# Reply Brief — New Jersey v. New York City > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386009_0279%3A11 ## Record - **Collection:** Supreme Court brief - **Document type:** Reply Brief - **Published:** January 1, 1935 - **Citation:** 296 U.S. 259 ## Text FILE COPY ——— 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) ae ATRVINIGL 19 aapls YIssenoea ens HA 4niog ett sbtand Remarc tghoponnnimnnpy fer fenthes peltatyange! 20 booking hvwaee (Ait ah aBep troqeH) Dawrol of taleah Oar annig ist) inthe Sedat Ma ae Gh geo) Om ace of? 47m asiofe Sata ott Rey: 1 meat geeeerron ene. “te we mas ey fo BH aig -” hour; nay, the twelfth hour, the presentatia : = which reasons tore me by the plaintiff's motion, s netvlaing See lr on won onane os a and mit®'Mkpect for ite.decees... °° * 8" 99% a. ee 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), PEM onc oF euigieew ohh wmanmneoylih us Spor MAW RE (ME Re gpaat-ot > Mom: ; ~ ~OS a:Ol-meterman .2ecw side ols to ~woawolls a OP Were sot AU 08) ovroah ot woldalvatte oa a cam we et oa en - (tise seontey ot howl amet belie mented. hoe igei ire ¢etodt If Mani os acevo gn sass tan? ett ews “atearney-Ganawes wt | ‘DUANE & MiNARD, HottomitenodeH st to sitet we oe Sided ‘Yiaes man vel ial en ua TOL a becmatienatantbanasl hacttatd: oad ssh HIND - oval Wire enpedenten eiabinctell 10 AL ptr vitnedd mMunitzact off te tewena off cf Meats) are , dite Merial w (Old) Wee fe esq Mb See operieg 7 cnet of drtmithe trit6s ST Aftioer terme oa) osegedll (See 22 Oy ORT .F ey STTeTolsT-9o7 UO OTH ¥ _ 0 AIRY gE NK RF a - oe me _ 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: I, 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 — ws > =~ . rd vit i ; il i HIE He fi ih ta ni Page hty in nl vii Hint a1y3 134; biti aH fi in i HH! Hi tit : THEME ti Fei praay . HAT ( i; i ii ik it i | if He i if L da, | Ha il AL i ITE lt : Ht + at a fi J i ik fist Pattee 11. The defendant, tho Clty of Note York, lation of more than 6,000,000 people, which is rene ra? | Hit | Hi HOT HB HATE 12 s4itjt mt a 7 a ris if 4 i i i i Mi ~%) as . Pf hl See - ¥ *s A > ny gh a eS + 4 ie ‘the commerce of ” * ff Brida €, Beetion ® paragragh ¥ of 4 . 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 E ; ] i F : ? : E oo a nae et. Fie Pe S 8 ~ é - - Q w 2 = ve a a ie) - ra Oo a n’ 8 i S a < 2 1? 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 Shit Ajat*? t fait es 2 5227! 3 The City of New York, further allegea: 3 3 i 3 = : 3 3 : tinnously increasing. HE ae 13 pe: - teal HUTA fense, the de- » further alleges: fendant, The City of New York 29, Bes. 2 Coir Code, approved ee 22 miles (being yng New J said Ci hag Further answering and for a second de iH eile ase TREE pt Hl . Aigdageasages | HGH ‘igi: at it We 14 wi va i? ; , 3 £ 5 z S E ate LTB ii ul > E a) eg Z te ° 3 3 D = S Hae (Hat a He Hf 4d 2B oo ia 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. li 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.] 2 ir fi E 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.] 31 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.] i et ¢¢ uy ie ii > te : a] : Hy Hoe a 147; 25 f ® lt HH i i ih dey id qj i. fe L _ , i ere iat ‘il (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 a> 1 : E : F 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 ‘ 42 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. ee 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 2 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. at 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 7 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) 9 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) 10 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) ll 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) 12 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) 13 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. (c) Hinders, and at times destroys, the public enjoy- 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) 14 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) j 15 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) 16 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) 17 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. 18 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) Re 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 ma A * (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 J City of 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 | At HH H Hf 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 ] Ae EF Hitterl Ei ty [ i gz i 2 2 : F | i oe: rae San coaeee > Goasten Ee a great metropolitan areas of Néw York and Philad and within easy access and communting nt - © ae (6) That the growth, prosperity and substantial erty values of the seashore communities in question ee 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) 7 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) 7 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 i matter discharged ae aforesaid by_private contractors, by (76) ; a * . 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 i E i Fé itors to some of them at other seasons of the summer who go there for the benefits afforded by ocean and air. F (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 tH 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 i 6 Wh PH Hi + ik See] : i 4 tte iddbe ear, requiring eo astm fo be penile affected cases, resulting from bathing in the ocean. ~ qj et é H | s 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 — .y prevent. The foregoing section numbered (11), ‘‘Dumping’’ is made a part of my findings of fact. (86) 12 (ta) History of Dumping. z i 4 i : iti # ie Hi efi He ials otherwise for a short system’’ were disposed of. ; i ' i 4 4 ; 3 } ir eS rE iy 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 rf i i} = 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 * Pe 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 3 e 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 i a3 (SE sent HET Hl: 18; Lay's of HF AEH ET Hh fii! a a ill; HERR oR il (ins rf; itt | E ji anit % Hi ise y yitstl TAHOE a3 | HAH Hii ean, i ai I | il bi ij Ht Hl lili Hu BUT HEE a tuanian atta Hear itt, ii tees: if pe biieabe ¥ 4 , \ i. ‘ . : a v "] t 4 Pi ha ties 3 RHE stil il 32 F i i} LF it Hp! HE 3] fli uf ? J 7 te» ” oy ®t < A. i ra < » * f. # as ‘ght, YF a ae 4 + a4, 3 ty 4 v + y * a Ly” rene” 4 he r Nee a rs ee ; i . > alee © e Peer: 5! id <= . 4 “y -~ * * 7 ; , 5 “ rs bee ye ES _ . Ce, > = i a ee - —% y . * pete Mat tie ° . a Po Pei - AB 4 - ' - : pe ¢ ' * s SP ee ie ve, af? ae vat cz a, ” - > a4 ee es web S Bee AS Cae : ae ‘eS ERE, y a ws ST . : é , Je # » od - 4 P a) gt LS ie NS ae a a ar ; we (aA Py, carey » , . ee ote 0 te ee j } # ii 3 ay 47583 HELE z : gi; PE: =a i = i it it «ae aa years, i 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 5 i a 6 a 3 AF 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 . : ; il 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 j . : plan of the sewage system and some evidence that ¢ | 4 E ! 1 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) < , is ~ 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 _ (p. 258): “We think it must be regarded as established © ¥ that as between nations the minimum limit of territorial — jurisdiction of a nation over tide water is 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 ti E h £ the “Twelve Mile Limit’ Sess dali Ba Wit a! ¥ dagtt . + Aan : ~ 4 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 TE a fe iu } = a loads of hd ” call patrol © representative of your pper and lower Bay to inspect Mf and around coll be collected. p 2 i= Bs t? e have on duty are customaril s a 2 % t — 4 in the u = 3 : g 8 : job it w it, which the that they wiil their permi aS * SEfbes‘ — oes a ie: ig ae this plates EB g z 5 : : & a 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 8. in a New those of shal! be _ is made a who of th ty ; not Ti, ~& pt t thie Stat. 209.) dumping ; without =i Heit; H 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 Z th foal RUE fee att iF i HE HE HH GT dat res HE saqatiad HLT Vie iiss | Het be"es4dsies ue add By Hf 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) e 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 i 52 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.) v. 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 z Hut uf eo 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 ee an injunction against the discharge of sewage into é Fs of b a : t + 2 2 : ~ = Ns z 2 5 : ? 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 ij H: if 33 2] He i g5 if i i aj i 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 tr HE S att ASH THT HA a] pun, Te ist Sth : AE play uri) uatith Hu eee Me tae a ese HE | thi: Hy Fiuilt ‘Iyliain HIF ifs aH Report » P. 16) as finds that during June, July aH He Hee hy Hi i % 2 % i : - of Special Master < . THE BHM JE une i Wg BH ee Hitt Bit 2 straal * : ALE Pry Sad Ee £ 232 fid37% 5% Heparin EH [Padi Heh if tia i a pyedaatsi : i qadds ata ip TE itt eH E STEAL HEHE erbaa Pia fll if i ab i A : HUBS pag ists HE thee eiy« riixl TT PTE 3 fist: H Hb eee i Hag iy : Hal ny iad 1243; rst a it + : aL mT a een ea biet baa : a1 jaf? 4ais', en TPH BE EE Hi Hine ttt yt substantial injury to nsed in connection t or visitors. na 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- i f | fi: all Foe FF 1] 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 S °F z . | : F H : : 4 i! k e i 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 ef nF 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 B ik g FF Fe uf g | gs oe Ry Ok 7 | i it 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 Ls 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. : i 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 tf 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 if i i i H if 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. mm : i Att RIE af 1 re pes a ay Westie liga ape He ii a it : fe pti 32 + HUME: lan aia 1 ier i “Hs i elih ir 4it! i isin ee ei iit Hi ca tn rmine offensive defendant ite and wer of f H BSG Gul He 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 é S S | % 3 & : - ee 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 Hh Pr iEE e ¢ i 4 ! cSa8 fl: HI : H if 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 a + ee ‘ be. Mie Ba 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. --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386009_0279%3A11. Public record. Not legal advice.