Borough of Collingswood v. State Water Supply Comm'n

• Decision Date: 16 March 1914
• Citation: 90 A. 277,85 N.J.L. 673
• Parties: BOROUGH OF COLLINGSWOOD v. STATE WATER SUPPLY COMMISSION.
• Court: New Jersey Supreme Court

90 A. 277

85 N.J.L. 673

BOROUGH OF COLLINGSWOOD

v. STATE WATER SUPPLY COMMISSION.

Court of Errors and Appeals of New Jersey.

March 16, 1914.

(Syllabus by the Court.)

White, J., dissenting.

Appeal from Supreme Court. Action by the Borough of Collingswood against the State Water Supply Commission. Judgment for defendant (84 N. J. Law, 104, 86 Atl. 660), and plaintiff appeals. Affirmed,

John W. Wescott and Francis D. Weaver, both of Camden, for appellant. Edmund Wilson, Atty. Gen., for respondent.

BERGEN, J. The appellant, having determined to construct a municipal water supply plant for the purpose of supplying the inhabitants of the borough of Collingswood with a public water supply, presented to the State Water Supply Commission plans and specifications for the proposed plant, and petitioned the commission to sanction and approve the same; such approval being necessary before the appellant could lawfully divert water "from any new or additional sources of water supply" for the purpose of supplying "the inhabitants of any municipality with water, either from surface, subsurface, well, or percolating sources." P. L. 1910, p. 551; Wilson v. Collingswood, 81 N. J. Law, 634, 80 Atl. 335. The petition sets out that the proposed supply of water is intended to be drawn from artesian wells sunk along the bank of Cooper river in the borough of Collingswood, at which point there are numerous unfailing springs. The commission, after hearing the testimony offered by the parties, made the following order: "And thereupon, on motion duly seconded and carried, it was ordered that the application of the borough of Collingswood for permission to acquire a new water supply be refused." The appellant thereupon applied for, and was allowed, a writ of certiorari requiring the State Water Supply Commission to certify the "said decision" and all proceedings concerning the same to the Supreme Court, and, this being done, that court affirmed the order or resolution of the state board, from which determination the appellant has appealed.

In considering the merits of this appeal, which is limited by the appellant to the legality and reasonableness of the order appealed from, it is manifestly appropriate to first consider whether the order is within the purview of the statute which is relied upon to support it It is common knowledge that prior to the statute, to which reference will be made hereafter, municipalities, private corporations, and individuals in different parts of this state were acquiring and diverting to their use a considerable portion of the public water supply, some under laws which delegated such power to local governments established by the Legislature, but in many cases by those whose right to do so was perhaps of doubtful authority, and the potable waters of the state were being rapidly gathered into the hands of a few, a condition which, in view of the rapid increase of population, became a cause of great anxiety, if not of alarm, to such inhabitants of the state as were not benefited by such ever-growing segregation for the use of particular localities.

The question became so momentous that in 1907 the Legislature undertook to deal with it, and in that year (P. L. p. 633) a statute was enacted which provided for the appointment of five persons to constitute a commission to be known as the State Water Supply Commission "charged with a general supervision over all the sources of potable and public water supply to the end that the same may be economically and prudently developed for the use of the people of this state." Section 2 of this act declares that no municipal corporation engaged in supplying, or proposing to supply, its inhabitants with water "shall have power to condemn lands or water, or any new or additional source of water supply, or to divert water from such new or additional source until such municipal corporation, corporation or persons has first submitted descriptions thereof, which shall be accompanied by maps and plans, to said commission, and until said commission shall have approved the same." Section 3 authorizes municipal corporations to make application to the commission for the approval of its plans for obtaining a new or additional source of water supply, and provides for a public hearing upon due notice at which all persons affected by the proposed plans may be heard for or against the granting of the application. It further provides that after due hearing "the commission shall decide whether the plans proposed are justified by public necessity, or reasonably anticipated public use, and whether such plans interfere unduly with the opportunity of other municipalities to obtain a water supply by the taking of waters necessary for their use, or whether the reduction of the dry season flow of any stream will be caused to an amount likely to produce unsanitary conditions, or otherwise unduly injure public or private interests." And it was also declared that the approval of the commission shall constitute the state's assent to the diversion of water and the construction and operation of waterworks. In 1910 (P. L. p. 551) the commission was given the same jurisdiction and supervision "over well, subsurface or percolating water supplies now or hereafter furnished to the inhabitants of any municipal corporation as it now has over surface water supplies so furnished."

This statute, in our opinion, does not confine the power of the State Water Supply Commission to the approval or nonapproval of the physical character of the construction proposed, for it is expressly charged with a general supervision over all sources of potable water supply to the end that it may be economically and prudently developed for the use of the people of this state, and this supervision includes the determination of whether the plans proposed, which include the source of supply, are justified by public necessity, and whether such proposed diversion of the quantity necessary for the applicant's use will interfere unduly with the obtaining of water by other municipalities, and also whether the amount taken will so affect the flow of any stream as...