N.Y. & N.J. Water Co. v. Borough of N. Arlington

HOWELL, V. C.

Action by the New York & New Jersey Water Company against the Borough of North Arlington. Heard on motions for leave to dismiss original bill and also crossbill. Motions granted.

For report on motion for preliminary injunction, see 74 Atl. 973.

Gilbert Collins, for the motion.

Warren Dixon and John M. Bell, opposed.

HOWELL, V. C. The complainant is engaged in laying a line of water pipe from a point near Belleville, in Essex county, to a point in the city of Bayonne, in Hudson county, over a right of way which it has acquired, which traverses the borough of North Arlington, and crosses three of its streets, the River road, Kearny avenue, and Schuyler avenue. Conceiving that it had the right to construct its line across the three streets above named, and having notice thatthe defendant objected thereto and would not permit it, the water company filed its bill praying for an injunction to prevent the borough from interfering with it in the construction of its pipe line across the said streets, and took an order to show cause why the injunction should not issue. On the return day the defendant answered and filed a cross-bill. By its answer it denied the right of the complainant, the water company, to cross the streets in question or to traverse the borough at all with its pipe line for the reason that, instead of desiring to furnish the city of Bayonne with a supply of potable water, as it alleged it was by contract bound to do, it was endeavoring to construct a line which was intended eventually to carry water from the state of New Jersey Into the state of New York contrary to the statutes in such case made and provided, and prayed that this court would interfere by injunction, and prevent the defendant from consummating its intention. After argument, the court denied the prayer of the original bill, and declined to grant an injunction against the borough. The complainant now applies to the court for leave to dismiss its original bill, and at the same time moves to dismiss the cross-bill in accordance with the provisions of rule 213; this action on its part being equivalent to a demurrer to the cross-bill. The two motions were argued together.

As to the dismissal of the original bill on the complainant's own motion, Chancellor Walworth in the case of Watt v. Crawford, 11 Paige (N. Y.) 472, laid down the rule in these words: "Before any decree or decretal order has been made in a suit in chancery by which a defendant therein has acquired rights, the complainant is at liberty to dismiss his bill upon payment of costs, but, after a decree has been made by which a defendant has acquired rights either as against a complainant or against a codefendant in a suit, the complainant's bill cannot be dismissed without destroying those rights. The complainant in such a case cannot dismiss without the consent of all parties interested in the decree, nor even with such consent without a rehearing or upon a special order to be made by the court." See Chicago & Alton Railroad v. Union Rolling Mill. 109 U. S. 702, 3 Sup. Ct. 594, 27 L. Ed. 1081. I understand that this rule is sanctioned by Vice Chancellor Pitney in the case of McCarren v. Coogan, 50 N.J.Eq. 268, 24 Atl. 1033. There the complainant in his bill had made an admission which was advantageous to the defendant. He desired to dismiss upon payment of costs. The court permitted him to dismiss upon payment of costs, but put him upon the further terms that the dismissal should be without prejudice to the defendant's right to the benefit of the admission and waiver contained in the bill in any proceedings that the defendant might thereafter take arising out of the facts which constituted the cause of action. I do not find in the original bill in this case any admission or waiver or other matter which could in the future operate to the advantage of the defendant against the complainant, and the complainant will therefore be permitted to take a dismissal of his bill upon payment of the defendant's costs in the original suit. The relations between a cross-bill on the one hand and the original suit on the other are very intimate. A cross-bill may be filed without leave of the court at the time of the filing of the answer to the original bill or before replication has been made thereto. It is a mode of defense, and its allegations must be supported by similar allegations in the answer. The causes of complaint presented by the two bills must be heard together, and the sum of the controversy is bound up in one decree.

The rule is that ordinarily the dismissal of the original bill carries with it a failure of the cross-bill. There is, however, an exception to this, and that exception arises in the cases in which affirmative relief is sought by the cross-bill against the complainant in the original bill. When such relief is sought, the cross-bill may be retained for the purpose of affording the necessary relief, but the cross-bill must exhibit a cause of action, otherwise the court would not be justified in retaining it, and that brings us to the question of the validity of the attack made in this suit by the cross-bill upon the original complainant. The cause of action in the cross-bill is that the complainant is about to construct a water pipe line for the purpose of carrying water beyond the boundaries of this state, and it prays that an injunction may issue against it to prevent such action on its part. The validity of this cause of action is now being tested by a demurrer, and it raises the question whether the borough of North Arlington may on its own motion and without the intervention of the Attorney General bring a suit to prevent the distribution of our potable waters to other jurisdictions. I do not think that the borough of North Arlington stands in any such relation to the public or to the great body of the potable waters of this state or to any portion thereof that is not needed for its own water supply as will enable it to bring a suit on behalf of the public. This is a prerogative that belongs to the office of the Attorney General, and can be exercised by no one except him.

It is quite manifest that the borough would have no standing to file an original bill to prevent the complainant from delivering water beyond the boundaries of this state. If it might do so, then any municipality in the state would have the same right, which would lead to an absurdity; and, if the cross-complainant is not in a position to file an original bill for this particular causeof action, I fall to see how it could be permitted to file a cross-bill for the same cause of action. The objection to the cross-bill by way of demurrer is therefore sustained, and the cross-bill will be dismissed, with costs of the motion.