256 U.S. 296 (1921), 2, New York v. New Jersey

Docket Nº:No. 2, Original
Citation:256 U.S. 296, 41 S.Ct. 492, 65 L.Ed. 937
Party Name:New York v. New Jersey
Case Date:May 02, 1921
Court:United States Supreme Court

Page 296

256 U.S. 296 (1921)

41 S.Ct. 492, 65 L.Ed. 937

New York


New Jersey

No. 2, Original

United States Supreme Court

May 2, 1921

Argued November 8, 11, 12, 1918

Restored to docket for further argument March 10, 1919

Reargued January 25, 1921



New York brought this suit against New Jersey and the Passaic Valley Sewerage Commissioners to enjoin the execution of a project to convey the sewage of the Passaic Valley through a sewer system and to discharge it into a part of New York Harbor known as the Upper New York Bay, the plaintiff alleging that the sewage would be carried by the currents and tides into the Hudson and East Rivers and be deposited on the bottom and shores of the Bay and upon and adjacent to the wharves and docks of New York City, and would so pollute the water as to render it a public nuisance, offensive and injurious to persons living near it or using it for bathing or for purposes of commerce, damaging to vessels using the waters, and so poisonous to fish and oysters in it as to render them unfit for food. The United States, intervening, opposed the plan as threatening, unnecessarily, obstruction of navigable channels, injury to the health of persons navigating the waters and of officials and employees at a navy yard, and damage to government property bordering on the Bay, but withdrew, without prejudice, upon the filing of a stipulation executed by its Attorney General, and by the defendant sewer commissioners acting under authority of an act of the New Jersey Legislature, agreeing upon a modification of the method proposed for purifying and dispersing the sewage, specifying the results that must be secured thereby or through requisite additional lawful arrangements, allowing the government full opportunity to inspect the workings of the sewer system and providing that compliance with the stipulation should be made a condition of any permit issued by the government for construction, maintenance or operation. The case having proceeded to final hearing between the original parties,


(1) That the right of New York to maintain such a suit on behalf of her citizens was clear, without regard to the precise location

Page 297

of the boundary between the two states or to New York's claim of jurisdiction over the waters of New York Bay. P 301.

(2) That the defendant Sewerage Commissioners constituted a statutory corporate agency of New Jersey whose acts and intentions in the premises must be treated as those of the state. P. 302.

(3) That, if the conditions of the stipulation were realized and maintained, there could be no occasion for the injunction prayed for. P. 305.

(4) That the stipulation was binding on New Jersey and the United States. P. 307.

(5) That the evidence must be considered subject to the principle that, before this Court will exercise its extraordinary power to control the conduct of one state at the suit of another, the threatened invasion of rights must be of serious magnitude and established by clear and convincing evidence. P. 309.

(6) That the evidence failed to prove that the proposed addition of sewage would cause increased damage to hulls of vessels or danger of air-borne disease to persons navigating or dwelling along the water, or (if treated as proposed in the stipulation) damage to persons bathing, or fish or oysters subsisting, in the water, additional to that attributable to existing discharge of sewage from New York City and its environs. P. 309.

(7) That, as to the question remaining, the evidence failed to show with the requisite certainty that, even if treated only as specifically prescribed in the stipulation, the additional sewage would create a public nuisance by causing offensive odors, or unsightly deposits on the surface, or seriously add to the existing pollution, and that therefore and in view of improved methods of sewage treatment disclosed by the testimony and of the right of the government to stop the operation of the sewer if it caused pollution of the Bay, the injunction must be refused. P. 310.

The court suggests that the problem involved in this case is one more likely to be wisely solved by cooperative study and by conference and mutual concession on the part of the states interested than by proceedings in any court. P. 313.

Bill dismissed without prejudice.

This original case was first argued at the October Term of 1918, but, owing in part to the time that had then elapsed since the closing of the evidence, the Court found it necessary to direct the taking of additional testimony on certain specified points. See 249 U.S. 202. The

Page 298

facts are reviewed in the opinion. No attempt is made to reproduce the arguments, which were mainly concerned with the matters of fact involved.

CLARKE, J., lead opinion

MR. JUSTICE CLARKE delivered the opinion of the Court.

The people of the State of New York, in their bill filed in this suit, pray that the defendants, the State of New Jersey and the Passaic Valley Sewerage Commissioners, be permanently enjoined from discharging, as it is averred they intend to discharge, a large volume of sewage into that part of New York Harbor known as the Upper Bay, for the reason, as it is alleged, that such pollution of the waters of the harbor will be caused thereby as to amount to a public nuisance, which will result in grave injury to the health, to the property, and to the commercial [41 S.Ct. 493] welfare of the people of the State and City of New York.

The Passaic River rises in the northeasterly part of

Page 299

New Jersey and empties into Newark Bay. High land separates its watershed from direct drainage into the Hudson River or New York Bay, and on the lower 25 miles of it there are located the Cities of Paterson, Passaic, and Newark, and also a number of such large towns that the population upon and near to the river is treated throughout the record as approximately 700,000 in 1911, when it was thought the sewer would be completed, and as likely to be about 1,650,000 in 1940, to which year it was designed to furnish adequate sewerage capacity. These cities and towns, from their earliest settlement, had all drained their sewage into the river. The ebbing and flowing of the tide almost to Paterson delayed the escaping of this sewage from the river and resulted in the water's becoming greatly polluted. This polluted water was emptied directly into Newark Bay, but, ultimately, 84 percent of it, modified, no doubt, by nature's agencies, but still polluted, found its way through the natural channel of Kill van Kull, into Upper New York Bay.

This drainage of sewage into the Passaic River resulted in the stream's becoming such a menace to the health and property of the adjacent communities that, in 1896, a commission was appointed by the Governor of New Jersey, under the provisions of an act of the legislature, to study the problem presented for the purpose of devising some system of sewage disposal which would afford relief. After this commission had reported, a second commission of investigation was provided for by act of the legislature in 1897, and its report was followed by a third similar commission in 1898.

The reports of these various commissions led, in 1902, to an act of the New Jersey Legislature creating the Passaic Valley Sewerage District, with boundaries embracing substantially the entire watershed of the Passaic River, and to another act, in 1907, prohibiting the discharge

Page 300

of sewage into the river after a date named, and directing the defendant, the Passaic Valley Sewerage Commissioners, to prepare plans and specifications for a trunk sewer to dispose of the sewage and authorizing municipalities to contract with them for the service which they might require.

Under authority of this act, the defendant Sewerage Commissioners in April, 1908, adopted a plan for sewage disposal which provided for a main intercepting sewer, extending from the City of Paterson, along the right bank of the Passaic River, to a point in the City of Newark, and thence by a tunnel under the waters of Newark Bay and the Cities of Bayonne and Jersey City to a point in Upper New York Bay about 500 feet north of Robbins Reef Light, where it was proposed to discharge the sewage at a depth of 40 feet of water below mean low tide. The estimated cost of the proposed sewer was $12,250,000.

It was provided in the act authorizing the construction of the sewer that, before any work should be undertaken or obligations incurred, a further investigation should be made by the Commissioners as to whether the discharge of the sewage into New York Bay would be likely to pollute its waters to such an extent as to cause a nuisance to persons or property within the State of New York, and that the result of such investigation, with the reasons for it, should be presented to the governor of the state.

Such an investigation was made, and, upon report of the Commissioners, the governor concluded that the discharge of the sewage as proposed would not pollute the waters of New York Bay so as to cause a nuisance to either persons or property within the State of New York, and the Attorney General of the state also advised the governor that, in his opinion, the State of New York could not have any valid legal objection to the use of the sewer as proposed.

There can be no doubt that the various commissioners

Page 301

who investigated this subject were men of the highest character and intelligence, and that they studied it with the aid of the best obtainable sanitary engineers, chemists, and bacteriologists, for the purpose of arriving at a solution which would protect and preserve the interests of all of the great communities involved. It is equally beyond doubt that the governor and other officials of New Jersey, with full appreciation of the magnitude and seriousness of the undertaking, proceeded with great caution and with a settled purpose...

To continue reading