Somerville Water Co. v. Borough of Somerville

• Decision Date: 18 January 1911
• Citation: 78 A. 793,78 N.J.E. 199
• Parties: SOMERVILLE WATER CO. v. BOROUGH OF SOMERVILLE.
• Court: New Jersey Court of Chancery

78 A. 793

78 N.J.E. 199

SOMERVILLE WATER CO.

v. BOROUGH OF SOMERVILLE.

Court of Chancery of New Jersey.

Jan. 18, 1911.

Complaint by the Somerville Water Company against the Borough of Somerville, praying a preliminary injunction. Injunction denied.

Alvah A. Clark, for complainant.

James L. Griggs and Craig A. Marsh, for defendant.

WALKER, V. C. The complainant filed a bill in this court against the mayor and council of the borough of Somerville praying for an injunction restraining them from interrupting and interfering with the complainant's work of opening Cliff street, in the town of Somerville, and laying its pipes therein. An application for a preliminary injunction was denied, upon the ground that it was at least doubtful whether the complainant had the right to proceed in the face of the borough's resistance, when, in fact, the company had not complied with an ordinance of the municipality, which required that the written consent of the chairman of the standing committee on streets be obtained to open' any street. Subsequently application was made for a permit in compliance with the ordinance, which was neither granted nor refused, and which action, therefore, amounted to a denial. In Gaslight Co. v. Borough of South River, 77 Atl. 473, the complainant made application to the mayor of the borough for permission to open streets and highways therein for the purpose of laying mains and gas pipes, which it was authorized by law to do, and the mayor refused the permission sought, but assigned no reason for his action. This court granted an injunction to prevent the borough and its officers from interfering with the laying of the mains because it held that the mayor's refusal to grant a permit, which it did not appear he ever considered, amounted to a prohibition, and as such was manifestly void, and, as the company had complied with the terms of the ordinance, it became the duty of the mayor to grant the permit, and his action in refusing it was to be disregarded. This case (Gaslight Co. v. Borough of South River) was cited by complainant in the case at bar as authority for the issuing of the injunction prayed for in this case, but, except in respect to overriding the refusal to grant a permit, the case has not in my judgment any application to the facts in the case sub judice.

After denial of the injunction in the first suit, the complainant filed another bill, the one in this cause, praying for the same relief; and an order to show cause why a preliminary injunction should not issue in accordance with the prayer of this bill was made, and on its return was fully argued. Questions of pleading have arisen and must be disposed of before the merits of the application may be considered and decided.

The complainant asks leave to amend by charging that subsequent to the filing of the bill it caused a communication to be addressed to the defendant submitting for consideration a proposition looking to a solution and settlement of the difficulties existing between the parties, and that in pursuance of such communication treaty was had between them, but that nothing came of the negotiations. The prayer for amendment in this regard concludes by charging that the object and position of the mayor and council and chairman of the standing committee on streets is not to grant any application of the complainant, but to vex, harass, and annoy it in and about its business of supplying Somerville with water, with the object and purpose of arousing sentiment against the complainant, whereby the people will be induced to agree to a municipal plant upon the theory that the complainant is unwilling to provide an adequate supply of water. Exactly what the complainant hopes it could obtain by this amendment, if made, I fail to see, unless it be that claim would be put forth that the conduct of the defendant in and about the negotiations showed an unreasonable attitude toward the complainant, and its offer of settlement, which, by the way, would not afford a reason for relief to the complainant. The proposition for conference, however, assumed the form of a written stipulation, signed by counsel for both parties, was filed in the cause, and concluded with a provision that the "negotiations shall be without prejudice to either party." Now, it is perfectly well settled that an offer made by one litigating party to the other is incompetent as evidence, if stated to be made without prejudice (Richardson v. Int. Pottery Co., 63 N. J. Law, 248, 43 Atl. 692), and, as the proposition in this case could not be given in evidence, it is not substantive and therefore cannot be pleaded. The application to make this amendment is denied.

Two other amendments are sought, one to make the borough of Somerville a party defendant it having been sued as the mayor, etc., instead of by its corporate name, and the other charging that application has been made to the chairman of the standing committee on streets for permission to lay a six-inch main on Spring street in Somerville, so that a dwelling in process of erection may be furnished with water, which application has been ignored. No objection is made by the defendant to the making of the last two mentioned amendments, and they will be or dered to be made. As complainant and defendant each succeed in part on the question of amendments in this suit, no costs will be awarded on this feature of the litigation.

Another question of pleading has to be dealt with. It arises in the first suit, which is still pending and open on the record. In that suit the defendants filed an answer and cross-bill. In the answer by way of crossbill it is averred, among other things, that the complainant has made a contract in writing with the Piscataway Water Company, the Raritan Township Water Company, and the Elizabethtown Water Company, in which it agrees to furnish and supply the Piscataway Water Company large quantities of water not at any time to exceed 2,000,000 gallons a day, and that the complainant company has never obtained the consent of the borough of Somerville or the township of Bridgewater or the board of commissioners of Somerville to make and enter into any contract with any other water company for a supply of water, and that the making of the contract mentioned is ultra vires, in that the complainant does not own or possess a sufficient water supply to enable it to furnish a sufficient quantity of water through its proposed 30-inch water main, and has no power to condemn lands or water for any new or additional source of supply, or to divert water from any such source, that within a short time then last past the complainant laid a 30-inch main from its pumping station and standpipe in the town of Raritan in the township of Bridgewater, through portions of certnin public streets in the borough of Somerville, and that complainant was proceeding to open Cliff street for the purpose of continuing the laying of the main, when its engineers and workmen were made to desist from further prosecution of the work by the police of the borough, acting under orders from the mayor and council. The crossbill charges that the 30-inch main is of enormously excessive size for the purpose of supplying the needs of Somerville and its inhabitants, plus the needs of Raritan and its inhabitants, plus the needs of the dwellers along any road leading either from Somerville or Raritan, along which complainant has procured consents of property owners, and that a main 16 inches in diameter would be of ample size for all such needs for at least 50 years to come; that the improving of the service in Somerville and the satisfying of the patrons and customers of the complainant and forestalling the danger from conflagration which the complainant professes in its bill of complaint is a fraudulent pretense, and that the real purpose of complainant is to enable it to fulfill the contract made between it and the three water companies above named; that the laying of the 36-inch main would work injury to the interests of the borough; that through Cliff street where complainant proposes to lay the main are sewer pipes laid at such distance beneath the surface as to make it impossible to lay such main over the pipes; that, because of house connections and sewer pipes in the street, it would be necessary to dig a trench not less than 5 feet wide, and not less than 9 feet deep, whereas the laying a main of ample diameter to supply the water needs of Raritan and Somerville would not necessitate a trench of more than 2 feet 6 inches in width, and 4 feet 6 inches in depth. The cross-bill prays that the complainant may be decreed to cease from further laying a 30-inch water main in Cliff street and other public streets of Somerville, and from laying a main in the borough that may be grossly disproportionate to the needs of Somerville, and the dwellers along any road leading from it, as such needs now exist or are likely to arise in the next 30 years, also, that the complainant may discover as to whether or not it made a contract with the three water companies above mentioned and the terms thereof, and whether or not it had procured the consent in writing of the owners of property along the roads through which it proposes to lay a water main under the contract, and whether or not it has procured the consent by ordinance of any municipality through which the main is proposed to be laid as required by law, and whether or not it has procured the consent in writing of the majority in frontage of the owners of land on or along any road or portion thereof leading from Somerville to extend its mains outside and beyond the corporate limits of the borough for the purpose of supplying dwellers with water, and, if any such consents have been obtained, for what frontage, and along what road. On the hearing of the application for a preliminary injunction in this cause, the complainant's counsel moved to dismiss the bill and cross-bill in the former...