Borough of Oakland v. Bd. of Conservation & Dev. of N.J.

• Decision Date: 21 September 1923
• Docket Number: No. 36.,36.
• Citation: 122 A. 311
• Parties: BOROUGH OF OAKLAND et al. v. BOARD OF CONSERVATION AND DEVELOPMENT OF NEW JERSEY et al.
• Court: New Jersey Supreme Court

122 A. 311

BOROUGH OF OAKLAND et al.

v. BOARD OF CONSERVATION AND DEVELOPMENT OF NEW JERSEY et al.

No. 36.

Court of Errors and Appeals of New Jersey.

Sept. 21, 1923.

Appeal from Supreme Court.

Certiorari by the Borough of Oakland and others to review an order of the Board of Conservation and Development of the State of New Jersey, approving an application of the city of Bayonne for additional water supply. Order affirmed (118 Atl. 787), and the prosecutors appeal. Judgment reversed, and order and proceedings of the Board of Conservation and Development set aside.

J. W. & E. A. DeYoe, Francis Scott, Edward F. Merrey, Fred W. VanBlarcom and John W. Griggs, all of Paterson, Clarence Mabie, of Hackensack, and Spaulding Frazer and Frank H. Sommer, both of Newark, for appellants.

Thomas McCran, Atty. Gen., and William Newcorn, Asst. Atty. Gen., for respondent Board of Conservation and Development.

John Milton and A. A. Melniker, both of Jersey City, for respondent City of Bayonne.

KALISCH, J. The questions which are presented for determination grow out of the action of the board of conservation and development in granting its consent to and approval of the application and plans presented to it, by the city of Bayonne, on the latter's written application, filed with the board on February 21, 1921, for the diversion of 50,000,000 gallons of water daily, to the end that it may obtain an additional water supply from the Ramapo river shed, without having first obtained the consent of the North Jersey district water supply commissioners. The East Jersey Water Company was and is supplying Bayonne with water taken from the Passaic river at Little Falls, under a contract with that municipality, which contract will expire in 1929. Ramapo river is a tributary of the Passaic.

The municipality stated in its application that it was made in compliance with the provisions of chapter 252, P. L. 1907, and chapter 304, P. L. 1910. The application was originally for a diversion of a maximum of 100,000,000 gallons of water daily, and was subsequently amended to 50.000,000 gallons. The additional water supply was to be obtained! from the Ramapo river watershed, the point of diversion being located in the valley below Suffern, in the state of New York, but within the state of New Jersey, and for the purpose of supplying water to Bayonne and such other municipalities as it may enter into contract with for water supplies. The application, after giving a general description of the area of the Ramapo river watershed and of the river, proceeds to state that the latter is 34 miles in length, and rises in Orange county, in the state of New York, and is a branch of the Passaic, into which river it empties; that the general plan is to construct a storage reservoir in the state of New Jersey, below Suffern, and to convey the water through pipes by gravity to Bayonne. The application further set forth that a survey of the watershed was being made, and such additional information as would be obtained would be furnished to the board on the hearing of the application. On February 24, 1921, the board fixed a time and place for hearing, and gave notice thereof by publication in newspapers printed in Hoboken, Jersey City, Newark, and Paterson, and not elsewhere. It was not until March 3, 1921, 10 days after the filing of the application, that general data regarding the water supply system were furnished. There was no mention made in the application of any particular place in New Jersey where the reservoir was to be located, nor was there any description and capacity of the proposed reservoir given. The general data furnished 10 days after the finding of the application must be resorted to in order to obtain any information in that regard. There were several hearings, some four or five, held by the board, and at which sessions witnesses were sworn and testified to matters which were deemed to be material and pertinent to the inquiry stirred by the application, and necessary to be considered by the board, in order to properly determine whether or not the application should be granted. At none of these sessions, it appears, were there more than three members of the board present, one session being held by a single member alone and the three members who did sit, on no occasion were the same three who sat at the first and succeeding sessions, with the exception of the hearing on July 7, 1921, when seven of the eight members comprising the board were present.

The application of Bayonne having received the approval and assent of the board, its order and the proceedings upon which it was made were brought for review, by writ of certiorari, into the Supreme Court, and by that tribunal affirmed, and from which judgment of affirmance this appeal is taken.

The principal contention for a reversal of the judgment is that the board of conservation and development was without jurisdiction to entertain and consider Bayonne's application, because it appeared from the application itself that it was for a new and additional water supply from a watershed other than from which the municipality was then obtaining its supply of water, and, therefore, before such application could be lawfully received and considered by the board, it required the consent of the North Jersey district water supply commission, and no such consent had been obtained.

As supporting this contention, reliance is placed on section 18, P. L. 1916, chapter 71, page 139, which, among other things, provides that whenever any district commission should come into existence under the act it should be unlawful for any municipality within the district to obtain any new or additional water supply from any watershed or watersheds other than that from which the municipality was then obtaining its supply, without the consent of the district water supply commission.

This legislation forces prominently to the foreground the inquiry whether or not the application of the municipality in the present case is for a new and additional water supply from any watershed other than from which it is obtaining its present supply. If it is, then consent of the district commission was a necessary and an essential step to be taken by the applicant before it could lawfully make its application to the board. The lack of such consent would leave the municipality without any legal status to make the application, and the board without any jurisdiction over the subject-matter.

For the respondent it is argued that section 18, relied on by appellants, has been abrogated by virtue of article 32 of chapter 152 of the Home Rule Act of 1917, but it is clear from a plain reading of its provisions that, while it is true that much of the machinery constructed, and powers conferred by the statute of 1916 was superseded by the statute of 1917, the existence of the two district boards of water supply commissioners created by the statute of 1916 was not thereby terminated and their powers remained unimpaired, except to the extent they have been extinguished by the later statute. One of the powers which, obviously, did not thus become extinct is the power conferred on the district boards to consent or withhold consent where a municipality proposes to obtain a water supply from a source other than from which its present supply comes.

But it is further insisted that even though section 18 is in full force, nevertheless it is not applicable to the situation presented by Bayonne's application, because it is not seeking a new and additional water supply from any watershed or watersheds other than that from which its supply comes. In support of this position it is argued that Bayonne receives its water supply from the Passaic, at Little Falls, under a contract with the East Jersey Water Company, which in turn obtains its water supply from the Passaic river watershed, which is in the same area as that of the Ramapo, and, as a logical sequence, the Ramapo is a component part of the Passaic river, and therefore the application of the municipality is for an additional supply from the original source. The fallaciousness of this argument is apparent. The Ramapo river is a tributary and not a branch (as was suggested in the argument) of the Passaic river. As a tributary it is an independent stream, having its own separate watersheds. It is a matter of common knowledge that a tributary is, in its nature, an independent stream, relying on its own watersheds as sources of supply, and having its outlet in some larger body of water, whereas a branch of a...