Butler Hardrubber Co. v. Mayor

• Decision Date: 09 April 1898
• Parties: BUTLER HARDRUBBER CO. v. MAYOR, ETC., OF CITY OF NEWARK et al.
• Court: New Jersey Supreme Court

40 A. 224

61 N.J.L. 32

BUTLER HARDRUBBER CO.

v. MAYOR, ETC., OF CITY OF NEWARK et al.

Supreme Court of New Jersey.

April 9, 1898.

Case certified from circuit court, Essex county, for advisory opinion.

Application by the mayor and common council of the city of Newark and others for the appointment of commissioners to appraise the value and assess the damages that the Butler Hard-Rubber Company claimed to be entitled to by reason of the proposed diversion of the waters of a stream. Commissioners were appointed, and from their award the city appealed to the circuit court, which granted a rule to show cause, and certified a case-made to the supreme court. Certificate in conformity with opinion, affirming rulings of circuit court.

The city of Newark, having contracted with the East Jersey Water Company to construct for said city certain water works, for the purpose of furnishing the city with a new water supply, to be taken from the Pequannock river by means of a reservoir called the "Intake Reservoir," by means of which to divert and take from the Pequannock river water for the purpose aforesaid, applied to a justice of the supreme court for the appointment of commissioners to appraise the value and assess the damages which the Butler Hard-Rubber Company claimed to be entitled to by reason of the proposed diversion of the waters of the said stream, pursuant to an act of the legislature entitled "An act to empower cities to acquire land and other property for public use by condemnation," approved April 1, 1895 (2 Gen. St. p. 1388, § 57 et seq.). Commissioners, having been appointed pursuant to said act, made a report assessing the value of the water and water rights of the said company, and the damages which the said company, as owners, claimed to be entitled to. The city of Newark having appealed from the said award, the trial of the appeal came on before the circuit court of the county of Essex, upon an issue framed for that purpose. In pursuance of the statute an issue was made and directed "to assess the value of so much of the water of the Pequannock to the said lands and premises of the said Butler Hard-Rubber Company as will be necessary to furnish the said city with fifty millions of gallons of water each and every day, diverted and taken from the said river at the Intake reservoir, and the diminution in the value of the said lands and premises caused by the diversion of the said quantity of water from the said river in the place aforesaid, and the damages which the said Butler Hard-Rubber Company, as the owners of said lands and real estate, would sustain by reason thereof." On the trial of this appeal a verdict for the plaintiff was rendered by the jury for substantial damages, and thereupon the circuit court granted a rule to show cause, and certified to the supreme court the following case, made and stated, for its advisory opinion on questions of law arising thereon, as follows:

"The above cause came on for trial on appeal from an award by commissioners appointed to assess the damages to the plaintiff by reason of the diversion from the Pequannock river of fifty millions of gallons of water, each and every day in the year, at the Macopin Intake dam, four miles above the plaintiff's property. The condemning party, in its petition, made the following statement of the position of affairs: 'Your petitioners further show that below the reservoir constructed as aforesaid, called the "Intake Reservoir," and distant therefrom about four miles, and at the town of Butler, in the said county of Morris, the Butler Hard-Rubber Company are the owners of a certain factory property, located on the southerly side of the Pequannock river, consisting of a lot of land adjacent to the said river, of several acres in extent, upon which are certain mills and factory buildings for the manufacture of rubber goods and rubber products; that, as part of the power to drive the machinery in the factories located on the property, the said company has been accustomed to draw by means of a race way from the Pequannock river a large quantity of water, and claimed the right to take water from the said river for the purpose of furnishing power to the said mills or factories, and for other purposes.'

"The following facts appeared in the case: A short time prior to 1873 a corporation known as the Newbrough Hard-Rubber Company owned all the land on each side of the Pequannock river, from a point just west of the dam used by plaintiffs easterly to the part below the tract now owned by the plaintiffs. Pro ut Map No. 5. Several conveyances were then made, by which, after a grant to Richard B. Tyndall of a tract of 7.98 acres, shown on said map, the plaintiffs became seised of the present tract of 15.95 acres, which includes the large tract of land whereon the factory buildings are located, and the land upon which the head and tail race conveying the water to and from the mill are placed. The land in the deed (pro ut the same), as described by metes and bounds, does not include the dam or head gates, and the plaintiffs do not own any land on the Pequannock river. All the title deeds are set up, together with the maps, the rulings of the court, and its charge, with this certificate. One of said deeds contains a provision for a side race or flume around the plaintiffs' mill, and plans for the same were made and filed in the Morris county clerk's office, and a copy thereof is bound in with the maps, and is numbered 3. The head race belonging to the Butler mill is some three-quarters of a mile long, and the plaintiffs have so widened and deepened it that it will vent considerably more water than the original race did (40 per cent. more, as shown by defendant's testimony) at the time that the plaintiff's title was severed from that of the Newbrough Company. No objection appears to have been made to this alteration of the race by the owner of the Tyndall site. The defendants are the present owners of both the Tyndall mill site and of all the land bordering on the river which was originally owned by the Newbrough Company, except the property of the plaintiffs. The plaintiffs have tapped the head race with a six-inch pipe, by which they abstract therefrom as much water as that pipe will accommodate, and the same is carried through pipes to different parts of the mill, and distributed there for purposes other than power, such as washing, grinding, vulcanizing, and in the boilers; and some of it is returned to the race way, and reaches the Tyndall mill below, and some does not. No objection appears to have been made by Tyndall to such abstraction, but neither the enlargement of the race nor the abstraction of the water has continued long enough to ripen into a prescriptive right. There is a dispute as to whether the dam has or has not been raised, but no question exists as to the fact that the original head gates are still in use, the same in size as originally constructed, and that they are only partially raised in order to allow the water that the head race, in its present condition, will accommodate, to pass through them. The position of the dam, head gates, and head race, in reference to the river bed, appears on Map No. 4. The plaintiffs have been accustomed to close the gates leading into their mill, in order to allow the race to fill up, thereby arresting the flow of the water, and Increasing the power derived therefrom at their mill. This custom has not been objected to by the owner of the Tyndall site, but no prescriptive right to do so has been acquired. The head and fall enjoyed by the plaintiffs are about 30 feet, producing a power of disputed amount, and between 125 and 210 horse power. In 1885 the plaintiffs erected in their mill steam engines, with a rated power of 500 horse, and an actual power of considerably greater amount, and with a gang of boilers and a stack sufficient to produce all the steam the engines can require, including the proposed new engine. The plaintiffs were, against the defendant's objection, permitted to show what would be the first cost of a stack, boiler, boiler house, engine, etc., of a size sufficient to produce an amount of power equal to that derived from the amount of water diverted, and also the cost per day of fuel, help, oil, repairs, etc., to maintain the same. The plaintiffs further claimed that the engine already installed could not, by reason of its position, be safely relied on to run certain machines known as the 'Breaking-Down Rolls,' and offered evidence of the cost of installing and operating a separate engine of 200 horse power to do that work. On the question of damages or injury to the value of the owners' premises caused by the diversion of water, the defendant gave proof to show that the steam engines used upon the premises for the purpose of generating power could be so improved by compounding that, at a cost of not to exceed forty-five hundred dollars, a saving of twenty-five per cent. of the steam now used could be effected, and that, at an additional cost not to exceed eight thousand dollars, a new engine sufficient to furnish all the power required to run the line of shafting by which the tin rollers and other machinery on that line of shafting was operated could be put in, with proper connections and gearing complete, and that this additional engine to supply such power could be operated at an additional expense not to exceed six hundred and twenty-five dollars annually. In other words, that the owners' plant could be made as valuable, and, Indeed, more valuable than it was before the diversion was effected, by the use of twenty-five thousand dollars in money; one half of this sum to be used in improving the present machinery, and the interest of one-half to pay the additional expenses of operating the new machinery. After this proof had been produced, the court was requested to charge the jury that if they believed that the Butler Hard-Rubber Company could, by the adoption...