McCarter v. Hudson County Water Co.

• Decision Date: 22 August 1905
• Citation: 61 A. 710,70 N.J.E. 525
• Parties: McCARTER, Atty. Gen., v. HUDSON COUNTY WATER CO.
• Court: New Jersey Court of Chancery

61 A. 710

70 N.J.E. 525

McCARTER, Atty. Gen.,

v. HUDSON COUNTY WATER CO.

Court of Chancery of New Jersey.

Aug. 22, 1905.

On information by Robert H. McCarter, Attorney General, against the Hudson County Water Company, to restrain defendant from diverting water from the Passaic river into the state of New York for use therein. Decree for informant.

Robert H. McCarter, Atty. Gen., in pro. per. Gilbert Collins, for defendant.

BERGEN, V. C. The East Jersey Water Company is diverting water from the Passaic river, at Little Falls, in this state, for commercial purposes, and has agreed with the New York & New Jersey Water Company to sell and deliver to it so much thereof as it may require to supply consumers, not alone in this state, but in the state of New York, without limitation as to quantity; the only consumer in this state being the city of Bayonne and its inhabitants. It is admitted that after the making of the contract the New York & New Jersey Company constructed its plant, and that its main pipes to and through Bayonne were of a capacity greater than the needs of that city demanded, and designedly so, in order that through them a sufficient quantity of water might be transported into New York state for the purpose of sale and delivery to such consumers as it might there secure; that in 1904 a contract was made with the city of Bayonne, under which additional mains were allowed to be laid in the streets of that city, for the purpose, among others, of carrying water to purchasers beyond its territory, the object being to transport water beyond the state of New Jersey, which contract was shortly after its execution duly assigned to the defendant; that the defendant has laid the mains, and intends to supply water drawn from the Passaic river, for the use of purchasers in the state of New York, which water the defendant intends to transport to that state through pipes and conduits laid and to be laid for such purpose; that the defendant confesses such to be its purpose, and has already entered into contracts with persons and corporations, private and municipal, to convey water to be taken from the Passaic river, obtained through the East Jersey Water Company, into the state of New York for use therein; that some of these contracts were prior and others subsequent to the approval of the legislative act, which the informant insists makes unlawful the threatened acts of the defendant and justifies this court in interfering. It is further admitted that the Passaic river is the most important of the available sources of water supply for the people of New Jersey, a necessity for the use of which is constantly increasing; that the present available supply of water in the Passaic river is largely in excess of the present consumption by New Jersey inhabitants, as now supplied; and that the defendant had incurred large expense in laying mains and doing other necessary work, to enable it to take the water to New York state, previous to the adoption of the statute now under consideration.

On May 11, 1905, an act of the Legislature of this state was approved and became immediately effective, which, after declaring that the fresh water streams of the state do not increase with the growth of its population, and, unless carefully preserved, a condition will exist detrimental to the health and prosperity of the citizens of this state enacted as follows: "It shall be unlawful for any person or corporation to transport, or carry through pipes, conduits, ditches, or canals the water of any fresh water lake, pond, brook, creek, river, or other stream of this state, into any other state, for use therein"—and empowered this court to aid in its enforcement. P. L. 1905, p. 461. The information is filed by the Attorney General, and seeks to restrain the defendant from taking water, diverted from the Passaic river, into the state of New York for use therein. This the defendant admits it intends to do, in violation of the terms of the act, alleging that the act is void because (a) it impairs the obligation of contracts in force when the act was passed; (b) it takes property without compensation; (c) it provides for an interference with commerce between the states; (d) it denies to citizens of other states the privileges of citizens of this state, and denies them the equal protection of the laws of New Jersey; (e) it is in violation of the Constitutions of the United States and of this state.

The question is thus presented: Can the defendant, through the East Jersey Water Company or by other means, divert from the Passaic river, free from any control or regulation by the state, whatever quantity it may desire of the fresh water running therein, and carry it to another state; the consent of parties in interest, other than the state, being assumed? As absolution from control or regulation means the right to withdraw against the protest of the state every drop of water from the river—a right which can only be sustained upon the ground of ownership, the fact that the defendant is a purchaser from another corporation does not alter the proposition; for its property rights, if any, are no greater than those of the original abstracter from whom it purchases. The statement of the proposition indicates the serious import of the matters involved; for, if the contention of the defendant expresses the law, persons and corporations may, by acquiring the private rights in any running stream, obtain such an ownership in the water passing down the stream as to permit its total withdrawal and transportation to a foreign jurisdiction, leaving the citizens of this state entirely destitute of a natural and necessary element of life, so far as the same may be derived from streams supplied from the running surplus or overflow of water from lakes, ponds, springs, and other natural sources of potable water. If the public have any common rights in or to the running waters of our rivers and streams at any point during its flow to the sea, such a right is manifestly held by the state in trust for the public, and it by virtue of its sovereign power may grant or restrict the appropriation thereof, so long as it does not interfere with the reasonable rights of other owners of land over which it flows, and any unauthorized diversion of such water above the point where the public rights appear is a wrong of which the state may justly complain, and seek to restrain, and the fact that it has not heretofore objected is no reason why it may not now protest against a further spoliation of public property. It may lawfully permit its own citizens the benefit of property held in trust for them, and at the same time limit such permission to those who have a common right therein.

That the Passaic river is a tidal stream, the bed of which, so far as the tide ebbs and flows, is the property of the state, is a fact the court will judicially notice; and the state, if a riparian owner along such stream, is entitled to have the ordinary flow of water remain in the channel, and to have it come to its lands "undiminished in quantity and unimpaired in quality by the act of any other of the owners thereof, subject to the use of the passing water, in a reasonable manner, for domestic and irrigation purposes." Doremus v. Paterson, 65 N. J. Eq. 711, 55 Atl. 304. And the state, upon whose lands it is finally cast before it mingles with the ocean and becomes the property of the world, is endowed with all the rights thereto which are accorded by law to the preceding owners of land through which it flows, and any diversion of what, undiverted, would flow to and...