1. New Jersey, by empowering a railroad company to have as many
tracks within its specified right of way as it might deem
necessary, and to erect suitable bridges to accommodate them,
including draw bridges over navigable waters crossed, impliedly
consented that, in the maintenance and improvement of the railroad,
a draw bridge over Newark Bay, originally constructed with two
tracks, might be replaced by a better one accommodating four tracks
upon substantially the same location. Ls.N.J. 1860, c. 64. P.
267 U. S.
381.
2. Both state and federal governments having consented to this
replacement, it is unnecessary to decide whether the acts of
Congress and approval of the plans by the Chief of Engineers and
Secretary of War would be sufficient without the consent of the
Page 267 U. S. 378
state, or whether the legislation of Congress supersede the laws
of the state respecting navigable waters wholly within New Jersey.
P.
267 U. S.
384.
3. The replacement in question as not within Ls.N.J. 1914, § 4,
c. 123, as amended; requiring approval by the state Board of
Commerce and Navigation of plans for waterfront development
undertaken since the passage of that act. P. 385.
4. Nor was approval necessary by the Port of New York Authority,
a body corporate and politic created by compact between New Jersey
and New York with the consent of Congress. P.
267 U. S.
386.
5. The fact that the railroad's bridge was not included in the
comprehensive plan for the development of the Port of New York
(embracing Newark Bay), adopted pursuant to the said compact, does
not make it unlawful or deprive the company of power to construct
it.
Id.
297 F. 77, 287
id. 196, affirmed.
Appeal from a decree of the Circuit Court of Appeal affirming a
decree of the district court which dismissed a bill brought by the
City of Newark to enjoin the Railroad Company from constructing a
bridge over Newark Bay. Jersey City and the State of New Jersey
intervened as complainants. The Port of New York Authority, a body
politic established by compact for the development of the Port of
New York District, including Newark Bay, was made a defendant and
answered, leaving its duties in the matter to the decision of the
court. The bill was dismissed on motion of the railroad upon the
ground that it did not state a cause of action. The two cities and
the state appealed.
Page 267 U. S. 379
MR. JUSTICE BUTLER delivered opinion of the Court.
This suit was brought by the City of Newark to enjoin the
construction of a bridge across Newark Bay. Jersey City and the
State of New Jersey, by leave of court, intervened as parties
complainant.
Under the authority of c. 64, Laws of New Jersey 1860, the
defendant company constructed, and has since maintained and used, a
double track wooden railroad bridge, with bascule draws, across
Newark Bay. It is below Newark, between Elizabeth and Bayonne, and
crosses the channel at an angle of about 66 degrees. Newark Bay is
a navigable estuary, and its waters at this place are wholly within
the State of New Jersey. The company proposes, and has commenced to
construct upon substantially the same location, a substitute bridge
of masonry and steel with four tracks and vertical draws. It claims
that the Acts of Congress of August 8, 1919, c. 42, 41 Stat. 277,
and February 15, 1921, c. 47, 41 Stat. 1099, and the Bridge Act of
March 23, 1906, c. 1130, 34 Stat. 84, with the approval of its
plans by the Chief of Engineers and Secretary of War, confer
authority to construct the bridge in question without the consent
of the state. But the company also insists that, if the authority
of the state is necessary, it was granted by the act of 1860.
Appellants maintain that the source of power to construct a
bridge over navigable waters wholly within one state is in the
state itself; that the concurrent consent of both state and federal
governments is necessary before such a bridge lawfully may be
erected; that the authority granted by the Act of 1860 does not
extend to the new bridge, and that, under laws of New Jersey (c.
123, Laws of 1914, and chapter 242, Laws of 1915), the approval of
the
Page 267 U. S. 380
substitute bridge by the State Board of Commerce and Navigation
is necessary.
The complaint alleges that the City of Newark owns real estate
above the bridge of the westerly shore of the bay, and has expended
large sums for improvements thereon, consisting of warehouses,
slips, docks, and other facilities of commerce, known collectively
as "Port Newark terminal;" that neither the present nor the
proposed bridge is necessary to the operation of the railroad;
that, because of the threatened construction of the proposed
bridge, complainant has been unable to secure tenants for the
terminal property, and that, if any bridge shall be constructed
between Elizabeth and Bayonne, the free and unobstructed access of
vessels to the Newark terminal will be prevented, and the value of
the terminal destroyed. The complaint shows that the defendant the
Port of New York Authority is a body corporate and politic,
established by a compact between New Jersey and New York for the
creation of the port of New York District, and for the
comprehensive development of that port. Congress gave its consent
to the agreement. C. 151, Laws of New Jersey 1921; c. 154, Laws of
New York 1921; c. 77, 42 Stat. 174. The district extends as far
north as Irvington on the Hudson, New York, as far east as Long
Beach, Long Island, as far south as Atlantic Highlands, and as far
west as Summit, New Jersey, and so includes Newark Bay and the site
of the bridge.
See opinion of district court in this case.
287 F. 196, 201. Pursuant to the compact, a comprehensive plan for
the development of the port of New York was approved by both states
and consented to by Congress. C. 9, Laws of New Jersey 1922; c. 43,
Laws of New York 1922; c. 43, Stat. 822. Appellants insist that
Congress, by creating and adopting as its instrumentality the Port
Authority, qualified the license granted by the United States to
the company by imposing as an additional requirement the approval
of that body.
Page 267 U. S. 381
The petition of intervention of Jersey City adopts the
allegations of the complaint and shows that, within its territorial
limits, it has much shoreland on Newark Bay and the Hackensack
River, which is a continuation of the bay, and that it owns lands
on these waterfronts on which it has expended large sums for the
construction of wharves and other improvements. The petition states
that the construction of the proposed bridge will cause that city
irreparable injury. The petition of intervention of the State of
New Jersey calls attention to the provisions of the Acts of 1914
and 1915, and alleges that the company has not obtained the
approval of its plans for the proposed bridge by the Board of
Commerce and Navigation.
The complainant and intervenors pray judgment that the defendant
company is without right or power to build the proposed bridge;
that it would be an unlawful purpresture and public nuisance, and
that its construction without the permission of the New Jersey
Board of Commerce and Navigation and the Port Authority is
unlawful, and for an injunction.
The defendant Port Authority answered. The defendant company
moved to dismiss the complaint on the ground that it fails to state
a cause of action. The motion was granted by the district court
(287 F.196), and its decree was affirmed by the circuit court of
appeals (297 F. 77). Complainant and interveners appealed to this
Court. Judicial Code, § 241.
By the legislation empowering the company to construct,
maintain, and use the railroad, the State of New Jersey consented
to the construction of the bridge in question.
At the time the bridge was built, there was no applicable
legislation by Congress. And it was within the power of the state
to authorize its construction.
Willson v. Black Bird Creek
Marsh Company, 2 Pet. 245,
27 U. S.
252;
Page 267 U. S. 382
Escanaba Co. v. Chicago, 107 U.
S. 678,
107 U. S. 683.
Chapter 64, Laws of New Jersey 1860, provides:
"That it shall and may be lawful for the Central Railroad
Company of New Jersey to extend their railroad from some point in
their track in the City of Elizabeth to some point or points on New
York Bay in the County of Hudson at or south of Jersey City, and
for that purpose, in its construction and completion, maintenance,
use and enjoyment, all and every provision of the act entitled, 'An
act to incorporate the Somerville & Easton Railroad Company'
[approved February 26, 1847] and of the several supplements thereto
shall extend and be applicable to the railroad now authorized to be
constructed in every respect as if the same had been originally
authorized under the said act to which this is a supplement. [§ 1.]
. . . That the said railroad company shall construct a suitable
bridge over any navigable water that they may cross, with a pivot
draw with two openings, each of seventy-five feet in width at right
angles to the main channel, located at a point convenient for
navigation. . . . [§ 2.]"
"Section 6 of the act of incorporation of 1847 confers upon the
president and directors of the company 'all the rights and powers
necessary and expedient to survey, lay out, and construct' the
railroad"
"not exceeding one hundred feet in width, with as many sets of
tracks and rails as they may deem necessary, . . . and to erect
embankments, bridges, ferries, and all other works necessary to lay
rails and to do all other things which shall be suitable or
necessary for the completion or repair of the said road or
roads."
These laws conferred on the company, not only the powers
expressly defined, but also those which fairly are incidental
thereto.
Union Pacific Ry. Co. v. Chicago, etc., Ry. Co.,
163 U. S. 564,
163 U. S. 581.
Necessary bridges are essential parts of the railroad; they are
stretches of railroad over water. As to bridges over navigable
waters, the Act of 1860 specified draws and the number
Page 267 U. S. 383
and width of openings. But it did not prescribe the number of
tracks or other elements which were to constitute the railroad. The
company was empowered to have as many tracks, within the width
specified, as it deemed necessary. That the company in the first
instance might have built a four-track bridge of permanent
materials such as is now proposed, instead of a smaller wooden
structure, cannot be doubted. The powers granted were not exhausted
by the construction of the tracks and bridge first provided. Its
charter was of unlimited duration. Bridges, as well as other
elements of the property, must be replaced when they wear out or
become inadequate. The company was empowered to maintain and
improve its railroad as it might from time to time find necessary
or expedient. It was not bound to have its performance limited to
the capacity of the bridge first constructed, but it was free to
add to its transportation facilities by laying down additional
tracks over waters crossed by its bridges, as well as upon land.
Plainly authority to provide, as needed, better and stronger
bridges having additional tracks is to be regarded as within the
purposes of and incidental to the powers expressly given.
See
Railway Companies v. Keokuk Bridge Co., 131 U.
S. 371,
131 U. S. 385,
131 U. S. 389;
Brainard v. Clapp, 10 Cush. (Mass.) 6, 10;
Western
Union Telegraph Co. v. Polhemus, 178 F. 904, 906. This case is
not like
Morris and Essex Railroad Co. v. Central Railroad
Co., 31 N.J.Law 205, or
McCran v. Erie Railroad
Company, 95 N.J.Eq. 653. In the former, the company, having
laid out its railroad in accordance with the charter, was held to
be without power to add a branch or spur. In the latter, it was
held that a change of a part of the line shortening a curve could
not be made without complying with § 16 of the Railroad Act of New
Jersey, requiring the consent of the riparian commission (now the
Board of Commerce and Navigation) and the payment of compensation
to that body for land under water
Page 267 U. S. 384
taken by the company. Here, no extension, branch, spur, or
change of route is involved.
The replacement was authorized by the United States. The Act of
August 8, 1919, authorized the company to construct a bridge
suitable to the interests of navigation between Elizabeth and
Bayonne in accordance with the Bridge Act of March 23, 1906. The
latter requires the plans and specifications to be approved by the
Chief of Engineers and Secretary of War (§ 1), and provides that,
whenever Congress shall authorize a bridge over navigable waters of
the United States, the authority shall cease unless construction be
commenced within one year and completed within three years (§ 6).
The company failed to commence construction within one year. But
the Act of February 15, 1921, made the time for commencing and
completing the bridge two and five years, respectively, from the
date of its passage. The Chief of Engineers and Secretary of War,
December 29, 1922, approved the plans. The supremacy of the power
of Congress to regulate commerce with foreign nations and among the
states and of the regulations made by the exertion of that power is
so well known as not to require citation of authority. Undoubtedly
that power extends to the navigable waters of Newark Bay, and to
the plans for the replacement of the bridge in question. As both
state and federal governments have authorized or consented to the
construction of the bridge, we need not decide whether the acts of
Congress and approval of the plans by the Chief of Engineers and
Secretary of War would be sufficient without the consent of the
state, or whether, in respect of the navigable waters of Newark Bay
wholly within the State of New Jersey, the legislation of Congress
supersedes the laws of the state.
The laws of New Jersey do not require approval of the plans for
the proposed bridge by the State Board of Commerce and
Navigation.
Page 267 U. S. 385
Section 4, c. 123, Laws of 1914, provides:
"All plans for the development of any waterfront upon any
navigable water or stream of this state, or bounding thereon . . .
in the nature of individual improvement or development, or as a
part of a general plan which involves the construction, change,
alteration or modification of a dock, wharf, pier, bulkhead,
bridge, pipeline, cable, or any other similar or dissimilar
waterfront development, to be undertaken subsequent to the passage
of this act, shall first be submitted to the said commission [the
Board of Commerce and Navigation, §§ 5, 13, c. 242, Laws of 1915],
and no such development . . . shall be commenced or executed
without the approval of this commission first had and received. . .
."
And it declares that any such development or improvement
commenced or executed without such approval shall be deemed to be a
purpresture and a public nuisance. The company, in February, 1917,
June, 1918, and February, 1922, applied to that board for the
approval of its plans for the proposed bridge. All its applications
were denied. Nevertheless, the company is free to insist that such
approval was not required.
See Buck v. Kuykendall, ante,
p.
267 U. S. 307. The
plans for the new bridge to replace the old one are not shown by
any allegations of fact to constitute a "plan for the development
of any waterfront." The construction or replacement of a railroad
bridge across a bay or river is not necessarily a "waterfront
development." The company was empowered under the Act of 1860 not
only to construct and maintain its railroad and the existing double
track bridge across the bay, but also to replace that bridge by
another having additional tracks whenever the company found it
expedient so to do. We find nothing in the act to indicate an
intention to require the plans for such replacement to be submitted
to the state board. It is plain that the construction to be
undertaken by the company for the maintenance and betterment of its
railroad
Page 267 U. S. 386
bridge over the bay is not a "waterfront development to be
undertaken subsequent to the passage" of c. 123, Laws of 1914.
Approval by the Port Authority of the company's plans for the
proposed bridge was not required. There is no provision in any of
the laws relating to the Port Authority or to the comprehensive
plan for the development of the port which requires such approval.
And the Port Authority does not claim that the company was required
to obtain its permission. In its answer, it prays the court "to
determine its legal duties in the premises," and expresses
willingness to pass on the application for a permit if the court
shall determine one is required. The complaint alleges that the
bridge is not included in the comprehensive plan, and that the
existing and proposed bridges "are in conflict therewith,
obstructive thereof, and inimical thereto." But the fact that the
bridge is not included does not make it unlawful, or leave the
company without authority to construct it. It does not appear that
the Port Authority has attempted or has power to deprive the
company of its right to maintain, improve, and use that part of its
railroad. The assertion that the bridge is in conflict with the
comprehensive plan is not supported by any facts alleged in the
complaint or in the answer to the Port Authority. The pleader's
naked assertion is not enough to support the contention that the
consent of the Port Authority was required.
Decree affirmed.