Allen v. Board of Chosen Freeholders

13 N.J. Eq. 68

Opinion

The Chancellor.

The complainant, by his hill, asks an injunction to restrain the defendants from changing the location of a bridge across the north branch of Nave-sink river, in the county of Monmouth. The intervention of this court is asked upon the ground that the defendants have no power or authority to change the location of the existing bridge, and that the change of location will he a peculiar and irreparable injury to the property of the complainant.

The bridge was originally located and constructed by the board of chosen freeholders of the county of Monmouth, under the authority of an act passed on the third of December, 1825. The act authorizes the bridge to be erected, “ beginning at or near the house of Bamuel Hubbard, esq., commonly called Smock’s point, or near the house of Joseph Van Schoick, or from Joseph Smith’s point to the opposite shore.” (Pamph. 54.) On the 3d of January, 1826, the freeholders, under authority of the act, selected the site for the bridge, and ordered that it should be located “ at Oyster-shell point, over said river, to the opposite shore, near Josiah Van Schoick’s.” The bridge was erected upon the site thus determined upon, and having become dilapidated, in the year 1839, a new bridge was erected about six 1'eet east of the old bridge, but substantially upon the same site and within the limits of the public highways upon both sides of the river. It -is now proposed to erect a new bridge, commencing at the same point, near Van Schoick’s house on the north, or Middletown shore of the river, but extending to the opposite, or Shrewsbury shore, about one hundred yards west of the site as originally located. On the Shrewsbury shore the bridge, as proposed to be located, does not connect with the ancient and existing highway, but with a new road laid out, or proposed to bo laid out, though not yet lawfully authorized, to connect with the ancient highway some distance from the termination of the bridge.

Have the freeholders power to make the proposed change in the location of the bridge ? By the general laws of the state, the erection and maintenance of county bridges is committed to the discretion of the chosen freeholders of the respective counties. It is their province to decide upon the necessity or expediency of erecting a bridge, to fix the location, and determine the mode of construction. With this discretion the courts have no power to interfere. But this authority does not extend to the erection of bridges across navigable rivers. The channels of public rivers cannot be obstructed, nor their free navigation impeded, except by authority of the legislature. Hence the existing bridge across the Navesink was erected, as all bridges over navigable rivers in this state must be, by express legislative sanction. The right to erect the bridge or to determine the site does not reside in the board by virtue of their general powers, but is derived from the power conferred by the legislature.

The legislature, by the act in question, gave authority to the board to erect the bridge at one of three designated points, and thence across the river to the opposite shore. Within those limits the power of location was given to the freeholders. But that discretion having been exercised, and the selection having been made, the power was exhausted. It is not a continuing power, which enables the freeholders in all future time to change the location at pleasure. The general principle of the law is, that when the power of election has been once exercised, when the election is made the power is determined.

A railroad or company, having once located their route under the authority of their charter, cannot alter the location. Morehead v. The Little Miami R. R. Co., 17 Ohio R. 340; Little Miami R. R. Co. v. Naylor, 2 Ohio R. 235; Pearce on Railroads, &c., 218.

Nor can a canal company change the dimensions of their canal after it has been constructed, though the proposed change is within the power originally conferred upon the corporation by their charter. Blakemore v. The Glamorganshire Canal Navigation, 1 Mylne & K. 154.

Hor can a turnpike company change the location of their gates which have once been located by the corporation under authority of law. State v. Norwalk and Danbury Turn. Co., 10 Conn. R. 157; Turnpike Co. v. Hosmer, 12 Com. 364; 2 Swan 282; 18 Johns. R. 397.

So when an unlimited discretion as to the location of a bridge is vested in a bridge company, when that discretion is exercised and the bridge built the grant is located, and the power of location is executed and gone. Cayuga Bridge Co. v. Magee, 6 Wend. 85.

The principle, as applied to private corporations, is not denied or questioned. Ho reason is perceived why the same principle should not apply where a special power is conferred, and an election given to a board of chosen freeholders to erect a bridge over navigable waters. In such cases the discretionary powers of the hoard may he exercised in regard to all matters to which they appertain, as in the case of all other bridges they may decide whether the bridge shall or shall not be erected, what shall be the character and cost of the structure, and whether it shall he continued or abandoned. All these are matters of discretion, vested in the board by virtue of their office, and in no wise dependant upon the special grant of power to erect the bridge. Thus in Tucker v. The Freeholders of Burlington (Saxton 282), it was held that an act which authorized the freeholders, at their discretion, to build and maintain a bridge over Bass river, at a specified point, vested in the freeholders a right to build the bridge at the point specified, whenever, in their discretion, the right might he advantageously exercised.

The power of building the bridge was conferred, and the location designated by the act. The time of building was left to the discretion of the freeholders, and might be exercised by them at their pleasure. Ho election as to the exercise of the special powers conferred was given by the act. But when a special power is conferred upon the freeholders of building a bridge over navigable water, and of locating it at one of two or more points, the election is not made by virtue of the general discretionary power of the board, but by virtue of the special power conferred by the act. It is not a continuing power, but when once exercised it is gone for ever. The freeholders having, in pursuance of the power conferred by the act, located and built “ the bridge at Oyster-shell point, over said river, to the opposite shore, near Josiah Yan Schoick’s,” have no power to change the location or materially to alter either terminus of the bridge. The case is not altered by the fact stated upon the argument, that Oyster-shell point includes a large extent of shore, including the point at which the new bridge is to have its termination, so that the location of the new bridge is not in conflict with the election originally made. "What the board meant by their election is best ascertained by their action. The maps exhibited in the cause show that the bridge on the Shrewsbury side of the river terminates at a point of land in the bend of the river. The building of the bridge at that point shows that the freeholders, by the location at Oyster-shell point, intended the point at which the bridge is built, and not an indefinite extent of shore. This construction of the power conferred in the location of bridges is imperatively demanded on considerations of public policy. In authorizing the construction of a bridge over navigable waters, the legislature may wisely leave to the discretion of the freeholders the designation of the precise point at which the bridge shall be located. But when the election has been made, and the bridge erected, and when, in the progress of time, roads are opened, buildings erected, and valuable improvements made, adapted to and induced by such location, the consequences of a change of location may be such as the legislature never could have contemplated and never designed to authorize. A change of circumstances has rendered a change of location, which was a matter of indifference when the law was passed, highly prejudicial alike to private and to public interests.

A power of election, which in the one case the legislature might be willing to confer, in the other they would feel constrained to deny. The public grant of power in this case, as in all others, must be strictly construed. It conferred upon the freeholders the power of election, and the right having been exercised, the power is exhausted. I am of opinion that the freeholders have no rightful power, under the special authority conferred upon them by the legislature, to change the location of the bridge in question.

The defendants further claim that, if the special power conferred by the statute is exhausted, they may lawfully change the location of the bridge, by virtue of their general powers, on the ground that the river has ceased to be navigable. The river has always been regarded as navigable. Bridges at and above this point have always been erected by legislative authority. The facts alleged and proved by the defendants, though they seem to show that the navigation above Bed bank is of little comparative value, do not prove that the stream is not navigable, and that it is consequently withdrawn from the guardian power of the legislature. The freeholders themselves have not so regarded it.

But this case must be decided upon other grounds. I have expressed an opinion upon this point because it was elaborately argued by counsel, and because it was intimated that it was desired for the satisfaction of the freeholders that the views of the court upon the question of power should be known.

The change of the location of the bridge is unlawful, as being an unauthorized obstruction in the channel of a navigable river. Obstructions to navigation are public nuisances. They are to be remedied at common law, by indictment, or in equity, by an information filed by the attorney general. Angell on Tide waters 115, 117; The Attorney General v. Stevens, Saxton 369; The Attorney Gene ral v. The New Jersey R. R. and Trans. Co., 2 Green's Ch. R. 136; Newark Plank Road Co. v. Elmer, 1 Slockt. 754.

In cases of public nuisance a bill in equity, asking relief by way of prevention, can be maintained by a private person only upon tbe ground of apprehended special (and peculiar) injury to himself, distinct from that done to the public at large. Angell on Tide waters 121; Crowder v. Trickler, 19 Vesey 616; Corning v. Lowerre, 6 Johns. Ch. 439; City of Georgetown v. Alexandria Canal Co., 12 Peters 91; Bigelow v. The Hartford Bridge Co., 14 Conn. R. 565.

The complainant, by his bill, represents that he is the owner of twenty-five acres of land in the village of Red bank, near the termination of the existing bridge, bounded on one side by the river and partly by the public road leading from the bridge through the village. That he owns a valuable wharf upon the river, a large boarding house and other valuable buildings and improvements in the village, situate upon streets connected with the road leading to the bridge, to all of which it affords the most ready and convenient access. He claims relief on the ground of special injury to his rights as a citizen, in the navigation of the river, as the owner of the real estate, in the depreciation of its value, and as a taxpayer, by being compelled to pay an increased amount of tax for the cost of a work proposed to be erected without lawful authority.

As regards the rights of navigation, it is manifest that the complainant sustains no injury by the erection of the new bridge not common to every citizen.

The complainant owns no wharf or other property above the bridge. His wharf, his laud, and all his improvements lie below the existing bridge. If it was proposed to erect the new bridge further down the river, so as to prevent all access to his wharf, there would be at least a semblance of reality in his claim of special injury. But the new bridge is proposed to be located further up the stream, leaving the present bridge between it and the defendant’s property.

It is not perceived, therefore, how the complainant can sustain any special or peculiar injury from the obstruction of navigation.

The complainant’s land does not lie adjacent to the present bridge, nor within 100 feet of its termination. Tie owns no land, as appears by the defendant’s answer and the accompanying map, between the termination of the present bridge and the point where the new road to the proposed bridge will intersect the ancient highway. All the injury which can result to his property from the erection of the proposed bridge will be by rendering the approach to a part of his property somewhat less direct, and by diverting a portion of the travel from passing his land, thus rendering it less public. But these constitute no grounds of legal injury or equitable relief.

The injury which the complainant suffers as a taxpayer he sustains in common with every other taxpayer of the county, and in this respect the damage which he sustains is in no sense special or peculiar: and if it were, a court of equity would not exert its restraining power to arrest a great public improvement on the alleged ground that a dollar would thereby be added illegally to the amount of the complainant’s tax.

The injunction must be dissolved, and the complainant’s bill dismissed with costs.

To guard against misapprehension, it is proper to add that, aside from the form of proceeding, there is nothing in the case, as it appears upon the defendant’s answer, to warrant the interference of this court, even upon an information. A court of equity exercises its restraining power in cases of public nuisance with great caution.

Iii the caso of The Attorney General v. The New Jersey Railroad and Transportation Co., Chancellor Vroom denied the relief in a case somewhat similar to, but much stronger than the present. The river above the bridge is comparatively little used for the purposes of navigation or float- age. No masted vessels pass it. Nor several years the draw in the existing bridge has been removed or disused. The railroad bridge, recently erected further down the river, is without a draw. The erection of the new bridge will create no serious impediment to navigation.

A change of location of the bridge from the present •site has become highly expedient, if not absolutely necessary. The Raritan and Delaware Bay Railroad intersects the highway near the termination of the old bridge at a very acute angle, and runs for some distance within the limits of the road, rendering the use of the highway inconvenient and dangerous. A due regard to the safety of the lives and property of the travelling public requires the removal of the bridge and highway to a position more remote from the railroad. The action of the board, in making the change, appears to have been adopted in good faith, upon due deliberation in accordance with public sentiment, and upon the petition of large numbers of the inhabitants of the county residing in the vicinity. Under such circumstances there is no reasonable pretext for interfering with the action of the freeholders, although the work that they propose to construct may technically constitute a public nuisance. Whether the public exigency is such as to require the immediate action of the board without securing the concurrence of the legislature, is a question solely for the consideration of the freeholders, the legally constituted guardians of the public interests of the county*