LEAMING, V. C.
Bill for injunction by George Y. Schock against Francis Garrison. Order to show cause discharged.
The bill is filed to restrain defendant from completing the erection of a "pound" on certain land below high-water mark on Delaware Bay shore, which land is within the boundaries of a grant made to complainant by the state of New Jersey through its board of riparian commissioners. The terms of the grant held by complainant are identical with the terms of the grant which was considered in Burkhard v. Heinz Company, 71 N. J. Law, 502, GO Atl. 191. The bill asserts that the lands within the boundaries of complainant's grant are chiefly valuable for catching king crabs in May and June of each year, and that defendant is at this time, without right, engaged in erecting a pound, at a certain point on the lands covered by the riparian grant, which pound is to be used by defendant for the purpose of catching king crabs during the approaching crab season.
The defense made is that no part of the lands included in complainant's riparian grant have been reclaimed or in any way appropriated by complainant to his exclusive private use; that the land under water within the boundaries of complainant's grant includes the Delaware Bay shore front between high and low water mark for a distance along the shore of over half a mile, and that for a period which appears to extend beyond the memory of the oldest people this tidal land has been used by the general public for fishing for king crabs and fish; that themethod now commonly adopted in catching king crabs is by the use of pounds similar to that which defendant is constructing; that these pounds or traps are constructed by suspending netting on posts extending at right angles to the shore, and are, when constructed, temporary structures, for use only during the fishing season, and are then removed; that the common right of the public to fish for crabs with pounds is sanctioned by custom; and that the use of the device is in no way exclusive of or derogatory to the equal rights of others to fish for crabs in like manner.
Hearing has been had at the return of an order to show cause upon the bill and answer, accompanied by affidavits in behalf of the respective parties.
Harry S. Douglass, for complainant.
William C. French, for defendant.
LEAMING, V. C. (after stating the facts as above). The question for consideration is whether this is one of that class of cases in which a court of equity may, by decree of injunction, protect and enforce the legal rights in real estate now asserted by complainant. It is not alleged that defendant is pecuniarily irresponsible or unable to answer in damages. The bill in general terms, alleges that irreparable injury will result to complainant if defendant is permitted to complete the structure complained of; but no specific averment of the bill discloses wherein such irreparable injury will arise. The bill alleges that the territory included within the boundaries of the riparian grant is chiefly valuable for catching king crabs, and an affidavit annexed to the bill states that the existence of the pound which defendant is erecting will prevent complainant from using or renting the land so occupied by the pound of defendant, and that defendant has not offered to pay to complainant; but it is nowhere averred that the amount of any damages which complainant may suffer will not be easily ascertainable and recoverable. As no ground of jurisdiction peculiarly equitable is presented, it is manifest that relief, if granted, must be based upon the existence of legal rights which are sufficiently clear and well settled to call for the exercise of the equitable remedy now sought. An exact and authoritative statement defining the limitation of equity jurisdiction in cases within the class to which the present case belongs is contained in Outcalt v. George W. Helme Company, 42 N. J. Eq. 665, 676, 9 Atl. 685, in which case the late Justice Dixon, speaking for the Court of Errors and Appeals, said: "When the real gravamen of the bill is the unconscientious refusal of the defendant to yield to complainant the enjoyment of his legal estate, as it is in bills like the present, for nuisance or for trespass, then (in the absence of other recognized grounds of equitable jurisdiction) a condition precedent to the right of the complainant to bring his adversary into the court of conscience is that the latter's misconduct shall be admitted or shall have been established at law against him, for only such misconduct can be deemed unconscientious as well as illegal."
Defendant does not deny the existence or validity of complainant's grant, but asserts the right to exercise the common right to fish upon the land until complainant shall have made some appropriation of the land inconsistent with the exercise of the common rights referred to. In the case of Polhemus v. Bateman, 60 N. J. Law, 163, 37 Atl. 1015, a riparian grant, containing a reclamation clause similar to, but not exactly the same as, complainant's grant, was treated as insufficient to support an action of trespass quare clausum until after the grantee should have exercised the power of reclamation conferred by the grant. In the subsequent case of Burkhard v. Heinz Company, 71 N. J. Law, 562, 60 Atl. 191, the same court had before it, in an action of ejectment, a riparian grant containing a reclamation clause identical with the grant now held by complainant. While in that case the court held the grant sufficient to sustain an action of ejectment against a defendant who had erected a permanent structure upon a Portion of the land included within the boundaries of the grant, I find in the opinion of the court language which I think may be fairly said to warrant a substantial doubt whether that court would have sustained an action under that grant against a defendant who had merely exercised a common right to fish in the sea before the grantee had made some appropriation of the land which was inconsistent with the exercise of such common right. If such a doubt touching the rights conferred by the grant held by complainant exists, it is plain that this case is not one falling within the class of cases in which a court of equity should extend relief for the enforcement or protection of legal rights in land. From the two decisions cited it is clear that, within the field of statutory powers conferred upon the board of riparian commissioners, the grants made by the state through that board must be construed as conferring such rights and privileges as the language of the grants may import. The clause touching the privilege of reclamation and appropriation cannot be without a purpose, and I am not prepared to say, in view of the suggestions contained in Burkhard v. Heinz Company, supra, that it should be considered as well settled that such a grant is effective to terminate the common right of fishery before any act of possession or reclamation shall have been exercised by the grantee. Complainant's remedy, if any exists, is at law.
I will advise an order discharging the order to show cause. Should the parties desireto be heard touching the retention of the bill until the termination of a suit at law, I will hear the parties on that question.