5) Fishing:

(a) The statutes’ of: New Jersey provide for a license:

to be issued -by its Board of Fish and Game Commissioners

upon due application therefor. for thé taking: of fish by

means of fish, pound nets, and make it unlawful to erect

and maintain. fish pound nets in any of the waters of the e

_ Atlantic ocean ‘“within. three nautical miles from the coast

line’ without first, having’ procured. such. license,:(N. J..

--P, L. 1919, page 214). Numerous citizens have constructed

and operated ‘such ‘‘fish pounds’? under licenses within

the prescribed area adjacent to the shore and have invested —

many thousands of dollars in the business of taking fish.

The, conduct or operation of these fish pounds and the’

handling of the catch gives ‘employment to ees termiiwncene f

500 persons.

The fish pound nets are extended from’ a point about a —

. quarter of mile from shore outward for a distance of’ ap-

proximately 1500 feet, in water from twenty to thirty-five

feet deep, are supported by poles: driven in the bottom, the

pounds or traps being at the outer, end. ‘ When fish feed-

‘ing along ‘the coast come in contact with the net, which .

‘serves as a wier, they turn tow ard déeper water, following

- the’net and the contraption is such that the fish are thus

led into the’ trap from which they cannot extricate THe

selves and from which they are taken.

More-than one hundred of these fish pounds are located ..

at divers places off the coast of plaintiff and large quanti- |

ties of fish are taken annually and sold from them. The

value of the fish pounds in 1928 was.approximately $700,000. ”

The fish caught amounted to approximately 25,000,000

‘pounds and sold for approximately $950,000. Less’ fish

were taken in 1928 than in 1924, 1925 or 1926, but more in

1928 than in 1927. .

(b) Fishing as a sport is engaged in by many ‘persons

ising boats or the piers or the shore from which to éast.

-their lines’ and furnishes ‘an attractive feature of these :

“resorts. ;

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| (6) Bathing —— |

(a) One of the-most favored: uses of said ocean front,

‘is the-surf bathing. Visitors and residents, are attracted |

by the same and wher the water is not unsuitable use and

enjoy surf bathing in great numbers. The continued at-

. tractiveness of the resorts depends on the water along the

shore being wholesome and suitable. for the purposes of . ~

summer resorts: and the beaches free from -pollution and -

unsightly or unhealthful conditions. . eer

2 (7) Garbage. |

Vast quantities of garbage and refuse are stranded on

_the beaches in question; cast thereon from and by the waters

of the ocean and extending in piles and windrows along

the same. . The’ general. constituents. of these deposits of

garbage and refuse are:

- (1) Garbage of all kinds, including vegetables, such as °

_ cabbage, kale, potatoes, onions, peppers, greens, tomatoes,

turnips, ‘and. other kinds; and fruits, such. as oranges and

grapefruit and the ‘skins and parts -of either; and melon

rinds, banana skins, apples and other kinds, besides bread

' and pieces of meat large and small and remnants from the

Kitchen; and many of these when cast upon the beach’ are

in advanced. stages of. decay and rottenness.

(2) Intermixed with the foregoing is frequently found’

a soft and grease-like matter that settles on. the beach and

renders passage thereon extremely disagreeable because

‘it adheres to the feet and is odorous.

(3) Large numbers of electric light bulbs and pieces ;

thereof ; glass bottles, whole or broken, _. | os

(4) Dead dogs, dead cats and dead fowls. oh ;

(5) Pieces of wood; crates and parts of crates ; bundles

of paper; broken: furniture; rags, cans and. rubbish.

‘The foregoing is’ not an enumeration of all of. the. dif-

ferent things: found in the deposits. There were intro-—— ©

duced in evidence a great variety of things that had been |

found at different times upon the beaches amongst: the gen-

eral mass of deposits. The number of these things exceed.

250 kinds. Included in ‘these and bearing the names and

addresses of business houses and concerns in New York

Qity are such things as billheads, business cards and let-

terheads; paper cartons and labels, bulletins and cancelled

checks ; huntrede of sale slips and order and charge slips ;

large iandie of letters to a New York City’concern; a num:

- ber of ‘‘examination papers’’ in a college in ine York .

| City ; innumerable milk bottle caps -with names thereon

of one or. another dealer in New York City; laundry

tickets, theatre tickets, restaurant tickets and menu cards;——

| papers in large bundles; erdtes and paper boxes, all con-

_.. taining New York City sideeanen. A bundle o letters, —

"postmarked City of ‘New York,’ dated in seiner, |

addressed to‘one family i in, New York ‘City. . Heber aa ae

This conglomeration is spread over and upon the beaches

from. high-water mark to low-water mark, littering the

entire beach,and while at different beaches fii frequently

; appears: a variety such as more of the ‘wooden things,

‘+ “driftwood anid so forth, the general mass appears at: -all

‘of the beachés affected: by the /particular ‘deposit. The

: deposits extend long distances’ along the shores, sometimes |

-* in unbroken lengths of more than twenty: miles and at

other times is limited.to the length of three or four or more |

of the beach fronts. At times the mass does not’ stop at ..

- high-water mark but is cast by the force of the waves under

the boardwalks and into the street ‘beyond. ee, sf

‘the depth of the mass exceeds one foot. .

When the garbage and refuse are cast upon ‘the beaches Ke

they must be speedly removed, especially in summer. The *

conglomeration of things spoken of and referred to’ give.o off

‘offensive odors and when subjected to. the sun’s } rays in-

SREP AE Pe ee tS,

‘16

~ crease in offensiveness and foul smelling that, reach away :

from the- shore to.the ‘streets and. into the homes of. the ©

people. Swarms of flies appear on the mass and feed there.

The offensive odors from these deposits cause annoyance

and discomfort’ and nausea: They’ are unsightly on the -

beaches. -Large proportions of the animal and vegetable

matter forming a part of the conglomeration and being in

the putrid or decaying condition must be disposed of hur-

riedly and are buried.- Other parts are hauled away. At

~ times it requires fifty or more truck loads to remove one

deposit from a single beach. The grease-like matter is re-

moved by rakes. The deposits of garbage, and refuse —

pollute the beaches and produce unhealthful conditions, .

interfering with and frequently preventing the comfort-

able and enjoyable use of the béaches and the sea: It is.”

dangerous to leave children unattended onthe beach while

- the deposits are there because of things they may pick up; ° |

some of the things found beitig unmentionable. Broken

-glass‘and nails in pieces of wood have been the cause of

severe wounds to persons on the beach or in bathing.. The

appearance ‘and condition of the conglomeration is aptly

described ,by witnesses as ‘‘nasty’’ and ‘“‘filthy’?, It is a

menace to health and tends to injure: business and property.

values. It injures rental values. They have been made the

—* Bubject. of many complaints as hereafter’ stated.

During ‘June, July and August, 1929, there were in .

Asbury Park a.considerable increase over the preceding

_year of cases of external otitis which is a swelling or infla-

mation of the ear canal and of cases of infection of the mid-

dle ear, requiring the drum to be. opened, and of sinus. af-.

fected ‘cases, resulting from bathing’ in the ocean, ©

Pure sea water has a high chlorine content arid is quite

antiseptic. - Infection is contrary ‘to the natural conditions~ :

of séa water. One or.more of the Coast Guard incurred |

a skin infection from the. water which gave. them consider-

able trouble. ; ee

"water in the vicinity of the nets in

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(8) Removal and ise: : ett

;

Each deposit of garbage and refuse imposes upon the

- municipalities affected the expense incident to its removal.

Men are regularly employed to perform that duty. .The

cost of cleaning the beaches following such deposits at Bay-

head amounted, in 1929, to $3,000; at Belmar, $2,000; at

Deal, from $1,000 to $1,500 per year; at Al nhurst, $1,000

per year; at Ocean Grove an average of. approximately .

Bradley Beach, for 1928-and. 1929, it ai $2,500; at -

’ $275 in four years; at Seaside Park, $600 "take, Sea-

side Heights, $500 per year; at Spring Lake, $300 per

storm, and in 1929, $700 as the expense of one\removal; and

-various sums at the other places, some in excess of those

stated.

(9) Water and Fish’ Nets.

When the garbage and refuse have been cast upon the

he shores, as stated, it generally. occurs that the water along

the shore line continues to hold in suspension large quan- _

tities of the same kind of material ‘which renders bathing

therein undesirable and impracticable until the water and

its undertow can carry these things away.’ The objection-

able materials, can be seen in the water and. furnish ‘the

basis for many complaints by visitors and others. Usu-

ally the sea clears along the shore in a few days and. at

times, in a day ‘after, the deposit on the beach.

When the garbage or -refuse is cast upon the beaches it.

frequently occurs that fish pound nets in the vicinity of -

such beaches are torn by garbage or refuse in the water

thrown against them, and in addition to the damage so°

resulting they become fouled and difficult to’ handle. The

repair of them from the effects of the-garbage and refuse

- costs many thousands of dollars, which must -be borne, by ~

the owners. The presence of . garbage and refuse in the -

ness‘ of fishing by such nets.

———4

juriously affect the busi- .

as A

+(10) Occur, When. |

‘The deposits of garbage and refuse on the beaches occur

‘when the ‘winds are from the ‘east: or northeast. A storm

or severe blow from either of these ditections does: and

will bring the garbage, and a wind of from twenty to thirty: -

miles an‘hour does also bring it to and upon the shore;

as also does an east or northeast wind of two or three days: |

duration. Sometimes the garbage and refuse are brought -

_in by southeast winds. The heavier deposits occur on some

__ of the beaches four or five times a season, and’ occur fre-

quently throughout the'year, varying in number with the

- different beaches. \ 7 88 Loe

There is no conflict in the testimony as to the foregoing’

general statement. The sections “thereof, numbered _re- |

.. Spectively, (1) to (10), both inclusive, are made a part of

“my findings of fact. < : 3

| (11) Dumping. |

Nor is.there-any dispute as tothe fact of the disposal by

Sa the City of New York of garbage, street sweeping and rub-

bisht by dumping tlie same at. sea. ‘The defendant admits

_ it does now and has for years since thefall of 1918, dumped‘.

these: things in the ocean. It produced a statement from

its records showing that it has dumpe into the ocean: -

during the last six years an average of more than a million .—

and a third cubic yards per year; that he ht yn 1929,

was above that average and exceeded the amount dumped

in either of the three preceding years. Reduced to tons,

the disposal by dumping: in the’ ocean during. 1929\was ap-

_ . proximately 492,000 tons. In the winter months there are

_less materials dumped than in the. summer months.’ In

February 1929 there were 52,000 cubic yards dumped, and -

_in June of that year 192,000 cubie yards. These dumpings,

are made every day except when the weather conditions x

_. prevent. The foregoing section numbered (11), title. \,

' “‘Dumping’’ ‘is made apart of my findings of fact.

———"

scene

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(To avoid ‘repetition of statement I also make a part of

‘these’ findings of fact, the follewing sections, entitled:

History of Dumping, Complaints, Supervisor’s ‘Reports,

~ Quantities, Appearance and movement, and Incinerators,

numbered, skis, ese from 12 to.17 indlusive. )

(12). History of Dumping.

Fo About tw enty. years prior to 1918, the City of New

k disposed of its garbage and street. sweepings by what .

“is known as the ‘‘reduction system’? and except for a brief”

period during 1906 did not dispose of these things at sea.

Some nevessary repairs or alt rations in the reduction’

plant in 1906 made it necessary |to dispose of these mater-

ials otherwise for a short period, and during that period

they went to sea. The by- profiacts: from the ‘reduction

sysfem’’ were disposed of.’

In 1918 the reduction plant at Barren Island, having

been destroyed by fire, occurring in 1917 and the contractor .

operating the one at Staten Island having failed, the ¢ity

was confronted with the situation that it had no method

r the disposal of its garbage and waste, and’ accordingly

> applied to the Supervisor of the Harbor of New York for

permission to dispose of these materials’ at sea. This

Supervisor of the Harbor is an officer provided for by the

Act of Coygress of June 29, 1888 (25 Stat. 209), entitled an

‘‘Act to prevent obstructive and injurious deposits within

the Harbor and adjacent waters of New York by dumping

or otherwise ‘and to punish and prevent such offenses’’,

- This’ Act and some amendments thereto are made Sec. 441 °

et’ seq. of the U. 8. Code, 44 Stat. 1072.

Under date of August 8, 1918,-Dr. R. 8. ‘Copeland, then

Health, Commissioner of ‘New York, addressed a communi-

cation to the Supervisor of the Harbor stating the very

serious situation pass orggem the city because of garbage -

and said; :" ¢-. ; ’

“The only” present method we have of abbtleae rid of

garbage 3 is to dump it atsea. . . « In order to pro-

aon

Syma

20.

tect the héalth of the citizens -of this city it is abso-.

lutely éssential to get rid of the garbage and without

delay. I trust ‘this will meet ‘with your approval.

But I want you to understand that we do not contem- .

plate any permanent use of. so inadequate a system: It 7

‘is simply a temporary expedient to bridge over ah -

emergency.’’ ra :

A similar request for permission went to the Supervisor ef

af the Harbor from the Commissioner of Street Cleaning —

of the city. Because of the conditions thus outlined the —

Supervisor of the Harbor gave permission for the dump-

ing of garbage at sea and prescribed an area southeast of

. Scotland Light Ship in which it should be dumped,

_ Later ‘still, complaints having reached his office from

the Néw Jersey -coasts the Supervisor designated three

dumping’ areas, located. respectively at distances of eight,

twelve and twenty miles southeast of Scotland Light; the

eight mile area to be used during the winter months; the

twelve mile’ area in the early spring and late fall months, °

and the twenty mile area in the summer and later spring

and early fall months. ‘The shorter distances were allowed

in the seasons’ mentioried because of the unseaworthiness -

’ of the scows in the service in the ‘heavy seas usually pre- -

‘vailing during such seasons of the year and the time con-

_ Sumed in.towing them to‘the.dumping places-and-return in

rough weather.. The dumping areas‘are approximately ten, -

twelve and a half and twenty-two miles, respectively from

the shore of New Jersey. | |

The practice of dumping the materials at sea, begun as

an emergency, has continued, but its character_as an emer-

‘gency authorization does not appear to. have been altered. -

The materials to be damped ‘are loaded upon scows at

‘designated city docks from wagons and trucks collecting

them in the city. These scows are towed by tugs in tows of

two or three scows to the area of disposal. Accompanying

each of the tug boats is a ‘“‘dumping inspector’? from the

’ . office of the Supervisor of the Harbor whose duty it is to

see that the dumping is done within the prescribed areas.

eo?

Re,

‘ ‘He is required to report on.each occasion directly to said

office the facts as to the scows and the place of the dumping. By

PS a as (13) Complaints, ,§ 4

I find that complaints have begt“madé and summarize

the facts as follows; ps ress

Complaints of the conditi6f of the beaches and adjacent . ©

waters, produced by thé deposit. of. garbage or refuse

thereon have been. made frequently for years by .visitors

to the different resorts, by residents of the municipalities —

-and by municipal authorities, and by organizations of citi- .

zens having as-a purpose the correction of these conditions.

Such complaints in different forms and the’ conditions .«

giving fise to them have been frequently brought to the .

attention of the defendant, its Mayor and other agents.

In December, 1918, a few. months after the dumping at

sea began defendant’s Mayor requested the. Supervisor °

of the Harbor that he authorize a change in the dumping:

places so as to shorten the distance to be traveled by. the

scows. The Supervisor ‘declined this request, and‘ in his

letter to the Mayor called attention to conditions produced

on the New Jersey shores during the year 1906, when for

a short period the defendant had been authorized to dump

its garbage at sea, and stated that in view of this experi-

ence he should not'be called upon to ‘‘jeopardize the health :

of residents and the sqnitary. condition of the beaches along’

Long Island and. New Jersey coasts by any modification of

the conditions as to the disposition of such offensive ma-’

terials as are present in operation’. And:he added: “As.

I have already stated to you in my previous communica- *

tion, the deposit of this material at the mouth of the harbor

_ is most objectionable from every point of view.’’. '

_ In. the report hereafter mentioned, submitted to ‘the

- Mayor of New York, June 1, 1921, the Committée’ appointed

by him to report on the question of disposal of waste by

' the City, said amongst other things :

_ “‘Aside, however, from the question of cost it seems

undesirable to dump garbage at sea as it is being done at

. . eos eee ‘

—) ot < . . .

‘

~ ,

the present. It is known that the ‘federal authorities

- quietly resent if they do-not openly object, to it, and there

is always the possibility of objection from other. commu-

“ nities which have in the past claimed that. they have been

injured. by the practice.” nee 7

In June, 1923, the Mayor of Asbury Park complained to

the Mayor of. New- York of the condition.. The reports of

the Supervisor of the Harbor in: evidence, show that re-

- peatedly simce 1920 the question of alternative: plans for

garbage disposal has been discussed with ‘the city... The.

| defendant’s Commissioner -of Street Cleaning department

and its Corporation Counsel attended a meeting in 1923

of representatives of the organizations. already mentioned ~

' as formed for the purpose of stopping the pollution of the

beaches and stated in effect that the dumping would soon ~

stop. "9 ;

The several Governors of New Jersey from 1922 to 1929

| have been active and earnest. in bringing the beach einai

tions arising from garbage cast thereon to the attention

of the Mayor of New York, and have appealed to the Sec-

_tetary of War for relief. The Secretary of War has di-

. rected the Supervisor of the Harbor to bring these condi-

tions to the attention of the City and has urged on the

Mayor the “‘importance of early completion’’ of the plans

for incinerators. ~~ _ SF - |

These_beach conditions with promises to_seek remedies

against their continuance havebeen the subject of platform

declaration by one or both of the. two’ major political

parties in New Jersey from 1922 to 1929. : se Bes

Governor Sulzer in 1924 and 1926, Governor: Moore in

1927 and Governor Larsen in 1929 discussed the'same sub-

. ‘ ¥

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—_? 4

ject in their annual messages. - |

’ It has been the subject of joint resolutions by the legisla-

ture in 1927 and 1928 and 1929. ete ces "8

The City of New York, through its Mayor and other re-

-Sponsible agencies, has been informed ‘of these Beach con-.

; ditions and their injurious effect together with the desire

a es

’ of the people of New Jersey that they cease, and this in-

formation has been repeatedly given said city.

(14) Supervisor’s Reports. ~

The Reports of the Supervisor of the Harbor of New

York, included in the annual report of the Chief of Engi-—

neers-for the years 1918 to 1929, inclusiye, mention the fact...

that the defendant’s garbage is being disposed of at sea.

The report for 1918 states that. because of the.destruction

of ‘the plant at Barren Island ‘‘‘it was necessary to, dis-

pose of this objectionable material -at sea’’, and that the

point designated for its disposal was fifteen miles south-

east of Scotland Light. a5 ;

‘In 1919 the report stated ‘that ‘‘the practice of disposing

of garbage at sea has continued.”’ In 1920 the report «

_ states: ‘‘About two years ago at the request of the New

York City Commissioner of Street Cleaning and the urgent

solicitation of the Commissioner of Health the Supervisor

authorized the disposal of city garbage at sea as a tem-

porary measure to continue’ for two or three months only.

The practice still continues and there is no prospeet of an

immediate change.’’ “The substance of this statement ap-

pears in the reports. for the subsequent years. eed

In a letter dated September 10, 1925, from the Secretary |

of* War, in response to one from the Governor of—New

' Jersey complaining of garbage conditions on the shores of

the State, the Secretary disclaimed that any authority to

dump garbage enianated from his office but stated that per-

mission had been granted by the Supervisor of the Harbor

in New. York. ose os a

‘The disposal of its garbage at sea has continued except

that in February, 1924, there was put in operation by the -

_ City of New York a 300-ton ‘‘incineratirig’’ plant, the first

plant after the cessation of the,‘‘reduction system’’. In

- Novetnber, 1925, another incinerating plant was put in

';, operation, and since then additional incinerating plants -

have been put in operation. . ee 7

ia)

(1s) Quantities. :

The amount of garbage and refuse dumped in 1924 was

_ approximately 1,675,000 cubic yards; and in that year one

incinerating plant was in operation, An 1925 the amount — -

_ Was approximately 1,500,000 cubic yards, a second inciner-

ating plant going into operation in November of that: year.

‘ In 1926 the amownt w $s approximately 1,300,000 cubic

yards; in 1927, 1,200,000 eubic yards and in 1928 an in-

crease over the last figure; while in 1929 the amount rose -

to 1,478,165 cubic yards, though ‘there were in operation

nineteen incinerating plants. The amount in tons is ob-

tained by dividing the.cubic yards by three. It therefore.

appears that during 1929 there were 492,721 tons dumped;

an average of more than 40,000 tons per month..

The dumping goes on each day except when the weather

- prevents taking. the scows to sea, which latter increases the.

amount that must be dumped when the scows can g0 to sea.

The daily average exceeds 1,000 tons per day. .The daily

average over the year’s operation does not reflect the con-

_ditions as they are because less garbage is dumped in .

-winter than in summer. Thus in February, 1929, there were

dumped about 52,000 cubic yards, something over 17,000

tons; while in June of that year there were dumped ap-

- proximately 192,000 cubic yards, or 64,000 tons; a daily”

average of more than 2,000 tons: : ;

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( 16) Appearance and Movement. ;

. When the dumping areas is reached, the side gates of

the scow are opened upon signal from the tugs, and the

- contents slide to the water. These are intermixtures of

‘garbage, street sweepings and rubbish. When they slide .

from the scow, large portions sink, but other large portions -

float on the surface or are held in suspension by the water. .

‘The facts confirm the statement made by a Commission ap:

pointed by the Mayor of New York in June, 1907, hereto-

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fore mentioned, that ‘‘unfortunately the less harmful ma-.

terial sinks and the foulest floats.’ ‘These floating and the

_ suspended materials spread in a mass extending at times”

six or more miles in: length, of varying widths, and inter- °

- spersed with lanes’ or ‘‘slicks’’, the latter. so-called because

of grease particles on the surface. Such parts of the gat-

_bage or refuse as float either on the.surface or in suspen-

sion in the water, move with the direction of the wind and

current, the wind exercising the greater influence on ‘the |

direction of its movement. The.mass moves at.times west-

. ward and northward or towards the shores of New Jersey

or Long Island, according to the direction and velocity of

the wind. . .~* xs a ae

The plaintiff caused an investigation to be made at the

_ dumping places in the summer of 1929, of the conditions:

there when the scows discharged their contents. ‘The per-

sons making these investigations made more than thirty

_’ different trips to the dumping places, and on at, least four-

teen of them were close by when the scows dumped their

contents, and they observed the same. cane

_ The defendant sent to the dumping areas-on three occa-

.sions in February and March, 1930, persons to examine and

report upon conditions. The Supervisor of the Harbor sent

an agent to these areas to investigate the floating garbage

- in February, March and April of 1929, and this agent made

six trips. They all concur in the general conclusion, and [ .

find it to be a fact that the mass spreads out on the surface

_of the water, gradually breaking up into smaller areas and —

moving for indefinite periods with the wind, some of ‘the

materials being on the surface and some in suspension.

_ The Supervisor’s agent, instructed to’ follow the’ floating -

mass for 24 hours, found on one occasion that the garbage

went about fourteen miles in twelve hours, the drift being

toward the Narrows; on another occasion the drift being ©

westward under a variable east wind from three to thirty-

five miles, went seventeen miles in 24 hours, and was about

six miles off the New Jersey shore when he left.

. °

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nee |

A large number of fishermen whose ‘business is lobster .

fishing, taking them for miles out from, the shore, were

" examined as witnesses. Many of.these’men go out every

day and have followed their avocation for many: years. ~

They have frequently seen the dumping and the masses of

floating garbage that followed. Their boats pass through

-or around such masses: as they go or come. The mass is

so thick at times that boats cannot go through it. They

have seen. these floating areas of garbage and’ refuse at

various points between the dumping places and the New

Jersey shore, and some have followed it from the dumping

place to where it went ashore. ye rae O55

Members of the Coast Guard from different stations on’

the New Jersey shore have frequently seen floating areas

_ of garbage and refuse near the shore and at some distances

from the shore, the area varying in size from several acres °

to narrow strips. Parts or areas of these masses of gar-.

‘bage or refuse in suspension appear frequently, ‘and are

‘Seen at short distances off ‘shore, by persons on the shore,

\, and some are encountered by persons in pleasure boats or

\fishing boats at divers places off shore. . | te oT een

\ While the parties sent to the dumping places by plaintiff

re there, a photographer among them took a number of

photographs showing the conditions of. the garbage on the

water, which were introduced in evidence.: A number of

the fishermen ,identified conditions which they had wit-

nessed as being similar to those shown by. some of these |

exhibits. The parties sent out as stated by plaintiff cast

into the mass on several occasions a large number of sealed

bottles containing. self-addressed and stamped cards, with

the request that any finder return them by mail. About

twenty-five per cent of these cards came back to the parties.

_ by mail from persons along the New Jersey shore and Long ~

_ Island shore, and some from farther north. Pega ce

- During fourteen times these persons went out in May,.

June and July of 1929, they made a list of things.seen-in Xe:

the water after the scows were dumped. This list contains

‘

- 97.

- the }déntical kinds of materials that are heretofore stated

‘fo constitute the deposits on shore: fruits and fruit skins; .

vegetables, electric light bulbs, papers and rags,- wooden

boxes, crating, pasteboard boxes, dead animals and many ~

other things. The mass falling from the scows forms piles

a foot clear of water. Gradually displacement takes place, _.

and the heavier. stuffs, ee their way through the float-.

ing mass, sink. |

The odors arising from the mass: are jiatios and nause-. .

- ating.. The Supervisor of the Harbor of New York, in his

report to thé Chief of Engineers in 1918, said: ‘‘Garbage

deposited at sea, no mattér what the distance from shore,

-is apt: to wash up on the beaches.’’ In each of his subse-

quent reports. it’is said in substance: ‘‘Experience indi-

cates that garbage at sea at’ no matter what distance is

liable to wash up on the beaches.’’ -

I find_that large parts -of. these floating and diliiiniith

areas of garbage and refuse,. dumped by the defendant, are

- driven and carried by winds and water -to -and. upon the

‘shores of the plaintiff, and ‘constitute the objectionable ma-

terials thereon and in the adjacent water, hereinbefore

' described, and that the winds-in such cases come from the

east or the northeast, and sometimes from the southeast,

as has been noretglors found.

‘(17) Incinerators.

Ss hereinbefore stated, the method of garbage disposal

‘in use by defendant prior to October, 1918, was what was

‘known as the ‘‘Reduction System’’, by which the by- -prod-

ucts were conserved. . It began the disposal of garbage and.

refuse at sea in Uctober, 1918 and has coritinued the same.

In the meantime, however, it has built a number of 1 incin-

erators as will-later appear.

In 1920, a Committee’ was appointed by the Mayor of

New York to report upon the subject of ‘‘Collection and

Disposal of City Waste.’’ “This committee was composed

of-the heads of departments and officials, including the

Health Commissioner of the State, who had requested per-

mission for the disposal ky the city of its garbage at sea,

as hereinbefore stated. The report to the defendant’s

Mayor, dated June 1, 1921, was introduced in. evidence,

Asserting that ‘There is perhaps no more important or

‘difficult task confronting any municipality than this one of. -:

waste removal,’’ the Report made estimates based upon —

the data before the committee that in the Boroughs of Man-

hattan, the Bronx, and Brooklyn alcne, the Street Clean-

ing Department. in 1920- disposed of about ten million cubic ~

, yards of “fashes, rubbish, street Sweepings, garbage and |

: dead animals”’, or approximately 270,000 tons of rubbish,

440,000 tons of garbage and 300,090 tons of. street Sweep- |

ings.’? And further estimated that the number of dead. -

animals, aside from ‘large animals’’ amounted jin 1920 to .

217,600 small animals, such as sheep, calves, hogs, cats and

dogs. Snes

- As to the method of disposal of garbage they reported:

‘The greatest objection to the present. system of disposing

_ of waste materials is in connection with the method now

being used for getting rid of garbage, which is both un-

sanitary and uneconemiéal. For some. years the disposal

of garbage not only didnot cost the city anything, but as

a matter of fact returned a small’ yearly profit. Pec

Aside, however, from the question of eost it seems unde: :

sirable to dump garbage at sea as it is being done at pres-..

ent. It is known that the Federal authorities quietly re--

sent, if they do no openly object to it, and there is always :

the possibility of dbjections from other communities which

‘ have in the past claimed that they have been injured by .

a the practice. . When these objections become sufficiently | -

; _ Strong it may be that New York will find itself so unpre-

; , Pared:.as to be unable to quickly introduce a ‘more satis-

WS he Me

Sa REEDS SP Lac Rit

‘ahossd eno

2 Pree

ey BY a Be id fy

_factory form of disposal.’? | seria Zae

The Committee made no final recommendation for the _

disposition of garbage, as to the method of incineration or —

reduction, pending further investigation. . es sees

Era Shae

Long prior to the foregoing report, which was made June

1, 1921, a report had been made by a Commission consist-

ing of distinguished consulting engineers, appointed by:

Mayor McClellan of New York which reported to him on

December 31, 1907 upon the question of street cleaning and ©

“waste dtsponal. This -report is known. as the Parsons,

-Henry and Whinnery Report... This Committee reported

adversely to dumping garbage. and refuse at sea, among

other things saying: ‘‘All ofthe refuse collections could

be dimped. into the Atlantic ocean, -but unfortunately the

least ‘harmful material sinks and. the foulest floats, so that

much of the floatable mass will be scattered along beaches

through the action of current and wind. This fouling of —

beaches creates a nuisance that: the aaeaei should not be

asked to- tolerate.”

-. Mr. Samuel A. Greeley, an hydraulic and snoltaay engi- _

neer of recognized experience and. ability, with practical -

“know ledge: of the methods of the disposal of garbage, con-

demned the method of disposing of garbage and refuse at

_ sea’ for very much the-same reasons givén by the Commit-

_ tee above mentioned \n their report of 1921. He gave as,

his opinion , that ike incineration or the ‘Reduction

System’’ is good. a, Sues

Considerable portions of its garbage and: refuse collected:

+ by the defendant has been and is being disposed of by

incinerators. constructed by -the defendant. . The first of.

these was put in operation in 1924, some five years after

the dumping at sea. began. In: December, 1929, the de-

-fandant had in operation three incinerators in the Borough

of Manhattan, none in the Bronx, nine in Queens; five in

Brooklyn and three in Richmond.

‘ The Department of Sanitation in “New York City 's a’

newly created one under the law and went into effect on.

-. December 1, 1929. In. took over the jurisdiction formerly~

exercised by the Department of Street cleaning and some -

other agencies of the City. On December 23, 1929, the new

Department of Sanitation presented to the Mayor of the

City a program for increasing the number of incinerators

unreasonably long. . . . -

pes

_ -in the five boroughs as follows:’Five 500-ton plants in |

- Manhattan; four 500-ton plants in the Bronx; five 500-ton >

plants in Queens and five 900-ton plants in Brooklyn, /and

the reconstruction of two plants:in Richmond. * ; ;

The City now has the power of condemnation, which it.

did not have prior to 1929.. It does not appear what if any

action has been taken by the, Mayor or city authorities

upon thé. program presented by ‘the new Department of

Sanitation, Se er es

‘The evidence does not show the cause.of the apparetit

delay: by the defendant in adopting and putting into opera-

tion the incinerating system. It was in 1924, some five .

years after the defendant began dumping at sea that its

_. first: incinerator was ‘put into operation, and during the

next succeeding five years. others were built. Those con- . f

_ strueted and in use fall far short of. taking care of the

garbage and -refuse situation. A. reason offered for the © .

delay is that the City did not have the power of condemia-

tion and could not override objections in localities to the

Operation of incinerators therein. This power was ac-

quired in 1929 and there is no evidence explaining why it

was not agquired sooner. Rdaakueee 2 eee

I conclude that the method of disposing of garbage and ;

refuse by dumping the same at sea is not.an approved or a /-

good system.and that disposition of such material by incin- -

eration or the ‘‘Reduction: system’? is a proper way to dis-:

pose of the same. I further conclude that the delay of ‘de- |

fendant in adopting a proper method of disposal has been

eee ~ ° ae ar

: 7 5 : Pai .

r —__

| SOME ISSUES OF FACT.

The defen nt. contends, however, that the garbage and |

refuse on the beaches result from the disposals, first: by”

steamships, nd second, by scows of private -contractors

and by some others to be named. . , Pos 7

ioe at Bis ae

(1) Steamships:\It is to be observed that the lanes for

European and foreign.vessels to and from New York pass

to the north and east ‘of the designated dumping areas;

that is to say, these dumping areas are between the lanes

and the shores. Veca oan nue Py ere:

. (a) There is evidence that some coastwise and’ other

vessels discharge garbage or refuse into the ocean. Ves-

sels out of New York go southward or come from southern

‘ ports to New York, passing the New Jersey coast at a dis-

tance of from three to eight miles and their general routes

. lie between the dumping places of the\City and the shores.

' The evidence as to the number of such vessels is that

produced by the defendant to the effeet that in December, ~

1925 and January of 1929 there were 1227 vessels entering»

the Port of New York from southern ports,.and during

July-and August of 1929 the number was 1892, That the

number clearing from New: York for southern, ports in |

December, 1928. arid January, 1929, was 1173; and\ iit July

and August, 1929 was 1192... Whether freight-or passenger

vessels, or the relative number of each does not appear, but

if it-be assumed that the vessels’ in and out of New York_:

for the four- months mentioned represent a fair average

of the number for each month of the year and that the aver-> -

age per day is the same: for the different years the result >

would show, that approximately thirty entered from south-

_ ern ports and twenty departed from New York for southern /

ports each day, the difference in number in those coming '

~ in and those going out beihg accounted for by the fact that~

'. some entering New York from southern ports clear there-

from for other than southern ports. - rey nes

_A witness introduced by the defendant, being one of

- the three sent out by. the defendant to examine the condi-

' tions at the dumping ‘places, and ‘a pilot of experience,

_ Made an estimate to the effect that there were twenty ves-

"sels a day going and coming: from southern ports to New

York. 35° | Sess RSL fe ead

The direction of the vessels, whether going to or Clear-

_ing from New York affects the amount and kind of material

"82

they pea Thus Yessels coming: from southern ports

discharge their garbage an@ refuse about as fast as it is

produced, or shortly after leaving their last port of call,

except vessels coming from nearby places, such as Phila-

delphia to New York, which: are supposed. to discharge |

_ their garbage and’ refuse ‘after leaving Delaware break-

water and there is no reason to assume’ that the: vessels’

from southern ports allow these things to accumulate until

‘they arrive off the New Jersey coast. ~ ak

(bh) On the other hand the vessels in New York harbor

which provide for their crews while in port and which do

not provide for the disposal of garbage and réfuse while

in port:(as some vessels ‘and lines do arrange) have to get :

rid of the same after getting out, of the harbor. The sweep-.

ings from -the cargo, the cleanings from the ships, includ-

. Ing dunnage and such crates and -boxes as may. have ac-

- euniulated and other materials are piled upon the deck to-.

gether with garbage preparatory ‘to casting the same over-

board after the vessels have gotten under way. © There is

evidence that some of the vessels and a majority of the

Pines operating out of New York southward do not aceumu-’

‘late garbage or. other refuse matter but make arrange-

“ments for its disposal while. in port. Crews of’ some ves-

sels are maintained on board.and crews of others are not,

~Mmaintained while in port. Therg is évidence that some

vessels southbound begin ‘tthe disposition of their accumu- ©

lated. garbagarefuse and rubbish soon after leaving the

point southwest of Scotland Light and continue to dis-

charge as they proceed. There is an estimated amount by

two or three witnesses for the defendant, ‘being the same

witnesses who- -went out to make the investigation at the

dumping areas for the defendant, that forty to’ fifty tons

are discharged from some of these vessel leaving New |

York. The amount of the garbage that is intermixed with

the other materials is net stated or estimated. © « os

_ (ce) In 1924 owing to complaints to his office of garbage

reaching the shore; the Supervisor of the Harbor sent re- .

° 33 4

"--quests to all shipping companies that their vessels refrain ——

from discharging. garbage within twenty-five -miles of Am-

brose Lightship, ‘and received from thany. of them assur-

ance of their cooperation. : ;

_ (a) ‘There is evidence by one of the witnesses: pear

_ mentioned for the ‘defendant that vessels, sometimes as

_ many as fifty, eoming to. New York, are held by fog or heavy

seas at anchor off the.lightship for a day or two, and while .

there throw. overboard their —, garbage and.

-refuse material. on

There i is testimony by. a speeial agtnt of the defendant’s

: department of sanitation, ‘giving the location f various

‘docks of scows of, private contractors in thie borough of —

‘Manhattan, and that on several occasions in March, 1930,

he visited some of these dumps and saw wagons and trucks |

dumping into these scows a. variety-of materials; and two

other witnesses testified to similar’conditions. -

3 “There is no ‘evidence that any garbage or refuse from.

these’ places is dumped at sea. There is no evidence. that -

_ scows receiving the materials mentioned by the three wit-

| nesses in. March, 1930, dumped the same at ay or where

they disposed ‘of ‘it. ‘

+ On the other el there is ‘testimoniy! from affioors: of

ships operating along the coast that a few bushels of gar-

bage is“cast overboard from vessels coming out: of New

York and largely taken up by gulls; and some members of .

- the Coast Guard testified'that. they have seen ships cast off.

garbage in. smal quantities, these expressing the opinion

that the quantities are tow small to. account for the areas

floating or in suspension in the water. © iy

_ (e) There is evidence that a: foreign’ steamship v was seen

to discharge garbagé on an occasion in or. -‘near.the waters.

of New ‘York Harbor;. and a photograph of ow vessel -on

\ that) occasion was made an exhibit.

, (f) There is evidence that a- witness had taken on his

vess a cargo of condemned onions and. discharged .the

+ .

_— were +

° na

| Aa

Bs det it,

ae:

+t,

ee ae enn) ee outed arbi

- .

° : ‘

losithe Pet ee, eS aN ee ee ee

eo.

a ©

the Supervisor of the Harbor to five different concerns to

dump mud off shore at points designated as three mile

limit southeast of Scotland Lightship, and to three .others

to dump ‘‘cellar dirt’’ at the four mile limit; and to sev-

_.eral to dump ‘fcellar dirt intetmixed with rock”? at the Six

mile limit. These’ concerns dumped the materials men- -

tioned at the various places. .Some other materials. are

_ permitted to be dumped at the eight mile limit.

(h) From time to time and infrequently cargoes BF food-

stuffs; vegetables ‘and fruits, condemned by the Board of. -

Health authorities, are disposed of\at sea by outbound

- vessels undér permits, the amounts heing relatively small.

Such deposits are beyond the area used by the defendant.

A system of patrol boats and of inspection is maintained by

the Supervisor of the Harbor to prevent, Gipeciting mate-

rials at other than the stated areas.

(i) Secows from the Brooklyn Navy Yard dump male

rials at the: ‘dumping areas used by the defendant, their

contents being generally caer and refuse with a small

. amount of garbage. |

(g)- Another source alleged by the defendant in. its

amended answer ‘‘for a Second defense’ is that’ insuffiz —

-ciently treated and unsanitary sewage from the City of

Long Braneh and of Asbury Park has been for a number

of years discharged into the ocean at short’distances from

each of these cities. |

As to the Long Branch,sewer, the evidence consists of a

plan of the ‘sewage system and some evidence fhat ebm-

plaints were at one time made to the Department of Health

which investigated the same; and that. the matters were.

~ satisfactorily adjusted.

As to Asbury Park sewage, there | is evidence that in

March, 1930, witnesses for the defendant made an exami-

nation of that system and at the outlet of the sewer about

o> cn,

same dy’ sea twenty-five miles southeast of Scotland Light ~

ship. .

' (f) There.is ee that permite had been issued by:

ha “

1,000 feet off shore found emerging from the sewer outlet

~feeal, and v vegetable matter and fruit peelings. This phase

was explained in rebuttal by the Superintendent of the -

Water aid Sewers in that city, who described the system

' used, that the sewage collected by the-regular intercepting .

system and no fecal matter-goes out. He explained that

about once a year, and ia winter as a convenient time,

there is an op@ning of the ‘‘blow-off gates to relieve the

sludge tank.of its load’’; and having properly cleaned and

"washed the tank, the valve is again closed, and that during

the period of this operation materials may go into the out-

let thatacannot go there when the valve is closed; that this

kind of cleaning process was in operaticn on March 19,

1930, the date of said visits by said witnesses.

Defendant also introduced a bill of gomplaint exhibited

by the Depattment of Health of New Jersey against As-

bury Park in Chancery in New Jersey, praying an injunc-

tion restraining that city from discharging into the ocean

‘inadequately treated*sewagé from the “municipal, sewage

‘treatment works’’, which discharge, it is alleged, is due to

insufficient capacity. and design of said- works. ,These

works were constructed in 1909. ° Fhis bill was filed i in the .

‘summer of 1930, under a perenomns antierised aM the

_ statutes of New Jersey.

~ I have set forth in perhaps unnecessary detail some of

the evidence -offered by ‘the defendant and have done so

(1) to show the latitude extended in adducing proof when *

much of it under the general denials of the original answer

would: in strictness be inadmissible. It was generally.

heard without objection. And (2) to show something of -

the indefiniteness of the testimony itself:

Manifestly the proof offered by the defendant leaves

much to surmise and speculation. Testimony that some

. vessels discharged garbage and refuse after clearing from

New York falls short of establishing a custom by other

vessels. “Proof that employes of the defendant saw gar-

, bage and refuse dumped into scows of private contractors —

- 7

pe ee ee eee wha

-*-5l Degree of proof.

lishing what occurred in 1929 and prior years.

refuse and that scows with permits to dump cellar dirt

. tities, besides other proof referred to.. *

Giving to the evidence due consideration, I think it should

be concluded that whatever garbage and refuse reaches the

other causes, and other dumpings than those of the de-.

fendant, are negligible in comparison with that constantly

. Winds and waves from the dumping places to and upon

'' plaintiff’s. shores, as hereinbefore stated. AS

_ SOME QUESTIONS OF LAW.

Some questions of law arising between the parties are

as follows: Pater

1. The plaintiff’s. contention that defendant dumps its

garbage in water over soil belonging to plaintiff, that is

to say, in the waters of its marginal sea. ia

: Mecca a“

_. 2. Effect* of permits issued by the Supervisor of the

Harbor of: New York to defendant. sae

3. The question of nuisance.

4. Prescription. —

6. Jurisdiction.

: i - Trespass.

‘The plaintiff- contends that the dumping of garbage by

. defendant is upon its property and therefore constitutes

trespass. on 3 :

in March, 1930, has small probative force towards estab-

There is proof that some vessels discharge garbage and

frequently have with it.pieces of wood in more or less quan-_,

plaintiff’s shores from coastwise and other vessels and) = —

being dumpéd by the defendant, and frequently carried by 7

baal

As the farthest place of the damping is more than twenty ©

miles from the New Jersey shore, the claim that the ‘‘mar-

_-ginal sea’’ of the State extends to and. beyond that point.

is at least interesting. | It is, of course, true that within

its territorial limits property rights ‘are. to be measured

by the rules and decisions of the courts of the State, and

that these will be followed by this Court (St. Anthony Falls

Co. v. Board, 168 U. 8. 349, 362; Baum v. Keohm, 94 U. 8.

324, 338; Rundell v. D. & R. Cand: 20 Howard 80 and 93).

But the plaintiff insists that the limit of ‘its marginal sea

is not to be measured. from the low water line on its shore

but from a line drawn between two headlands projecting

the one. at Montauk Point, New York, and the other at .-

Cape May, New Jersey, and seeks to apply the rule of the

common Jaw for determining whether the head. or arm of |

the sea was within ‘the jurisdiction of a given county or.

“outside of it and therefore under the. jurisdiction of the

- sovereign alone.

~ This method for dete Maisie the pees . jurisdiction

was that the distance between the terrae fauces should be

no greater than to render it possible for a person to dis-

. cern with the naked eye what was being done on the op-

posite shore. Plaintiff argues that in this country,‘‘we_ .

thus determine the jurisdiction of states. rather than of —

counties’”.

This Court said: in Manchester v. ‘Marcatiushtis (139

U. S. 240, 263), that ‘‘there is no indication that the cis-

tomary law of .England in regard to the boundaries: of. -

_ counties was adopted by the Constitution of <he United |

States as a means of determining jurisdiction of states.’

«The Court was there considering a contention that° the

jurisdiction of the. State as between it and the United

- States should be confined to the border of the counties’and

that the counties should: be defined according. to the custo- ©

mary English usage, by the application of the rule as to

‘headlands. This Court said (page 264): ‘‘The extent of.

the territorial jurisdiction of Massachusetts over the sea

__, Railroad Company v. Illinois (146 U. S.-387).

38.

adjacent to its coasts is that of an independent nation, and

except in'so far'as any right. of control over this territory —

has been granted to thie United States’ this control remains

with the state,’” =

In Martin y..Waddell (16 Pet. 307, 410), language from |

which is. applicable to New Jersey, this Court said: “For —

when ‘the Revolution took place the people of each state’

. became themselves sovereign and in that character hold

the absolute right to all their navigable waters and the

- shores to them for their own common use, subject only to

the right since surrendered by the Constitution to the gen-

eral Government.’’ To the same effect see Illinois Central

At the time the plaintiff became a state, succeeding to

the rights of English sovereign, the common law rule wag

that the territorial limit extended “‘enly to such distance

as is capable of command from the shore of the range of

a cannon, which for the purposes of certainty is regarded -

as one marine league, although for the purposes of self-

protection in times of war and for the prevention of fraud

upon its revenues each nation is accustomed to exercise

authority beyond this limit.. (Gould on Waters, 3; ngell

on Tidewaters, 2.) > Pee en C |

In’ Manchester v. Massachusetts, supra, this Court’ said

(p. 258): ‘‘We think it must be regarded as established

that as between nations the minimum limit of territorial.

jurisdiction of a nation over tide water is a marine league

from its coast; that bays wholly within its territory, not

exceeding two marine leagues in width at the mouth are

without this limit, and that included in this territorial juris-

diction is the ‘right. of control over fisheries. * \. > ome

open sea within this limit is, of course, subject to common

law rights of navigation and the government for the pur- -

pose of self-protection in times: of .war or for the protec-

_ tion from fraud on its revenues, exercises authority. beyond »

> this limit,” iat ORE fee eae

39 3 : -

In Cunard: Steamship Company v. Mellon (262. U. 8. 100, -

122), this Court said: “It is now settled in tge United

States‘and recognized elsewhere that the territory sub-. .

ject to its jurisdiction includes the jand area under its

dominion and: control, the ports, harbors, bays and other’ |

inclosed arms of the -sea along its coast, and a marginal

belt of the sea extending from the coast line outward a’ ~

marine league or three geographical miles."2°

The view of Chancellor Kent (1 Kent Com. 30) and of” :

other writers on international law cited by complainant, —

that our Government could reasonably assume the control

over waters of our coast ‘‘though included within lines

stretching from quite distant headlands’’,as for instance —

-from Nantucket to: Mantauk Point, and from that point to

capes of Delaware, and from Florida to the Mississippi

River, do not serve to increase the territorial limits of a

_ state. The headlands mentioned. are not the ‘‘terrae

fauces’’ of thecommon law, which involved points within

the territory of one sovereign. The assertion by the gen-

eral Government of power conferred by the States does :

not operate to increase the territorial limits of a State. The

treaty making power and-that of providing ‘for the common

defense, as well as the power applicable to commerce and-

navigation admit of the assertion of claims by the United. ©

_States.no longer oper to the ‘several. States. (United

States v. Rauscher, 119 U. 8. 407, 418; Gibbons v. Ogden, .

9 Wheat. 1; Maiorano v. Baltimore Road, 213 U. S. 268,

272.) as eres eres ty

As a practical expression by the Federal Government

on this question there may be mentioned the comparatively

recent treaty with Great Britain relative to infractions of

the Prohibition Laws and fixing a limit, sometimes called

__ the ‘‘Twelve Mile.Limit’?, Article I of which provides.

“The High Contracting Parties declare that it is

their firm intention to uphold the principle that three

’ marine miles. extending from the coast line outwards

40 [ ;

; and measured. from law water mark constitutes the

proper. limit of territorial waters’’. (See Ford v.

United States, 273 U. 8. 593, 60¢ ask

3 ‘The State of New. Jersey succeeded to rights of ‘the.

English crown. (See Martin v. Waddell, supra, citing

Arnold v. Munday, 6 N. J. L. 1).

In its first constitution, adopted July 2, 1776, Art. XXTI, »

it is provided: ‘That the common law of England as. well

as so much of the statute laws as have been heretofore

. practiced in this-colony shall still remain in force’ until

they shall be altered by future law of the legislature’’.

(1 Comp. Stat. XXXTII).’ : ‘ She |

_ And in its present constitution, it is provided that the.

~ common law and statute Jaw ‘‘now in force’’.and not repug-

* nant to the constitution shall remain in force until altered

or repealed. (I Comp. Stat. XLVII).: eee’

. The Statute of New Jersey’ defining the boundary of

counties provides (109 Sec. I), the ‘‘territorial limits of:

_ each county of this State fronting upon the sea coast be

and the same are hereby extended to a line parallel with

the ocean shore line of said counties. and extend easterly |

three nautical miles therefrom and the division lines be-

tween said counties as they now exist. be. and the same

hereby are extended from the several points where they

now reach ‘the sea in course due east until they~ severally

reach said outer line of said -counties as hereby estab-

lished.’ (2 Comp. Stat., p. 1703, Public Laws of 1906,'p. /

542). wei nec . 3 ‘

Reference has already been made to- the Act requiring

‘licenses for pound net fishing. “Another Act (2 ‘Comp.

Stat, Sec. 123, p. 252) makes it unlawful for any person

to take with ‘‘purse or shirred nets’’ certain fish in any

_ county within the jurisdiction .of . this State, including a

county on the Atlantic ocean within three nautical miles of

the coast line.’ > ‘ ‘

_In Gough v. Bell (22 N. J. L. 411, 455), it is said: “This”

title, which by the common law of England is vested in the

King, upon the Revolution’ became. vested in the-people of

the State. . . In this State the rule of the common law.

as to the limit of its, rights remains unaltered.’’ ;

_. I think the established rule of.the common lw should be

accepted in determining the territorial limits of New J ersey

in the soil under water and that its claim that the dumping

of garbage is upon its property is not: sustained. :

'. As before stated, large areas of garbage and refuse .

floating upon or held in suspension by the water, which

_ have. been dumped by defendant’s scows, are driven and

~-earried by. wind and water to and upon the shores of plain-

tiff and other portions or‘ areas thereof are held for indefi-

nite periods in the waters above.soil: owned by plaintiff -

and do great injury to fishing and bathing in such waters. .‘

-. 2. Permits.

In its amended answer the defendant alleges ‘‘for a first

defense’’ that it has, for many years last past -dumped

’ the garbage and some refuse collected by it in the Atlantic .

- ocean, under the supervision of the Supervisor of the Har-

‘bor of New York and in accordance with and only after the

- issuance.of permits by said Supervisor under the authority

_ conferred on him by the Act’ of June 29, 1888’’ (29 Stat. °

. 209,.as amended; Sees. 441, 443, 449 and 451 U. §. Code) |

‘fat points eight, twelve and twenty miles southeast of Scot-

_land Light and about ten, twelve and a half and twenty-two

Iniles distant, frespectively, from the New Jersey shore

(being clearly: in. excess. of ‘one marine league from said - |

shore) and not within the navigable waters of said State of ~

New Jersey or of the United States’’ and adds that “¢such -

dumping occurring at these points this Court has no au-

thority"to enjoin said ‘City . . ; from said dumping

of garbage and refuse’’, Ae oe qans

_ The plaintiff insists’ that: there ig no evidence of ‘any

“permits, nen. Pe eae

_ It is a fact that no written permit was introduced in evid-

- ence but this is not to say_ that there is'no evidence “gf

permits. eee: ; see ay! ;

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. app

A witness introduced by defendant and afterwards by

the plaintiff im rebuttal was Captain Anderson, detailed »

under the provisions of the Act of June 29, 1888, to per. .

form the duties of Supervisor of the Harbor of New York.

Captain Anderson, having made a general statement rela-

tive to the. duties of his office under the Act was asked:

: a - Permits have been issued. by your office to the

city of New York to dispose.of garbage and refuse ma-

terial at sea? wie Tee Ohloh oh

‘A. They have. ; Hed

- “Q. Will-you explain for our information as well

‘as.for the record just how these. permits are issued,

- the procedure so that we may understand for the first’

time how. that is done? :

“A. Tn issuing these permits we have dealt directly

with the old department of street’ cleaning, which is

now a division of the- Department of Sanitation. They.

have to apply on a printed form for permission to

* move and dispose of whatever Mass of material tliey \ ©

se have. We have eertain @mping grounds that —

are customarily used and if their request meets’ the

not take place short of the designated dumping ground.

Also we‘have on duty patrol boats from my office which

are customarily stationed in the vicinity of the Nar-

rows and around Sandy Hook anda little outside and ~_

these boats inspect: outward and inbound tows and — |

_IMake appropriate notation upon their. permit, which |

they collect.’’” The statute contemplates that they will

be collected. | Yes . eg as

Tee Se 2 Oe inca aw hinde Fat CRS

oval of the office the permission is granted:and — -

_~the permit is issued. This permit is zood. for only a

limited number of days, eae

“@. And as the barges and. tows proceed to sea

under permit. is there some representative of. your.

Office stationed in-the-upper and lower Bay to inspect

or collect. this permit? Spat anes ae igi

. ‘A. On these. two boats, towing loads of that: de-

-Sseription we have-an inspector, called. a duniping in-

_ Spector, whose job it is to see that the dumping does °

4. eae rs

This. pitnewe further explained that Hie \ofiiceks. on ‘the ‘

patrol boats noted the time of passing and ‘returning by

the tows and ‘these notations ‘‘are subsequently checked

‘up in my office to see whether the lapsed time would per-

mit them to go to designated dumping ground.’’

This officer had testified, as stated, without objection,

that permits were issued to the. defendant. In addition, ©

' the plaintiff has shown by repeated statements inthe ‘re-

ports of the Supervisor made a part of the annual reports

‘of the Chief of Engineers for the years 1918 to 1929, in-

clusive, introduced in evidence, that the Supervisor had 7

given permission to the-detemdant to dispose of garbage |

and-+éfuse at.designated places, and had also shown by

the letter of the Secretary of War to the Governor of the:

‘State that the ‘‘permission’’ was given by. the Supérvisor

of the Harbor and’ not by the office of the Secretary of

War to dump the. garbage i in an ‘‘emergency’’; and further

. by the Supervisor’s statement to the Mayor of the City

"when: the latter requested: a change i in the designated area.

'” Tn addition to these it affirmatively appears in evidence

not only that this officer designated the, place where the

‘damping could be done but theré went from his office with

each tug towing the scows a ‘‘deputy inspector’’ to see to

it that the dumping actually took, place at the designated.

Haces. The established fact is that the defendant had the

Supervisor’s authority to. dump the materials, whatever

that authority may amount to, and would seem to make un-

necessary the production of one or all of the ‘‘permits’’,

which in the ordinary practice of the Supervisor’s office,

would amount, in ten or twelve years, to probably a thous-

and or more. I find as a fact: ‘that the dumping was -by

“permission of ‘the Supervisor of the.Harbor. « —

The Act of 1888, (U. S., Code, Sees. 441° et seq. 44 Stat.

1072) was entitled “An-Act to prevent obstructive and in--

jurious deposits within-the Harbor and adjacent waters of

New York City: by dumping or otherwise =~ to punish and

_ prevent such offenses. sates

Oe RRS acm Se

This Act, amended in 1808 (U. §. Coile, Sec. 443), pro.

Yided that a line officer of the Navy shall be d@signated by .

the President as Supervisor of the Harbor “to Act under

the direction of the Secretary of War in enforcing”? its pro- |

visions. Depositing of. certain kinds of erate in the

‘ tidal waters of New York or its adjacent tributaries of in

those of Long Island Sound ‘within the limit which shall,

be prescribed by the Supervisor of the-Harbor”’ are strictly -

forbidden. One section provided for a’permit defining’ the

‘. precise limits within which the discharge of the scows may

be made. eS Rea eee. 7s 3

_~ Material parts of the Act of .1888, and the amendment

of 1898, are ag follows: Section. 441 and 443 U. S. Code’

‘Title 33. Sees. 441, Deposit of refuse in New York

_ Harbor and adjacent waters prohibited; ‘penalty.—The - °

placing; dischargi or depositing, by any process or

in any manner, o refuse, dirt, ashes, cinders, mud,

sand, dredgings, sludge, acid, or any other matter of

- any kind, other than that flowing from streets, sewers,

"and ‘passing therefrom in a liquid state, in the tidal

waters of the harbor of New York, or its adjacent or

_ tributary waters, or in those of Long Island Sound,

within the limit§ which shall be prescribed by the

supervisor of t harbor, is hereby strictly forbid-

den, and every @eh act ‘is made a’ misdemeanor, and

every person engaged in or who shall aid, abet, author-

ize, or, instigate a violation of this section, shall, upon

conviction, be punishable by a fine or imptisonment, or

both, such fine to*be not Iess than -250 nor more. than

$0,000, and the imprisonment to be not. less than

irty days nor more than one. year, either or both -

united, as the judge. before whom conviction is obtained

shall decide, one-half of said fine to be paid to the per-

son. or persons giying information which shall lead to : :

conviction of this misdemeanor. (June 29, 1888, ¢. 496,

1, 25 Stat. 209.) ani

Sec. 443: Permit for dumping; penalty for taking

_ or. towing boat or scow without permit.—In all cases

‘of receiving on board of any scows or boats such for-

bidden matter or substance as described in section 441

of this chapter, the owner or master; or person acting

in such capacity on board of such scows or boats, be-

s fore proceeding to take or tow the same to the place of

“deposit, ‘shall apply for,and obtain from the super-

visor of the harbor appointed, pFovided in section |

451 of this ¢hapter, a permit defining the precise limits

within which the discharge of such scows or boats may

be made;.and‘it shall not be lawful for the owner .or

master, or person acting in such capacity, of any tug

or towboat to tow or move any scow or-boat so loaded —

with such forbidden matter until such permit shal] have

been obtained; and every person violating the fore-

going.provisions of this section shall be deemed guilty

-of a misdemeanor, and on conviefion' thereof shall -be

. punished ‘by, a fine of not more than $1,000 nor less

, than. $500, and in addition thereto the master of any

tug or towboat so offending shall have his license re-

« voked or suspended for a term to besfixed by the judge

before whom tried and. convicted. ‘(May 28, 1908,

' 212, 8, 35 Stat. 426.) ; aay, chee

_ In United States v. Sadie (41 Fed, 396) Judge Lacombe

speaking’ of this Act ‘of 1888 says (p. 398): ‘‘The bodies of

water referred to are (a) the Harbor.of New York; (b) °

waters adjacent to the Harbor of New York; . (6) waters

tributary to the Hanbor of New York; (d) Long Island

Sound, and ag. to each of these bodies of water there is,a

restriction of application of the Act to such Ww aters only as

are tidal.’’

‘ In the present inquiry only the: first two of these de-

‘scriptions can apply:.the Harbor and waters adjacent to °

the Harbor of New York. — - es ae

The Act contemplated that the Supervi isor orbecetbe cer-

tain limits but there is no evidence in this case as to what

limits. were prescribed, In City v. Leland (45 Fed. 380,

381); there is reference to certain prescribed: limits:

A constructipa.of. the Act: of 1888, as amended, abet ga

important, The defendant relies upon the ‘‘péermit’’ o

af SE) ‘ : ‘ °

46 ae |

the permission. granted by the Supervisor of the Harbor;

-who has ‘no authority other than that which the Act Genfers, *

It may be noted in this conection that this Act is not af-,”

_ fected. by the Rivers and Harbors Act of March 3, 1899 |

- _1°.(U. 8. Code, Title 33, Section’ 407). The latter is a gen- |

. oe eral Act and ‘as was observed by Judge Thateclter. i in ‘‘The |

_. + Albania’? (30 Fed. (2) 727) See. 441, et seq. of the Code’

(the Act of 1888) is a special Act. applied to New York

_ Harbor and vicinity and it may be repeated-in this connee-

. «tion that the Secretary of War in a communication to the

| Governor of New Jersey stated that the dumping by New~

. York City was through permission ofthe Supervisor of

- the Harbor and not by the Secretary. But ‘the purport of

’ the Act: of 1888, as was that of the general Rivers and

‘Harbors Act.of 1899, is referable to the power of Congress

to legislate for the protection. of navigation.

There can be no doubt that the dumping was not within

the limits. of Harbor of New York, as these limits are

spoken of in United States y. Newark, Meadows: ‘Improve- —

ment Company (173 Fed. 426, 428), as being ‘‘ within a line

from Navesink Lighthouse to Scotland Light thence to |

Whistling Buoy in Gedneny’s Channel and thence to Rock,

-away Point prescribed by the Secretary of the Treasury -

as-the limifs of the waters of the Harbor of New York,”’

pursuant to the Act of. February 2 , 1895, (28 Stat. 672). °

-.JIt was done at eight, twelve and tw enty miles, according

| to the season of the year, southeast by east from Scotland

2 Light, one of the’points in the foregoing d¢scription.

3 United States v. Various Tugs and Scows (225 Fed.

| 505), where it-appeared- that permits had: been issued, it

was said by Judge.Hand (p. 507): ‘‘It seems to me that

a a permit to dump no less than four miles east by southeast

, of Scotland Light Ship excludes by implication dumping

within New York Harbor and. its adjacent and tributary

aters. inside of that rca and thus defines the. precise

4 % ee os ~y - ‘ 4 rs Ya ’

° § Bea sae oe para eie as iae Leelee ey * ie a

i . .

render the Government impotent. to protadh the harbor and seo

adjacent channel and waters. In order to sustain a‘ con-

viction under the Act it was held in Warner Quinlan v.

United States (273 Fed.-503), to be necessary for the evid- .

' .. ence to’show that the Supervisor had prescribed sueh limits _

and that the defendant had placed such’ materials within -

such limits. 7

‘If*the liniits of the adjacent waters: be taken as *pre-

‘scribed:by the designation of the places by-which dumping: -

was allowable’ (U. S. v, Various Tugs and Scows, supra),

it is manifest from the distance given that the limits. are in:

excess of ‘‘one marine league from said shoré’’ to use the ©.

words ‘of the amended answer; but it is ‘diffieult_to under-

stand how this fact affords‘any defense in this case. If the

defendant did not dump the materials nearer than the

designated areas the Supervisor’s ‘permission would afford

protection against penalties of the Act. But can it be said

that these permits serve as a defense against the claim. of

others whose. rights have been invaded?

The purpose of the Act is to protect navigation with- ref-

erence to New York harbor. : The authority of the Federal

Government does not extend beyond the requirements of

navigation. (Wisconsin vy. Illinois, 278 U. 8S. 367-415.)

In Cummings v. Chicago (188 U. 8. 410, 431), it was said

with reference to Section 10 of the Rivers and ‘Harbors

Act: of 1899, that its effect ‘‘reasonably interpreted is to.

make ‘the erection of a structure in a navigable river

within the limits of a state depend upon the concurrent and

joint. assent.of both national government and the state gov-

ernment. . .-+. Without such assent the structure can

not be erected by them. “(United States v. inte cierces

Bay Boom. Company, 176 U.S. 211).

In Port of Seattle v, Oregon and Washington Road fw:

_ pany (255 U. S. 55, 63), it is said: ‘‘The right of the use

. Of the navigable waters within the several states is limited

_ to the control thereof for purpose of navigation.’’.

And in United States v. River Range Taabovewent Com-..

. pany (269 U. S. 411, 419), this Court says: ‘‘While Con-

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ie 48

gress in the exercise of this power may adopt, in- ‘its, judg: i

‘ment, any means having some positive relation to the con-

‘trol of ‘navigation and not otherwise inconsistent. with the

Constitution of the United States (United States v«Chand-

ler-Dunbar Company, 229 U. S. 62), it may not arbitrarily”

destroy or impair the rights. of riparian owners by legis-

lation which has no relation or substantial relation to’the

eontrol of navigation or appropriate to that end. 4 _ (See

. ° Wisconsin v. Illinois, 278 U. S. 367, 415.)

The authority conferred ‘by the Act of 1888 upon the

Supervisor was not as general as that found in the Rivers

and Harbors Act, nor was it an arbitrary power. * So far

as the defendant’ s acts are concerned his authority Was a)

only permissive. The title of the original Act (that of iil

- 1888) shows its purpose was to protect the Harbor of New:

York. When the powers of the Supervisor are limited to

that purpose they do not purport to extend to a general

+ authorization to regulate the dumping of garbage outside

‘of the waters specified in the Act. - ~

The powers which the Suprevisor has under the Statute

and the effect to be given the permits authorized to be’

‘issued are to be strictly construed, because of ‘the effect of

the dumping upon the rights of others. ‘‘The doctrine is , |

firmly established that only that which is granted in clear .

and explicit terms passes by a grant of- property fran-

chises or privileges in which the government -or the public

has an interest. . .- . Whatever is not unequivocably,

granted is withheld; nothing passes by mere implication’’,. -

Coosa Mining Co. v. So. Carolina, 144 U. S. 550, 562; Fer-

tilized Co. v. Hyde Park, 97 U. 8. 659, 666.

In order ‘to accord to, the act full scope as a shield: for

‘protection, it is not necessary to raat of it also a sword

of offense. .-

Nor does the fact that the atendant is a ‘monicipal cor- °

~ poration afford immuhity from the results of its own

action. It was said by the Massachusetts Court in Haskell

v. New Bedford (108 Mass.: 208, 214) : “The owner of any

lands bordering upon the sea may lawfully throw: refuse

_-- matters into it provided he does net create a nuisance to.

: others. But it by no means follows that either the city ¢r

any private person. has the right to deposit filth upon the

seashore in such quantities as to create a nuisance to health

-. or navigation. (See. Brayton v. Fall a 113 Mass. 218,

230). This case quotes and approves Franklyn Wharf v.

Portland (57 Me..446, 457), to the effect that ‘The right of

- defendant to construct an outfall, for their sewer in the

_ sea does not include the right to create a ciapeeIGS a

or private.’’ | :

In Noonan v. City of “aay (79 NJ Y. 476, cited in

' Huffmire v. Brooklyn, 162 N. Y. 584, 590), it is said: “A.

municipal corporation has no greater right than an indi- -

‘ vidual to collect the surface water from the land or streets.

into artificial channels arid discharge it upon the lands of

another, nor has it any immunity from legal responsibility

‘thy Theting or-ininiaitinice BulamioeT”. 6

In Block v. Maryland (149 Md. 39), the city was enjoined .

from the commission of a nuisance’ notwithstanding it

. claimed that it was authorized by statute to make a contract, .

and that in the performance of that: contract a nuisance

was created. ’

“My conclusion i is that the Act of 1888, as asnended: fur-.

nishes no defense to the defendant, and that somplianios ee:

with permits from the Supervisor-of-the Harbor acting

under the*provisions of that Act does not furnish a-defense.

_ nor relieve it from the effect of a public nuisance resulting

from or created by its action. eins ns aH,

3. Nuisance *s

"There i is no doubt ( the amended answer r admits) that the |

defendant for years past, at least since October, 1918, has

been dumping large quantities of garbage and refuse at

sea, and principally in places designated by the Supervisor.

of the Harbor of New York. I use the word ‘*principally”’ :

_ because there ‘is evidence that-sometimes through accident.

or .the occurring of something unusual, a few scows have

dumped their i nearer to the shore than the Sppointey

‘

| 4 50 7 ee

places, There is also’ evidence uncontradicted, and I find

the fact to be that some.scows have left upon them consid-

erable quantities of garbage or refuse after their gates

- have been thrown open to release the contents and these

_ remnants are cast off by the men in- charge as the scows’

are being taken -back from the dumping: area. The general !

. practice continues} more materials were bars aie in 1929 7

than in the preceding year. |, | i

As already stated, thé-conditions « on the plaintiff’s shores

‘and adjacent waters produced by garbage and other ob- ae

jectionable materials allegéd in the bill are- proved by un-

contradicted evidence. A’summary of the facts found

may be stated as follows: Ajdong_ the shores aré many

summer resorts.whieh-servé to furnish recreation, pleasure \

“and rest to people. Théir beaches when unaffected-by the :

bad conditions mentioned are pleasure grounds for thou-

sands of visitors. A large number of people living in.and

_ doing business in these municipalities are dependent for

thei. livelihood upon the resorts and the preservation of

their recreational advantages. The summer resorts along

these shores constitute one of the plaintiff’s most valuable

stries-and they suffer frequently: in annoyance and ex- -

pense from deposits ‘of the materials mentioned. The ex- .

pense of the removal of garbage and other materials fatls™

upon these municipalities and individuals, and: this expense.

amounts annually to large sums. Their disposition as soon

as can be after beitig cast upon the shore is imperative. *

Foul smelling and repellent as they generally are when .

first stranded, they become more so as soon as they are

subjucted. to the rays of the sun. They attract swarms of

_ flies. The odors create pacha and sometimes reach into |

_homes., The deposits interfere with, and until removed ~. |,

- 2 .

i. oe =

ew octimy prt tases

frequently prevent, the use and enjoyment of the beaches ©

‘ for the purposes to which the latter are adapted and for

' the comfortable and enjoyable use \of “which people visit

them. They cause many complaints from and disappoint- |

ments to visitors to the several resorts for recreation and -

health, as well as from those -whose business depends upon

“~\

51 a FT:

. the attendance. of visitors. ‘Many visitors leave the resorts

-because they cannot use the beaches when- littered .or secure

the surf bathing when the waters: adjacent hold garbage

and refuse in suspension. ‘The’ shores below: high water

mark and the soil under .the adjacent waters for at.léast

three nautical miles belong to plaintiff, and their. chief

value is in the fisheries and the fact. that they can and do :

afford the attractions pertaining to: summer resorts’ whi

fisheries and attractions are seriously interfered with by

* the deposits in question.

Along with and at times of the deposits thhre frequently>

‘come broken bottles and pieces of glass and wood pieces

with mails therein, and the broken glass and nails-are a.

menace to the bathers in the surf and, to persons on the oe

beaches. Sev ere bodily injuries have resulted from them.

_ The rental value of property has been impaired: bécause of —

the deposits. . The decayed and decayin vegetables and —

animal.matters east upon the: shore is ofles nsive to a high. ~

- degreé to sight and-to smell. The deposits are frequent yo

and recurrent. — _

In, Cleveland v.. Citizens Gas Light Company (20 N. J.

Eq. 201, 204), it is said: .‘‘Any business, however lawful,

which causes annoyances Phat materially interfere with the. —

ordinary cqmforts of human existencé-is:a nuisance which

should be réstrained, and small. noises and bad odors, even

when not injurious to health, may render a dwelling so un-

, comfortable as to drive from it anyone’ not compelled by.

poverty to remain. Unpleasant odors from the very con-

stitution of our nature render us uncomfortable, and when

continued or repeated make life uncomfortable. To live

comfortably is the chief and most reasonable ohject of men

in acquiring property as the means of attaining it, and any*

, interference with our neighbor in the comfortable ‘enjoy-

.,. "ment of life is a wrong which the law will redress.’’

In Northwestern Fertilizer v. Hyde Park, et al. (97 U.S. -

659), this Court: considered a case ¢oming\ from the Su- ~~

_. preme Court of Illinois which involved the question of

nuisance. The Company sought to defend because of its |

- # :

= oi charter fights; but this Court held that the State could ,

: give an effectual remedy, saying (p. 661) : ‘ore rests upon

the: fundamental principle that every: one shall so use his

own as not to wrong or-injure another. . . . Pure air

.° ‘and. the comfortable enjoyment of property are. as much

' the rights belonging to it as the rjght of pede and oe-

eccupancy.’’

; ‘In Georgia v. Tennessee Gogper: Company (206. ::

- « . 2380), the State filed its Bill in this Court to enjoin the dis-

_* ‘charge of noxious.gases from the works of defendant in

‘/ the State of Tennessee. The allegations of the Bill showed

that as a result of these gases there was destruction. of «

forest trees, orchards, crops and other injuries. In ;

— course of the opinion it is said: *‘It hardly is denied and |

cannot be denied with ‘success that this often is carried by *

the wind great distances and ‘over great tracts of Georgia

land. From the evidence the pollution of the air and the.

. magnitude of that pollution are not open to-dispute. ee See

In Mugler.v, Kansas (123 U. 8. 623,. fe Cam

said: ‘*The ground of equity jurisdiction cases of pur-

presture.as well as of public nuisance is the’ability of courts

ofy equity to give more speedy, effectual and-.permanent

‘remedy. than can be had-at law. They can not only pre-

vent nuisances that are threatened and before,irreparable

mischief results but arrest or abate those in progress and

by ee, Basa protect the public against them in

the future. . ‘This is a apes jurisdiction especially

‘where, the nuisance affects the health, morals or safety %

@ the community. a

: Itis well established that vent smells may constitute

‘-. a nuisance. (Baltimore, etc.-Railroad Co. v. Fifth Baptist -

* - Church, 108 U: 8. 317.) In Block v. Baltimore, 149 Md. 29,’

51, where the Maryland court considered a case. arising out

of the transportation of offensive materials by scows from .

: the city to reduction plants, and says’ (p. 56): ‘That the

conditions complained of constitute an unwholesome anath

ger and offense is obvious. +y

53 |

Replying to the contention that’ the bill did not. contain .

allegations sufficient to maintain it, that court, after stat-

ing the facts, said (p. 51): ‘It would be.a.reproach to the,

_law if it afforded the plaintiff no‘ adequate relief fromthe

burdensome and, intolerable conditions shown by those

Fa So Ate CN Re a ves .

‘In Northwestern. Fertilizer Company v. Hyde’ Park,

”

_. supra, this Court, adopting the fmdings of the Ilinois

Court, said: “That a nuisance of so flagrant character

exists, as found by the Court below, is not controverted.”’

' And in Georgia v. Tennessee Copper Company, supra,

this Court granted relief against a nuisance caused by: the

‘discharge of ‘gases from the defendant’s work in Tennessee,

and said (p. 238): ‘It is a fair: and-reasonable demand

“on. the part of a sovereign that the air of its tertitory

should not be polluted on a great scale by sulphuric acid

gas; that the forests on its mountains, be they better or

worse. and:-whatever domestic destruction they have suf-

fered, should not be further destroyed or threatened by

the acts of persons beyond its control.’? (See Missouri v.

Illinois, 180 U. 8. 208; Board of Health v. Schmidt, 83

N. J. Kq. 35, 36; Buttérfoss’ v. State Board, .40 N. J. Eq.

ee thence tals wa

_ I conclude that the conditions described in, this case .

* amount to a public nuisance, and that the State and com-

munities affected should not’ be required to tolerate the

same. aie an Diy si 2 |

Hivagh es, .4. Prescription. :

. The authorities declare that if the. facts develop:a public

_ Tuisance there can-be no prescription. Thus in Block vy. -

Baltimore, supra, the Maryland court said (p. 59): “But

the wrong complained of and disclosed by the evidence

amounts to a public. nuisance and there can be no prescrip- .

‘tion’; (citing Woodyear v. Schaefer, 57 Md. 10). |

' This Court said in Northwestern Fertilizer Company vy,

Hyde Park, sipra: ‘In such cases prescription, whatever

—

the length of time, has no application, Sites day’s con-

tinuance is a new offense.’’ ‘And in Missouri v.: Illinois

(200 U. 8. 496, 520), it is said: “The reasons upon Which

prescription for a public nuisance is denied or may be |

granted to an individual as against a sovereign power to

which-he is subject. have no application. to an independent -

"State. ss aie eo. A ;

5. Municipality: Degree of Proof. Pp

- But the defendant claims that it is performin “gov ern-

mental functions and entitled to invoke the ‘rule of proof

required of plaintiffs in actions between sovereign states,

The rule relied. upon is stated in North Dakota v. Minne- -

sota (263 U. ‘5S. 364), as follows: |

~~ “In such aetion by one’ tate against another the

burden on the complaining state of sustaining the al-—

legations. of. its complaint is much greater than that. '

imposed upon a complainant in ordinary suits between,

private parties. Before this Court. can be,.moved to |

exercise its extraordinary power under the Constitu-

- tion to control the conduct of-another state at the suit

of another the threatened invasion of, rights must be

of serious magnitude and it must be established ‘by .

clear and convincing evidence.’’

“There is a qualification of the rule stated in a case by ;

‘* the State against a corporation or person, ‘Some peculi-

-arity: necessarily marks a suit of this kind. If the State

has a case at all it is somewhat more certainly entitled to

special relief than a private party might be’’ (Georgia v.

Tennessee Copper Company, 206. U. S. 230, 237). And

further in that case this Court said, at page 238: ‘‘*This

‘Court has not quite the same freedom to balance the harm

that will be done by an injunction against that of. which

'. the plaintiff complains that it would have in deciding be-

tween two pu cael ‘of a single political depot

That the defendant is a political subdivision of the State, .

created as a convenient agent for exercising certain govern-

mental powers entrusted to it by the State (Hunter .v..

Pittsburgh, 207 U.S. 161, 178), or is a department of the

’ state government (City of Trenton v. New Jersey, 262 U.S.

182,187) would seem to be settléd by, these cages.

The fact is that the parent State ha’ left to the defendant

the determination. of the method to be adépted in carrying

out certain duties certainly those with reference to sani-

tation, and the further fact is that the conditions com- :

/ plained of liere are. the results of the adoption by the de-

/ fendant, of its own methods. It was not nevessary that the

I. defendant dump its garbage at sea except in an emergency. :

-It was put on notice as early as 1907 by. a report of dis-

tinguished engineers to the Mayor of the City, already re-

ferred to, that the method of garbage disposal by dumping

it at Bea is not’the best method. In discussing that method

of disposition they said as follows:

‘<All the refuse collected could be damaged into the

_ Atlantic Ocean but unfortunately the least harmful »

~ material sinks and the foulest floats, so that much of

the floating mass will be scattered along the beach

through the action of the current and-wind. This foul- .

ing of the beach creates a nuisance. that the public .

should not be asked to tolerate. The cost of ‘sending ,

the scows so far at sea that there would be‘no danger |

' , of fouling the beaches and the delays and interruptions

_,caused by storms forbid the use: of this plan. The

dumping of refuse at sea.shoulf not be resorted to ex-

cept in eases 6f emergency when the burdens of such |

sea-dumping will;be of short duration, ” |

Again in 1921 a Committee appointed by the aoe of

* New York, and above referred. to, made a Teport to the

Mayor in which they stated as follows:

“The greatest objection to the. present - system ,of

disposing of waste material is in connection with the.

method now being used for getting rid of gatbage,

06. ow

which i is both unsanitary and uneconomic. For some

years the disposal of garbage not only did not cost the

City anything but as a matter of fact returned a-small

yearly profit. Aside however fromthe question of

a cost it seems undesirable to dump garbage at sea as it

is being done at present.. It is known that the. Fed- ;

eral authorities quietly resent if they do not openly

object to it and there is always the possibility of ob-

jection from other communities and from the people

“ claiming that they have been-injured by the practice. ,

When these objections become sufficiently strong it may

be that New York will find itself so unprepared as to

4 be unable to quickly introduce | a more satisfactory

i 3 form of. disposal.’? Sia,

Prior to this last report the City had — ee by

the Supervisor of the Harbor of bad conditions on the -

\7-. +. shores arising from the dumping at sea. The Mayor re-..

: 3 "quested the right to dump the scows nearer than the area

at that time prescribed by the Supervisor. - The latter de-

clined the request —— of the complaints. about the gar: |

bage. eee ‘ .. —_

‘The defendant had been satisfactorily using the ‘‘re- .

duction’ system of garbage disposal when ‘in an ‘‘emer- - |

gency’’ it was. authorized to dispose of it at sea. In the

meantime it -has erected a number of incinerating plants

.. and plans to.erect more. One reason given for the delay

in building the needed incinerators is. that the defendant ~

' was not given the power of condemnation of sites. It has

such- power. now, conferred in 1929, and it is a question

whether the defendant, given the right and duty: of per-

forming a function that may be called a governmental }

function but not given the power necessary for its full per-

formanee. may indefinitely follow a course as heretofore.

_ stated to the i injury of others and still claim that in such

matters it is in the position ‘of the state itself. But if the .

_ stricter ‘rule ‘be applied I think the only reasonable con- -

--stusion ‘to be reached: under all the -evidence is that the

, objectionable conditions ‘on the beaches and in the adja-

cent waters complained of in this suit are caused by and,

due to the action of the defendant in dumping its garbage

and refuse into the waters of the ocean as already stated.

There has not only been an invasion of serious magnitude a

- of the plaintiff’s rights extending through some years but

it is continuing and is threatened for an indefinite period. -

6. Jurisdiction.

The defendant insists further “‘that the dumping is done

‘at designated places which are not in the navigable waters

of the United States but on the high seas, more than a.

marine league from the beaches and territorial waters of

the state of New Jersey, over which this Court has, in this

case,.no authority, control or jurisdiction.” ~ ,

There seems to be some inconsistency between the con-

afford protection and yet that the appointed places are

not within the navigable waters of the United States.

The authorities ciged to this proposition relate to the .

cases in the District Courts where the question was whether |

the act complained of was done in’ the one. District or

another, the holding being that an action’ to abate a nuis-

ance must be brought in the District where the nuisance is

_\Situated. (United States v. Newark Meadows Improve-

; poate Company, 173 Fed. 426; McGowan v. Columbia River

_ Power Association, 245 U. 8. 352.) In Mississippi & Mis-

‘sourt Railroad: Company v. Ward’ (2 Black 485), it .ap-

peared that Ward sued the defendant, a citizen of Tlinois

in the District for Towa, to restrain the continuance of an

alleged. nuisance arising’ from the manner of the construc-

tion of a bridge over thé Mississippi River, the boundary

_ between the two states being the cénter of.the river. _The

allegation was‘that the obstruction was on the Illinois side.

This’Court held that the District Court of Towa was with-

out jurisdiction, and said (p. 494) : ‘‘He seeks nothing from

. Sy, ead :

’ the person of the defendant but ‘seeks to remove’ a local |

object because he has sustained certain damages from the

‘ object. .The District Court. has no power over the local

obstruction inflicting the injury nor any jurisdiction to

_ make inquiry of the fact whether the damage had been

sustained or how much. These. facts are beyond the

Court’s jurisdiction and ‘the i inquiry outside of the state.”’

. .This Court has, however, a jurisdiction that the Dis-

4 - triet Court did. not have. In‘the present case both the °

‘ aggrieved and the offending parties are before the Court

g and subject to its decrees: The property affected is within -

-B. the United States. (Massie v. Watts, 6.Cranch 148, 159;

: Hart v. Sansom, 110 U. S..151, 154). In People vy. Inter:

national Nickel Company (168 App. Div. 245, S. C. 218

‘ ae N. Y. 644), it was held that fames from an industrial plant

a _ in'the State of New Jersey brought by the wind into the

B. : . State of New York to the injury of citizens of that State

_ ‘did not constitute an indictable nuisance in New York be-

cause the offense was not committed in New York. The -

' defendant refers to this case -as holding that ‘‘the site of

. this nuisance is in another state. af The ‘New York court,

however, does suggest that the Supreme. Court’ of the

- United States would be the forum for trial of such a case.

This Court has taken jurisdiction in ,just such eases.

(Georgia v. Tennessee Copper Company, supra), where it"

said (p. 237) that the suit was “by a state for an injury to

it in its capacity as quasi- sovereign. In that capacity the.

state has- an interest independent and behind the title of *-

its citizens in all the earth and air within its domains’’;

and further, ‘‘When the states by their union made the

forcible abatement of outside nuisances impossible to each

reasonable demands on the ground, there still remained

quasi- sovereign interests and. the alternative to force is a

. suit in this. Court.’’

In New York v. New Jersey (256 U. S. 296), the plaintiff. .

sought an | injunction. against the discharge of sewage into

DIP eR Dae aan nc RAN ye Ls Mies pA A

. ”

peeeeeeninen:

—

the upper bay, a part.of New York harbor, claiming that

this discharge constituted a serious injury to health, prop-

erty and the welfare’ of the State and xitizens of New York.

This Court took jurisdiction. ‘,

This Court also took jurisdiction i in Missouri v. Illinois °

‘Chicago. sewage into the drainage canal polluted the Miss-

issippi River and created a nuisance. The controversies

were regarded as justiciable by this Court eve ron though aie

finally the bills were dismissed. (See Wisconsin v. Illi- *

nos, 278 U. 8. 367 ; North Dakota v. Minnesota, 63 U.S... xe

365; Pennsylvania:v. West Virginia, 262 U. S. 592),

I ‘conclude the.Court has jurisdiction.: — | :

| There is expert testimony that the. actual construction

period for the building of a- 350-ton incinerator would be.

one year, and that‘ one or more. can be. completed within

that duration of time from the period work Starts on them

- severally. The evidence does not disclose what isa rea-

sonable time for determining: the availability. of. sites and

- for their acquisition. oe ae °

My: conclusions upon the whole case are that the de-

- _ fendant has. created - and continues to produce a public

nuisance on the beaches and property of the State of New,

Jersey, as has been hereinbefore found, and ‘that the plain- .

tiff is entitled to relief in accordance with the prayer of the

bill; but the defendant should be given a reasonable time

within which to put into operation sufficient incinerators *

to care for its garbage and rubbish.’ (See Geor gia v.. Ten-

nessee Copper Company, supra.) |

RECOMMENDATIONS.

-My. recommendations are:

1. That the Court’s decree should declate | that the sit:

tiff is entitled to relief and to an injunction as -prayed for,

| — that before an injunction shall i issue a a time

will be accorded defendant within which to carry into ef.

- fect its proposed plan:for the erection and operation of

incinerators to destroy the materials such as are now being

dumped by defendant at sea. 3 ai

2. That in'as much as oe evidence adduced does’ uo

disclose what such reasonable time i is the case be referred

to a Master for findings’ of fact upon that er

: | a) Respectfully submitted,

EDWARD K.\CAMPBELL, ~— -, |

Special Master.

gO he, RT og 5

eee i

EONAR TA BeNOR IT

FILED

FILECOPY =—|_ teva

Ee GEierneomEm * CLERK

Octoper Term, 1931.

i Per wai

No. a, Original.

STATE OF. NEW JERSEY, Plaintif,

| THE CITY OF NEW YORK, Defendant.

REPORT OF THE SPECIAL MASTER

UPON RE-REFERENCE.

RANA AER ES IE ERIS AI oP Bae or RE

ee nt

Subject .- ; . - : Page

The Question el eue bat Re SEEK « dRiw ice a peas Wiacde stat ,

Findings of Fact :— ee . : 3

_ General Statement Posner voy. ss Gale w rte) Meee ess nes

NOR ree co bie ceie dis bees ee PePecvwaton ene, Pe rete oe Nh.

Other Methods of Disposal . EUR Selo Renee ned weight ee eee

Separation ......... PT ae rar Pe ecieiatadeeen oy he ne

PROpOrtione wae. iis. iv ence ee « ee eanwese IM ose pam

Transfers ..:........ se ateals Sa eae See Me ie

Mien VEIT sak esding sleoobes PRR ee

Time for Construction cas anys Mie pS aig Lint hwie woe 6 CREO 10

- |. SUPREME CO

No. 13, Original.

STATE OF NEW JERSEY, Plaintiff,

US. : ‘ :

| ‘THE CITY OF NEW YORK, Defendant,

he a °

., REPORT OF. THE SPECIAL MASTER

_ UPON RE-REFERENCE.

. Pursuant to the. order inthis cause of May 18, 1931,

the parties plaintifé and defendant,. by: their respective

counsel, having appeared before me at. public’ hearings in

- the City of Washington-on June 29 and 30, 1931, and ‘in’

-' New York-City on July 21, 22, 23 and.24, 1931,‘and having

presented, their evidence and having been heard in argu-

ment with respect to the findings of fact, eonclusions of

law ‘and recommendations for a de¢ree which they have..

respectively requested ; and the matter having been finally

argued by counsel at Washington on September 17, 1931,,

and together with.printed abstract of the testimony having

been submitted, I have reported the testimony thus taken,

with exhibits, ‘by’ filing the’same in the office. of the. Clerk

of this Court, with my certificate; and I now submit to

tlie Court the following report, stating in-this connection °

that the parties by their counsel have agreed upon terths

for a decree and the same is filed in the office of the. —

Clerk of this Court.

URT OF THE UNITED STATES.

October Term, 1931,

4 eet EGOS L oe ——t =- FROME MENT ebm PN ee een

Di a eA ie al a aa IN Bn EE ig ag ares ee a Ea ee 3

ere Seeds GOR ETE LE enon a % 6 ‘i Ca Sine a Ses .

. .

i 7 i . -

¢ ; one 4

> . rf - .

ately

_ tons per day; nine incinerators in the

. THE’ QUESTION. _ |

By the decree of May 18, 1931, the cause was referred

_ to me. as Special* Master to ascertain and report. what

would be a ‘reasonable time to be accorded the defendant,

The City of. New York, within which..to: carry into eilicos

‘ , its proposed plan for :the erection.and operation of incin-

" -erators to degtroy the materials such as are now being

- dumped at sea, or to provide other. means, to be approved:

_. by the decree, for the disposal of such materials.

bye eet

"FINDINGS OF FACT.

(a) General Statement:

The City of New York is ee of. five Seven !

whose population,. according to the Census of 1930, is as

follows: : |

| RI 5 Se ae

A ae se ae Se a 1; 265, 258 .

| POONIFR ns oe a

Queens... =. Serie Ager me: ae

Pachmond «2. ee --- 158, 346

“Total = 22. a-an-2---H-2---- 6, 930, 446

- In Manhattan the resident ‘population i is shrinking some- .

what; inthe Bronx, Brooklyn and Queens it is increasing z

rapidly, and in Richmond moderately. .

- The ‘garbage and refuse being dumped at sea goes from °.

the Boroughs of Manhattan: and the Bronx. There are

now. three incinerators in Manhattan and none in the

Bronx. The three in Manhattan have-a rated capacity of .

940 tons: per day.. There are five garbage ineinerators *

in the Borough of Brooklyn. with a aes capacity of 1700

orough of Queens,

with a rated capacity. of 1230 tons per day, and five incin-

erators i in Richmond with a rated capacity of 540 tons per

“day, making a total of 22 incinerators in the City of New

York. |

ré

: é (b) Plan for Incerators: *

‘The 22 incinerators in the four Boroughs mentioned were

in operation in December, 1929, when the Department of

’ Sanitation was é¢reated, whose jurisdiction extends, among

other things, to the disposition of ashes, garbage, rubbish

_and street sweepings. In December, 1929,. the: Sanitary

Commission, through its Chaifman, made a report: to the

Mayor of the City setting fortif a comprehensive program

‘for the construction of 19 additional incinerators and the ~

repair of two others, as being sufficient in number with the .

old to consume all garbage and rubbish produced by. the

City until the year 1945. eh

-- On May 1, 1931, the Engineering division of the’ Depart-

‘ment of Sanitation filed its report with the Chairman of

~ the Sanitation Commission, stating that:

“Tn accordance -with your recent instructions. the Engi-_

neering division has made a careful study of the disposal ~

of rubbish and garbage in the City of New York, and here-

with presents a comprehensive plan for the construction :

of incinerators to take care of the combustible refuse which

--is now a prolific source of discomfort and complaint. ..

_. Your will please note that the present project or plan calls

for five incinerators in Manhattan, four in the Bronx and

five in Queens; the respective-costs of construction being

estimated at $5,575,000 for Manhattan, -$6;250,000 for. the .

Bronx.and $5,375,000 for Queens. An examination of the

- engineer’s report will show that the program will take care

_of the three Boroughs of Manhattan, the Bronx.and Queens |

_up to and’ including the year 1945, the calculations. being

_ based. on the 1930 Census, with an allowance of the same

percentage of increase as has actually taken place in vari-

. ous boroughs during the last ten years. The construction

of the plants recommended will enable each one of these

three boroughs to destroy all of the rubbish and garbage -

the nuisance caused by the distribution of same in land ~

dumps, water-front dumps and at sea.’” , ;

He recommended that the first vrrer be for four incin-

Queens, and stated that. the three sites have already been

acquired | and the fourth has: been certified for purchase

‘by the Commission.~ aes :

On May 6, 1931, this et was transmitted by: the @hair-

“mhan-of the S nitary Commission to the.Mayor of New York

as ‘‘a sport of the Sanitary Commission on the general

wet for rubbish and ¢ garbage disposal by the process of |

incineration’’. There has been some modification of the

. general plan for 19 incinerators, occasioned by the deci- :

sion of the Sanitary Commission to erect new incinerators

of larger rated capacity than were formerly contemplated.

The evidence shows that the defendant’s plan for garbage

- disposal involves the er ection of 14 new incinerators, which

will take care of the matter of garbage disposal at least

until the year 1945, and that such a plan, if consummated,

is a proper and effective means for such disposal.

The quantities of garbage and refuse now being de- ,

posited at sea off the New Jersey coast by the City of\New ~~

York during the: greatest dumping at‘its peak in sum ae

from June to September, inclusive, of each year and\ for |

some years to come if present methods continue, amounts.

. to an approximate average of 3,000 tons per day. To burn.

this quantity during the summer months mentioned and to’ ~

provide for future needs, there should be additional incin-

erating capacity of 3,000 tons per day to be provided by

new incinerators, unless by an increase of consumption by ’

existing incinerators, or some temporary. expedients for

disposal, the need for new incinerator capacity be corre-

| spondingly reduced.

- The evidencé shows that during one woo? in June, 1931,

the three incinerators in Manhattan and the nine in Queens -

and the‘three in Richmond (15 in all). taken collectively

actually consumed at. least 10 per cent more garbage and

—— than their rated capacity. Eight of, these i incinéra- ‘

5 Ae

tors were operating 24 hours per day; the other seven for. .

different numbers of hours per day. All were operated

six days per week. The five largest plants, operating for ; ;

24 hours per.day and six days per week; consumed more -

“results were obtained when the relative percentages of

garbage to‘rubbish were 65 to 70 per cent of garbage and

35 to 30 per cent of rubbish, and sometimes a less percent- .

age of garbage. The evidence shows the better ratio to be |

80 per cent of garbage and 20 per cent of. rubbish, but that

this ratio cannot always ‘be maintained because of: the:

_ weather and other conditions affecting the rubbish.

The three: new: 750-ton incinerators may reasonably be —

expected to consume at least 10 per cent in excess of their

rated. capacity of 2250 tons per day, which would ineréase

their total consumption to 2475 tons per day, and on the

basis of actual performance by the large plants operating

of garbage and rubbish by the new incinerators may be still

further increased. It is not, however, considered prudent °

to-conelude that, with the construction and. operation of -

_ three 750-ton incinerators, the amount of garbage and rub-

bish just stated would be consumed.’ The quantity being

‘disposed of at sea‘should be provided for and provision for

_its disposal at times, of peak production and its possible —

increase in the future must be made. The proposed. fourth

new incinerator -should be .constructed: The four are

planned to take care of garbage and rubbish in the locali-

ties mentioned until 1945. eS |

COR Rea ia

~The defendant owns three sites, two of them in the Bronx

and one in Manhattan, which were acquired in the. years :

1927,-1928 and.1929. Upon these three sites it is proposed -

to erect three incinerators with a rated capacity of 750 tons

each per day, and to operate them six days per week.

Another site in Manhattan has been under negotiation for:

= é

PPL RT EEE

Ae ere 4

some time, which in Jul 4981; was reasonably expected

to be acquired and” the title closed in the fall of. that year.

Upon this site another incinerator of 750 tons fated

capacity per day is to be erected. As already stated, it is -

from, these two Boroughs, Manhattan ogi the Bronx; that.

the garbage now goes to sea.

Other Methods of Disposal.

‘ (1) The plaintiff introduced testimony tending to show

construction of additional ineinerators, by the transporta-

tion of garbage further to’ sea, an estimated distance of |

100 niiles, in vessels or scows, and there dumping same. »

Such a procedure would require vessels or scows to be.

plan were feasible. It would run counter to the conclu-

sions of.the Supervisor of the Harbor of New York, stated »

in the original reference in this ease, to the effect. that ex-

- perience has shown that such material dumped: at sea is

liable to be brought back to’the shore at whatever distance .

it. is dumped. The evidence shows that it would require

four or five days for secows to make such a trip and return, .

and also fails to show that such a plan is practicable.

' (2): The plaintiff urges that, pending the completion of

| proposed new incinerators of sufficient capacity to dispose ,

of all garbage and rubbish which, under existing condi- -

tions, is dumped at ‘sea, the defendant, can and should re-

sort to certain methods’ or expedients such as (a) a better

separation of garbage and rubbish ‘and “ashes by house-

holders; (b) the improvement of the relative proportions

of varbage and rubbish in the incinerators, and where

necessary, the use of some coal as additional fuel; (c) ‘the

transfer of excess garbage from one ‘Borough to another

where. in¢ineration may be had; (d) seven-day operation

of all incinerators ‘‘when necessary during the peak

months of summer’; -(e) the dumping of garbage mixed

with ashes or sand in land fills. The defendant takes issue

with tlrese contentions, ae a

(a) Foon The dstondant ae " ordinances and.

regulations requiring the separation of garbage and other

substances into four separate .classes—garbage, refuse,

“sashes, and liquid waste, and the use. of separate receptacles —

for them. The evidence shows that i in tenement house sec-

tions in the Boroughs of Manhattan and the Bronx compli-

ance W ith these regulations and ordinances is difficult to

secure.’ Many thousands of notices of the requirements of

these regulations (printed in four languages) are annually

distributed to the householders and others concerned. A

foree of from 60 to:70 men is kept employed i in looking after

“this matter; and in 1929, when a‘special ‘‘drive’’ was made

to enforce the ordinances aiid regulations by.-¢ considerable

addition to the regularly-employed force, the result was a_

large incr ease in conv ictions and fines. i violations. ‘ The~

evidence does not show that’ reasonable efforts to eviforce

these ordinances are not being made py. the defendant.

(b) Proportions—The- burning of a.mixed refuse con-

taining 80 per cent of garbage and 20 per cent of rubbish

is the upper limit for operation with satisfactory tempera-

tures and without the use of ‘some coal. The use of .this °

ratio is difficult to maintain. The weather affects the rub-

bish, and other conditions may reduce its heat- producing.

qualities.- The-defendant has two types of plants; the Del-

carie and-the Sterling, and. they are not designed for using

coal, though in emergencies some coal may be and has been -

used. Ii the Sterling. type, being a fire-brick-lined furnace,

there is a,tendency when using coal to get ‘‘ballaning”’, that

is, an amalgamation of the fire-brick with the. ash, which at

various temperatures tends to fuse and to run into any

interstices in the brick or between the brick, and when it

tends to break up the face of the brick and reduce. the life

~ of the furnace. “The Delearie type is a higher- -temperature

oT IN IT REFS PN NE TNE ITE HY . tae

: ; ant

in using coal, to. produce more smoke. The use of some

coal in.emergencies has been ‘made, but in opening ‘the

ane _ doors and piling coal on. the grates or-over a fire already

started, rushes of cold air in the combustion: chamber and —

a reduction of temperature oceur, which make for dis-

* agreeable smoke and thé chance of complaint because of.

‘shows that garbage and rubbish from the Borouglis of Man-. .

gases emitted from the stacks. As already ‘stated, the de-

fendant’s:largest plant, operating 24 hours’ per day and six

days per week, consumed more than their rated capacity of

garbage and rubbish while using: certain relative propor-

tions; if brought to the use of the better relative propor-

tion of 80-per cent of garbage and ‘20 per cent of rubbish, :

their consumption would be increased:

hattan and the Bronx can be transferred to some plants .

that are not operating on full time of 24 hours per day.

The latter are disposing of materials in the localities they

were designed to serve, and their full rated capacities are

not used in doing so. Difficulties to be met in the making

of such transfers may be summarized as the distances in-

volved; the method of transfer; inadequate storage space

and. disproportionate expense. .In. times of stress of

Weather, ‘some garbage otherwise -going to sea has been

taken to Brooklyn plants. The Sanitary Commission ap-

plied to the Board of Estimate and Apportionment for and

obtained its leave to modify the eontract.of the Brooklyn

Ash Removal Company to permit excess garbage from

other Boroughs to be disposed of in the Brooklyn incinera-—

tors. Under this resolution, ‘it is possible to transfer some

of the garbage now bemg dumped at sea to Brooklyn in-

_ cinerators to the extent of: their capacity. The collection

of garbage and rubbish for transfer from: Manhattan and

the Bronx-to’ other places will involve some night collec-- —

tions, of garbage in residential districts, and the noises and

annoyances.ineident thereto, besides the transportation of

. tional operating force necessary to operate the plants in

‘ Queens and Richmond not now running 2 hours pe dy,

and extra drivers for trucks, estimated on a yearly basis

to approximate $400,000 in additional costs. The evidence

shows that when the.three 750-ton plants are in operation

any quantities of material they cannot consume that would,,.

under present conditions, be sent to sea could be disposed.

of by inter-plant, adjustments of burning to the limits o

practicability, and that.such a plan would be a reasonabl

step ta take. | in east ae ete ;

- (d) As to the practicability. of seven-day per week

‘operation, the evidenée is uncertain; in some instances

_’ there has been a burning :of the residuum left over from |

". operation on Saturday. aay i

.(e) ‘Fills—Assuming the existence of appropriate —

places, it may not be said that garbage and rubbish mixed

with ashes and used as a fill is an impracticable expedient

for their disposal during short peak periods, if thereby

the dumping at sea can be avoided. The materials here

referred to do not include some things that the original

report herein shows were being dumped at, sea, but refers

*. to what is generally known as ‘‘hog-feeding garbage?’ and

rubbish and ashes. The evidence shows that ashes mixed

with a small percentage of: garbage taken from Manhattan

are being disposed of in part at Rikers Island, part. being

sent tosea. The defendant has been engaged for some time

in filling Rikers Island and the work, nearly completed row,

.- will be finished in: about nine months from August 1, 1931,

Some other place or places niust be made available -for

_rashes and rubbish in lieu of Rikers Island. A plan to use

‘East Island. was abandoned because of objection from

-hear-by communities; but to make it available for garbage

_. and rubbish it is shown by the evidence to be necessary to

provide much‘ equipment. One of. the witnesses stated that

the construction of the necessary docks, sea-wall, unload-

ing machinery and othér equipment that would be required:

_ to make such an island available for the disposal of ashes

% :

PPLE D

and dubbish; would require at least as long a time as the

construction of incinerators, which would be the ultimate

- and final scheme ; and Mr. Fuller,.- another witness, stated

a + ae believed’ that the effort required to get the land-

' . fill’ method into practice w ould be such-as to'make that

\ ‘particular step not commensurate with what the attempt .

would call for, in comparison with the Reverom for incin-

eration.

\ There are some sail. areas which the dufendnnt has ac-

quired for street purposes which, in the outlying portions

ofthe City may be ‘‘filled in’””.. Rubbish may be used in

- land fills. As an emergency measure, the dumping of gar-

bage with ashes and rubbish has been done in some other.

“9

cities. The method is not\to be recommended, except as,

an emergency for a limited period.

it necessary to transfer garbage from one plant to another

in the City of New York. These are tempor ‘ary expedients?

The suggested methods of disposal other than by incinera- -

_tion are likewise temporary. The better method ’is to erect

incinerators stifficient to accomplish the desired end.

* TIME FOR CONSTRUCTION.

The plaintiff introduced witnesses who’ qualified as ex-

- perts and testified upon the question of the ti

ein w hich

_the proposed incinerators could be built, and the Mefendant :

introduced expert testimony on. the same questio ‘ ‘The

conclusions stated by Mr. Samuel Greeley, a’ witness alled «

by the plaintiff, and by Mr. George W: Fuller, a w ithess

ealled by the defendant, fairly represent the contentions 0

the. respective parties on the question of a reasonable\,

'.time. Both of these witnesses are eminent engineers with .,

: ee wide experiénce and well qualified as experts ag sites

upon the questions submitted to them.~

As to the reasonable length of time wittiin which addi-

: tional incinerators may be installed in New York City,

taking of bids,

‘their conclusions do not differ widely. "Mr. Greeley having

stated ‘his estimate. of the time to be 20 months,'said:

Tn detail, I am setting that period of 20 months as ;

beginning with the time when sites are determined to be

available; that is, when the negotiations have been suf-

ficiently advanced so that their acquisition is considered .

certain, and I have allowed 2 months for the preparation —

of general plans and %pecifications, 114 months for the

onth for the awarding of a contract, 4

months for thé. preparation of detailed plans and specifi-

cations, 10° menths for construction and 11% months for

‘test and acceptance.- I have in mind that there Would ‘be

-an overlapping of some of those items. Judging from my

experience in actual construction and-supervision of con-

struction that is an entirély: practical and reasonable limit

_. of time. : . . I haye taken into consideration the fact

that these are muni¢ipal plants: and I base it upon that

fact.’’ io etvaacalne eae ek

‘After the sites are made usable I think, from my ex-

perience, it would require for a. minimum 21144 months

. before the plants could be constructed and tested and ac-

cepted. by the City. — ) ;

‘‘The first item of the details of that summary. is the

making of borings on the sites for the incinerators, and. |

I put down here a minimum period of 2 weeks, an average

‘period of 3 weeks: - -

‘“‘The next item would be the design: of the superstruct-

~ ure find the submiission of plans for the superstructure to

the Arts Commission for approval. Those can be done at

once, and I have made an estimate of. 6 weeks for a mini-

mum and 8 weeks for an average period.

of Estimate and Apportionment for approval of, the plans

and specifications, and also of: the estimate of cost. of

“‘The next item -would be the ‘npplieation to the Board :

\, Structures, and the action thereon by the Board. By. that

\\ I mean the fundamental form in‘which they may be now ° |

\ placed would have to be made definitely. available for the.

'. onstruction of the respective incinerators on the desig- .

12 -

| nated sites: corresponding to the plans and specifications,

I put down that period required for the action of the Board -

as 2 weeks for a minimum and ‘3 weeks for an: average

‘period. So that before the sanction of the Board can be

obtained for the definite allocation of funds, that is, the

habsdirosoptintiog of funds for each respective plan, the

period of 10 weeks would occur for a minimum in my opin-

- ‘lon, and a period of 14 weeks under average practice, [

think those periods which I designated for the 3 respective

Steps are fairly comparable with Mr. Greeley’s estimate

of 2.months for the preparation of plans and specifications,

‘The next step involves approval as to the form of con-

tract by the.Corporation, Counsel and the completion of

the printing of the same after the receipt of bids for print-

ing. I put that period as 4 weeks under minimum condi-

_tions and 6 weeks for average -practice..- Then there would

be a period of advertising and taking of bids, which I put:

as 4 weeks undér minimum conditions and-a month under

average conditions. A month I thought was a fair period.

‘These steps then, after definite provision of funds by

the Board of Estimate and Apportionment, and the ap-

proval of form of ‘contract.and of plans and specifications

by the Board of Estimate and, Apportionment, those 2

steps ‘would take 8 weeks for a minimum and 10 weeks for

an: average, That would be comparable to Mr. Greeley’s

estimate of 114 months as the time for taking bids.

“Tho next step would be the award of a contract and the

_ approval of sureties, which I have put down as a-minimum

of 6 weeks and an average period of 8 weeks. Mr. Greeley

gave one month for-that. : :

‘In regard to the next step, I have put down 20 weeks

for the preparation of the detailed plans by the contractor.

and their approval by the City ‘authorities, 20 weeks for a

minimum and 24 weeks for an average. Mr. Greeley gave

4 months, ‘which is about 17 weeks. I might clarify that

statement of mine as to 20 weeks somewhat, from the stand- |

* point that, as I understand it, the approval of the plans and

specifications submitted by the contrattor would have to

be secured from different City authorities; that is, after

the bids are received and certain drawings submitted with

the bids, then the contractor to whom the award is made

York City practice—or, I should say under New York State .

practiee—there are certain things that have to, be hm ol

rated, and besides getting the approval of the Ci¢¥ bui ling

department for the plumbing, for instance: “end the gas

fitting, that has to.be done under state‘1 wiinder separate

. contract for sizable projects, projects ovér $25,000, and also

steam heating has to be put under Separate cottract, and’

in accordance with the prevailing practice, although I think °

it is not a state law, the Bureau of Electricity in the De-

partment of Water, Gas and Electricity, has to. approve

all electrical plans and ‘specifications, and they practically

request that separate contracts he provided for electrical

equipment. So I say, in addition to’ getting ‘approval of

_ the building department, there are necessarily these other

approvals, and that in. part, I think, makes plain my 20

_Weeks as against 17 weeks or 4 months, dealt wit by Mr. .

Greeley; and it also is a reason why. I am figuring a dif- '

ference between minimum.and average periods, which is

24 weeks, according to my estimate. -°

-**For the next step I have placed a construction period

_ at 43 wéeks fora minimum, and 52 weeks under average

conditions. Tlrose correspond to 10*monthis for a minimum

and 12 months for average conditions.. ae

, ‘As to tests and acceptances, I put that 6 weeks for a

‘minimum and 8 weeks on an average, as comparable to Mr.

Greeley’s estimate of 114 months. ‘I think I gave you the

~ total number of weeks for the-minimum as 93 weeks or 2114

months.’’ m5 icf 3 ;

Both-witnesses conceded that the time for tests and de--

ceptances could be deferred and the.incinerators be put in

operation without formal acceptance until some later

period, under suitable provisions to that effect in the con-

Nee era eae hee ace ace

Upon the estimates of the two witnesses with reference

_to time for preparation of plans and specifications it is to "

be observed that the engineer member of the ' Sanitary

ra . ° e e

ae 7

Commission, testifying i in July, 1931, stated that the plans ae

and specifications were then nearly completed.

The nearness of the estimates of these witnesses as to

thé time within which ‘the three proposed incinterators

' should be constructed on the sites presently owned is, also.

reflected in the requests by counsel for the respective —

parties for findings by the Special Master on that subject.

Thete is a wider margin of difference between counsel in

_ ° the time necessary to put in operation an.incinerator on,

- a site not actually acquired 1 in July, 1931, by the defendant.

-In considering the question, of a reasonable time within -

. Which the necessary incinerators could be ‘put irito opera-

tion there are several important. eléments:

a Availability of funds—The facts show that appro-

~ priations have already been provided for incinerators in

various localities. These were provided for smaller plants

than are now deemed éfficient, and larger plants are pro-

posed to take their places. Therefore it is'necessary to .

take a number of small amounts and add them together

to make the larger sum necessary for the present program.

_ Application must accordingly be made to the Board of

_ Estimate and Apportionment to allocate said sums to this

“particular project. ‘This Board acting favorably, the .

money is available, and there is no suggestion. that the .

Board will act unfavorably. .

2. The defendant is a municipality and may nc not he ex-

pected to act.as expeditiously as anin Andividual ~would.

Action by its duly constituted Boards’ is necessary, It has

its zoning regulations, and these ‘are subject to alteration.

The statute provides methods for acquiring property by 3

condemnation.

3 It was appositely said in inother case before this Court

upon the question of time: ce

‘“‘It should not fix what could be considered yy ‘a the |

shortest conceivable time under highly favorable éondi-

tions of work, but should have regard for what may fairly

‘be accepted under average conditions without unjustified

delay. nie

wo Si EEE

ee Es

’

The evidence shows that under existing conditions labor

can be secured readily and that this is a favorable time for

work of construction: The estimates made by the wit-

nesses do not. take into consideration. the time that may

be lost on acéount of strikes or unforeseen conditions that —

may arise beyond the control of the City or the contractors.

ae -CONCLUSIONS.. __

Upon all the evidence, I conclude that the additional in-.-

.cinerators which the defendant-the City of New York has

planned to construct in the Boroughs of Manhattan and -

the Bronx, with a rated capacity of 750 tons each per day,

should be ready for operation on or beforé June 1, 1933,

“and that until June 1, 1933, is a reasonable ‘time to be al-

lowed the defendant within which to put into ‘effect and

‘operation the necessary incinerators to enable it to dispose

of its garbage and materials such as are now being dumped

at sea, and to cease disposing of the same by dumping them .

at sea. This conclusion makes allowance for ordinary —

contingencies, but not for strikes or contingencies beyond

the control of the defendant or its contractors.

The grave consequences that might follow the stoppage

of all dumping at sea.of such materials before effectual

provision is made for their disposal-otherwise are mentioned

in the letters of the defendant’s representatives or agents

to the Supervisor of the Port of New York in 1918, when

asking leave to dump at sea, and referred to in the former

report in this cause.

A reduction in the amount of garbage and_rubbish, being

dumped at sea, can be made -by the’ use of some of the

methods already mentioned, pending the completion of the

needed. incinerators.

To make suitable provision for the contingencies men-

tioned, it would be just to the parties for the Court to re-

tain jurisdiction of the case for the purpose of such modi-

_» fication as, upon due application and notice, the Court may

- determine to be proper. . ,

_ Recommendations.

Pissent to the iceek of re- reference, iti is recommended.

=< 1) That ‘the decree make the injunction mentioned i in’

the opinion and decree of the Court in.this case effective

from and after June 1, 1933, and require the-defendant and

its agents or danplovece to cease the dumping of an

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