# Motion — New Jersey v. City of New York

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Motion
- **Published:** January 1, 1931
- **Citation:** 283 U.S. 473

## Text

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.

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Artuur J. W. Hrity,
Corporation Counsel, :
Solicitor for Defendant.

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' M. BY Brown Printing & Binpina Co.,
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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.

> ow Se : } 2 ;
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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,

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-

»*

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(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

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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 .

9?
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

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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-

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- 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

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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.

”

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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.

15
‘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

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~ 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 -
e
’ $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.

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juriously affect the busi- .

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+(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. 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-

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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.

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‘ ‘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

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

a

"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

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.
° : ‘
losithe Pet ee, eS aN ee ee ee
fs

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.

36

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 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

°

41
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! ;
Drie peo

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: ee os Hem Lo eae wight rs Bai Pye ‘ Ray Rae eee ht aa set oe > a fetes PRR Ee
® . . . - ‘ . .

PhO BS EE EES Rese Es iii AEE Og)
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. app

42

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

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

Mn

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

t

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

45

‘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

i)
oe

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 . .

es

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

6

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-

wR

SBS

ae

.
RRR AIRE Lae isi Die

_
at Ek

a? ea aoa ~— —
PLE ELIE ISP NG NA OIE BI
. if ee:

See ak a

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

—

54
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:

‘ . 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 -

produced in each one, and will completely do away with, ©
the nuisance caused by the distribution of same in land ~
dumps, water-front dumps and at sea.’” , ;

oe

He recommended that the first vrrer be for four incin-
erators, one in Manhattan, two in the Bronx, and one in ©
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.

(c) Aidainls of Garbage:

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 -

than 20 per cent in excess of their rated capacity. These ©

“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
. 24 hours per day.and six days: per week,«the consumption ©

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

6
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
that the present conditions would be ended, pending the © .

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.

‘specially equipped with special appliances, if otherwise the’ - ©

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

a

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

. becomes’ slightly cold to form a mass the removal of which ©

tends to break up the face of the brick and reduce. the life

~ of the furnace. “The Delearie type is a higher- -temperature
‘furnace, and —— of its peculiar construction is liable, ©

oT IN IT REFS PN NE TNE ITE HY . tae
: ; ant

8
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.

Be

‘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:

(c) Transfer from one plant to another—The evidence -

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

~ the materials for long distances. There would be an addi- ©

:

m,

. 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.

There. are emergencies of one kind or another that make ©

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,

a

‘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
“Mr. Fuller testified as follows: © ; |
‘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
would have to ‘develop certain details. — Undé thé New ©
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
’

16

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. . ,

16
_ Recommendations.

Pissent to the iceek of re- reference, iti is recommended.

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FILE COPY :

IN THE

SU uPREME court OF THE UNITED STATES. ie

Ocroser Term, 1933.

State of New Jersey, Plaintiff, | } f Oo .
1. ga
vs. | i 2, Original
‘The Cit y of New. York, Defendant.

REPORT OF THE SPECIAL MASTER»
' UPON 2ND RE-REFERENCE —
_ UNDER ORDER OF MAY 29, 1933. Y

ERE AT har

.

ie a a ae aks he al ee abrnaereyr sin Neseenn tenons

4 The City of New York, Defendant.

IN THE ~/

SUPREME COURT: OF THE UNITED STATES,

eis tt: “Octosen Perm, 1933,

State of New Jersey, Plaintif,, ; )
vs.” a hes 12, Original

*. .

REPORT OF ‘THE SPECIAL MASTER
UPON’ 2ND RE-REFERENCE -
UNDER ORDER OF MAY 29, 1933.

Pursuant to the order i in this cause of May 29, 1933, thie
parties plaintiff and defendant, by their‘respective counsel,
having appeared before ‘me at public’ hearings held in ie:
City of New York, July 10th and 11th and 17th, and Sep-

-_ tember 12th, 1933; at Asbury Park, New Jersey, on Sep-

ye

: tember 25th and 26th, and again in New York City on Oc-
- tober 2nd, 1933, 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.

Counsel were invited. to argue the questions involved,

but one of them expressing. a preference: to present brief :
and request. for finding, that course was adopted. ‘Coun- .

sel for both sides have furnished memorandum briefs with

; roqnest for findings and conclusions.

ORE OAT

.
PAS APRS ys

2
QUESTIONS.
"The dakeee of the Court entered ates 29, 1933, satiied

- me as Special Master to ‘take evidence that might’ be of-

fered by the respective parties, and also sneh as the Master .
might deem necessary to show:

1. What shall have been done by defendant up to Benes:

ber” 15, 1933, and the time reasonably required to enable
it to comply with the decree (namely, = decree entered
~ December 7, 1931);

_ 2. The amount that shall hive been expended mibeccrient xv
to June 1, 1933, by the State of New Jersey and its po-
liti¢al subdivisions: to prevent or lessen the defilement or

pollution of the waters, shores or beaches within that State,
and the damages respectively sustained by them as the i Te- -

sult of defendant’ 8 ‘failure to -eomply with the decree.

GENERAL STATEMENT.

(a) On September 29, 1931, the Sanitary Commission of .
New York City addressed a communication to the Board —
of Estimate and Apportionment, enclosing three copiés of
the proposed form of contract and specifications to be used
in advertising for bids for the erection of four destructor
plants, and requested. approval of the same. They also re--
quested in this communication ‘‘sub- authorizations of:
existing corporate stock funds’’ for the erection of four
destructor plants on city-owned land, one: in Manhattan,
two in the Bronx, and a fourth on land to be acquired in

ie the Borough of Queens., The: estimated cost of. tliese incin-

erators was $1,000,000 | each, with an additional $400,000.
for the land in Queens, making an aggregate estimate of

_ $4,400,000. The communication pointed out that ‘The
available corporate ‘stock authorizations for incinerators
and their present b ances” included certain designated

‘y

3 ;
‘seiteerianttoine and suggested ‘that the vad authorizations

be made from them in designated’ amounts. This communi- .

cation pf September 22, 1931, transmitting the proposed

contracts, plans and specifications to the Board of Esti-:

/mate and Apporfionment for approval and the authoriza-
_ tion of funds appeared on the Board’s calendar at its meet-

‘ing held September 25, 1931, and was referred to that
Board’s committee of the whole and to its\ ny for
report. © \

At the wae o of the cotianities of the whole held on |
October 6, 1931, this matter was adjourned for three weeks °
to the meeting of October 27, 1931, when it was again ad-

journed two weeks to the meeting of November 10,1931.
During these postponements the engineers..in.the’ officd, of

: the’ secretary of the Board of. Estimate and Apportion- . |
‘ment were considering the plans and specifications and\,
were in frequent -conference and consultation: with mem-

bers of the staff of the Sanitary Commission concerning

details of the plans and specifications. They made-sug-.

gestions which finally resultéd in the transmission by the
Sanitary Commission under. date ‘of November 14, 1931,
- to the Board of Estimate and Apportionment of revised
plans and specifications. This- communication was _ re-

| /ferred to the committee of the whole and the beamsaarye b of

/ the Board on November 20, 1931.
LS meeting of the committee of the, whole of the Raaid

‘- held December 1,'1931, the said requests of the Sanitary

. Commission of September 22 and November 14, 1931, were

laid over until Decembér 8, 1931, and on the: latter date pial

_ Were again laid over for one Wook: at which time the com-

mittee of the whole voted to. restore the matter to the:

- Board calendar and recommended approval of the terms
‘and conditions of the contract, plans and specifications.

At the meeting of the Board of Estimate and Apportion- ve
ment December 18, 1931, a large delegation claiming to be.

i: Reeidents ‘and tax payers appeared and through their

¢

~~

4

- ‘spokesman entered objections to the proposed construe-

tion of the incinerator in the Bronx, to be located at Crom. *
well and River Avenue and 150th Street. At their request °
the Mayor put the matter over until the next\regular meet-:

ing, namely, January 15, 1932, and at that ‘Theeting the

Board of Estimate and Apportionment approved the re-:

quest of the Sanitary Commission to make a change in.the .

Use District map, so as to alter from a business to an un-
restricted district part of the inéinerator site at West 215th

4

and 216th Streets not’ then included within an unrestricted ©

‘zone. . ; Pte os: é |
_ By January 15th, 1932, practically all of the other neces-
.Sary procedure .required to be observed by charter pre-
scription in respect. of contracts. before advertising for

bids, such, for instance, as the approval as to form by the.
‘ Corporation Counsel of the proposed contract forms: and

_ Specifications, and the advertisement for ‘the solicitation
“of competitive bids, had been carried out. Authority to
proceed with the solicitation of bids on, the four incin-
erator contracts was all that remained to be had. The

Chairman of the Sanitary Commission was requésted by

ssary for these contracts would be expended, in what
roportions and over what period of time. In his reply

during the first ten months the payments would average
about $350,000 a month on’ account of all four contracts,

and in addition personal.service charges against the work j

‘would run about $50,000 per year. eta eet I
At the meeting of the Board of Estimate and Appor-
tiotment held on January 22, 1932, the matter of the ap-

' the Mayor to submit a statement showing how the fuinds ;

the Chairman transmitted to the Mayor estimates ‘that ee

proval of the contracts was again postponed for two weeks,

to February 5th, and on that date it was again put over for _
_ two weeks, to February 19, 1932, and postponements were —
. ; later made until February 26th and then until March 4, —

1932, when the matter of the approval of the terms and

8

“ae rs a
conditions of the four contracts was laid over for one week ‘
and referred to ‘a new.committee known as the Ways and ~
Means Committee, created by-the Board ‘‘to report on all
matters requiring the present or future expenditure of |
money.’’ , cnr ox .

“On March 9, 1932, the Sanitary Commission addressed -
- a letter to the Mayor of.the City urging that action be
taken in the matter of the ‘approval of the contracts and
called his attention to the provision in. them for comple-
tion of the four incinerators on or before March: 31, 1933,
in order that the plants could be tested and be in operation
before June 1, 1933, the date fixed in the decree of the.
- Supreme Court.of the United States for the cessation of
dumping ‘at sea. This communication from tHe Commis:
sion was presented to the Board of Estimate and Appor-
tionment by the Mayor at its meeting on March 18th, and
1932,.and was then laid over pending action by the Ways
and Means Committee.. From that date the Board did
not carry on its calendar any matters requiring the expen-
‘diture of funds of a nature such_as this‘ item, and they
were all carried in the Committee on’ Ways and Means,
“The item again appeared in the Board calendar of June
47, 1932. A scommunication of ‘the last named daté ‘ad-
dressed by the chairman of the Sanitary Commission to
the chairman of the Board of Estimate and Apportion-
ment was presented, submitting a’ number of corrections
that should. be made in the contracts and specifications for
the incinerating plants, and on June 17, 1932, the Board of
Estimate and Apportionment approved Ahe terms-and con-
. ditions of the contracts, specifications and drawings ds re- *
vised in accordance with the letter of that date from the
_ Sanitary Commission, but with the.proviso that the bids
be taken with three bases of performance, namely, in 200
working days, 250. working days and 300. working days,
with the right to ade on any of these three bases.
“4 4 oe Z

\
‘

. then the matter was laid over for two weeks, ‘to Aprit-t——

Among the changes in the contracts as authorized was

the omission therefrom-of the proposed incinerator at

‘Crowell Avenue in the Bronx. The bids as authorized ._

“called for the erection of three incinerators, and the bids
were to be subject to’ reconsideration by the Board before
approval of the contracts. The\changes adopted by the
Board required some delay in the hecessary re-printing of
the ‘‘bid book’? or parts. of it, which printing was promptly
done. ;

Advertisements for bids for the tnrde incinerators com-
menced July 15, 1932, and named August 10 as the date for
the receipt of bids. The city furnished ‘with the contracts

and specifications what is ‘called a ‘‘typical plan’’, but each -

bidder was permitted to design a size of building that

-would fit. his particular’ furnace or plant, and had to sub- «.

‘mit. certain general plans.
The invitation-to the bidders to bid on ales sites one

_ contract and the city’s offer to give the successful bidders’

_ two or three, and the proposal inviting bids :on tlie dif-

' ferent. bases of completion within 200, 250 or 300 working -

«days, resulted in the receipt of a total. of 183 bids from 8
different bidders.

On August 7, 1932, the Sanitary Commission “summoned
two of the bidders to appear for examination in accordance

with the terms of the proposal. They appeared on Aug-

ust 18th and were examined at length.

On August 18th and subsequent dates letters were sent to

other bidders and at different dates some of these -
peared for examination as to their’bids.

On September 12, 1932,: the Sanitary Commission
adopted the report of its engineer member, ifiade after a
full examination of the several bids, and recommended its
adoption by the Board of Estimate and Apportionment.
This- report recommended that the contracts for the three
incinerators be awarded to the Superior Incinerator Com-
arn of Texas and the L. E. Myers tad The bids of

“4

-
a

rae

these . bidders on the three incinerators. taken separately
aggregated $2,225,000; bit they. proposed that if the con-
tracts for the three incinerators were awarde

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386008_0038%3A10. Public record. Not legal advice.