Newark Aqueduct Bd. v. City of Passaic

• Decision Date: 21 June 1890
• Parties: NEWARK AQUEDUCT BOARD v. CITY OF PASSAIC et al.
• Court: New Jersey Supreme Court

20 A. 54

46 N.J.B. 552

NEWARK AQUEDUCT BOARD

v. CITY OF PASSAIC et al.

Court of Errors and Appeals of New Jersey.

June 21, 1890.

(Syllabus by the Court.)

Appeal from court of chancery; McGILL, Chancellor.

Argued before BEASLEY, C. J., DEPUE, DIXON, GARRISON, MAGIE, and VAN SYCKEL, Justices, and BROWN, COLE, SMITH, and WHITAKER, JJ.

E. L. Price and Thomas N. McCarter, for appellant. G. P. Rust and J. W. Griggs, for respondents.

DIXON, J. On March 18, 1889, the complainant exhibited its bill in chancery to restrain the defendants from constructing in the city of Passaic certain public sewers therein described, which, when in operation, would cast their contents into the Passaic river, and thereby, the bill alleged, would render noxious the water drawn by the complainant from the river for the use of the inhabitants of the city of Newark. On filing the bill, the complainant obtained a rule that the defendants show cause why a preliminary injunction to the effect stated should not forthwith issue, and at its return the city of Passaic presented its answer with accompanying affidavits, which inter alia negatived the charge that the sewage to be emptied at Passaic would affect the water at the complainant's intake. The rule to show cause was then discharged by the chancellor, upon two grounds: First, that the complainant had no authority to maintain a suit to prevent such pollution of the water of the river as would be injurious to the inhabitants of Newark; second, that, as the apprehended pollution had not yet taken place and was not immediately threatened, and it was doubtful under the proofs whether such pollution would be in any degree deleterious to the city of Newark, therefore no case for a preliminary injunction had arisen. We are not prepared to indorse the conclusion of the learned chancellor upon the first point, but upon the second his conclusion seems to us well founded in fact, and in the law as repeatedly announced by this court. Citizens' Coach Co. v. Camden Horse R. Co., 29 N. J. Eq. 299; Stitt v. Hilton, 31 N. J. Eq. 285; Delaware, etc., JR. Co. v. Central Stock-Yard, etc., Co., 43 N.J. Eq. 605, 12 Atl. Rep. 374, and 13 Atl. Rep. 615; Hagerty v. Lee, 45 N. J. Eq. 255, 17 Atl. Rep. 826. The order discharging the rule should be affirmed.

DEPUE, Justice, and BROWN, J., dissent.