McCarter v. Hudson County Water Co.

Decision Date19 November 1906
PartiesMcCARTER, Atty. Gen., v. HUDSON COUNTY WATER CO.
CourtNew Jersey Supreme Court

(Syllabus by the Court.)

Appeal from Court of Chancery.

Action by Robert H. McCarter against the Hudson County Water Company. From a decree in favor of the informant (61 Atl. 710), defendant appeals. Affirmed.

Richard V. Lindabury and Collins & Corbin, for appellant Robert H. McCarter, Atty. Gen., for respondent.

PITNEY, J. The decree that is here under review awards an injunction to restrain the Hudson County Water Company from carrying or transporting any of the waters of the Passaic river into Staten Island, in the state of New York, or elsewhere out of the state of New Jersey. The cause was instituted in the court below by the filing of an information to which the defendant (now appellant) made answer, and was heard before the vice chancellor upon these pleadings and upon the proofs and admissions of the parties concerning certain matters that did not clearly appear from the pleadings. It appears that the East Jersey Water Company, a corporation of this state, organized under the general corporation act of 1875 and its supplements and amendments (Gen. St. p. 907), has established extensive works at Little Falls upon the Passaic river, a short distance above the city of Paterson, and diverts water therefrom daily to the amount of 30,000,000 gallons or more for the supply of certain municipal corporations and other consumers, and is engaged in the sale of water from the river to water companies and to municipal corporations. A system of water mains has been constructed, owned in part by the East Jersey Water Company, in part by another corporation of this state known as the "New York & New Jersey Water Company," and in part by the present appellant, extending from the intake at Little Falls to and into the city of Bayonne in Hudson county, which city lies upon the borders of the tidal waters of the Killvonkull, opposite to Staten Island. And that the Hudson County Water Company has entered into certain contracts in pursuance of which it purposes to supply certain municipal corporations and other consumers upon Staten Island from the waters of the Passaic river, employing for this purpose extensions of its water mains that are to be constructed beneath the waters of the Killvonkull. The information of the Attorney General purports to be exhibited "on behalf of the state, and at and by the relation of Henry B. Kummel, state geologist" The status of the state geologist as relator arises solely from a recent act of the Legislature (P. L. 1905, p. 461), the constitutionality of which is the principal question in dispute. It is insisted by the appellant that, if the act be unconstitutional, there is no other basis upon which the information can be sustained. The learned vice chancellor, however, dealt with all the grounds upon which the prayer for injunction was rested, and we think the averments of the pleading are broad enough to warrant this course. Not only does the information purport to be exhibited on behalf of the state, as well as at the relation of the state geologist, but its averments include mention of many matters that would have been unnecessary had the statute alone been invoked, and the prayer is "that the Hudson County Water Company, pursuant to the provisions of the act entitled, etc., approved May 11, 1905, and otherwise, may be enjoined from carrying or transporting any of the waters of the Passaic river into Staten Island or elsewhere out of the state of New Jersey," with a further prayer for general relief.

The act in question (P. L. 1905, p. 461) reads as follows:

"An act to preserve and maintain the lakes, ponds, brooks, creeks, rivers and streams of this state, and to prevent the waters thereof from being carried by pipes, conduits, ditches or canals into other states, for use therein, and to authorize the Court of Chancery to assist in the observance of this act

"Whereas, the available waters of the fresh-water lakes, ponds, brooks, creeks, rivers and streams of this state do not increase with the growth of population, and unless the same are carefully preserved, will become inadequate to perform the functions they were by nature designed to do, which functions are essential to the health and prosperity of all the citizens of this state; therefore,

"Be it enacted by the Senate and General Assembly of the state of New Jersey:

"1. It shall be unlawful for any person or corporation to transport or carry, through pipes, conduits, ditches or canals, the waters of any fresh-water lake, pond, brook, creek, river or stream of this state into any other state, for use therein.

"2. It shall be the duty of the state geologist to keep a general oversight over the fresh-water lakes, ponds, brooks, creeks, rivers and streams of this state, and to see that the same are preserved for the use and benefit of the citizens and inhabitants of this state, and to prevent the waters thereof from being carried or transported by pipes, conduits, ditches or canals into other states for use therein; upon its being brought to his knowledge that it is the intention of any person or corporation to so carry or transport into any other state for use therein, the waters of any such fresh-water pond, lake, brook, creek, river or stream of this state, it shall be his duty, through the Attorney General, to apply to the Court of Chancery for injunction to restrain the same, and the Court of Chancery is hereby authorized and empowered to entertain jurisdiction of a suit in equity to preserve the waters aforesaid for the use and benefit of the citizens and inhabitants of this state, and to prevent their being, by pipes, conduits, ditches, or canals, carried or transported to other states for use therein; and to that end to issue such restraining order or injunction, both preliminary and final, as may be necessary, and to enforce the same in the same manner it is empowered to enforce other Injunctions or orders.

"3. This act shall take effect immediately.

"Approved May 11, 1905."

In the printed brief for the appellant a point was raised which, although abandoned upon the oral argument, deserves mention. It is rested upon the alleged fact that the water in question is not diverted from the Passaic river by the defendant, nor even by the New York & New Jersey Water Company; it being insisted, first, that the latter two companies are necessary parties defendant; and secondly, that, since the East Jersey Company is permitted to divert the water for purposes of sale, the water diverted becomes an article of commerce, traffic in which, between the state of New Jersey and the state of New York, cannot be constitutionally prohibited by this state. The question of interstate commerce will be dealt with hereafter. With respect to the first suggestion we do not consider the East Jersey Water Company and the New York & New Jersey Water Company, or either of them, necessary parties to this proceeding, whose object is to restrain the transportation of fresh water from the Passaic river by means of pipes and conduits to any point or points outside of the state. The actual situation disclosed is this: that an intake exists at Little Palls, at which certain water mains are filled, and these mains extend continuously from that point to some point or points in the city of Bayonne at or near the state line. At their terminus in Bayonne the pipes are under the control of the present appellant, which may either open them or keep them closed, at its option, unless restrained by injunction. It purposes to continue these mains to and into Staten Island, and to use them there for furnishing water to divers large consumers. If this be permitted, the water that is thus dealt out by the appellant to consumers in Staten Island will flow in a continuous stream from the Passaic river at the Little Falls intake, and while, for a part of the intervening distance, this water will be indistinguishably commingled with waters that are destined for distribution to other consumers along the line of the mains, it is manifest that if the defendant does not desist from constructing or using its main to Staten Island, the outflow from the river at Little Falls will be diminished by the precise quantity that otherwise would go to Staten Island. In effect, the water that defendant proposes to supply to Staten Island would be diverted from the Passaic river by defendant; without its intervention this water would continue to flow in the river. No injunction nor any other relief is needed against the two companies who are owners, respectively, of the intake and of the mains above Bayonne, and therefore these companies are not necessary parties to the present proceeding.

Coming, therefore, to the merits, it is important to keep it clearly in mind that, if the defendant carries out the project that it has in contemplation, a considerable part of the fresh and potable waters of the river Passaic will be diverted out of the river at Little Falls, and conducted thence in a continuous artificial channel or channels to some point outside of the state of New Jersey, and will there be permitted (subject to defendant's control) to escape and flow forth, to the benefit of citizens of the state of New York, and to the incidental profit of the defendant The questions are whether such an artificial and extraterritorial outlet can be prevented by the people of the state of New Jersey, with or without an act of the Legislature; and, if an act be needed for the purpose, whether the act of 1905 is a constitutional piece of legislation.

It must, we think, be sufficiently obvious that the government established in this state by and, for the people thereof has complete dominion (subject only to constitutional limitations) over all things within the borders of the state, including all lands and waters, and the mode of acquiring and disposing of...

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