Opinion
06-02-1906
STATE ex rel. BOARD OF HEALTH OF HAMILTON TP. v. INHABITANTS OF CITY OF TRENTON et al.
John Sykes and James Buchanan, for complainants. Charles E. Bird, for defendant city of Trenton. H. C. Valentine and E. R. Walker, for defendants board of health.
Bill by the state, on the relation of the board of health of the township of Hamilton, in the county of Mercer, against the inhabitants of the city of Trenton, and others. Bill dismissed.
John Sykes and James Buchanan, for complainants. Charles E. Bird, for defendant city of Trenton. H. C. Valentine and E. R. Walker, for defendants board of health.
BERGEN, V. C. In 1884 the city of Trenton purchased a tract of land in the township of Hamilton, which it still owns. Both municipalities are located in the county of Mercer in this state, and adjoin each other. For the past 13 years a building standing on the lands at the date of purchase, as well as another built afterwards, have been used by the city of Trenton as a hospital or pesthouse for the treatment of persons afflicted with contagious and infectious diseases, principally smallpox cases. In the latter part of November, 1905, the city began, and has now nearly completed, a large and commodious building constructed after approved sanitary plans, which it intends to use as a hospital for the confinement and treatment of persons suffering from like disorders which may develop, or threaten to do so, in the city of Trenton. The work of construction is being done under the direction of the board of health of the city, with the consent of the city authorities, who are providing the necessary funds, and the building is located on the land purchased by the city in 1884, a tract of about 10 acres, triangular in shape, bounded on each side by public highways; those along the two longer lines being old and much used, while that at the base of the triangle is not so important and is less frequently traveled. The prayer of the complainant is that the defendants be restrained "from continuing to use the said buildings now on said premises for a municipal hospital, and from enlarging and increasing their facilities for that purpose." It will be observed that the restraint sought is not limited to preventing its use for the purposes complained of in the bill, but of its use as a hospital, without regard to whether such use may be a nuisance or not. However, as the cause has been fully tried and argued upon all the questions raised by the pleadings, I shall consider and determine it, so amending the prayer as to meet the proofs offered and taken without objection. One of the insistments of the complainants is that the defendants have, in the past, so managed the hospital as to create a nuisance, and, by inattention, carelessness, and neglect, caused the spread of smallpox in the locality, which justifies an apprehension of danger in the future, and also that, owing to the situation of the buildings and the character of the use they are put to, the hospital is per se a nuisance.
The evidence fails to support the charge of mismanagement. The only case of smallpox in the immediate locality, outside of the hospital, as shown by the proofs, occurred in a house about 450 feet away, but even this case was not traced to the hospital, and as it occurred at a time when the disease was epidemic in and about Trenton, and in a family where vaccination was refused because the mother of the family was opposed to it, the presumption is as strong in favor of the theory that the disease was contracted elsewhere, as it is that it was communicated in some way from the hospital, and, considered in connection with the fact that during the whole period of 13 years no other cases were developed in the neighborhood, I am inclined to think that the one instance will not support the charge that the managers have been guilty of maintaining a nuisance. A building used as a hospital for the treatment of diseases contagious and infectious in their nature is not per se a nuisance—the rule of law on this subject is so well settled as to render unnecessary citation of authority to support it—and the erection and use of sucha building will not be restrained simply because there is an apprehension that it may result in being a nuisance; but the court must be satisfied that there is a well-grounded apprehension. The building assailed in this case is located in a sparsely settled neighborhood, upon a tract of land entirely surrounded by highways, on which there are no buildings other than those used for hospital purposes, and, in my judgment, with the use of reasonable care, there can be no well-grounded apprehension that the diseases treated in these buildings will be communicated to people residing in the neighborhood or passing along the highways, for with ordinary caution there is no probability, and I might say possibility, of the communication of contagious or infectious diseases from this hospital, unless it be transmitted through the atmosphere. On this subject the testimony shows that the germs responsible for smallpox are not transmissible beyond the distance of 30 feet in the open air, and all of these buildings are a much greater distance than that from either highway surrounding the property. The building and the use made of it, not being per se a nuisance, and the evidence failing to establish any such negligence on the part of the user as to sustain the charge that it has been so used as to make it a nuisance, this part of the complainant's case fails.
The next and principal ground upon which the complainant relies is that the city of Trenton has no lawful right to acquire and hold land in an adjoining municipality, or to erect or maintain a pesthouse thereon. That this court will not pass upon the question of the right of a municipality to acquire and hold lands outside of its territorial limits is supported by reason and authority. It may, in a proper case, interfere with a use which creates a nuisance, but the right of a municipality to hold the title to lands beyond its limits is cognizable at law, and involves no equitable principle. In Attorney General v. Paterson, 9 N. J. Eq. 624-626, the city of Paterson had purchased a farm in the county of Bergen, and was engaged in erecting an almshouse. The authorities of the county of Bergen sought to restrain the finishing of the building and the keeping of paupers therein. The chancellor, in refusing the preliminary injunction, said: "If a pure question of law was involved—for instance, whether the defendants have any right under their charter to purchase and hold the farm without the territorial limits of their city—this court would not settle that question. It would have no right to settle it. It would be a proper question to be determined by a quo warranto, or in some other legal way." It therefore follows that, in the absence of any proof that the use of the proposed hospital will create a nuisance, this court cannot, nor has it the power to, restrain the erection and use of the building complained of, simply because the city of Trenton has exceeded its municipal powers, if it has, in the purchase of the land. Redress for that wrong must be sought in another forum.
The complainant further insists that, if we consider the general doctrine to be as above stated, it has been changed or modified in this state by statute, and refers to P. L. 1902, p. 559, as limiting the right of the board of health of any city to establish a hospital for contagious diseases without the limits of the city in which it has jurisdiction, and within another municipality, to such municipalities as shall, through its governing body, consent thereto. The statute confers upon the board of health the power to select the site for a hospital without the city limits, upon obtaining the consent above mentioned. The act of 1900 (P. L. p. 321), to which it is a supplement, authorizes the selection of a site for the building of a hospital whenever the board of health shall by resolution declare that "it is necessary to establish and maintain in and for such city, a hospital." This would seem, by its terms, to limit the location of the hospital to a site in the city, and the supplement was undoubtedly intended to remove the restriction whenever proper consent was obtained, and the effect is to restore the law to the position it occupied prior to the statute of 1900, subject, however, to the required consent of the foreign municipality; but, in this case, whatever right the complainant had to maintain its hospital in Hamilton township was acquired long before the statute of 1902 or that of 1900, and cannot be affected by either of them, as they are in no way restrospective.
As the right of the defendant to buy and hold the land is a legal question which cannot be properly settled in this court, I must, in determining this case, assume that it is lawfully in possession of the land. It has conducted a hospital thereon for more than 13 years past without creating or maintaining a nuisance thereby, and has used the buildings for the treatment of contagious diseases, whenever it was necessary to do so, during all this period, and has now, by the expenditure of a considerable sum of money, nearly completed a modern hospital properly adapted to the care of persons afflicted with loathsome, contagious diseases, a building so constructed as to reduce the danger of contagion to the lowest degree, and the only material foundation for the prayer that the defendants should be enjoined is that it has not obtained the consent of Hamilton township to continue under more approved and safer plans the necessary humanitarian work it has carried on without legal protest since 1887. Under my view of the law such consent was not required in this case. If the city was now entering upon its present undertaking, and had notselected the site for its hospital until after the adoption of the act of 1902, a consent might be necessary; but that condition is not present.
The bill of complaint must be dismissed.