City Of New Brunswick v. Bor. Of Milltown.

• Decision Date: 21 April 1949
• Docket Number: No. A-142.,A-142.
• Citation: 65 A.2d 621
• Parties: CITY OF NEW BRUNSWICK v. BOROUGH OF MILLTOWN.
• Court: New Jersey Superior Court

65 A.2d 621

CITY OF NEW BRUNSWICK

v.BOROUGH OF MILLTOWN.

No. A-142.

Superior Court of New JerseyAppellate Division, Part B.

April 21, 1949.

Appeal from District Court, Middlesex County.

Action to recover for treatment of sewage by the City of New Brunswick, a municipal corporation, against the Borough of Milltown, a municipal corporation. From the judgment, the defendant appeals.

Reversed.

Before McGEEHAN, Senior Judge, and DONGES and COLIE, JJ.

John B. Molineux and Hicks, Kuhlthau, Thompson & Molineux, all of New Brunswick, for appellant.

Paul W. Ewing, of New Brunswick, for respondent.

COLIE, Judge.

Milltown seeks to reverse a judgment in favor of New Brunswick in the sum of $378 entered in the Middlesex County District Court. The judgment was for the treatment of sewage for the months of June and July, 1945 and was rendered on the theory that a contract between the municipalties entered into in 1914 with reference to treatment of Milltown's sewage was terminable on reasonable notice, that New Brunswick gave such notice terminating the contract on May 31, 1945 and that the amount of the judgment represents the reasonable value of such treatment for the aforesaid months.

The questions raised and argued on this appeal require a review of the antecedent events which led to the execution of the contract. In 1912 one of the sources of the potable water supply of New Brunswick was Lawrence Brook which flows through Milltown. In that year the State Board of Health served notice upon certain residents of Milltown to cease polluting Lawrence Brook. The officials of the two municipalities conferred on the problem and the conferences terminated in the execution of a contract on June 18, 1914 by which Milltown agreed to construct collecting sewers within its limits and connect by a trunk line sewer with the New Brunswick sewer system. It also agreed that neither it nor any of its residents would discharge polluted water into Lawrence Brook but would pump all such water through the new sewer system. New Brunswick contracted to contribute $12,500 toward the construction of Milltown's new sewer system and to ‘take charge, and dispose of, all sewage received from the Borough of Milltown, in the same manner as its own sewage.’ When the above contract was entered into, and thereafter until 1937, New Brunswick deposited its sewage, raw and untreated, into the Raritan River. Prior to New Brunswick contracting with Milltown, the State Board of Health had instituted proceedings in the Court of Chancery to restrain New Brunswick from polluting the Raritan River. Therefore New Brunswick was fully aware that it would have to construct a sewage disposal plant in the future. In 1937, because of proceedings instituted by the State Board of Health, New Brunswick put into operation a sewage disposal plant and thereafter all sewage passing through the New Brunswick system, including the sewage from Milltown, was treated before deposit in the Raritan River. No attempt was made to charge Milltown for treating its sewage from 1937, when the disposal plant commenced to operate, until 1941 when New Brunswick passed a resolution that notice be given to Milltown that unless it would pay the cost of treating its share of the sewage, New Brunswick would cut off the flow and prevent Milltown's sewage from entering its system. The notice producing no payments from Milltown, an action was started in the former Court of Chancery, praying cancellation of the agreement of June 18, 1914. The Court of Chancery dismissed the bill of complaint holding (a) that New Brunswick had authority to enter into such a contract, (b) that because the agreement ‘now entails greater expense and renders performance of the same more burdensome to the complainant than contemplated at the time it was made is not a sufficient ground for relief by way of cancellation’ and (c) that the agreement ‘may not be condemned because its duration is without limitation.’ City of New Brunswick v. Borough of Milltown, Ch.1944, 135 N.J.Eq. 310, 38 A.2d 288, 290. An appeal from this decree was taken but not prosecuted to a conclusion. In February 1945 New Brunswick passed a resolution terminating the 1914 agreement and notified Milltown that its flow of sewage would be cut off on June 1. Prior thereto on May 29, a further resolution was passed stating that the 1914 agreement had been ended by the February resolution and then proceeded to fix a charge of $35 per million gallons for treating Milltown's sewage. Notice of the last resolution was sent to and received by Milltown. Acting on the February resolution, Milltown was billed $378 for the June and July, 1945 treatments, it refused to pay and suit was commenced in the Middlesex County District Court. Milltown countered with a bill of complaint in the then Court of Chancery seeking and obtaining a decree to enjoin the District Court action. Borough of Milltown v. City of New Brunswick, Ch.1946, 138 N.J.Eq. 552, 49 A.2d 234. On appeal the decree was reversed, the court saying that ‘The issue of terminability may therefore be determined originally in the law court. No view is here intended with respect to the merits of that issue.’ Borough of Milltown v. City of New Brunswick, Err. & App. 1947, 140 N.J.Eq. 565, 55 A.2d 209, 211.

The sole question for determination is as to the terminability of the agreement between the municipalities dated June 18, 1914. The contract itself contains no provision the water to the brook, it be sewered as to its termination. The defendant contends that the contract imposes a perpetual obligation upon New Brunswick to dispose of Milltown's sewage, or if the obligation is not perpetual, that then it exists for a reasonable length of time and that a reasonable length of time is so long as New Brunswick uses Lawrence Brook as its potable water supply. Turning to the agreement of June 18, 1914, it recites that New Brunswick desires to prevent the pollution of Lawrence Brook, that residents and manufactures of Milltown are drawing water from Lawrence Brook and returning it in a polluted condition, that Milltown, under orders of the State Board of Health, has prepared plans to filter such water before returning it to the brook, that New Brunswick protested such filtration system and urged that instead of returning the water to the brook, it be sewered to some other outlet, that New Brunswick has requested Milltown to...