Mayor v. E. Jersey Water Co.

• Decision Date: 14 May 1908
• Citation: 70 A. 472,74 N.J.E. 49
• Parties: MAYOR, ETC., OF CITY OF PATERSON v. EAST JERSEY WATER CO.
• Court: New Jersey Court of Chancery

70 A. 472

74 N.J.E. 49

MAYOR, ETC., OF CITY OF PATERSON

v. EAST JERSEY WATER CO.

Court of Chancery of New Jersey.

May 14, 1908.

Suit by the mayor and aldermen of the city of Paterson against the East Jersey Water Company. Decree for complainant.

The object of this bill, filed by the city of Paterson against the East Jersey Water Company, is to restrain the water company from the further diversion of any of the waters of the Passaic river, which flows through the city. The water company in the year 1899 acquired a dam and reservoir at Little Falls, on the Passaic, about four miles above Paterson, and constructed there a large and expensive filter plant. In the same year it also constructed at the Great Notch on Hook Mountain, near Paterson, a large reservoir, and from the latter part of the year 1899 it has taken from the river at Little Falls very large quantities of water for the purpose of supplying potable water to various municipalities of the state, including the city of Paterson itself. From December, 1899, to May 23, 1904, Jersey City was one of the municipalities thus supplied, and during this interval the amount pumped from the river at Little Falls was about 50,000,000 gallons daily. Since the latter date Jersey City has received its water supply from the Rockaway river, a tributary of the Passaic above Little Falls, and the average amount drawn daily from the river at Little Falls by the defendant, from this date up to the time of the filing of the bill (May, 1905) and of the hearing, was about 22,000,000 gallons. Of this amount about 10,000,000 are supplied to the city of Paterson and 3,500,000 to the city of Passaic. These cities are supplied from the low-pressure reservoir at Little Falls, and these waters are also filtered. The balance of the water diverted, about 8,500,000 gallons daily, is drawn for the supply of smaller municipalities in Hudson and Essex counties, and of Little Falls, in Passaic county. Paterson and Passaic have been supplied with water from this source since the year 1899 by virtue of contracts of the East Jersey Company, made, respectively, with the Passaic Water Company, incorporated in 1849, and the Aquackanonck Water Company, in 1867, for the purpose of supplying these cities, respectively, with water from the Passaic. Little Falls itself has been supplied since 1895 with the filtered water. The city of Bayonne and the town of Nutley have been supplied from the reservoir at Great Notch since November, 1899, and from May, 1904, water has also been supplied from this reservoir to the New York & New Jersey Water Company for Kearney, Harrison, and East Newark, to the Montclair Water Company for Montclair, Bloomfield, Glen Ridge, and West Orange, and to the Essex county freeholders, for public institutions at Caldwell. Neither of the municipalities drawing their supplies, nor the water companies directly supplying them, are made parties to the suit; the East Jersey Water Company, as the company originally diverting the water, being the sole defendant.

The right of the complainant to enjoin this diversion by the East Jersey Company is specially rested by the bill upon two different grounds. The first is its right as a lower riparian owner of lands to the flow of the river along and in front of its riparian lands, undiminished by such diversion; and the second claim is based on an alleged statutory authority to establish a sewer system, with a discharge into the river. It is claimed that the amount of water diverted from the river at Little Falls by the defendant company and which is not returned subsequently to it (through the supply to Paterson itself) has so substantially and materially affected the amount of water into which the sewage of the city is discharged that the waters of the river within and below the city have become largely charged with sewage, making the river noxious and a menace to the health, damaging its parks, and subjecting it to large claims of lower riparian owners for injuries resulting from the discharge of sewage.

The answer denies the right of the complainant to maintain the suit upon either ground. As to the claim based on riparian ownership, it insists that the complainant's title does not (as alleged in the bill) extend to the center of the river, and at the hearing it was further insisted that, even if complainant is a riparian owner, no lower riparian owner can maintain any action for diversion against an upper riparian owner diverting for any purpose, or enjoin such diversion, without proof of an actual, perceptible injury to such lower riparian lands, and that in this case it appears by the evidence that no such injury has arisen. As to the claim based on the city's right to the unobstructed flow of the water for sewer purposes, the defendant, in the first place, denies the existence of any such authority or right; secondly, it insists that such right, even if conferred by statute on the complainant, could not and did not impose on the defendant, who is an upper riparian owner or occupant, any burden or obligation, in reference to its diversion of water, additional to the right to the use or flow of the water to which a lower riparian owner is by nature entitled purely as an owner of riparian lands, and could not as to such upper riparian owner give the city, in a capacity other than that of riparian owner, any rights to the use of the water additional to those inherent in a lower riparian owner, or more burdensome to the upper owner; and, thirdly, as an answer to this claim, upon the facts of the case it is insisted that the amount of sewage discharged into the river by the city of Paterson is so great that the entire natural flow of the river, if unobstructed, would be insufficient to carry it off, and that the amount diverted by defendant is so small a proportion of the entire flow that it has no material consequence on the efficacy of the river for sewer purposes.

In addition to these defenses, which contest, either upon grounds of law or fact, the existence of any rights in complainant which are entitled to protection by injunction, the defendant in its answer and at the hearing asserts certain special equitable defenses against the remedy by injunction, even if a legal right of action be established. These are, first, an estoppel of the complainant, arising from the fact that the complainant was apprised of the construction of its works, and of the laying of mains for the supply of the different municipalities, that it has sanctioned their construction and use, and has so acquiesced therein as to deprive it of any equity for injunction. As to the water supplied to the city of Paterson itself and to Passaic, there is further set up a special estoppel or bar to an injunction on the ground that the water companies were incorporated for the special purpose of furnishing water for Paterson and Passaic from the Passaic river, and before the authority to use the water for sewer purposes, and that by reason of this subsequent use these companies have been obliged to discontinue their drawing of water within and below the city, and have been obliged to resort to a water supply for the cities above the waters polluted by the city; and, further, that the city of Paterson itself is now, and since 1899, when the mains were laid through its streets for that purpose, has been, supplied with all its water for domestic and fire purposes by the Passaic Water Company, which discontinued its former plant and laid down several miles of mains for the purpose of procuring this supply of pure water.

In addition to these grounds for estoppel or bar to injunction which concern or relate exclusively to the property rights or to the status of the defendant, the defendant, at the hearing and in the answer, as a reason for not granting an injunction, also sets up and relies on another aspect of the case, which affects public rights or uses of the river, considered as a source of potable water supply. It is claimed that by reason of the pollution of the Passaic river below the city of Paterson, for which the city itself is mainly responsible, the use of the river as a source of potable water supply to the inhabitants of the watershed and its vicinity has been destroyed, and that the municipalities below the city of Paterson, which were formerly supplied either directly or indirectly from the lower Passaic, are now obliged to seek other sources, and that the only available source for all these municipalities now supplied by defendant is the upper Passaic. It is further claimed that the potable use of pure running streams is necessarily the paramount use, and one to which the mere riparian right should in equity be subject, at least so far as to disentitle the riparian owner, who shows no special damage different from that of other riparian owners, to an injunction, and to remit him to compensation for the damage; and the defendant offers, both in the answer and at the hearing, to make such compensation, if it be determined by the court that the complainant has established such invasion of its rights to the undiminished flow of the waters as would in ordinary cases entitle it to an injunction for the protection of its right.

On that branch of the case relating to complainant's status as riparian owner, the special issues raised arise first from the special character of its deeds, and next from the dispute as to the real basis of a lower riparian owner's right of action for diversion of the flow of water by an upper owner. Complainant asserts riparian rights in respect to three tracts of land, two of them extensive tracts, known, respectively, as the West Side Park, located above the Great Falls, and East Side Park, below the falls, and the third, a small lot, about 22 feet in width, located on the river a short distance below the falls. The bill alleges that as to each of these three tracts complainant's title extends to the center of the river, and that...