Reply Brief — New Jersey v. New York City

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———

IN THE

Supreme Court of the United States

OCTOBER TERM, 1931

NO. g8—-ORIGINAL

laintiff, | In Equity.

STATE OF NEW JERSEY: ,

Application for

Vs. Further Relief at

the Foot of the

CITY OF NEW YORK: Decree

Defendant. |

REPLY. AND REPLY BRIEF

WILLIAM A. STEVENS,

Attorney-General.

DUANE E. MINARD,

Assistant Attorney-General,

Solicitors for Plaintiff-Petitioner.

May 11, 1933

PALE BEE BOLDED NS SOON LABL POEL TOO EL

pear:

rik anrtwer p> 32)

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= which reasons tore me

by the plaintiff's motion, s netvlaing

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and mit®'Mkpect for ite.decees... °° * 8" 99% a.

page L

beside the point, All the necessary sites for

‘aten Jotled weigh: = :

Defendant admits that appropriations for ail four toe

cinerstors recommendid’ biti pitied thetet had hg eines

been made when the hearings ores ra %

2a HL ARP 10-2, ALL fat, was, @h

pp. 1-8) peesemted mo valid ronson tor 2 =

‘ttindihit the attree of wile both!” 2

was

aan the pn tr den. a

cint (Answer p. 11). Faacrey ni

‘Tn paragraph 11°0P udcacsiet-emedtant voters to te

reluctancs. A Aipppcit!, and: beyking houses to lesm i money

(p. 6). Its neteetnits emwMthgance was the reget fot tat |

Bats Be cos Tagen Son gar SB EIS, a

reluctanes. ADA & BKAUG TL 3 IESE nis aa

For of thé Mueuiittnetion —

1309 - : lad oer ts . y wi , a ‘

soures, but defendant has not sought euch relief. ©

The statement in the answer of the maximam | ee

deepen on 3

respect to the summer months. “The sorrect amount & 3,009

tons per day (Report on re-refefunce p. 4; 284 U. 6. $05; a8),

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_ STATE OF NEW JERSEY,

v8.

THE CITY OF NEW YORK,

ARTHUR J. W. HILLY,

Corporation Counsel of the

City of New York,

Sokottor for Defendant.

The Lewis Print, Inc., 66 Duane Street, New York

REE

INDEX *

Poon

Motion for Leave to File Bill of Complaint... 1

Statement 2

Bill of Complaint 2

Motion for Leave to File Reply and for Appoint-

ment of Special Master 15

Reply .. 16

Notice of Motion ° mend Answer ain

Amended Answer .. sl

Defendant's Proposed ne 6 Oe ee

- Plaintiff's ~~ aged es of Fact and Conela-

sions of Law .. = i cciieadint 46

Report of Special Master nena le

Defendant's Exceptions to Report of Special Master

and to His Failure to Make Certain Findings and

Coneinsions Requested 129

IN EQUITY.

MOTION FOR LEAVE TO FILE BILL OF

COMPLAINT.

Comes now the State of New Jersey, by its Attorney-

General, and asks leave of the Court to file ite bill of com-

plaint herewith submitted.

WILLIAM A. STEVENS,

Attorney-General.

DUANE E. MINARD,

Assistant Attorney-General,

Solicitors for Plaintiff.

May 13, 1929.

Bill of Complawt.

IN THE

SUPREME COURT OF THE UNITED STATES.

October Term, 1928.

IN EQUITY.

BILL OF COMPLAINT.

To the Honorable the Chief Justice of the United States

and the Associate Justices of the Supreme Court of

the United States:

The plaintiff, State of New Jersey, by its Attorney-

General, brings its bill of complaint against the def

The City of New York, and alleges and shows:

1. The plaintiff is a State of the U

Capital and seat of government at the City of Trenton,

Mercer County, New Jersey, and

of local administration and government as a political sub-

tion of the United States.

Ill.

4. From Atlantic Highlands southerly te Cape May,

a distance of more than 100 miles, the casterty ot te

State of New Jersey borders on the Atlantic Occan. The

succession vf adjoining municipalities, which, by reason —

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11. The defendant, tho Clty of Note York,

lation of more than 6,000,000 people, which is rene ra?

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. of he United Series.

f. Gaid acta of the detendant

ae ae mre

the piel? aw @ menifer of the Unien

72 Said sete of the defendant wolate Title 33,

9, Gectaan 407 af the United States Cede (approved

30, 1926) and other laws of the United States.

D Bald ante of the eefreiast are otherwise dotri-

mma! to the mterests ef the pimintiff amd rts aittecen

v »

In consideration whereof, and for as much as the gisine >

To the end, therefore, that the said defendint, the City

of New Yor®, may te the bert and atmost of ite knowl =o

edge, remembrance, information and belief, full, trae and 30

grant unto the plaintiff the United Slates’ writ of injunc-

tion, issuing out of and under fhe seal of this

Court, to be directed to the said defendant, The

New York, perpetually restraining and enjoining

contractors, officers, agents and omployees, and

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IN THE

SUPREME COURT OF THE UNITED STATES.

October Term, 1928.

No. 21, Original.

Srate or New Junser,

Plaintif,,

—agamst—

Tas Crry or New Youn,

Defendant.

ANSWER OF THE DEFENDANT, THE CITY OF

NEW YORK.

Cover or tras Usrrep Srarzs:

Now, comes the defendant, The City of New York,

by Arthur J. W. Hilly, its Corporation Counsel and its

Solicitor herein, and, reserving all manner of benefit by

First—That it is without knowledge as to all and

singular the allegations contained in that item or divi-

sion of the Bill of Complaint which is designated “1”,

except as to so much thereof as alleges or purports to

Further answering and for a first defense, the defendant,

The City of New York, further alleges:

Fifth—That the Bill of Complaint herein does not

state facts sufficient to constitute a cause of action in

equity, nor any matter of equity entitling the plaintiff

the plaintiff to any relief against the defendant.

October Term, 1929.

No. 18, Original.

Strats or New Juaazr,

The plaintiff joins issue on the answer of the defendant.

WILLIAM A. STEVENS,

Attorney-General, ’

DUANE E. MINARD,

Assistant Attorney-General, —

Solicitors for Plaiatif. ~&

Stare or New Juxser,

Plawmtsff,

Against —

Tue Crry or New York,

Defendant.

NOTICE.

To:

Hon. Wuismsm A. Sreveys,

Attorney-General of the State of New Jersey;

Hon. Duawe E. Moana,

Assistant Attorney-Genera) of the State of

New Jersey,

Solicitors for the Plaintiff.

Sims :

Pizase Be Apvisap that on Monday, February 24,

the defendant,-The| City of New York, will apply

above named Court for leave to file its Amended .

herein, a copy of which is annexed hereto,

relief prayed for in the annexed motion.

Dated, January 27, 1931.

ARTHUR J. W HILLY,

Corporation

Solicitor for the

The City of New York.

e 18

IN THE

SUPREME COURT OF THE UNITED STATES,

October Term, 1929.

No. 18, Original.

State or New Junsey,

Plaintiff,

—against—

Tae Crry or New York,

Defendant.

AMENDED ANSWER OF THE DEFENDANT,

THE CITY OF NEW YORK.

To rus Howorsstz toe Carer Justice or tae Usrrep

Srares anp THE Associates Justices or Tas Sorsexe

Covrr or THe Untren Sratm:

Now, comes the defendant, The City of New York, by

Arthur J. W. Hilly, its Corporate Counsel and its Solicitor

herein, and, reserving all manner of benefit by objection,

exception or otherwise to the many defects, errors, in-

sufficiencies, imperfections and discrepancies in the plain-

tiff’s Bill of Complaint contained, for ite amended answer

to the said Bill of Complaint the defendant, The City of

New York, respectfully shows to the Court and alleges

as follows:

First—That it is without knowledge as to all and

singular the allegations contained in that item or division

of the Bill of Complaint which is designated ‘‘I,’’ except

as to so much thereof as alleges or purports to allege

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The City of New York, further allegea:

tinnously increasing.

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fense, the de-

» further alleges:

fendant, The City of New York

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SUPREME COURT OF THE UNITED STATES

Ovrosms Txas, 1990.

No. 17, Onsormat.

Stare or New Junazr,

The defendant herewith submits

its

proposed conclusions of law which it requests that the

Special Master find and make.

Dated, New York, February 25, 1931.

Asrave J. W. Hur,

Corporation Counsel of The City

of New York,

Solicitor for the Defendant.

Findings of Fact.

1, That the City of New York is a domestic municipal

corporation created by and existing under the laws of the

State of New York, under and by which its exercises local

administration and government as a political subdivision

of said State.

(See complaint allegations, undenied. |

2. That the plaintiff is one of the States of the United

3. By Chapter 378 of the Laws of 1897, of the State of

New York, known as The Greater New York Charter,

various municipalities of the State of New York were

united and consolidated imto the City of New York, which

was thereby divided into five boroughs, known, respec

tively, as the Boroughs of Manhattan, The Bronx, Brook-

lyn, Queens, and Richmond.

4. That at the time of the commencement of this suit

the population of said city exceeded six million people.

5. By said Chapter 378 of the Laws of 1897 of the State

health required, of ashes, refuse, street sweepings and gar-

bage collected in said city.

the

9. That during said period (1896 to 1918) all New York

City garbage was disposed of by reduction (burning) at

Barren Island (in Jamaica Bay) at the plant of the New

York Sanitary Utilization Company.

[For references pars. 8-9, see brief, p. 5; also

S. M. pp. 1706-1707; Pr. A. 566-567; PIf.’s

Exs. 321, 322, 323.)

10. That The City of New York has never collected

and disposed of the garbage from manufacturing build-

ings, hotels, etc.

[See S. M. 1708; Pr. A. 565.)

11. That it has been the of The City of New

York during said years to some of its street sweep-

ings and refuse to fill in low-lying city land, although ao

substantial portion thereof was dumped at sea.

(S. M. p. 1703-1704; Piff."s Ex. 326.)

12. That early in 1918 The City of New York entered

into a contract for the disposition at a plant at Linoleum-

ville, Staten Island (Borough of Richmond), of all garbage

collected, bat in October, 1918, the contractor went into

- bankruptcy, and disposal thereunder ceased.

[S. M., pp. 1707-1708; Pr. A. 567; Brief, p. 6.)

13. That the City of New York then tried to re-let such

contract by advertising for bide therefor, hut on account

of war-time conditions, no offers to undertake such a con-

tract were received from contractors.

[S. M., p. 1708, Pr. A. 567; Brief, p. 6.!

14. That the City of New York then requested permis-

sion from the United States “Jovernment through its

Supervisor of the New York Harbor to permit the dump-

ing of ite garbage at sea as a temporary or emergency

measure, and the request was granted.

(S. M., pp. 1708, 1730, Pr. A. 567, 575; Brief,

p. 7.)

15. That on collection this garbage is taken to docks or

dumping boards on the waterfront of said city and is then

dumped into city-owned barges, which are designated by

the initials of the departmental name and letters of the

alphabet, and these are towed to sea by tug-boats chartered

from and in charge of contractors, and the contents are

there dumped.

(8. M., pp. 1634, 1703, 1726-1727, 1738, Pr. A.

545, 565, 574, 573.)

16. That a committee of New York City officials and

other persons was, about 1919, formed to devise a method

for the disposition of garbage other than dumping at sea,

and after much discussion and investigation of methods

employed by other cities, it was determined to resert to

incineration rather than reduction.

(S. M., pp. 1709-1711, Pr. A. 567-568.)

17. That three incineration plants were built in the Bor-

ough of Manhattan as a result of an appropriation of

$5,000,000 made in July, 1921, the first being completed in

February, 1924, the second in November, 1925, and the

third on October 1, 1928, the cost of each incinerator being

about $1,000,000 exclusive of the cost of the land on which

built.

18. That all of said plants consume more than their

contract capacity of garbage, the first by running 24 hours

a day, disposing of 450 tons daily, the second by running

%4 hours a day, disposing of 370 tons daily, and the third

by running 24 hours a day, disposing of about 400 tons

daily.

[Pars. 17-18 see S. M. 1712-1716, Pr. A. 569-

570.]

19 That the commencement of building operations on P

a fourth site was halted by injunction duly obtained in the

Supreme Court of the State of New York.

{S. M. 1716-1717, 1719, Pr. A. 570, 571; 214

App. Div. (N. Y.) 70.)

20. That in the Borough of Brooklyn there are two in-

incinerators, each with a capacity of 100 tons a day, and

three with a capacity of 500 tons a day each, all now in

operation, built by a contractor under a contract to dispose

of all material that may be delivered and sinee December

ist, 1929 no garbage from that borough has been dumped

at sea.

(S. M. 1718, 1723, Pr. A. 570-571, 572.)

21. That in the Borough of Queens there are now nine

incinerators operating, with an average daily garbage and

refuse consumption of from 100 to 270 tons, and that bor.

ough has never dumped any of its garbage at sea.

(8S. M. 1722-1723, Pr. A. 572.)

22. That in the Borough of Richmond there are now

three incinerators in operation and none of the garbage

from that borough has been or is now being dumped at sea,

(S. M. 1722-1723, 1797, Pr. A. 572, 593.)

23. That garbage dumping at sea is done by the City

of New York practically every day of the year, except

when heavy weather prevents, two or more scows often

dumping one after the other neat the same spot, each scow

containing about 1200 to 1300 cubie yards of garbage and

ashes.

{S. M. 1611, 1653-1654, 1727; Pr. A. 539-540,

550, 574.)

%. Thit

jetted tn the City 6f New

est proporti¢h of Witich coimes ftent

Bronx, atid such athownt will be séntinaaly

(S. M. 1724, 1747; Pr. A

%5. That ah average of abdut 190,000 cable ¥

garbage is dumped at sta monthly throughout the

ranging ftoth 192,000 cubic yards in Jahe, 1990, to

52,000 cubic yards in February, 1990.

(S. M. 1742-1744; Pr. A. 579.)

owe obbstn plaate tx Mianasten. Seer O004n

Bront, five 500-ton plants in Quéens and five

er erciidve, abd i senameetina dl wa Cael He

marty ert wn beh ahha.

last of these inciferators

(S. M. 1796; Pr. A. 592-693.)

27. That thé scows Of privalé contractors

connection with the City of New York containing “

lar dirt”’, i. ¢., débris frou buildings

down consisting of joists, timbers, laths, plaster,

a very light kind, have for years been damped

being dumped into the Atlantic Ocean ander permit

the Supervisor of the Harbor of Néw York at « point

four miles southeast of Scotland Light Sip.

(S. M. 1607, 1688, 1644-1645; Pr. A. 587,

547.]

terial

is often placed consisting of rags, barrel staves, broken

boxes, planking ap to ten feet in length, milk bottles,

mayonnaise bottles, ketchup bottles, tin cans, bottle covers

and caps with the name ‘‘Sheffield Farms, Grade A, Pas-

teurized Milk’’, “‘Sealect Certified Milk’’ thereon, gar

bage (onions, grape skins, scallops) leather harness, grape-

fruit skins, banana skins, magazines, etc.

[S. M. 1602-1604, 1606; Pr. A. 535-537; Brief,

13-17.]

30. That reports of said dump inspectors were received

in evidence showing that dumping by defendant's garbage _

scows had been made in accordance with the requirements

of the permits issued.

(S. M. 1614-1619; Pr. A. 541, Deft.’s Exs. 1-3.)

31. That inspection of outward and inward bound City

scows or tows is also made by United States Patrol boats

to note the time of going out and coming in for checking

by said Supervisor's office to see whether the elapsed time

between departure and return is sufficient for reaching and

returning from said dumping points.

[S. M. 1604; Pr. A. 536.]

32. That the New York City garbage scows have for

years dumped their loads under permit from the Super-

visor of the Harbor of New York for three or four months

in mid-winter at a point about 8 miles southeast of Scot-

land Light Ship, being about 12 miles from the New Jersey

shore ; for three or four months in summer at a point about

2% miles southeast of such Light Ship or about 22 miles

off the New Jersey shore, and for two short periods be-

tween these times at a point about 12 miles southeast of

such Light Ship or about 12% to 13 miles from the New

Jersey shore.

[References to 29, 30, 31 and 32 see S. M. 1606,

1656, 1948; Pr. A. 537, 551, 637.)

33. That cargoes of condemned food stuffs (vegetables,

fruits, ete.), are also dumped at sea under permit from the

Supervisor of the Harbor of New York at a point 25 miles

from the New Jersey shore.

(S. M. 1610, 1860-1861, 1918; Pr. A. 539, 616,

629.)

%. That Brooklyn Navy Yard scows, containing refuse

and garbage, also dump at sea at the regular dumping

points at which New York City garbage is dumped.

(S. M. 27, 1612-1613; Pr. A. 540.)

35. That the Supervisor of the Harbor of New York,

in his report for 1929, stated that it is probable that a

great deal of garbage is dumped both outside and inside

the harbor entrance by the enormous tonnage passing in

and out of New York Ha’ bor, and also that the local float-

ing equi »ment throws r-.ore or less garbage overboard.

(S. M. 1622; Pr. A. 541-542, Pitf.’s Ex. 335, p.

2081.)

Months of December, 1928, and January, 192),

foreign and coastwise vessels entering, 1,227 ; clear-

ing, 1,173.

Months of July and August, 1929, foreign and

coastwise vessels entering, 1,105; clearing 1,192.

or on an average of about 40 veasels per month.

(S. M. 1661-1664; Pr. A. 563-654.)

37. That the sea lane or route for coastwise ships go-

ing to and coming from points south of New York is about

2% to 3 miles off the New Jersey coast at Sea Bright, Mon-

mouth Beach and Asbury Park; 5 miles at Sea Girt, and 8

miles at Barnegat Light House.

(S. M. 1660, 1762; Pr. A. 553, 584.)

38. That practically all freight and passenger ships

leaving and entering New York harbor (especially those

leaving) dump more or less garbage and refase in such sea

lane.

(S. M. 1664-1667, 1763-1765, 1975, 1985-1986; Pr.

A. 554-556, 584-585, 643, 646.)

39. That many freight and passenger lines and ships

feed their crews in port and none of their garbage or

refuse is removed by the City or disposed of by the ship

while in port, but such accumalations, consisting of bottles,

tin-cans, electric light bulbs, pieces of meat, fruit, other food

waate, wood, mattresses, pillows, shoes, old clothes, bores,

barrels, crates, etc, are dumped after passing south of

Scotland Lightship. '

[S. M. 1665-1668, 1763, 1888, 1990; Pr. A. S54

555, 584, 624, 647-648.!

40. That passenger and freight ships often anchor in

great numbers during a fog for 24 hours or more just out-

side of the harbor and dump garbage acenmalated during

that period into the sea, where they are anchored.

(S. M. 1667-1668; Pr. A. 666-566.)

41. That the holds of cargo boats are usually swept in

port after the removal of the cargo (and before reload-

ing); snech sweepings, and also sweepings from the fore-

castle, are placed on deck for dumping in addition to gar-

bage and refuse, and all are dumped in said sea lane for

coastwise ships shortly after passing Scotland Lightship

on the way south.

(S. M. 1687-1689, 1763-1764, 1857-1860, 1890.

1803, 1989, 1993; Pr. A. 560-561, 584, 615, 625,

647, 648.)

43. That fruit, vegetables, poultry, and other food sup-

plies delivered to the ships in port to feed passengers and

crews, are usually packed in crates, barrels and boxes,

prhich have the names on them of the New York dealers

from whom they are bought, and such crates, boxes and

barrels, partly broken up, are, on most ehipa, piled on deck

and dumped, with other refuse, in said sea lane shortly

after passing Scotland Lightship on the way sovth.

[S. M. 1668-1669, 1765-1766; Pr. A. 556, 585.)

43. That the United States Government, through the

Supervisor of the Port of New York, maintains shore

dump inspectors, and also patrol boats which patrol New

York Harbor and sdjacent waters, to see that the Govern-

ment requirements of the dumping permits are complied

with.

[S. M. 25, Sl, 1608-1609, 1919, 1918, 1934; Pr.

A. 8, 22, 537-538, 627, 628, 633.)

44. That both steamship ijines and City scows occasion-

ally violate United States Government regulations in re-

spect to dumping but the City has always endeavored to

co-operate with the Government when the matter has been

brought to the attention of the Commissioner of Street

Cleaning and the Commissioner of Sanitation.

(S. M. 1921-1922; Pr. A. 630.)

45. That insufficiently treated and unsanitary sewage

from the cities of Long Branch and Asbury Park on the

Atlantic Coast of New Jersey, has been and is being dis-

charged into the Atlantic Ocean within a short distance

from the beaches at each of those cities.

(S. M. 1849-1854, 1870-1871, 2005-2006; Pr. A.

612-614, 619, 653, Deft.’s Exs. 9, 10, Eep., pp.

16, 31-33, 14.]

of garbage dumpings by New York City scows scows at the

8 and 12 mile dumping points, where the drift of the gar-

bage was followed for periods of from 12 to 2% hours

each, did not reveal a single occasion when the garbage

reached any shore. :

(S. M. 1944-1954; Pr. A. 636-639.]

miles) of the shores of the State of New wersey, except

on rare occasions either when necessary to preserve life

where a scow was in danger of foundering, or when there

is some unauthorized action on the part of individuals

employed by the contractors in charge of the scows or

tow boats.

[S. M., see References under 29-32, incl., above;

also S. M. 1401, 1619, 1627, 1922; Pr. A. 466,

543, 630.)

50. That the territorial waters of the plaintiff do not

extend more than one marine leagne or three nautical

miles from the Atlantic Coast shore line of said State of

New Jersey at low water mark. '

[Comp. State. of New Jersey, see pp. 23-27

Deft.’s Brief.]

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(8. M. 280, 207, 480, 563-553, 709, 917, Pr. A.

[S. M. 1670-1671, 1869, Pr. A. 557, 619.)

®. That the dumping of garbage and refuse at sea by

defendant as aforesaid has not caused and does net cause

any substantial depreciation to the value of the piaintiff's

property or that of its citizens, has not retarded and does

not retard the growth aad economic development of plain-

tiffs territery and that of ite municipalities in any eub-

stantial manner, and hae not umposed and does not impose

in any substantial manner upon plaintiff's manicipalities

and inhabitants, a constant or considerable expense in re

property.

i ule!

65. That the plaintiff failed to produce on the trial of

this action any scientific or expert evidence as to the effect

of ocean currents or tides upon the movement of objects

dumped into the ocean at from 10 to 22 miles from the

New Jersey shore and floating partially or wholly sub-

merged in the ocean.

(See brief, Point ITI, 0-4, pp. 56-58.)

66. That the deposit in spbstantial quantities in the

Atlantic Ocean at points varying from 2% to 8 miles from

the Atlantic shore front of the plaintiff State, commencing

with the minimum distance at Sandy Hook and extending

to Barnegat Light House where the maximam distance ex-

isted, of garbage, refuse and cellar dirt (material taken

from demolished buildings in New York City), by steam-

ships and other floating equipment, and by scows of private

contractors, of the same kind and character as that de-

posited in said ocean as aforesaid by defendant much fur-

ther away from said shore front of the plaintiff, and the

deposit of garimge and refuse in said ocean by the United

States Navy Yard authorities at the points where defend.

ant dumped, and the deposit in said ocean less than one-

halt mile from plaintiff's said shore front of insufficiently

treated and unsanitary sewage from the Cities of Long

Branch and Asbury Park makes it impossible to determine

as a fact whether garbage and refuse and other offensive

matter in substantial quantities is deposited by defendant

in the waters of the State of New Jersey or on its beaches.

[ Fvidence cited in Defendant's Brief, Point ITI,

C4, pp. 58-61.)

Conclusions of Law.

(No references to the brief ‘+ support particular

conctusions will be given.)

1. That the defendant, The City of New York, is a

in the localities deseribed in Sections 1 and 2 of Chapter

378 of the Laws of 1897 of the State of New York, as

amended by Chapter 466 of the Laws of 1901 of said State

and subdivided into five boroughs therein, described.

defendant of garbage and refuse for many years

and is not a dumping thereof in the territorial waters of

the State oi New Jersey.

6. That the dumping im the Atlantic Ocean by the

7. That the dumping in the Atlantic Ocean by the

defendait as aforesaid of garbage and refuse has not

obstructed and does not obstruct or impede the navigation

of the waters of the United States or of the State of

New Jersey.

m ryt Oe ee a Qtr et ee ‘

8. That the dumping in the Atlantic Ocean by

defendant as aforesaid of garbage and refuse has not

jured or destroyed and does not injure or destroy

bathing or fishing rights or property therein of the

tiff or of its citizens or visitors thereto.

9. That the dumping in the Atlantic Ocean by the

defendant as aforesaid of garbage and refuse has not

regulated or destroyed and does not regulate or destroy

_ the commerce of the State of New Jersey and/or its

~* *citizens in violation of Article I, Section 8, Paragraph 3

of the Constitution of the United States or of any statute

of the United States.

10. That the dumping in the Atlantic Ocean by the

defendant as aforesaid of garbage and refuse has not

taken and does not take any property or right of the

plaintiff and/or its citizens without due process of law

in viclation of Article XIV, Section 1 of the Constitution

of the United States.

11. That the dumping in the Atlantic Ocean by the

defendant as aforesaid of garbage and refuse has not

violated and does not violate Title 33, Chapter 9, Section

407 of the United States Code, approved June 30, 1926,

nor any other statute or law of the United States.

12. That the dumping in the Atlantic Ocean by the

defendant as aforesaid of garbage and refuse has not

violated and does not violate Public Laws of New Jersey,

1882, page 155 (3 Compiled Statutes ‘‘Pilot’s’’ See. 47,

p. 3958), nor any other statute of the State of New

Jersey.

13. That the dumping in the Atiantic Ocean by the de-

fendant as aforesaid of garbage and refuse has not de

State as a member of the Union or of any such rights.

14. That the dumping in the Atlantic Ocean by the de-

ter 9, Sections 441-451 inclusive, United

(Approved June 30, 1926), and preceding statutes

has exercised the jurisdiction of the U:ited States.

1h. That by reason of the dumping in the Atlantic

Ocean by the defendant of garbage and refuse at the

places, in the manner and under the sonditions aforesaid,

no justiciable controversy between the plaintiff and de

fendant is presented over which the Supreme Court of the

United Statey has a thority, jurisdiction or control under

Article III, Section 2 of the Constitution of the United

States or any other Article of said Constitution or under

any statute of the United States or under the common law.

16. That the dumping in the Atlantic Ocean by the

defendant at the places and in the manner aforesaid of

garbage and refuse has not been and is not an unreason-

able disposition of the same as a matter of law.

17. That the dumping in the Atlantic Ocean by the de-

fendant at the places and in the manner aforesaid of gar-

bage and refuse has not created and does not create a

public nuisance as a matter of la in respect to the piain-

tiff and/or its citizens or visitors or a public nuisance

which seriously impairs the nosefulness, wholesomencss

and safety of the waters, beaches and shorefront facilities

of the plaintiff, or its citizens or damages the property of

said plaintiff, its municipalities and other citizens or

their health, safety and welfare.

18 That the plaintiff herein must prove its claims and

case against the defendant herein by clear and convincing

19. That the plaintiff herein failed to prove by clear

and convincing evidence that any substantial portion of

the garbage and refuse which found ite way into the

waters of the State of New Jersey or on its shores or

beaches was that which was dumped into the Atlantic

Ocean by the defendart.

20. That by reason of the deposit in substantial quan-

tities of garbage, refuse, cellar dirt and unsanitary sewage

in the Atlantic Ocean by agencies other than the defendant

plaintiff for the injuries alleged to have been suffered by

the plaintiff, ite citizens and visitors.

FP OPO OT OE ET TF TPT REE EB TP

City of New York,

MS ‘on PERE ers ee Ogee PreroOpe “oe

INDEX

(TO PLAINTIFY’S PROPOGED FINDINGS OF FACT axD

CONCLUSIONS OF Law.)

PART L.

Genera! Conclusions of Law

PART II.

(1)

Plaintiff has an interest as owner of the shore,

tween high and low water marks, and of

pr — Bae siehmv « ~laggnn pelcamaa

within its territoria] limits —

Plaintiff has an interest as perens patriac to protect

the property, health and — | of its in-

habitants : —

Finding of Fact...... = — eieenenpamatinein 7

Conclusions Of LAW nee —

PART IV.

Defendant has no legal mad beta ne and

refuse at sea...

Findings of Fact...

Conclusions of Lew...

PART V.

(

— a

creates a public nuisance upon the property and

within the territorial limits of —_—

Findings of Fact . =

Conclusions of Lav... entiinm

(46)

Pras

PART VI.

peesten of eutiei ealtiaiin on ta Otitis

constitutes a trespass upon the property of

plaintiff

Findings of Fact.

Conclusions of Law.

PART VII.

(6)

Injunction is the only adequate and proper remedy in

IN THE

SUPREME COURT OF THE UNITED STATES.’

October Term, 1930.

No. 17, Original.

Stare or New Jensey,

Plaintiff,

—agamst—

Tae Crry or New Yous,

Defendant.

PLAINTIFF'S PROPOSED FINDINGS OF FACT

AND CONCLUSIONS OF LAW.

Plaintiff respectfully submits the following proposed

findings of fact and conclusions of law, arranged in

accordance with its brief.

PART L.

(pp. 1-6 of brief.)

General Findings of Fact.

1. This is an original action brought on behalf of the

State of New Jersey by its Attorney General, pursuant

to an sct of the Legislature thereof in the form of s

resolution approved April 16, 1929.

2. The complaint alleges that defendant disposer of

its garbage and other refuse by dumping the same in the

navigable waters of the United States off the coast of

plaintiff, thereby creating a public nuisatice in the waters

and on the shore within the territorial limits of the plain

tiff, and prays for an injunction to restrain the same.

(48)

PO IEG PRT OO RT: Ble Lear we SFT

General Conclusions of Law.

1. Plaintiff is a sovereign state of the Union charged

with the duty of protecting its own waters and

and the property and rights of its municipalities and

citizens.

2. Defendant is a municipal corporation in, and a citi-

zen of, the State of New York.

3. A justiciable question is presented and this court

has jurisdiction under Article 3, Section 2 of the Consti-

tution and Title 28, Section 341 of the U. S. Code.

PART II.

(1)

Plaintiff has an interest as owner of the shore, be-

tween high and low water marks, and of the bed and

waters of the marginal sea adjacent thereto, within its

territorial limits.

(pp. 7-33 of brief.)

Findings of Fact.

1. From the boundary line between the States of New

York and New Jersey at a point north of Sandy Hook,

to Cape May, a distance of approximately 100 miles, the

State of New Jersey borders on the Atlantic Ocean.

2. Said shore front from said boundary line to Beach

Haven, a distance of more than fifty miles, is involved in

this suit.

3. Defendant is proprietary owner of 285,055 lineal

feet, or about 54 miles, of the shore or beach between

high and low water marks, between Seabright and Beach

Haven, along the section of the sea cost involved in this

suit, together with the marginal sea adjacent thereto

throughout the entire lenzth of its eastern border.

(49)

subjecta, who are entitled to use such shore, bed

for the purposes of navigation, fishing, bathing, sustenance

and recreation.

2. Plaintiff's title thereto, and said rights of its ab

jects therein, are exclusive within the territorial limits of

the plaintiff, subject only to the common right of navigas-

tion of others.

3. The marginal sea of plaintiff extends at least one

marine league, or three nautical miles, seaward from «

straight line drawn between Montauk Point and Cape May.

4. The places where defendant dumps its garbage and

refuse are within the territorial limits of plaintiff.

5. Plaintiff has an interest as owner of the shore, be

tween high and low water marks, and of the bed and

waters of the marginal sea adjacent thereto, within its

territorial! limits.

PART II).

(2)

Plaintiff has an interest as parens patriae to protect

the property, health and prosperity of its inhabitants.

(pp. 34-42 of brief.)

Pinding of Fact.

Within the shore front involved in this case, in addition

to the shore front between high and low water mark owned

by the plaintiff, plaintiff's municipalities own 13,270 lineal

feet and its citizens own 64,818 ‘ineal feet thereof.

(50)

idea

ih ih

aH i qi

SHAT

(pp. 42-52 of brief.)

Pindings of Pact.

Plaintiff denies the allegation of the dumping of

garbage at sea and its answer sets up no justification or

other deferse.

2. The record shows tha

daily large quantities of

plaintiff. At the hearsngs

“

6. The dumping grounds used by the defendant are

within the territorial limits of the plaintiff.

7. Theres is no proof of specific permits issued by the

Supervisor of the Harbor for any particular scow or for

any particular period of time.

Conclusions of Law.

1. The act of Congress, approved June 29, 1888; 2%

Stat. 209, as amended by act of Congress, approved May

8, 1928; 35 Stat. 426, under which permits are claimed to

have been issued by the Supervisor of the Harbor of New

York, confers upon said Supervisor no plenary power to

authorize the dumping of garbage at sea.

2. Plenary authority for such purposes can be obtained

only by virtue of authority from the states.

3. The sole interest of Congress and the Secretary of

War is the protection of navigation and to keep free from

obstruction or impediment the ship channels which the

War Department dredges and maintains at great expense

for that purpose. :

(52)

ARR ET FT EEA “WE OL on” ew

4. The dumping of garbage by defendant is

of a statute of the defendant being Chapter 1

New Jersey for 1882, p. 155.

5. The dumping of garbage within the territorial limita

of the plaintiff is unlawful because it is done without the

affirmative authority of plairtiff or of the United States.

the territorial limits of plaintiff.

(pp. 52-265 of brief.)

Findings of Fact.

1. For many years, continnously at least from 1915,

defendant has dumped at sea some or all of its street

sweepings, consisting of rubbish and light stuff, in spite

of the persistent efforts of the Supervisor of the Port of

New York to secure the adoption of some more sanitary

and satisfactory method of disposition.

2. For some years prior to 1917, defendant’s garbage

was disposed of by cremation at Barren Island and on

Staten Island. In July, 1917, the Barren Island plant

burned. In November, 1918, the operation of the Staten

Island plant was discontinued.

3. There is no explanation in the record of why the

Barren Island plant was not rebuilt or why the operation

of the Staten Island plant was not resumed.

4. Nothing appears of record to show that if the

Barren Island plant was rebuilt and the operation of the

(93)

° ~—cw . FO St IPE RTS PO Re

Staten Island plant resumed, defendant could not, with

appropriate enlargement of these plants as increased de-

mand for capacity arose, continue to dispose of its garbage

and refuse in the manner employed prior to 1917, without

dumping any thereof at ses.

5. Permits of the Supervisor of the Harbor for the

dumping of defendant’s garbage at sea were originally

requested by the defendant’s officials as a temporary

measure to continue for two or three months only.

6. In order to avoid obstruction of the main ship chan-

nel entering New York Harbor, the Supervisor of the

Harbor of New York has by permit designated the loca-

tion of the dumping grounds southeast by east of Scot-

land Lightship varying in distance from said lightship

from 8 to 20 nautical miles according to seasons of the

year.

7. From August, 1917, to the present time defendant

has dumped at sea large quantities of garbage and refuse

amounting in 1925 to 1,517,934 cubic yards; in 1926,

1,303,119 cubic yards; in 1927, 1,219,416 cubic yards; in

1928, 1,378,572 cubic yards, and in 1929, 1,478,165 enbie

yards.

8. Dumping of garbage and refuse at sea by defend-

ant is disapproved by the War Department and by the

Supervisor of the Harbor of New York, both of whom

have frequently urged and admonished defendant to dis-

continue that practice because of washing of the garbage

and refuse on shore and of the objectionable transporta-

tion thereof through the harbor.

9. The consensus of expert opinion expressed in the

official reports of defendant and by the witnesses in this

case is that dumping at sea is a highly objectionable prac-

tice; that at no matter what distance from shore garbage

is dumped at sea, a considerable portion of it is apt to

(54) ,

wash up on the beaches; that the least harmful material

sinks and the foulest floats, which through the action

of current and wind is inevitably scattered along the

beaches thereby creating a public nuisance; and that such

a method of garbage disposal should sot be resorted to

except in emergency and for periods of short duration.

10. Certain parts of this garbage sinks and in many

instances injures and destroys fishing tackle, lobster pots,

lines and other equipment lawfully in use by citizens of

the plaintiff and inflicts upon them many thousands of

dollars in damages. Such part of the garbage and refuse

as floats, either on the surface or in suspension in the

water, finds its way to shore according to the direction

of wind and currents, and the wind exercises a greater

influence than the current. If the wind is blowing from

the west or southwest this garbage accumulates on the

beaches of Long Island and other shores to the east-

ward and northeastward of the dumping grounds. If the

wind comes from the east, northeast or southeast such

floating garbage and refuse accumulates upon the shores

of the plaintiff «) various points, according to the direc-

tion of the wind, between Seabright and Beach Haven,

in varying quantities and over varying areas, according

to the direction and velocity of the wind.

11. The subject of defendant’s dumping of garbage at

sea and its accumulation upon the beaches and in the ad-

jacent waters of plaintiff has caused many complaints to,

and numerous negotiations and correspondence with, the

Mayor, Commissioner of Street Cleaning, Corporation

Counsel and other officers of defendant, by the Governor of

the plaintiff, the officers of many of its municipalities, the

Secretary of War, and the Supervisor of New York Har-

bor, covering a period of at least ten years. During all of

which time representations have been made to defendant's

officers showing the creation of a public nuisance by the

dumping of its garbage at sea and during all of which time

(55)

defendant’s officers have promised to provide complete in-

cineration for its garbage and refuse at various dates from

1925 down to the present time. In spite of those promises

the record shows that during the past three years the

amount of garbage dumped at sea has continuously and

substantially increased and that the amounts dumped

at sea in 1929 was 21.2% in excess of that dwmped at sea

in 1927.

12. Plaintiff is justified in refusing to rely upon de-

fendant’s promises to build incinerators and cease dump-

ing at sea. '

13. The garbage interferes with the United States

Coast Guard service by obstructing the beaches and requir-

ing the removal thereof before the lifeboats can be

launched, and that the coast guards are required to spend

considerable time removing the garbage from their

beaches.

14. The garbage dumped by the defendant at sea

creates an impediment and obstruction to the navigation

of fishing boats, pleasure craft, lifeboats, and other craft,

both with respect to launching and landing of boats on the

shore and the operation thereof in the sea adjacent thereto

within the territorial limits of plaintiff.

15. Garbage dcvmped by the defendant in the sea inter-

rupts and impedes the fishing operations of plaintiff’s sub-

jects and injures and destroys fishing equipment, such as

nets, lobster pots and the appurtenant tackle and gear.

16. Numerous citizens of the plaintiff have constructed

and operate, under license from the Fish and Game Com-

mission of plaintiff, duly authorized thereunto by statute

of the Legislature of the plaintiff, fish pounds in which

they have irvested thousands of dollars for the purpose

of taking fish from the waters within the territorial limits

of plaintiff immediately adjacent to its shore. It appears

from the evidence that such pound fisheries are profitable oi

(56)

enterprises and constitute a legitimate and useful exercise

of the powers of the plaintiff and the privilege of its

licensee.

17. Large quantities of fish, having great value, are

caught annually in these fish pounds.

18. ‘Sewn ty ith aie theo i

torn and destroyed and suffer damage to the extent of

thousands of dollars a year by reason of the garbage and

refuse from defendant’s garbage dumps, .“tich drifts in

the sea with the wind and current, by reason whereof the

nets are torn and destroyed and the fish therein are re-

leased to the loss of the owners of the pounds. Such float-

ing garbage and refuse is foul and offensive and its pres-

ence drives away frora said pounds fish that would other-

wise swim in the waters where they are located.

19. Vast quantities of such garbage and refuse are

east upon the shores of the plaintiff in piles or windrows

extending along the beach for a distance of many miles

and frequently to a depth in excess of one foot. Said gar-

bage and refuse contains broken household furniture, bar-

rels, crates, boxes, boards, sticks, wearing apparel, house-

hold utensils, all kinds of vegetables, fruits, meats, sani-

tary articles of the most offensive character, dead fowls,

dogs, cats and other domevtic animals, and even bodies

of infants. Two hundred and sixty-four different kinds of

articles were identified and described and a complete list

thereof was submitted as appendix ‘‘A’’ to the brief. In

many instances the individual articles were identified by

markings or other indications thereon as having come from

the defendant city.

20. A large proportion of the vegetable and animal

matter in the garbage washed upon the beaches is in a de-

eayed and putrid condition, is foul smelling and nasty, is

offensive to sight and that vast swarms of flies feed and

breed therein; that the offensive odors of said matter

(57)

causes annoyance, discomfort and nausea not only to

persons upon the beaches but also to persons on the

etreets and other public places and in their homes. In

cases of high tides said garbage and refuse is washed

into the public streets and upon private property. It

contains boards with nails, broken glass and other ma-

terial which on many occasions has caused physical injury

to persons and animals, on the beach and in the public

highways. Said garbage and refuse and the flies which

it breeds constitutes a serious menace to the health, as

well as the comfort and convenience of the plaintiff's in.

habitants, and deprives them of the use and enjoyment

of public and private property for extended periods of

time.

21. The accumulation of said garbage and refuse in

the water on the beaches and other public places is of

such frequent occurrence as to constitute a substantial

continuous public nuisance.

22. The shore front in question extends for a distance

of more than 50 miles from Seabright to Beach Haven,

and includes twenty-nine municipalities of plaintiff hav-

ing an aggregate resident population of over 160,000, and

private property assessed for the year 1929 at $139,599,

751.00, including hotels, boarding houses, private homes,

places of business, etc. Said municipalities are seashore

resorts inhabited and maintained for the benefit of, and

frequented by, thousands of visitors during the summer

season, solely on account of the attraction of the sea and

the beach, for fishing, boating, bathing and other com.

mercial and recreational purposes.

23. For the protection and improvement of the beaches

and for the erection of boardwalks, pavilions, jetties, piers,

pools and other bathing facilities, and other public im-

provements, designed and constructed solely for the bene-

fit of the inhabitants and summer visitors, plaintiff and

its municipalities and citizens have expended more than

(58)

fourteen million dollars. Other similar projects planned

or in the course of construction represent an additional

cost of approximately thirty million dollars.

24. Plaintiff’s shore front in question constitutes one

of the greatest natural advantages of the state. It is re-

sorted to each vear by many thousands of its citizens and

by those of other states, for health, comfort and recrea-

tion in the enjoyment of the beaches and of the waters

adjacent thereto for bathing, boating, fishing and other

beneficial purposes.

25. The health, happiness and prosperity of vast num-

bers of plaintiff’s inhabitants depend upon the commerce

and pleasure derived from the use of said marginal sea

and seashore and all of eaid pursuits including commer-

cial fishing, pleasure boating, bathing and other uses of

the water and shore, depend upon maintaining said waters

and seashore free from the pollution and contamination

which will interfere with svch uses thereof.

27. It appears from the evidence that the contact of

bathers with the garbage in the ocean has produced nu-

merous diseases and infections of the ear and sinus such

as furunculosi, exterior otitis and infections of the middle

ear and reddening of the ear drums, which requires the

ear drums to be opened, and numerous cases of infec-

tion of the skin.

28. Said garbage and refuse on the beaches and adja-

cent waters of plaintiff and the offensive appearance and

odor thereof have produced nausea, discomfort and sick-

ners.

29. Said accumulation of garbage and refuse on the

shore and in the waters of the plaintiff creates an annoy-

ance and inconvenience which materially interferes with

(59)

the ordinary comfort of the human existence and dimin. .

ishes the value, comfort and enjoyment of the property of

the plaintiff and its subjects. :

30. The dumping of defendant’s garbage at sea—

(a) Impedes and obstructs the free navigation of

plaintiff’s waters. °

(b) Injures and obstructs the free and licensed fish-

eries of plaintiff’s subjects.

ment of plaintiff’s beaches.

(d) Pollutes the public waters, beaches, streets and

other public places of plaintiff and its municipalities.

(e) Pollutes the atmosphere of the public places of

plaintiff and its municipalities, and the homes of their

inhabitants.

(f) Menaces the life and health of plaintiff’s subjects.

(g) Retards the growth and economic development of

plaintiff’s territory and municipalities.

(h) Depreciates the value of the property and prop-

erty rights of plaintiff and its subjects.

(i) Injures the general welfare of plaintiff’s inhabi-

tants.

(j) Imposes upon plaintiff’s municipalities and inhabi-

tants a constant and considerable expense in removing

defendant’s garbage and refuse from public and private

property.

(k) Produces an intolerable annoyance and interfer-

ence in the enjoyment of the health, comfort and property

of plaintiff’s inhabitants.

(1) Feeds and breeds vast swarms of flies which are

a menace to life and health by reason of their annoyance

and disease-carrying power.

31. The garbage and refuse of which’ plaintiff com- —

plains does not come from passing ships. ;

(60)

32. The garbag~ and refuse dumped into the sea by

passing vessels / ‘onsequential and harmless and it

does not contriba : the conditions of which plaintiff

complains.

33. There is no proof of other scows dumping garbage

or refuse off the coast of the plaintiff.

34. There is no competent proof that the Long Branch

Sewer empties any sewage in the ocean.

35. There is no proof that any sewage discharged from

the Long Branch Sewer Company’s plant pollutes or tends

to pollute the Atlantic Ocean.

36. There is no proof of any solids being discharged

into the ocean from any outlet of the Long Branch Sewer

system.

37. There is no proof of any nuisance being committed

by the discharge into the ocean of the effluent of the

sewers at Asbury Park or Long Branch.

38. It appears from the record that the complaints

respecting Long Branch Sewer Company’s system in Sep-

tember, 1926, have been met by plans submitted on that

day to and approved by the State Board of Health of

plaintiff. There is no proof that those plans have not been

carried out to the satisfaction of the Department of

Health of plaintiff.

39. There is no record of any complaints or of any

criticisms of the sewer system by the State Department of

Health or by any other official authority since that time.

40. Plaintiff is not bound by any statements contained

in Exhibit No. 10.

41. The only evidence in the record of the discharge-

of any solids, or sewage effluent of a character such as to

pollute or tend to pollute the waters of the Atlantic Ovean

at Asbury Park is contained in defendant’s Exhibit No. 11

(61)

which is a bill of complaint filed in the New Jersey Court

of Chancery in an action by the State Department of

Health against that city. The allegations of that com.

plaint are denied by the answer of the City of Asbury

Park, filed December 30, 1930. Whether those allegations

are true or not are to be demonstrated at a hearing of the

ease on the merits.

42. The cause of action stated in defendan’'’s Ex-

hibit No. 11 arose after the hearings in this case had

closed and therefore have no relevancy to the subject-

matter of this suit.

43. The resolution (a) which is part of defendant's

Exhibit No. 9 and defendant’s Exhibit No. 11 shows that

plaintiff is diligent in its efforts to prevent the pollution

of waters and shore within its territorial limits.

44. A substantial part, if not all, of the garbage ac-

cumulation upon plaintiff’s shore and in its waters is car.

ried by wind or tide from the dumping grounds where the

scows of defendant are emptied and defendant’s dumping

of garbage at sea causes a greater portion, if not all, of

the nuisance complained of.

45. The accumulation of garbage and refuse in the

waters and on the shore constitutes a public nuisance.

Conclusions of Law.

1. The primary uses of the sea are navigation and

fisheries.

2. The right of fishery within one marine mile of the

shore rests exclusively in the people of the adjacent state.

3. The free use of the ocean for navigation and fishing

is common to all mankind.

4. The most valuable perequisite of the exclusive owner-

ship of the marginal sea is the benefit of fisheries therein.

(62)

5. An obstruction to navigation is anything that causes

an impediment rendering navigation less convenient, less

secure or less expeditious and includes the deposit of

debris in the water.

6 By the common law of England the right of prop-

erty in the waters of the marginal sea are in the Crown,

subject to the common right of navigation and fisheries,

which is the common birthright of the people. The com-

mon law rule of sovereign proprietorship and public rights

was adopted and is now in force within the territorial

limits of the plaintiff.

7. The exclusive proprietary rights of the sovereign

and the exclusive right of fishery of its subjects extend

from the ordinary high-water mark on the shore to the

extreme limit of the marginal sea. The common rights of

navigation extend over all navigable waters. The common

right of fishery which belongs to all mankind of all na-

tions, extends to all parts of the high seas beyond the ex-

terior limits of the marginal sea.

8. Plaintiff’s citizens have an exclusive right of fishery

in the waters within the territorial limits of plaintiff, and

the right of unimpeded and unobstructed navigation not

only on the waters within the plaintiff’s territorial limits,

but also on the high seas outside of those limits.

9. Bathing in the ocean is a public right which the

plaintiff’s inhabitants are entitled to enjoy without inter-

ruption or interference.

10. Plaintiff has a right to protect the rights of its

citizens within its own territorial waters regardless of

the power of Federal Government in the interest of navi-

gation.

ll. No measure of necessity, usefulness or public bene-

fit will protect defendant from the condemnation of the

law of a public nuisance. Defendant must find a way at

(63)

its peril. If it lacks legislative authority it must acquire

it. If constitutional amendment are necessary it must

obtain them.

12. Pure air and the comfortable enjoyment of prop-

erty are as much rights belonging to it as the right of

possession and occupancy.

13. Garbage dumped by defendant at sea, at whatever

distance from plaintiff’s shore, if carried thither by winds,

tides or other natural agencies, constitutes a public

nuisance in the same manner as if it were dumped directly

upon the shore or immediately adjacent waters of the

plaintiff.

14. The defendant having liberated the garbage in the

sea is responsible for the results of the action of such

natural agencies as wind and tide in carrying the same

to the shores of plaintiff.

15. Municipalities situated upon or adjacent to the

ocean have a legal right to discharge their sewage therein,

so long as they do not commit a nuisance thereby.

16. The discharge of sewage by plaintiff’s municipali-

ties into the Atlantic Ocean is not a nuisance per se. The

burden of proof to establish a nuisance therefrom is upon

the defendant and no such proof was offered.

17. Contribution by others to the nuisance complained

of neither justifies nor excuses the defendant.

18. Dumping of garbage and refuse at sea by defendant

creates a public nuisance upon the property and within

the territorial limits of plaintiff.

PART VI.

(5)

Dumping garbage and refuse at sea by defendant

constitutes a trespass upon the property of plaintiff.

(pp. 265-271 of brief.)

Finding of Fact.

1. The dumping grounds used by defendant for the

disposal of ite garbage are within the territorial limits

of the plaintiff.

Conclusions of Law.

1. The daily dumping of garbage by defendant within

the territorial limits of the plaintiff constitutes a con-

tinuous trespass upon the property of plainti‘f.

2. Dumping garbage and refuse at sea by defendant

constitutes a trespass upon the property of the plaintiff.

3. Plaintiff is entitled to relief by injunction to restrain

the continuance of said trespass.

PART VII.

(6)

Injunction is the only adequate and proper remedy in

the premises.

(pp. 271-292 of brief.)

Findings of Fact.

1, The acte of defendant complained of continue from

day to day and create a public nuisance which causes

irreparable injury to the property and rights of the plain-

tiff and its citizens.

(65)

_—

‘ 20

PART VIII.

Pinal Conclusion of Law.

Plaintiff is entitled to relief by injunction according to

the prayer of the complaint.

Some Issues or Facr

SUPREME COURT OF THE UNITED STATES.

_ Ocrosen Tram, 1930,

No. 18, Original

STATE OF NEW JERSEY, Plointiff’,

vs.

THE CITY OF NEW YORK, Defendant.

REPORT OF THE SPECIAL MASTER.

To the Supreme Court of the United States:

In the above entitle cause this Honorable Court ap-

pointed me as Special Master by its order dated October

14, 1929, as follows:

‘And it is further ordered that the Honorable Edward

K. Campbell be and he is hereby appointed Special Master

in this cause with power to summon witnesses, iseue eub-

poenas and to take such testimony as may be introduced

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

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

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

gether with his recommendations for a decree. The find-

ings, conclusions and recommendations of the master shall

be subject to consideration, revision or approval by the

Court.”’

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

peared before me in Washington, in compliance with my

request, in November, 1929, when a time waa fixed for the

taking of proof. Public hearings began at Asbury Park,

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

(69)

Public hearings were resumed in the City of New York

on March 4, 1990, and continued through March 21,1900,

On April 8, 1930, » public hearing was had at Newark, New,

Jersey, when witnesses were examined. oR

Another pnblic hearing was held at Washington, D.C, —

on December 5, 1990, and some additional proof was ad

mitted without objection. At that time at the request of

counsel and to afford time for preparation for argument

(70)

et FD Da ee ae ee ie i a ee ee eee Fl

SUPREME COURT OF THE UNITED STATES.

Ocroszs Taax, 1990.

No. 18, Original.

't. TE OF NEW JERSEY, Plaintif,,

vs.

‘HE CITY OF NEW YORK, Defendant.

REPORT OF THE SPECIAL MASTER.

PLEADINGS.

‘The Bi

The State of New Jersey exhibited its

City

in-

trl

(1) The Court’s jurisdiction is alleged to

the ground that the suit is one in which a state is

within the provisions of Article ITI, Section 2 of

stitution of the United States.

(2) The Bill describing the location of the

bordering on the Atlantic Ocean for more than onv.

miles alleges that the portion of ocean frontrge more

rectly affected by the matters complained of exteuis

Atlantic Highlands to Beach Haven, a distance of

mately fifty miles, occupied by a

if Sf.

. ¥ ‘

% : 3 ‘ ,

> ig eet

ita bench front within ite territorial limite and that ;

pesdarinn oacrioasiey ya hag ne ;

mon to the people of the :

PRETEFIEEL.

Butte

ar HET

celine

Haltine

af: Hi ]

Hitterl

[

oe: rae San coaeee > Goasten Ee a

great metropolitan areas of Néw York and Philad

and within easy access and communting nt

(6) That the growth, prosperity and substantial

erty values of the seashore communities in question

the suitability of said waters, ss

(72)

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

and chat the industry gives employment to approximately

500 men.

(8) It is alleged that the defendant, with a population

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

poses of garbage and other refuse by transporting the same

in barges towed out and dumped into the navigable waters

of the United States off the complainant's

which, it is averred, is in a

It is alleged that a considerable proportion

and refuse floats upon and beneath the

which

until it is

and cast

That this removal or disposition from the

places affected requires large expenditures

cipality and other large sums by citizens

(73)

Fis

That said garbage or refuse in the water and cast upon

the beaches and property of complianant and its citizens ——

is poisonous and otherwise injurious to human beings and

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

the open navigation of the Waters of the United States —

clogs, tears and injures the net of the fish pounds, and

renders the waters noxious, offensive and unfit for fishing,

boating or bathing, and that the dumping of garbage and

refuse by the defendant creates a public nuisance which

seriously impairs the usefulness, wholesomeness and safety

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

the property of the plaintiff, of the municipalities and its

citizens, and thereby greatly damages the property, seri-

ously menaces the health and safety of the plaintiff and

its vitizens; that said acts are and will be repeated and

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

ont adequate remedy at law.

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

(a) Take the property of complainant and its citizens

without due process of law in violation of Article XIV,

Section 1 of the Constitution ;

(b)Regulate and destroy the commerce of the plaintiff

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

graph 3 of the Constitution ;

(ce) Deprive plaintiff and its citizens of the natural ad-

vantages of their property along the seashore contrary

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

(d) It violates Title 33, Chapter [X, Section 407 of the

United States Code and other laws of the United States

and that said acts are otherwise detrimental to the inter.

ests of the plaintiff and its citizens. .

ANSWER.

The answer of the City of New York, except in its

mission of the averments as to its own population, wae

substantially a general denial of the allegations of &

Bill. _

(74)

Issue was joined upon this answer.

After the testimony was concluded and the day had been

fixed for argument before the Master, the defendant on,

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

leave to file its emended answer. This motion was allowed

by the Court on February 24, 1931, by an order reading as

follows :

“The motion of the defendant for leave to file an

amended answer and to withdraw the ape-ver heretofore

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

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

reply to the amended answer and that all proceedings here-

tofore taken herein shall stand and shall be r-;arded as

having been taken as if the amended answer ha. Jen orig-

inally filed and without reopening the evidence.’’

AMENDED ANSWER.

The answer denies many of the avertments of the bill,

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

(1) That the defendant 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 Harbor 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 (25 Stat. 209), as amended, and now Title 33, Sees.

441, 443, 449 and 451 of the U. 8. Code) ‘‘at pointe eight,

twelve, and twenty miles southeast of Scotland Light Ship

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

tant respectively from New Jersey 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 of the

United States ; that in view of the dumping of said garbage

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 dumping of garbage or refuse #0 per-

formed.’’

(75)

8 a

(2) And farther answering and ‘‘for a seond defense’?

the defendant alleges: ‘‘6. That garbage and refuse in

quantities,’ including various materials set forth im

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

being dumped into the Atlantic Ocean from steamships and

other floating equipment, both inside and outside of the

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

* gels clearing for ports south of New York and

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

from the shore of New Jersey, from Highlands to Barnegat

Lighthouse,’’ and that great quantities of condemned food

matter discharged ae aforesaid by_private contractors, by

(76)

;

the United States Navy Yard authorities and by said New

Jersey cities into the water of the Atlantic ocean in large

quantities would float under the influence 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 thet if any injuries or damages are

suffered by New Jersey or its citizens or to their

safety or property it is not chargeable to the acts of the

defendant : and

(3) “For a third defense the defendant alleges that

the bill of complaint does not state facts sufficient to con-

stitute a cause of action or to entitle the plaintiff to any

relief.”’

PARTIES AND JURISDICTION.

This is an original action brought by the State of New

Jersey under authority of a resolution of its Legislature,

' &ppfoved April 16, 1929, by direction of the Governor of

the State.

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

nicipal corporation, created by and existing under the laws

of the State of New York. ,

The case presents a justiciable controversy over which

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

U. 8.) (Georgia v. Tennessee Copper Company, 206 U. 8.

230; Missouri v. Illinois, 180 U. 8. 208; 200 U. 8. 496.

New York v. New Jersey, 256 U. 8. 296; Wisconsin v. Mi-

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

FINDINGS OF FACT.

The facts deemed to be established by the evidence and

which may be considered material to the contentions of the

(77)

GENERAL STATEMENT.

(1) Locality.

The State of New Jersey on ite easterly side borders on

(2) Area Affected.

Within this fifty miles of ocean frontage there are twenty-

nine separate municipalities of the State.

(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 waa us follows:

The State owns approximately 285,000 lineal feet be

(78)

These municipalities are seashore resorts, inhabited

maintained as such for the benefit of residents and

Many thousands of visitors frequent them during

mer season solely on account of the benefits

tractione of the sea and the beach for fishing,

bathing and other recreational purposes. There

Fé

itors to some of them at other seasons of

the summer who go there for the benefits afforded by

ocean and air.

(4) Beaches.

alt RGAE TE ;

aH era HTP

. Ha Aigitte eh i al

Hit eeistethiie ay ts Hills

+ te iiit ‘ eet 3 i225

HTH EH ERE idiyy pide

F AE ud at Tie hyeditys aby:

SEGRE

fathead lls

(80)

i 8

i ij

235 fs

Bit | ] Lt : nd H ceiie

lei; SHEET

S2iy seeETsTei esd eters

“s = sZ2%.

Mekhi c Sree GARR fapte

na EHP

ai 3 TI HAE ; = z

Hat tel af MIF iat

it FAA

Se aH Ss tan (lh g Hie

aH itis aut ae

; - igi:

it Hi ielflal HE ety] 2] ees

bREgscsi seid =

4 sF esse

| ATH

oe et if ms a

See] :

tte

iddbe ear, requiring eo astm fo be penile

affected cases, resulting from bathing in the ocean.

~ qj

year of cases of external otitis which is

flamation of the ear canal and of cases

S403

ei ~~.

Hillishie

(10) Occur, When.

The deposits of garbage and refuse on the beaches cesar ae

when the winds are from the east or northeast. A storm —

or severe biow from either of these directions 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.

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.

(11) Dumping.

Nor is there any dispute as to the fact of the disposal by

the City of New York of garbage, street sweepings and rub-

bish by dumping the same at sea. The defendant admits —

it does now and has for years since the fall of 1918, dumped _

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

its records showing that it has dumped into the ocean —

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

and a third cubic yards per year; that the last year, 1929, _

was above that average and exceeded the amount dumped _

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

the disposal .by dumping in the ocean during 1929 was ap- —

proximately 493,000 tonsa. In the winter months there are _

less materials dumped than in the summer months. In =

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

vse onanadiradbyissetecaty sapere

are made every day except when the weather. conditions —

prevent. The foregoing section numbered (11),

‘‘Dumping’’ is made a part of my findings of fact.

(86)

(ta) History of Dumping.

iti

efi

ials otherwise for a short

system’’ were disposed of.

;

}

operating the one at Staten Island having

was coufronted with the situation that it had

for the disposal of its garbage and waste, and

applied to the Supervisor of the Harbor of New

permission to dispose of these materials at sea. This

Supervisor of the Harbor is an officer provided for by the

Act of Congress of June 29, 1888 (25 209), entitled an

“Act to prevent obstructive and injurious deposits within

the Harbor and adjacent waters of New York by dumping

Under date of August 8, 1918, Dr. R. 8. Copeland,”

Health Commissioner of New York, addressed « coment

cation to the Supervisor of the Harbor stating the very

serious situation confron ;

peal ting the city because of garbage

“The only present method we have of getting rid of

7) ne '*.t0 dump it at sea... . In order to pro-

still, complaints having reached his office from

the New 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

office of the Supervisor of the Harbor whose duty

see that the dumping is done within the prescribed

(88)

Ss ory

apt

tin to

ere

wes

sea began defendant’s Mayor requested the Supervisor

of the Harbor that he authorize a change in the damping

{” “Aside, however, from. the question of cost it seems

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

=, ~~ ae ig -

2 Ss feed ee ee a ee”

gi Nc! die: 5 om

Hal He ihe HH 1 it 1

j HH 3: 4% a 44;

fi s(t Urey aefeaay HE U

i Gis Wiel iil 1a

fied (iit Huei fasl

te ti il a] 4: Ht : fi i pliia!

baal if: i, He g23 HAHHHE

Hs JH EEA E

cn A

a3 (SE

sent HET Hl:

18; Lay's of HF

AEH ET

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il (ins rf; itt |

E ji anit % Hi ise

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HAH Hii ean,

i ai I

| il bi ij Ht Hl lili

Hu BUT HEE

a tuanian atta

Hear itt, ii

tees: if pe

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4 ,

‘

. :

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ties

RHE

stil

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Hp!

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te» ” oy

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ty 4

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4 he

r Nee a

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5 “ rs

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pete Mat tie

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Bee AS Cae :

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47583

HELE

gi;

PE:

«ae

years,

however, that the garbage and

result from the disposals, first by —

seound, by scows of private contractors |

some others to be named.

contends,

the beaches

eiises st :

raat uN a ie

ote © :

> bd

ih ° ; ‘

“og

~ a

" (1), Stoumshipe: It in to bo observed that the lanes for

_ Buropean and foreign vessels to and from otis te : for

to the north and east of the designated dumping areas;

A witness introduced by the

the three sent out by ihe defe moe

: wa

: Se

- oS AS

4 : wha

> . ‘y . e.

‘ Le . :

;

their

water and

charge as they proceed. There is an estimated amount by

two or three witnesses for the

dumping sreas for the defendant, that forty to

are discharged from some of these vessels leaving

or in suspension in the water.

(¢) There is evidence that « foreign steamship was seen

to discharge garbage on an occasion in or near the waters

of New York Harbor, and a photograph of the veesel on

that occasion was made an oxhibit.

(f) There is evidenwe that a witness hed taken on his

vessel a cargo of condemmed onions and discharged the

(101)

saa

Hn His

plan of the sewage system and some evidence that ¢

aboot once a year, and in wikter

there is an

it ;

answer

generally

Testimony that

- garbage and refuse after

New York falls short of

in Mareh, 1990, has «mall probstive force

lishing what occurred in 1929 and prior years.

There is proof that some veasels discharge garbage

refuse and that scows with permits to dump cellar

frequently have with it pieces of wood in more

quantities, besides other proof referred to.

Giving to the evidence dne consideration,

should be cencitaded that whatever garbage

reaches the plaintiff's shores from coastwise and

sela and other canses, and other dumpings than

the defendant, are negligibie in comparison with

1. The plaintiff's contention that defendant dumps its

garbage in water over soi] belonging to plaintiff, that is

to say, in the waters of ite marginal sea.

2 Effect of permits isened by the Supervisor of the

1. Trespass. =.

The plaintiff contends that the dumping of garbage by

defendant is upon its property and therefore constitutes

trespasa.

(104)

~ Fe :

is at least interesting. It ia, of course, tru

ite territorial mits property righte are

by the rules and decisions of the courts

(nat these will be fotlowed by this Court (S¢.

Co. v. Board, 168 U. 8. 348, 342; Baw v,

This Court said in Manchester v. Massechusette (190

U. 8. 240, 26%), that ‘‘there is no indication that the ces-

jarisdiction of the State as between it and the United

Sates should be confined to the border of the counties and

that the counties should be defined according to the custo

mary English weage, by the application of thesrale as to

headlands. This Court said (page 264): ‘““The extent of

the territorial jurisdiction of Massachusetts over the sea

(106)

In Martin v. Waddell 8 Pa, lngnae te

which is applicable to New Jersey, this Court

In Manchester v. Masvachusetts, supra, this Court said _

that as between nations the minimum limit of territorial —

jurisdiction of a nation over tide water is 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

jurisdiction is the right of control over fisheries. . a

The open sea within this limit is, of course, subject te ;

common law rights of navigation and the government for —

the purpose of self-protection in times of war or for the

protection from frand on its revenues, exercises authority

beyond this limit.”’ *S

(106) Aa he

Ui l it

the “Twelve Mile Limit’

Sess dali

Ba Wit a!

¥ dagtt .

+ Aan :

nll

sal nHE iis’

Hin H

- from said dumping

It is a fact that no written permit was introduced in

evidence but this is not to sey that there is no evidence of

permis.

(109)

Bra eee

iu }

loads of hd

” call

patrol

pper and lower Bay to inspect

and around

coll

be collected.

p 2

e have on duty

are customaril

—

in the u

job it

it, which the

that they wiil

their permi

aS * SEfbes‘ —

oes a ie: ig

ae this

plates

tem

(110)

HOH ee

a >

33 ors? 3°23 rake 33 E

A ae i

Hig As cr Hig a17 Gs te

tw re a tad

es ins es SATE PR hi « pie Pavan .

i cata SHAN tes Les

mid be ni

Seo.

RRA Re

2He Hai 4 AR ae

if ils; itis; ite

ye tiie il jue silty

AB {Ate vil Ht alla $

og: penalty for taking

permit —In al] cases

in a

New

those of

shal! be

_ is

made a

who

of th

; not

Ti,

~& pt

t thie

Stat. 209.)

dumping ;

without

Heit;

ied

visor of the Harbor and not by the Secretary. Bat 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 na

There can be no doubt that the dumping was not

Light, one of the points in the foregoing description.

In 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

® permit to dump no less than four miles east by scutheast

of Scotland Light Ship excludes by implication cumping

within New York Harbor and its adjacent and tributary

waters inside of that point and thus defines the precise

limit.’’ He added that even thongh the limits prescribed

by the Supervisor are beyond a marine league from the

shore any other interpretation of the national power would

(114)

itary ef

tn HE

Rie

foal RUE

fee att

iF i HE

HE HH GT

dat

res HE

saqatiad

HLT

Vie

iiss |

Het

be"es4dsies

ue add By

Range Improvement we

Court eays: “While Con-

» 419), this

Pony (269 U. 8. 411

(115)

Fertilizer Co. v. Hyde Park, 97 U. S. 659, 666.)

In order to accord to the act full scope as a shield for

protection, it is not necessary to make of it also a sword

of offense.

Nor does the fact that the defendant is a municipal cor-

poration afford immunity from the results of its own

matters into it provided he does mot oreate s nuisance to

others. But it by mo means follows that either the city or

any private person has the right to deposit filth upon +

seashore us such quantities as to create a nmirance to yf

or navigation. (Bee Brayton v. Fall River, 118 Mass. 218,

230). This case quotes and approves Frankiyn 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 te create a nuisance, public

or ‘ate.’’

In Noonan v. City of Albany (79 N. Y. 476, cited im

Huffmire v. Brooklyn, 162 N. Y. 584, 500), it is anid: “A

municipal corporation has no greater right than aa indi-

vidual! to collect the surface water from the land or streets

into artificial channelg and discharge it upon the lands of

another, nor has it any immanity from legal responsibility

for creating or maintaining a nuisance.’’

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 statnte to make a con-

tract and that in the performance of that contract a nuis-

ance was created.

My conclusion is that the Act of 1888, as amended, fur-

nishes no defense to the defendant, and that compliance

with permits from the Supervisor of the Harbor acting

under the provisions of that Act does not furnish a de-

fense nor relieve it from the effect of a public nuisance re-

sulting from or created by its action.

3- Nuisance.

There is no doubt (the amended answer 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 “ -

because there is evidence that sometimes through sccident

or the occurring of something unusual, a few scows have

dumped their loads nearer to the shore than the appointed

117)

pS ALPES a? nes *

{ET eee EH

it 1 ie . it 3 Hi

Their

the shore

they generally

so a8

They attract

and sometimes

with, and until

enjoyment of

the latter are

il ti

i HEH DHE

charter rights; bat this Court . ‘d that the State a

give am effectual remedy, saying (p. 657): ‘38 seate ch.

the fundamental principle that every one shall so use his $2

own as not to wrong or injure another. .... Pure o

air and the comfortable enjoyment of property are as much

the rights belonging to it as the right of possession and oe

cupancy.”’

In Georgia v. Tennessee Copper Company (206 U. &,

230), 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 the

course of the opinion it is said: ‘‘It hardly is denied and

camnot be denied with snocess 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

magnitade of that pollution are not open to dispute.’’

In Mugler v. Kansas (123 U. 8. 623, 673), this Court

said: ‘The ground of equity jurisdiction in cases of pur-

presture as well as of public nuisance is tke ability of courts

of 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 perpetual injunction protect the public against them in

the future. .. . . This is a salutary jurisdiction especially

where the nuisance affects the health, morals or safety of

the commanity.’’

It is well established that noxious smells may constitate

a nuisance. (Baltimore, etc. Railroad Co. v. Fifth Baptiet

Church, 108 U. 8. 317.) In Block v. Balfimore, 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 constituted an unwholesome dan-

ger and offense is obvious.”’ \

(120) F

Schmidt,

83 N. J. Eq. 35, 36; Butterfoss v. State Board, 40 &. J.

Eq. 325.)

ses prescription, whatever

(121)

uni tt quan Wiles

sia3:

Hi A

iy afi tal Pana

Ha i Sa Hate

ee Ct Mp line

tell Te il THe

Ht ihe rH uv TTA

Histid aye | 323

Hut

sat

aiisee? ik i ne |

i ay ih a ie

;

Sas Oat they have been injured by the practice,

When ons become sufficiently strong it may

apne ag aS Ee aw pees ob ME ere

unable to quickly introduce a more satisfactory

form of disposal.’’

at that time prescribed by the Supervisor. The latter de.

clined the request because of the complaints about the

garbage.

The defendant had been satisfactorily using the ‘‘re

duction’’ system of garbage disposal when in an ‘‘emer-

gency’’ it was authorized to dispose of it at sea. In the

meantime it has erected a number of incinerating plants

and plans to erect more. One reason given for the delay

in building the needed incinerators is that the defendant

was not given the power of condemnation of sites. It has

such power now, conferred in 1929, and it is a question

whether the defendant, given the right and duty of per-

forming a function that may be called a governmental

function but not given the power necessary for its full per:

formance may indefinitely follow a course as heretofore

stated to the injury of others and still claim that in such

matters it is in the position of the state itself. But if the

stricter rule be applied I think the only reasonable con

clusion to be reached under all the evidence is that the

(124)

conditions on the beaches and in the adja

cent waters complained of in this suit are caused by and

due to the action of the defendant in dumping ite garbege

and refuse into the waters of the cosan as already stated

There has not only been an invasion of serious magnitude

of the plaintiff's rights extending through some years but

it is continuing and is threatened for an indefinite period.

ment Company, 173 Fed. 496; McGowan v. Columbia River

Power Association, 45 U. &. 952.) In Mississippi & Mis-

sourit Railraod Compasy v. Ward (2 Black 485), it ap-

peared that Ward sued the defendant, a citizen of Minois

in the District of Iowa, to restrain the continuance of an

alleged nuisance arising from the manner of the construe-

tion of a bridge over the Mississippi River, the boundary

between the two states being the center of the river. The

allegation was that the obstruction was on the Ilinois cide.

This Court held that the District Court of Iowa was with-

out jurisdiction, and said (p. 494): ‘‘He seeks nothing fram

(125)

on DY JRE ELH Set Ee

] ritetetaes 3 TRUE

ites rf

an injunction against the discharge of sewage into

Fis

ayiaitta Wei ay

lies tahisdaliz i

sought

the upper bay, a part of New York harbor, claiming that .

this discharge constituted « serious injury to health, prop-

Jersey, as has been hereinbefore found, and that the plain-

tiff is entitled to relief in accordance with the prayer of the

bill; but the defendant should be given a reasonable time

within which to put into operation sufficient incinerators

to care for its garbage and rubbish. (See Georgia v. Ten-

nessee Copper Company, supra.)

RECOMMENDATIONS.

My recommendations are:

1. That the Court’s decree should declare that the plain-

tiff is entitled to relief and to an injunction as prayed for,

but that before an injunction shall] issue a reasonable time

(127)

will be ascorded defendant within which to carry into ef-

feet ite proposed plan for the erection and operation of

insinerators to destroy the materials such as are now being

dumped by defendant at sea.

2. That in as much as the evidence adduced does at

diselose what such reasonable time is the case be referred

to a Master for findings of fact upon that subject.

Respectfully submitted,

EDWARD K. CAMPBELL,

Specal Master.

(128)

Now comes The City of New York, the defendant above

named in the above entitled suit and objects and excepts to

the report of Hon. Edward A. Campbell, the Special Master,

herein filed in the office of the Clerk of this Court on the

2th day of March, 1931, in the following particulars, to wit:

rights of the plaintiff, because the defendant is before

the Court, and the property affected is within the United

States.

1. To so much of the conclusion, or purported con-

clusion, of law, set forth under the heading ‘‘Parties and

ite

) that The City of New York has not dumped gar-

and

ia adit

miles from the Atlantic Coast shore line of said State

of New Jersey at low water mark.

not within tha navigable waters of the United States.

8 To the failure and refusal cf the Special Master to

in the Atlantic Ocean by the defendant of garbage and re-

fuse for many years last past at pownts 8, 12 and 3 miles

southeast of Scotland Lightship and about 10, 12 and 22

miles, respectively, from the Atlantic shore of the State

of New Jersey, or much more than one marine league from

said shore and its waters, was not and is not a damping

thereof in the navigable waters of the United States.

9. Teo the failure and refusal of the Special Master to

conclude as a matter of law as requested by the defendant

(Proposed Conclusion of Law 5) that the dumping in the

Atlantic Ocean by the defendant of garbage and refuse for

many years last past at the points and distances from

Scotland Lightship and from the New Jersey shore as

stated in Exception No. 8, was not and is not a dumping

thereof in the territorial waters of the State of New Jersey.

10. To the failure and refusal of the Special Master

to conclude as a matter of law as requested by the defend-

ant (Proposed Conclusion of Law 6) that the dumping in

Baten Hace

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Report

» P. 16) as finds that during June, July

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of Special Master

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substantial injury to

nsed in connection t

or visitors.

31. To the failure and refusal of the Special

to find as requested by the defendant (Proposed

plaintiff’s territory, and that of its municipalities in any

substantial manner and does not impose in any substan-

tial manner upon plaintiff’s municipalities and inhabi-

tants a constant or considerable expense in removing de-

fendant’s garbage and refuse from public and private

property.

34. To the failure and refusal of the Special Master

to find as requested by the defendant (Proposed Find-

ing of Fact 65) that the plaintiff failed to produce on the

trial of this action, any scientific or expert evidence as

to the effect of ocean currents or tides upon the movement

of objects dumped into the ocean at from 10 to 22 miles

from the New Jersey shore, and floating partially or

wholly submerged in the ocean.

35. To the failure and refusal of the Special Master

to conclude as a Matter of Law as requested by the de-

fendant (Proposed Conclusion of Law 7) that the dump-

fi:

all

Foe FF

to conclude as a Matter of Law as requested by the de-

fendant (Proposed Conclusion of Law 9) that the dump-

ing in the Atlantic Ocean by the defendant as aforesaid,

of garbage and refuse, has not regulated or destroyed

and does not regulate or destroy the commerce of

State of New Jersey and/or its citizens

Article I, Seetion 8, paragraph 3 of the

the United States or of any statute of the United

38. To the failure and refusal of the Special

conelnde as a Matter of Law aa requested by

ant (Proposed Conclusion of Law 10) that

in the Atlantic Ocean by the defendant «

garbage and refuse, has not taken and

any property or right of the plaintiff and/or its citizens,

without due process of law in violation of Article XIV,

Section 1 of the Constitution of the United States.

39. To the failure and refusal of the Special Master

to conclude as a Matter of Law as requested

defendant (Proposed Conclusion of Law 13) that

dumping in the Atlantic Ocean by the defendant as afore-

it f

fee iE

°F

ie:

S35FF

41. To the failure and refusal of the

to conclude as a Matter of Law as requested

fendant (Proposed Conclusion of Law 18)

tiff herein must prove its claims and case

defendant herein by clear and convincing evidence.

42. To the failure and refusal of the Special Master

to conclude as a Matter of Law as requested bv the

defendant (Proposed Conclusion of Law 19) that the

etl

43. To the failure and refusal of the Special Master

to conclude as a matter of law, as requested by the de

fendant {Proposed Conelusion of Law 17) that the dump-

and in the manner aforesaid, of garbage and reiuse has

Ry Ok

marine league from the shores of New Jersey issued

the Supervisor of the Harbor of New York in

ance with said Act, do not relieve the defendant from

dence in this case as to what limits were prescribed.

45. To so much of the Finding of Fact or Conclusion

of Law or both, set forth under the heading ‘‘Some

Questions of Law—2. Permits’’ (Report of Special

Master, p. 47) as finds, or purports to find, that although

the defendant dumps its garbage under permits issued by

the Supervisor of the Harbor of New York at points in

excess of one marine league from the shore of New

Jersey, it is difficult to understand how that fact affords

any defense in this case.

46. To so much of the Conclusion of Law set forth

under the heading ‘‘Some Questions of Law—2. Permits’’

(Report of the Special Master, p. 47) as concludes that

(Report of the Special Master, p. 48) as conclades that

the powers which the Supervisor has under the statute

and the effect to be given the permits authorized to be

issued are to be strictly construed because

of the dumping upon the rights of others.

Questions of Law—2. Permits’’ (Report of Special Master,

p. 48) as concludes that the fact that the defendant is

a municipal corporation does not afford immunity from

the results of its own action.

49. To so much of the Finding of Fact or Conclusion

of Law, or both, set forth under the heading ‘‘Some

Questions of Law—2. Permits’’ (Report of Special Master,

p. 49) as concludes that the Act of 1688, as amended,

furnishes no defense to the defendant and that compliance

with permits from the Supervisor of the Harbor acting

under the provisions of that Act does not furnish «

defense nor relieve it from the effect of a public nuisance

resulting from or created by its action.

50. To the failure and refusal of the Special Master to

conclude as a matter of law as requested by defendant

(Proposed Conclusion of Law 14) that the dumping in

the Atlantic Ocean by the defendant as aforesaid of gar-

bage and refuse under permit from, and supervision of,

the Government of the United States through its Super-

visor of the Harbor of New York and in accordance with

the provisions of Title 33, Chapter 9; Sections 441-451

inclusive, U. 8. Code (approved June 30, 1926) and pre-

ceding statutes on which founded, is a compliance with

uit

Special

witness

of establishing @ custom by other vessels.

4. To so much of the Finding of Fact set forth under

the heading ‘“‘Some Issues of Fact’’ (Report of Special

Master, p. 36) as finds, or purports to find, that whatever

garbage and refuse reaches the plaintiff's shores from

coastwise and other vessels and other causes and other

dumpings than those of the defendant are negligible in

defendant and frequently carried by winds and waves

from the dumping places to and upon plaintiff's shores

as hereinbefore stated.

55. To the failure and refusal of the Special Master

to find as requested by defendant (Proposed Finding of

Fact 27) that the seows of private contractors, having no

connection with the City of New York, containing ‘‘cellar

dirt,”” Le, debris from buildings that have been torn

down consisting of joists, timbers, laths, plaster, ete, of

a very light kind have for years been dumped and are

being dumped into the Atlantic Ocean under permit from

the Supervisor of the Harbor of New York at a point

about 4 miles southesst of Scotland Lightship.

56. To the failure and refusal! of the Special Master to

find as requested by defendant (Proposed Finding of Fact

57. To the failure and refrsal of the Special Master to

find as requested by defendant (Proposed Finding of Fact

34) that Brooklyn Navy Yard scows containing refuse and

58. To the failure and refusal of the Special Master to

find as requested by defendant (Proposed Finding of Fact

35) that the Supervisor of the Harbor of New York in his

report for 1929, stated that it is probable that a great deal

of garbage is dumped both outside and inside the harbor

entrance by the enormous tonnage passing in and out of

New York Harbor and also that the loval floating equip-

ment throws more or less garbage overboard.

59. To the failure and refusal of the Special Master to

find as requested by the defendant (Proposed Finding of

tad

ne i ila

63. To the failure and refusal of the Special Master to

find as requested by defendant (Proposed Finding of Fact

40) that passenger and freight ships often anchor in great

wuts dha aun deasiel ian aanaree

numbers during a fog for 24 hours or more outside of the

harbor and dump garbage accumulated during that period

into the sea where they are anchored.

Att

RIE

pes a

ay Westie liga ape

He ii a it :

fe pti 32 +

HUME: lan aia 1 ier

“Hs i

elih

4it!

isin

ee ei

iit Hi

rmine

offensive

defendant

ite

and

wer of

BSG

Gul

Raunt

iat

Wank

HHH

sik!

waters and beaches in substantial

defendant is not liable to the plantiff f

a ss 222%

dae hey! iH

Tere Boe

i431

S S

fHE aH ae

76. To the failure or refusal of the Special Master to

find as requested by defendant (Proposed Finding of

Fact 22) that in the Borongh of Queens there are now

nine incinerators operating with an average daily gar-

bage and refuse consumption of from 100 to 270 tons and

that borough has never dumped any of ite garbage at sea.

77. To the failure or refusal of the Special Master

to find as requested by defendant (Proposed Finding of

Fact 22) that in the Borough of Richmond there are now

78. To the failure or refusal of the Special Master to

find as requested by defendant (Proposed Finding of

Faet 24) that approximately only 27 per cent. of the gar-

~ ie a mr

150

bage collected in the City of New York is dumped at

sea, the greatest proportion of which comes from the

Borough of The Bronx, and such amount will be con-

tinually reduced.

79. To the failure or refusal of the Special Master

to find as requested by defendant (Proposed Finding of

Fact 63) that the dumping in the ocean by the defendant

more than a marine league from the New Jersey coast

at points 8, 12 and 20 miles southeast of Scotland Light-

ship designated by the United States Supervisor of the

Harbor of New York and under conditions imposed by

him of about 27 per cent. of the garbage collected by

said City is not in fact an unreasonable disposition of

its total garbage collections, pending the carrying out of

its plans for the installation of additional incinerators.

80. To the failure or refusal of the Special Master

to find as requested by defendant (Proposed Finding of

Fact 61) that the size, summer population, property in-

vestments and assessed value of property of practically

all of the New Jersey communities and municirlities |o-

cated along the Atlantic Ocean shore front from High-

lands to Seaside Park has increased greatly during the

period from 1919 to 1929, during which the City of New

York has been dumping a portion of its garbage and re-

fuse into the Atlantic Ocean as aforesaid.

81. To the failure or refusal of the Special Master to

find as requested by defendant (Proposed Finding of

Fact 62) that, although much more garbage and refuse

has been dumped at sea by the City of New York during

the summer months than during those of winter, the

summer population of, and visitors to; all of the New

Jersey Atlantic shore front communities and municipali-

ties claimed, by plaintiff to have been injured, is and are

many times greater than in winter.

151

82. To so much of the Finding of Fact set f

the report of the Special Master under

“‘Some Issues of Fact,’’ page 34, as finds tha

Long Branch sewer the evidence consists only

of the sewage system and some evidence that

were at one time made to the Department

which investigated the same, and that the ma

satisfactorily adjusted.

83. Toso mnch of the Finding of Fact set f in

report of the Special Master under the heading “

Conclusions of Law,’’ page 50, as finds that

have left upon them considerable quantities

or refuse after their gates have been thrown

release the contents, and these remnants are

the men in charge as the scows are being

from the dumping area, and that the general p

continues, more materials being dumped in 1929

the preceding year.

84. To the failure and refusal of the Special Master

to find, as requested by the defendant (Proposed Find-

ing of Fact 3), that by Chapter 378 of the Laws

1897 of the State of New York, known as The Greater

New York Charter, various municipalities of the State

of New York were united and consolidated inu the City

of New York, which wae thereby divided into five bor

onghs, known, respectively, as the boroughs of Manhat-

tan, The Bronx, Brooklyn, Queens and Richmond.

85. To the failure and refusal of the Special Master

to find, as requested by the defendant (Proposed Find-

ings of Fact 5 and 6), that by said Chapter 278 of the

Laws of 1897 of the State of New York, a Department of

Street Cleaning was created in the municipal government

of said city, with jurisdiction over the removal and dis-.

p88

iEE

cSa8

fl:

HI :

diction over and disposition of said

stances collected in the Boroughs of Queens and Rich-

mond was transferred to the presidents of said boroughs.

86. To the failure and refusal of the Special Master

‘

be.

Mie

dhe!

;

tugboats chartered from, and in charge of, contractors,

to conclude, as a matter of law, as requested by the de-

fendant (Proposed Conclusion of Law 1), that the de

fendant, The City of New York, is a municipal corpora-

tion and a political subdivision of the State of New York,

administering governmental functions in the localities de-

scribed in Sections 1 and 2 of Chapter 378

of 1897 of the State of New York, as amended

Department of Street Cleaning and the Presidents

Boroughs of Queens and Richmond of the Citv of New

York, for many years prior to and until Dr.

thereof, had jurisdiction in said city over the removal

and disposition, as often as the public health required,

of ashes, refuse, street sweepings and garbage in said

city.

90. To the failure and refusal of the Special Master

to conclude, as a matter of , a8 requested by the

defendant (Proposed Conclusion of Law 12), that the

dumping in the Atlantic Ocean by the defendant, as

aforesaid, of garbage and refuse has violated,

does not violate, Public Laws of N.

page 155 (3. Compiled Statutes of New Jersey “‘Pilots’’,

Sec. 47, p. 3958), nor any other statute of the State of

New Jersey.

91. To the failure and refusal of the Special Master

to conclude, as a matter of law, as requested by the de-

fendant (Proposed Conclusion of Law 21), that the plain-

tiff has failed to prove facts sufficient to

cause of action in equity for the relief demanded in the

complaint or for any relief whatever in eqnity.

to conclude,- as a matter of law, as requested by the

defendant (Proposed Cénelusion of Law 22), that the

154

defendant is entitled to a dismissal of the complaint By

herein, with costs to the defendant.

F. Recommendations for Decree.

The defendant also objects and excepts to the recom.

mendations for a decree made by the Special Master in

the following particulars:

93. To subdivision No. 1 (Report of Special Master,

pp. 59-60) in its entirety.

94. To subdivision No. 2 (Report of Special Master,

p. 60) in its entirety.

Respectfully submitted,

Azruvur J. W. Huy,

Corporation Counsel of The City of New York,

Solicitor for the Defendant.

Eussot 8. Bewepict,

J. Joszrn Lay,

Tomas W. A. Crows,

Of Counsel.

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.