Reply Brief — New Jersey v. City of New York

Supreme Court brief1931

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| FILE COPY

QHARLES ELMORE

. IN THE

_ Supreme Court of he Gnited States

oneal cee OctopEr Tek, 1930.

‘ s&s ’ .*! Ne OINAL, ~~ ia

m i ene eh

: STATE OF NEW. JERSEY,

oa a | z eek A Plainti fr

4 : ene ke aio |

\¥ Rate | THE | CITY. OF NEW YORK, eae

: Be. Pais peo _ Defendant. '

ty a : TOE at wee | ' - - —

a | BRIEF ‘OF DEFENDANT IN REPLY TO

ge PLAINTIFF'S BRIEF.

“ali

ARTHUR J W. Hity,

* Corporation Counset of the City of

_ New York,

ae Solicitor for the Defendant.

Etizor S. Benepicr,

J, Josepn Linzy,

. ‘THomas W. A: Crowe,

. Of Counsel.

—_——__

\ (22102)

"Pandick Press, Inc., 22 Thames St., New York, U. S. A.

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SSTATBMBME snnccssagecisnscehepecccvconsenpipsanesscoevesepiess Sedsdsbendbejeates ares

ARGUMENT: :

1. Replying bs plaintiff's. Tiebrarien that Bross

inp Court Das Juplodiction asinine cccscsocecccoossdtetecieliaita. adh ; 2.8

aay (a). Because the suit is one to protect ihe’ |

. quasi-sovereign rights of the plaintiff... = 2

(b). Because the defendant is before the

SPOOR ORE E EEE HEHE EOE EE HEHE SEES SEES EEE eeEs

(ec) The property affected is ns eitlile the

United States.......0.0.00:... ipdiaiibeiatacce vosseet 8

2. Replying to plaintiff? S argument that. de-

fendant’s garbage dumped more than a marine

league from the New Jersey shore is driven by the

winds upon plaintiff’s beaches. and. into its adja-

cent waters, thus creating a public nuisance, ‘to the

great injury of plaintiff” s rights and property:. “CEN ae

' 3. Replying to plaintiff” s argumierits that com-

pliance by the defendant with 29° Stats. 209, as

amended, and permits issued thereunder -by the

Supervisor of the Harbor of New York, does not: '

-relieve defendant from the effett of the public | Ws

nuisance created by its dumping. es REL? EE iskeesshs Ss

4, Replying to plaintiff's sib that such

garbage and refuse as reaches the plaintiff’s shores

by’ dumpings ities coastwise and other vessels and

(he 2 iw \e

other sources is negligible in comparison with that

. PAGE

dumped by, defendant and reaching’ plainitiff’s ’ -

shores and constitutes no defense to the plaintiff's

complaint. ....... seeCeeececennannnssnenaseneenetseesees wa sovesensssonseceseee

‘

to some particular’ exceptions to the Master’s

Report ............ ertesuodbapages hbctbosinndebin Se REL eae

ConcLusion. ‘We renew our prayer for action ' cy

“. 3.

5. Replying to plaintiff's contentions in regard ,

_by this Court set forth at-the end of our-main brief

| 4

Tapie or Cases Crrep.

) : Ee re PAGE .

“Commonwealth, Cuitter, 156 Mass. OER, 26

Ellenwood v. Marietta Chair Co, 158 U. 8. 105, 108. 4]

: Higginson v. Treasurer of Boston, 212 Mass. 583, 585 26,

\ Kansas v. Colorado, 206 U. S. Oe Oh a3. }

Kuehn v. Milwaukee, 92 Wisc. 263, 65 No. W. 1030... Se ae

_Lefrois v. ‘County of Monroe, 162 N.Y. Pibalciiersisinas ore

: People v. Central R. R. of: New Jersey, 42 N. Y. 283,

289, Writ Dis. 12 Wall. 455... tt ndhoscoheontotass = ha diel oy

_ Prigg vw: Pennsylvania, 16 Peters 589. idiineidese 7

% Rhode Island (State of) v. Massachusetts (State of); re

12 Peters 657, 720, Lies Measecpiedptnenlntiosoesenhosapinciadtoot ccdcnsecs, a Ome

| United States v. N ewark scaies ma a 173 Eed.

: 426, sigh RES AE ABOU RON CP EY SS ea ea.

: TapLe or Unrrep Staves Srarures Crrep.

‘25 Stats. 209 as amended (Title 33, Chap, 9, Secs. 441,

443, 449, veka, |) OEE UR eer 2, 6, 7,21, 29

43 Stats. 604 (Oil Pollution Act) (Title 33, ‘Chap. 9,

Sees. 431-437 U. S. Code) ene neiots SES AMEE Ore an

(See. 433 of this Act j is set forth in eee ye

pp: 100-101, Main Brief. )

30 Stats, 1152 —— 33, Chap. 9, See. 407, U. Ss. Code) 21, 29

Court ice Crrep.

Bauity Rule XXX v. S. bate ears Court... Kans pig |

Ne ee Ld

o , :

oe cee ee Documents’ Crrep, pox

pas ‘ | | PAGE

Joint Sesahtution of Congress 1922 on Oil Pollution

of Waters sod Ril acsauds RET OOO And ERE Agta Pitemeesetal 12, 13.

Engineer’ s ‘Becert on Long Branch Sewer System : :

(Deft.’s Ex. 10)........... faecnticeetentanil ce dois a cuatcel nasa s, 23

oot . APPENDIX. :

List. of Defendant’s Exceptions and | places in Mies is

Brief where: discussed............. Porn) siesta see 28. 29 °

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Pus

a ie : IN THE soot i

— Hupreme Court of the United States

: -. Ocroper Term, 1930, Ee

“s

No. 17, Ontcrnan.

Stare or New JERSEY, ;

«Plaintiff, .

against _. :

Tue Crry or New York,

es. Defendant. —

BRIEF OF DEFENDANT. IN REPLY TO.

PLAINTIFF'S BRIEF.

Statement.

r ae

Defendant’s reply to plaintiff’s: brief in support of the

report of the Special: Master will follow the order of such F

brief, which in tarn follows the order of defendant’s excep-

. tions to. that report. Our points in this brief will, there-

~ fore, follow the group of headings or. points of defendant 5

“argument”, Sot, RE aie ee

> (We are compelled, however, at the start to call atten--

tion and except to a statement in plaintiff’s brief as to the |

claims of the defendant appearing in the first paragraph

of page 2 of -said brief. It is there stated—presumably :

referring to the amended answer—that it alleged ‘‘that this’ '

_ Court had no authority to- enjoin such dumping because it |

was done on the ‘high seas’ ””, Defendant did not? SO.

contend. The first defense in the amended answer alleged

Be oe a he Sec a >

Re Seta ; . - > ie a

ee atin . is

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that the garbage dumpings of the defendant were made in

the Atlantic Ocean under permits from the Supervisor of

i New York Harbor, issued in accordance with the provisions

“of 25 Stats. 209, now Title 33, Chap. 9, Sees: 441, 443, 449,

451, U. S. Code, at points 8, 12 and 20 miles southeast of

& Scotland Lightship, and 10, 12% and 2 2 miles distant from

. ' * . °

Dictate hceeerio: bi cea ea Sa onan

the.shore of New J ersey, and that in view of such dumping

on the high seas in the manner and at the points afore-

said this Court has no autliority. to enjoin defendant from

dumping its garbage and refuse i in the manner and at ‘the

ie mentioned. The term “high seas’’ as is well known

‘includes waters on the sea coast -without -the boundaries

of low water mark’’—In re. Ross,.140 U: §. 453, 471. It

awas, therefore, not because defendant?s dumpings were

made on the high seas solely, but bécause they’ were’ made

in such seas more than a marine; league from plaintiff’s

- shores, that. the jurisdiction of this Court was challenged .

in - case.) - .- 3 °

“ARGUMENT.

Replying a plaintiff’s argument that this Court

has jurisdiction: : ieee

( a), Because the suit is one to protect the quasi-sov-

ereign rights of. the plaintiff:

Plaintiff introduced its, contention: by a quotation from

Kansas vs. Colorado, 206 U. S. 46, at p. 85. Since plaintiff .

~ refers to that case as an authority favorable to it, we

3 should like to quote from page wi of the report the state-

ment that::

‘cee *

‘it (the judicial power) must betheld to -

embrace all controversies of a justiciable nature

fy,

arising within the territorial limits of the. Nation,

no matter -who may be parties thereto.’’ (Italics

those of the writer. )

A sfateinent i is then made’in the brief (p. 5):

‘*The principal issue raised by the pleadings is

whether the acts complained of create a public nuis-

: ance.on the lands and waters of the plaintiff.’’

~ Doubtless plaintiff would like as have the Court so con-

sider the problems presented herein. _ However, a reading

of our main brief should convince the Court that the above .

“is a wholly incorreet interpretation of the issues or their 3

‘importance. . The principal issues are whether this Court

' has power to restrain defendant’s acts in this ‘case and

whether, if it has such power,-the plaintiff has proved the

defendant ‘guilty of causing the alleged nuisance. _

Generally speaking, we do not argue that'the plaintiff

has not propriétary rights to the shore and in its territorial’

waters for - -a distance -of. three nautical miles from such

shore; or that it has no right to sue in’ its character of .

parens aiapes, if the proof of defendant’ 8 esponsibility

warrants it.

(b) Because the defendant is before the Court:

Plaintiff contends (p. 11) that because ‘the defendant |

accepted the jurisdiction of‘ the Court by not specifically

raising the question in its original, answer, and-having thus

accepted the same for more than. a year ‘‘it. cannot now.

raise the question”. We will assume that anything said

‘in a written argument in a case of the importance of the © q

one at bar must be taken seriously even though its intrinsi¢

a importance may be doubted. :

By way .of reply, we say that in the first eas the - &*

‘ Court allowed coemadant to amend 0) as to specifically pre-

* SX WP SOIT ey RAS RRR

ARENAS TITS MOP O-PS Beene premenermeT oe Pg

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sent: the question of jurisdiction over a strenuous similar

objection by the plaintiff. In the second place, it is ele-

‘mental that parties cannot confer jurisdiction by consent

where questions POV tg to. the subject matter of the

controversy are’: involved.

State of Rhode che vs. State of icons

setts, 12 Peters, 657, 720;

Peoplé vs. Central Railroad of New Jersey, 42

N. Y., 283, 289 (Writ of Error dismissed + aa

Wall. 455);

Ex parte, ' Schiollenberger, 96 U. Ss. 369, 377;

Ellenwood 1 vs. Marietta Chair-Co; 158 U. S.,,

405, 108.

Riode Island VS. Massachasetia; supra, is: such a‘land- ©

mark in the history of the power of this Court on the ques- ’

a tion of original jurisdiction in suits between states that we -

trust we ‘will be pardoned if} we quote from it at. length.

This was an original. suit in the Supreme Court brought

: by Rhode Island against Massachusetts to determine the

boundary line between the two States at.a certain point.

The opinion of the Court was delivered by Mr. Justice

Baldwin. In the course thereof it. is.said. in respect to -

the powers and jurisdiction of this Court in reference to

"Suits, of.this character (page 7 20): .

“But as this-court is one of limited and special

original jurisdiction, its action must be confined to

the particular cases, aontroversies, and parties over

R which the constitution and laws have ‘authorized it

po ae act ; any procéeding without the limits prescribed,

-. is coram non judice, and its action a nullity; 10 Pet. . —

474; S. P. 4 Russ. 415. And whether the want or —

excess power is objected by a party, or.is ape :

——————

to the court, it must surcease its action, or proceed

extrajudicially. (Emphasis the writer’s.) * * *

Those States, in their highest sovereign capacity,

in the convention of the people thereof ; on whom, by

the Revolution, the prerogative of thé crown, and _

the transcendent power of parliament devolved, in

a plenitude unimpaired by any act, and controllable

"by no. authority, 6 Wheat. 651, 8 Wheat. 584, 88,

adopted the constitution, by which they respectively

made to the United States a grant of judicial power

over controversies between two or more States By ~

_. the constitution, it Wwas-ordained that: this judicial | :

____,— power, in cases where a State was a‘party, should —

_ be exercised by this court as one of original .juris-

— diction.. The States: waived their exemption from

Judicial power, 6, Wheat. 378, 80, as sovereigns by: 4 |

original and inherent right, by their own grant of its ~. |

exercise over themselves in such cases, but which /

. they would not grant to-any inferior tribunal. . By

this grant, this court has acquired jurisdiction over -

the parties in this cause, by, their own consent and

delegated authority; as their agent for executing

the judicial power of the United States in case

specified. ’’: -

On the question of the original power of this Court to

deal with’ suits such as the present, between a state and:

4 citizen of another state, we submit ‘that what is said. :

+ above is. applicable in the instant case. In other words,

this Court has the Jurisdiction which the States in their

capacity as sovereign nationis, in adopting the Constitution,

had to give to it. If the original States in interpreting-the

powers of their courts under the common law had no power

_to restrain a nuisance committed outside their boundaries,

they could not give any such power to this Court to adjudi-

-.eate the rights of ‘the parties to litigations involving such,

; )

questions, That they did not have: such. powers is ‘dis-

cussed in the cases set, forth in our main 1 brief-from pages —

28 to 33. i ee

“On page 11 of plaintiff's brief, it is ae said that the

contention of the defendant that this Court has no jurisdie-

tion bevause of the fact that garbage dumpings are made _

more than three miles from New Jersey’s shores is incon-

sistent with its contention that it dumps its-garbage under *

‘permits authorized by Act of Congress of June 29, 1888

* (25 Stats. 209), and that they cannot be legally united by

the defendant. ea ax

_.’ It,seems to us that it is a sufficient reply to this argu-.

ment ‘to quote Rule XXX ‘of the United States Supreme

Court Equity Riles which states that:

“The answer May stato: as many defenses, in the

alternative, regardless of consistency, as the de-

fen@ant deems essential to his defense. ”

Argument in this regard i is also set forth at Eee 68

and 69 of our maiin:brief.

Whether permits, are necessary to do ee dumping: as.

defendant does we do. not know. ‘Defendant has never

. taken the position that they were not. _ How far beyond ;

the lines of New ‘York Harbor, as laid down by the Secre- ‘

‘tary of the Treasury (United States v. Newagk Meadows

- Imp. Co.; 173 Fed: 426, 428), the Supervisor’ s jurisdiction

over dumping into the ‘‘adjacent waters’ ’ extends has never

been established although it seems to have been held in

one or more cases cited by the Special Master on pages -

45-47 of his report that stich jurisdiction extends beyond

the three mile limit.

‘ However; it does appear in this case - that the Master ‘

did find that defendant had not violated the permits (unless

the finding on page 50 of his report that some garbage which

“remains on the scows after dumping is cleaned off as they

‘are being taken back from the dumping area’’ can be so

On page 12 of the brief plaintiff states that “Congress

- .and the Supervisor of the Harbor have exercised *,unchal- |

: -lenged by defendants since 1918, a sustained jurisdiction - 3

-over the dumping grounds: used “as navigable waters -of

the United States’’, and defendant caniot’ now challenge

such jurisdiction, citing Prigg vs. Pennsylvania, 16 Peters,

539.

eae

be consideréd valid (p. 621). ite

” ‘We ask, however, if plaintiff’s contention is sound, why

‘did not the Master make a specific finding to that effect as

a matter of fact or law? Ofice again, we refer to State of

All this case holds on this subject is that.an Act of

- Congress, which: has been upheld by the decisions of vari-

ous high State courts and by governmental officials, must.

after'a long period of judicial and practical construction |

Rhode Island vs. State of Massachusetts, supra, at page ~

(29, where it is said, ‘that the boundaties of the: United

States were the external boundaries of the several states’”. ”

_ Plaintiff’s argument really reinforces our own, namely, — -

that the matter of dumping is within the regulation of Con-~ |

gress either under (possibly) 25 Stat. 209, as amended, or

some provision yet to be enacted if thought necessary. De--

fendant has not been found to be violating 25 Stat. 209, .

as. amended, and as yet there is no other appropriate

legislation. — : “ NG

-, Other arguments on pages 12 and 13 of plaintiff’s brief

are sufficiently answered on pages 36-38 of our main brief, fs

RY er vagy ts

ren ty :

“interpreted. It is not’so specified and we say it cannot be, |

in view of the finding on page 43 **that the dumping was by .

permission of the Supervigor of the Hatbor’’.) a

except that we might-add that'in Lefrois vs. County of

_- Monroe, 162 N. Y.'563, where it was held that the deféndant

_ -eould not be restrained at. the suit of a neighboring farmer

from permitting sewage to escape from its almsheuse on to

his farm, it was said that the alleged ‘nuisance might be

enjoined i in an action against the Board of Supervisors of

~ the County, sp /iiaels in control of the building. ;

3 This subject i is treated also at page 28 of our original

brief t (and supra), and nothing further need be added here.

% en’ ~ 4 \ 7

ae ats i MA iss 2 e

Rapibine to plaintiff's argument t that defendant's

garbage dumped more than a marine league from the.’

New Jersey shore is driven by the winds upon plain-

tiff’s beaches and into its adjacent. waters, thus creat-—

‘ing a public nuisance, to the great injury of plaintiff's

rights and property. PaaS

On page 15 of its brief appear these statements:

4 The practice (of dun ing its garbage and ref-

use at sea) was discontinued from: that year (1896)

until 1903 when it was resumed until 1906. sat ort

i There are no refaroitves given as the source of this state-

a ment and: no finding i in accord therewith was made by the .

4 Master. Defendant’s witness, Greene (Pr. A. 566-567), tes-

tified that the Barren Island Disposal Plant broke down in —

1903 and for. a short period of two or more months garbage

- had to be taken to sea. The abstract does make him state:

that ‘“from 1906 to: 1918 no garhege was. sent to. sea by

. are =

the City of New York’. " However, if the _stenographer’s

ss minttes at page 1707 are consulted, it will be found that

Greene’s testimony was ‘due to the form of question. asked:

: by City’ s counsel, as follows:

**Q. So- then from 1906 to 1918 was any y garbage

sent to sea by the City: of New xoret A. No, sir.’’

~ The banter, Sion finds ‘that the. defendaint i gaia . 7

for a brief period. during 1906 did not dispose of these

things at sea”’ (R.. Sp. M., p.19). It is immaterial whether. :

the: interruption was in 1903 or 1916. But at is materval .

- that it did not extend for a three year period from 1903 to

1906, and nothing i m the record Justifies the statement. i in the

- brief. , ;

Taking up some of the statements i in the brief i in regard

to the evidence, we find:

On page 27, it is stated that “Exhibits 16 to 24, both

‘inclusive, show areas of garbage in mass and in process

Be < distribution - as it drifted toward the New Jersey. shore

(R. 15). > The words “New Jersey”? do not appear in 3 5

the printed abstract of testimony at the place referred to.

On page 28, it is said that:

‘‘Soap will-not work on bathers: who have been i in

that water (R. 16, 17). bd es

_ The printed abstract. shows that these. onde should “on pre-..

ceded by the words ‘“people remark”. ‘In other words, the

statement is’ hearsay:

~ On page: 29, it is stated that:

“He ( Smack) has doliiwad the. trail of ashes

which he has seen dumped in a definite line continu-

ously to the beach, from approximately twenty =

southeast by east of a — aly |

“and that he: Eee ce eae

Oe ty O35 Re 2 OD

“‘traced the course and direction for four and a

half hours when the ‘wind was blowing at the rate

of thirty miles an n hour (R. 24).”’

In other words, if Smack followed this garbage in that Way,.

it must-have been movihg about 4% miles to 5% miles per

hour (the Lightship being four miles from the shore—Pr.

A., p. 24). Sinee the highest rate of drift of garbage as

tested by Haas, plaintiff’s witness, from the Harbor Su-

pervisor’s fice, was only slightly over a mile kn hour

- with a 35 mile wind behind it, we. submit that: Smack’ 8 testi- ©

_ mony, as well as that of. the lobster men, on. ‘this subject

was incredible and not to be interpreted as plaintiff and

the Special Master have. interpreted. it. The correct con-

struction is simply that they have gone through garbage

all the way to the beach from the dumping grounds, but —

not that they have gone along with garbage that they y Soy

dumped all the way to the beach 65s also, majn brief, pp.

62 and 63). in

“From the boitans of page 32 to ths a middle of page 35 is is

a section ‘of the brief relating to the testimony of fisherme?,

‘almost all of whom fished for lobsters. _ A majority of these

men testified to having. seen the scows dumped frequently,

the reason therefor being because they: often hdd their.

lobster pots set out near the dumping areas 18 to 20 miles

off shore .(Voorhees; Pr. A., 86-37; Schweitzer, 42; De r

Camp, 47; Peterson, 50; C. Holgarson, 55; Oleson, 75; Popp,

347-348 ; Jacobson, 373). Now, although the Special Master

made - use of the testimony of these mén-as to following

garbage from the dumping grounds to: the Shore (R. Sp.

..M., p. 26) he made no finding in, respect to. injury or dam-

age to their lobster pots or to their business. Perhaps this -

was becanse one of theny/——Oleson:—testfied (Pr. A ce

“T fished right around the dumping ground last

year. That was the only place we could pick up a

few w lobsters vt be

As ‘it is a matter > common knowledge that lobsters are

‘scavengers (Standard Dictionary ‘*Lobsters’’), the reason

. why the lohster-men fished: on. the dumping grounds is ap-

parent. As to the damage they suffered, it often came from

the dumping by sgows of ‘‘heavy stuff’’ (cellar dirt, ete.,

+ Sehweitzer, Pr. A., 46; Hines, 354; E. Philtips, 402). ‘The

on)

. page\34, are out of place therein, The Master could not

testimony of this teak witness should be examined with .

special ¢ care, as it is stated on n page 33 of plaintiff ’s brief:

| ‘cphis’ garbage comes from New York. City secows “|

and is more or less a regular thing every. day. This

garbage affects lobster pots fiye or siX<miles in- . 4

shore. from the dimping ground (R. ae

~ Phillips actually testified in. this reward (p. 402): -

“The way I put that distance is the:inshore light-

“hs, ship’ there, [1239] the inshore lightship, which is. ~

supposed to be six miles from the beach. And I™

was directly south of him when he dumped on me.

‘That isthe rian dumping that I am ——

about.’ sea oe

Sarely | it will not: be pontendid that the dumping of §

. subway material is the dumping of garbage, in view of the

testimony of Anderson (Pr. A. , 5387) and Duggan (Pr. A

546-547). We submit; therefore, that. the summary is plain: -

tiff’s brief is misleading to say the least. << +

In view of the absence of a finding by the Master as ta

age to lobster pots; we also submit that the statements ~

1e bottom of page 33 and top of page 34, and middle of

very well.make a finding i in regard to stich damage i in view |

of his finding (Report, p. .58) that, ‘‘The Broperty affected

is within the United States.” és

ft conclusion of fact. -If the word ‘‘toward’’ had been used

_ . burning or oil earrying vessels and by refineries, has been - -

‘ | held in September, 1923. Set forth therein is a copy of a .

joint resolution adopted by Congress in':the year 1922,"

On page 34 it is stated:

‘Whenever the wind is fron/ the east or noxti

east, it (garbage) drifts-to the New Jersey shore.

Their (lobster fish’srmen’ ’s). testimony positively x

‘identifies garbage on ‘the beach and in the waters —

as having come from New York City, ScOWS dumped

at sea.’ HY,

There is no pesdeues 3 in the record which justifies this

; instead of ‘‘to’’'in the sentence ‘ ‘it drifts to the New Jersey

shore’’ it would not have been so objectionable. Several

| of the lobster. fishermen witnesses so testified and two or ©

three do testify that it drifted ‘‘to’’ the shore. In view F

of the testimony of Haas, however, heretofore referred to, be

- -we say that even such testimony cannot be relied upon

(Main Brief, pp. 62-63).

As to the statements (Plaintiff’s ‘Brief, p. 34) in regard

to diminishing returns to fishermen, we refer again to the

testimony of Olsen above, and also.to the fact that the

i pollution of coastal waters near important harbors by oil

fea very serious menace to the fishing industry. :

Plaintiff’s Exhibit, 258 is a transcript of the minutes ‘of

a. meeting of the National Coast Anti- Pollution League,. -

. authorizing the President to’ eall a conference -of marine

nations with a view to the adoption of effective means for / /

the prevention of the pollution of navigable waters by oil, *

ete.,. discharged. from oil carrying or operated steamers.

The preamble of such resolution, so set forth, contained ~

~ the following provisions :

. .

- 13

. “Wuergas, the careless casting of oil refuse into §

the sea from oil carrying steamers has become'a seri- &.-

ous menace to the maritime and fishing industries °

of the United States, and other countries, and * * *

Wueneas, seridus- loss’ to ocean fisheries has re-

sulted from such discharge into the territorial waters

of waste products of oil used for fuel in Many steam-

ers in place of coal, which threatens to exterminate

- the food fish, oysters, clams, lobsters and other ‘food

- supply,-and Es ; : 3

Wuereas, the dumping of this oil refuse is not

only ruining the bathing beaches situated in the ter-

* . ritorial waters of the various countries which, dur-

ing the summer, attract thousands and thousands of

people to the seashore resorts, and the injury to sea- | ©

‘Shore property is most alarming * * *,”

The minutes of such meeting, as set forth in Exhibit 258, 1

also show that several speakers at such conference em-

phasized the great injury which oil pollution was inflicting

on bathing beaches and to bather

: : coastal fishing ‘industry.

8 using, them,.and'to the

_ Evidently, as a result. of the facts and representations

made to Congress, that body, in 1924, passed an act, known * q

as the ‘‘Qil Pollution Act’’ (43 Stat. 604), and set forth in

Title 33, Chapter 9, Sections 431 to 437, inclusive, U. 8,

Code. The act prohibited the discharge, éxcept ander regu- . 3

lations prescribed by the Secretary of War, of oil, fuel oil;

-, oil sludge, and oil refuse into. or upon the coastal navigable

Waters of the United States, from vessels. os :

. That the: prohibitions provided by the statute were not

wholly effective, however, is evidenced from the testimony

of certain of the witnesses for the plaintiff in this case.

_ Frank Durand, Mayor of Sea Girt (Pr. A. 164) testified

™

a :

4 ‘abs . e

et rR ade GR A

545). | |

As to. whether the garbage is getting worse every year —

(Plaintiff’s Brief, pp. 34-36) although many of plaintiff’s

witnesses have so ‘testified, others state that this is not so.

that there. had been nities from people there (Pr. A.

171) of oil and tar in the water which got on ‘the feet of

bathers but in the last two or three: years it had rot been

serious.. Edmund R. Willets,/ a summer resident: of Sea

Girt testified , (Pr. A. 203). **1; /have’ seen oil come-in on the

. ‘beach at Sea Girt ** * more like i. than oil’? (Pr. A. 204).

Joseph C. Moasiand a ‘real’ estate. man from New York

who spends his summers at Rumson, New Jersey (Pr: A.

520) testified (Pr. A. 523) ‘‘we have had an oily deposit

that we described, perhaps not technically correctly, as ‘tar’

on the beach. It is a-crude oil deposit.’’

Perhaps, too, the dumping of Newark, N. J. sewer. rar

“at the 8 mile point southeast-of Scotland Light has some- |

thing to do with the ee _— to seein (Pr. A. 037,

M. E. Snyder (Pr. A. 57) General: Superintendent of the

Ocean. Grove Camp Meeting Association since April 1,. “1925 Rn

testified for plaintiff :

«(Pr A.-60) This strewing of our honch with

garbage occurred quite frequently in 1926. Each year

since then it has been diminishing i in quantity. és

Sesliia Holgarson (Pr. A. 82) fisherman for 48 years,

— at Seabright, also testifying for plaintiff, said:

_ (Pr. A. 84) I have seen this stuff on the eee

in Seabright. I cleaned a good, many tons of it off |

' (326). That is a good many years ago. I saw some

garbage this summer on the beach, but the last three

years there ain’t. been SO much garbage on the beach

in ice al a

On page 42 of the Brief; about the middle of the page,

we -find this statement, : :

“Tt (garbage) depreciates the value of property

and interferes with the raising of municipal rev-

enue (R. 505).”’ ; es oon sk

One witness only, Walter J. Sweeney (Pr..A. 504), the: |

‘borough tax assessor of Seabright, gave the testimony upon

which this sweeping statement is based. - His evidence is

80 lacking in substance asa support for such a conclusion 4

' that we take the liberty of quoting it (Pr. A. 505): . &§

‘*On two or three occasions, I went into the home

of Mr. Reiker and Mr. Sisson, (1515) and they

showed me where the litter and stuff was on the

7 beach, and-said they: would not let their children go

| down there and bathe. And I promised them that |

| A cr 2 matter would be taken -care of, and it: would af- 4

fect the amount of the taxes on their property. I | _

took it before the Tax Board, and they SaidifI was. — |

| | _ Satisfied to reduce the taxes on those places, it was |

satisfactory to them’? (and this was acnd

On pages 44 and 45 of the Brief are to be found state-—

-ments in support ‘of the contention. that garbage and refuse

on the beaches is a ‘“menace to life and body”’. -

With very: few exceptions, all of the citations to pages

of the record given as supporting these statements refer to_

hearsay. testimony or conclusions of the witndsses’ from

_ __ what had been’ told to them, and except for such testimony

~ in reference to cut feet from broken bottles, the substance

; _ thereof is in respect to unimportant matters. |

Toward the bottom of page 44, 12 citations to pages

of the record are enumerated and in only one of these

was the testimony given by an individual who actually cut

fprcpata tats tor parva

ut :

5 iif Ha ala oct a

a beavis Rak Biles i

~ his foot. Four citations near phi top of page 45 are given

and all relate to the conclusions _of witnesses or hearsay.. |

In respect to the reference to the bather who had sued the

City of Asbury Park for cutting his knee, (R. 509), there

is no proof whatever ‘that he recovered a judgment.

_ The statement on page 45 that ‘‘some of the bottles i int

the garbage are labeled poison which shall have material )

- in them”’, referring. to R. 106- 107, the testimony shows.

‘that. only one bottle was referred to.- pee

Shortly below this are six references to testimoiiy in —

‘the record about bathers who avoid garbage and refuse in

the waters because ‘of the menace to health. These also —

_ refer to the conclusions of the witnesses. :

: On page 46, of the plaintiff’s brief, there i is a nike eo

\ typhoid fever having occurred in Red Bank (R. 331). The

witness actually testified “that there has been typhoid i in

Red Bank, plenty. At- different. times ‘surely—the average

- amount that would happen i in any .community.’’ ;

. We have commented in our main brief (Appendix i

theret#, pages 110-111) upon the finding of the Master

(R. Sp. M., p. 16) based on the ‘testimony: of Dr. Fischer

(plaintiff ’s brief, page 47). In all 6f'the 50.or more miles -

of beach front communities affected with their hundreds

of thousands of summer residents’ and visitors and 160,000

.of all the year around population,. only one doctor could. :

_ be found who could testify in relation to the increases : ee

the various affections mentioned. and he only compared

the records of 1928 with 1929. The number of cases mén- _

» . tioned even in the year 1929 as compared with the perma-

nent population is almost grotesque as a basis for a finding. |

Besides the failure to elicit any such evidence from the

Health Physician of gale. Lake 2S = 249), Health .

. “ .

LEE IK STN ORR RG IEEE OL

Pete ERT aed Liat!

4 hess Peed oe omer

ih Nee ie io et aa!

° :

: ° ;

Inspector Bostwick of Bradley Beach gave no testimony to .

support such finding (Pr. A. 198). ice us

“On the bottom of page 48 of. plaintiff’s brief it is stated

=“

that

“Instances appear where guests stop coming ‘to

these resorts entirely because of their disgust with |

. .

' the garbage condition (R: 260).”?

Tlie testimony is “‘T think I have had people stop com. 7

ing there’on that account”, a8 ae ;

On page 49 of the. brief we find it stated that the loca-

tions of the ‘‘dumpjng grounds are. shown ‘on plaintiff’s |

| Exhibit 205 (R/294.5).”. ‘The distances marked on the

“Gs 4

hee eg

exhibit are somewhat less than those testified to by Super-

visor Anderson and his Assistant .Haas (Pr. A. 537, 637)

and the Special Master has ‘made a finding (R. Sp. M., p.

20),-to which plaintiff has not excepted, that the distances

of the dumping points from the shore are in accordance _

with their testimony and not with that of ‘Smack and his

Matter of the chart and Smack’s testimony? Can it be that

the brief was written. before the Master made his report?

-Near the bottom of page 49 of the brief we find it stated ec / oe

- chart. Why then should the plaintiff have referred to the -

‘“‘The fact that - deferidant’s garbage reached’

- plaintiff’s shore was constantly called to its attention

_ without denial, during the negotiations of Governors

_ Silzer, Moore and Larson, * *. setae

This ie also. somewhat iriaccurate. In a letter dated

May 23, 1923 from Commissioner Taylor of the New York

Street Cleaning Department to Mr.’ John. Gruetzner, Su-

perintendent of the beach at Ashury Park, read into the

' Tecord at pages 507-508, we-find the following:

ae DiGi ee Re

CoN study of the tides show that they travel at the

-rate of 2 miles an hour for the period of 6 hours, so -

that the distance that any material could approach .

the shore at Asbury Park would be 6‘miles, and then

it would be caught by the outgoing tide and carried

- out again,* * *. It seems to me that unless an.

accident occurs to one of our ‘scows. from collision

or otherwise, there is no chance of the garbage of the

City of New York reaching the beaches.’”

A similar \ statement in substance is to .be: found in a

" later letter from Commissioner T aylor to Governor Silzer -

“dated May 29, 1924, read into the record at pages 457-458.

“On page 50 of the brief this statement appears:

“On, the second occasion they put bottles over-

board in the garbage to test the floating but did not

gather them up ‘because they were floating to the

3 Jersey shore’ (R..557).”’ |

We ask the Court if it is ae apparent from this state-

ment. that the i impression is sought to be created that the.

defendant’s witnesses Gainard, Lawrence and Bergsten

when making their test threw bottles overboard and then

abandoned them becatise they were floating to the N ew J er-

sey shore? The actual testimony (to which we. may refer

under the stipulation set forth at page XXIII of the Printed :

_ pisapiainest is as follows (S. a 1674) :

—“Q, And you went and sitdicngt them. up again,

didn’t you? “A. We certainly did not. |

.Q. Didn’t you go and gather any of those bot-

tles and cans up because they were. floating to the

Je ersey ‘shore? A. We certainly did not.

’ Q: Now, you did not on.any of those trips go and

gather up the cans or bottles because they ‘were float-

ing towards New Jersey shore? A. We did not.’’

ate:

(This reminds one ‘of the ancient illustration: of unfair >

cross- -examination “Have you stopped beating your wife?

Answer, yes, or no, és

On page 52 of the brief we find this statement as to the ;

_defendant’s garbage dumped at sea:

“Tt retards the development and growth of ‘the a

seashore communities ; depreciates the value of real

property; reduces and impairs the development ‘of

commercial enterprises; and retards the general

As set forth tinder subdivision ony, Point 1 VI (pp. 81-

86), of our main brief, there is no clear and convincing |

proof -to substantiate. these important contentions of the

| plaintiff.

“At the bottom of page 52 of the brief the last’ subdi-

vision is ‘‘Publie N uisance Proven’’,. We attacked the weak-

~ ness of the plaintiff ’s proof in Point IT of our main brief .

on pages 55-57. We cited the testimony of seven of plain- -

tiff’s witnesses who: stated in substance that for many .

years prior to the time when. defendant started to dump —

garbage at sea in 1918, conditioris on the beaches had been ae

bad. Here is the testimony of three more of sueh ee |

_ nesses on the ‘subject. 7

M. Hall, a fisherman and’ companion of Smack’ son his -

investigating trips, testified (Pr. A. 117):

“Por the last 20 years, I guess ‘have seen more

or less garbage. 4 | aN a eee

Albert B. Carver, another Jobeter aa testified

“ (Pr. A. 213) :

“Ty have been in ‘that business for 17 years. *#

(Pr. A. 214). That condition (garbage) has existed |

‘ever ' since’ I can remember.”’

ee thie CORE eat

: : ‘ ° be te

a. Con! ene

ER TO PTS ence OREN ES Ne hal gaip tty tas Sat YeX

904-6. The L. R

‘ * . ‘ ‘ 20 °

LE. Donald Sterner "State Senator, who. ike lived at Bel-

mar all is life testified (Pr r. A. 216);

ef have encountered this garbage on the beach -

or: ‘elsew here ever since my boyhood Gaye. ale

In stypport f thé last meutioriedl conclitsion of the plain-

- tiff are cited a number of authorities, among others the

’

case of Kuehn x Milwaukee, 92 Wise. 263, 18 L. R. A. 553

» highest court of Wisconsin four. years earlier reported i in

83 Wise: 583 (53 No. W. 913). ‘When the case came before

the Court later: in 92 Wise. 263, it was also reperted 1 in 65

No. W. 1030. ,

‘We take the liberty of quoting therefrom as an addition

to the list of cases set forth at pagé 49 of our main brief.

It holds that the City.of Milwaukee, in disposing of its.

garbage through a contractor (who dumped it in Lake

Michigan, 15 miles from shore thereby injuring the plain- ‘

tiff’s fishnets) was acting 1 in @ dis ahaa “ae capacity, the .

opinion also stating >.

‘And it is not necessarily nor prima facie, an act

“~\_ of nuisance ‘to cast the garbage of a city upon Lake

Michigan, 15 miles from the shore. It has long been

the almost universal custom everywhere to empty

the sewage of cities into adjacent lakes and streams

almost from necessity.” AF es: :

A. citation is not correct. That corre- |

. sponds to a citation of. the same case when. it reached the ~

Replying to plaintiff's arguments that compliance

by the defendant with 29 Stats. 209 as amended, and |

permits issued | thereunder by the Supervisor of: the

Harbor of New York, does not relieve defendant from

"the effect of the public aera by its dump- |

MEO | gene ne

“We have little to add to what: was said in Point III

in our main briéf and what has already been said on the

subject ‘herein. ae mids eae

The cases cited by the plaintiff on page 55 relate to

nuisances erected or committed within State Doundaries

and much that is said in them is colored by that fart.

At page 56. it is stated that the validity of the permits: ~

issued by. the: Supervisor of the Harbor to the defendant

' cannot be determined from the record herein. In reply it

"is sufficient to state that they were regarded as valid by 2

the Master (R. Sp. p.°43) [even although valueless as a

defense] and plaintiff has not excepted to the finding.

‘Plaintiff contends (p. 06) that 30 Stats. 1152 (Section

\. 13, Title 38, ‘Section 407. of United ‘States Code) applies

- \ outside the Harbor of New York and adjacent waters. No

authority for this claim: is cited and in reason. it. has no.

validity. If 25 Stats. 209, as antended, does not apply to

- defendant's acts certainly 30 Stats. 1152 does not. It one is

‘. not violated, neither is the other. If a permit from the

. Harbor’ Supervisor is not good, one from. the Secretary

of War would not be valid either. mere ;

: Asa matter of fact, however, 30 Stats. 1152 was orig-

~ Inally part of d general River and Harbor Act making

‘Pp. 46).

appropriations for works in rivers and harbors. 25 Stats.

209 was a special act covering for New York Harbor and.

_ adjacent waters the same subject as that covered for other

harbors by 30, Stats. 1152, The Master so held (R. Sp. M.,

evotilins to plaintiff” s ‘etimaiias that such garbage

and refuse as reaches the plaintiff's shores from

| dumpings by coastwise and other vessels and other

sources is negligible jn comparison with that dumped

by defendant and reaching plaintiff’s shores, and con- |

stitutes no defense to the plaintiff’s complaint.

On page’ 58 of plaintiff's brief it is said that defendant’ 8

three witnesses Gainard, Lawrence and Bergsten testified

to the ‘‘alleged accumulation of garbage’’ on the decks of

vessels amounting ‘‘to 50 tons accumulated in ten to fifteen .

. days in port occupying a space of 50 cu. ft. to the ton.” |

It is claimed that the-testimony is inerédible. The echar- °

acterization that testimony related to accumulations ‘of

garbage’’ is inaccurate and unfair. Gainard used the gen-

eral word ‘‘maferials’’ (Pr. A. 554) and then described

them in detail (Pr. A: 555). He did not state that the accu-

mulation was for a period of ten or fifteen days, but fora»

week or ten days-(Pr. A. 555, 560), and that ‘When I said .

they accumulate garbage, now I am talking of accumula-

. tion in port, hold cleanings”’ (er. A. 660) ° *-* whgl was.

left of the cargo, the dirt, the dunnage the 50 tons consists

of ‘garbage and rubbish”’ (Pr. A. 561). The others testi-

- fied to much the same thing (Pr. .A., 584-585, 624- 625),

although the amount was made sakalle?.

It really seems rather difficult for the plaintiff’s brief-

writer to characterize the testimony accurately. The testi- *

mony of defendant’s’ witnesses in regard to the kind of

material dumped from’ cargo boats’ was in a measure cor-

roborated by plaintiff's rebuttal witness, Snow (Pr. A. 647- wif

648), except that he had not seen garbage in duniage acca ~

mulations. Seed; pee at at

° Under the head of ‘‘Sewer Pollution”’ plaintiff discusses.

. evidence relating to the Long Branch .and Asbury Park.

Sewers. We have treated’ this subject on“pages 72-74: of

our main brief. We will only add that thecriticism of the

system of the Long Branch Sewer Company in the Engi-

neers’ Report (Defendant ’s Exhibit 10) is about as seath- :

ing as could be made. iat | ses Hi

The criticisms of the engineers appear on pages 16, 31.

and 33 of their report. On page 16, it is stated’

“The efficiency. af this plant is very low and un-

satisfactory.” == : ;

On page 31, itis said: +

‘The treatment in the disposal plant is by screen-

“se ° Ing only of a most primitive kind.’’ e

On page 32; we find the following: ice

_ ‘‘Fly sereen wire has been found élsewhere-to be

unsuitable for the screening of sewage. As might

_ be-expected, large solids are found in the effiuent.’’

On page 33, it is stated:

_” “The plant has been condemned by-the State

—authorities and a new plant ordered, consisting of

‘Septic tank, chlorine disinfection, and pumps to raise

the sewage to an elevation where it will be free from

tidal interference.”’ : ie

“ abcan, mn (re eee

RABI. etl AEA RSC aS i

Ram

ea oh gees

; lightship must also have been nearer the shore than the

- City’s dumping. place. Hence the retarding influence of .

‘the tides would be less —_— materials dumped from these -

On page 64 of the brief, plaintitt states that “defendant

produced no evidence of any such dumping, ”’ 1. e., by Brook-

’ lyn Navy Yard scows. Well, Harbor Supervisor Anderson.

testified (Pr. A. 540): - |

“Scows of the N avy Yard in ‘Rew York deposit

materials on tht. high ‘seas. They are required Me

go out to the garbage limit, although the: proportion .

’ of the garbage i in their loads is.a small proportion.

Theirs is. ‘generally a rubbish and. refuse proposi- .

tion, ty ; :

Plaintift’ s investigator, Smack ° (Pr. A. 9) said:

**In trailing Woodson we passed a Navy.’ vessel

ine one empty garbage www SS * e,

-- It is tiv defendant had no eye- -witness or photog-

rapher to record the dumping by Navy’ Yard vessels.

Doubtless, it is possible to infer that the empty garbage _

scow being towed by a Navy. vessel was simply out for any ;

‘airing, and. that the testimony of Captain Anderson was,

‘unlike the conclusions’ of dozens of plaintiff’s witnesses,

which were based on ‘“‘complaints,’’ of no value whatever.

The sea lane, or course, of coastwise vessels south-

bound from New York ranges from three miles offshore Am

\ at Seabright, Long Branch and Asbury Park to five miles

at Sea Girt and to eight miles off Barnegat Lighthouse (Pr. ee

that their routes lie between the dumping places of the.

City and the shore (R. Sp. M. p. 31).~- The dumping points

for ‘‘cellar dirt’? barges being at 4 miles southeast: of the

solirces than they would be on materials dumped further

offshore, since only one tid

e would operate against those

- dumped nearer inshore. ven bee have a shorter distance

to go when drifting under he influence of an east wind.

‘In other words, the likelihood of such garbage and refuse -

reaching New Jersey shores and waters would be ‘much...

greater. — bas Ask pe 4 |

.. Our contention is, not’ as stated by plaintiff at page 64, ~

- that a’ similar nuisance created by passing ships or private

Bas,

< ek

contractors from Brooklyn Navy Yard excuses defendant:

_ and-is a. valid defense. We are aware of the doctrine that.’

if A is proved to have committed. a nuisance upon. X’s

property, the fact that B, C and D contribute thée¥ete does _

not relieve A. Our contention relates to the difficulty of —

proving that-A (the defendant herein) actually committed

a nuisance which affected plaintiff’s property, in view of.

all the other sources from which the offending substances

. are more likely to have come, atid which affected it for

years when defendant was’ not dumping “its garbage into

the ocean. ta ee ae al ;

Replying to plaintiff’s contentions in- regard to

some particular eae to the Master’s report.

The only thing on which we wish to comment is-the

statement on page 66: of the brief ‘relating: to defendants

! contention that the plaintiff must be held to strict proof,

plaintiff remarking that the defendant has not the status

“or sovereignty of a State. We do not contend that the de- -

fendant has all of the sovereign powers or prerogatives of

a State, but we have argued in support of our contention -

oe |

~ .

. -

that it has many of them (see pp. 48-50 of our Main Brief

and cases.cited theftin).

To the cases cited i in our Main Brief, we would add:

United States v. "Railroad Co., 17 Wallace, 322;

Commonwealth v. Cutter, 156 ‘Sea: 52;

' Higginson v. Treasurer of Boston, 219 Mass. oe

583..

- the headnote to United “fesse v. Railrdad Co.

(supra), it is said:

“wg eiahainit corporation (City of Baltimore)

is a portion of the sovereign power of the State, and

is not subject to taxation by Congress upon its mu- -

nicipal revenue. ””

In Higginson v. Miaieaias of Boston (supra), it is said,

‘at page 585:

“They (Cities and towns as territorial subi.

visions of the State) have a two- fold character, one

governmental, the other private. In the one they

' execute the functions and possess the attributes, of

sovereignty which have been. delegated by the legis-

lative department of the government | Pen eee

Other contentions:of- the plaintiff need not be specifically

iz replied to here except that costs should not be awarded to -

the plaintiff, but to the defendant, on dismissal of the com- .

plaint as prayed for by defendant. Our views in regard

to the remaining ‘subjects argued by the plaintiff are > sual

ciently set forth in our main brief. 7 ,

As an appendix to this brief, we have set forth a list

- of the- excéptions to the Master’s findings and page num-

bers where the reasons for. taking the exceptions are dis-

cussed in our main brief. comets al

Conclusion.

-We renew our prayer for action by this Court set forth . ,

at the end of our: ‘main brief.. yas ;

Respeetfully submitted,

ARTHUR J. Ww. Hitty,

Dorset. Counsel of the City of New York,

Solicitor for the Defendant.

Euuror S. BEnepicr,

J. Josep Linty,

Tuomas W. A. Crowe,

4 = Counsel.

New York, April 27th, 1931.

« :

List of Defendant’ Ss kcontions and pinces’ in Main Brief 3

where discussed.

Exceptions ©

Nos.

Appendix. .

Diecussed i in brief) ~

at- pages.

24...

: ie

28:

20 :

102

~ 102

(Error; found by

Master)

_ 257

ae AN

103

103-4

~ 103-4

110-11

46.

46-47 |.

46-47 ..

46-47

' 63

104

. 104-5

Exceptions -

.Nos.

ey |

98 -

29 .

30:

31.

. 82

Ge i

\ 42 -

45 .

> 46

. 50

. ol

Discussed in bitat

: _ at pages

105

105-6 |

105-6

105, 108

79-80

46,47 ©

- 46,47—

46,47 —

108

108-09

27, 36, 69

-No specific argument

"70-71. .

109

No specifie argument

46,. 47, 86

105,107 |

105, 107°

Exceptions 55 Discussed in brief a

Nos. 5

ae:

«61

. 62

63.

69°.

73.

at pages |

eae: Paes

74°

70-71

74°

Exéeptions ' Discussed in brief /

Nos. at Pages

; oS eee

ahs | . , 79-80:

ate: 19-80 -.

79 - 79-80 |

80 91

81 - 91

82 73

83 109-110

84 80

85 80

86 80

87 No specific argument;

partly found by -

Hes Master.

88 80

ee 86 ,

90 N6 specifie argume):1:

91 3 93

7 a = ee

= 93.

ny 9F .

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.