State v. Proprietors of Morris Aqueduct

• Decision Date: 07 November 1895
• Parties: STATE (KOUNTZE, Prosecutor) v. PROPRIETORS OF MORRIS AQUEDUCT et al.
• Court: New Jersey Supreme Court

33 A. 252

58 N.J.L. 303

STATE (KOUNTZE, Prosecutor)

v. PROPRIETORS OF MORRIS AQUEDUCT et al.

Supreme Court of New Jersey.

Nov. 7, 1895.

Eminent Domain—Powers of Aqueduct Company—Application—Necessity—Ratification of Proceedings.

1. The Proprietors of the Morris Aqueduct have power to condemn lands and rights in lands, not only to enable them to furnish a supply of water to Morristown and vicinity, ample for all reasonable contingencies, but also to collect and preserve the water in a state of purity.

2. An application for condemnation of lands made by that corporation, which is authorized to condemn lands necessary for its purposes, need not show how the corporation made or expressed its determination of the necessity to take the lands sought to be condemned.

3. Where the directors discussed and argued on a plan for making use of certain waters, which plan required the acquisition of certain lands and rights, and have purchased and paid for some of such lands, they have sufficiently determined that it is necessary to acquire the other lands essential to the plan, although they have passed no resolution to that effect.

4. Where afterwards the president made unsuccessful efforts to purchase some of said lands, and had reported his failure to the directors, it seems that he acquired implied authority from the directors to institute proceedings to condemn; but, if not, the subsequent approval and adoption by the directors of such proceedings instituted by him will sustain an order made thereon.

(Syllabus by the Court.)

Certiorari to supreme court.

Certiorari by the state, at the prosecution of Luther Kountze, against the Proprietors of the Morris Aqueduct and others, to review an order of a justice appointing commissioners to assess damages which the prosecutor will sustain by the taking by said proprietors of certain lands, and of certain rights, easements, and privileges in other lands. Order affirmed.

Argued June term, 1895, before VAN SYCKEL, LIPPINCOTT, and MAGIE, JJ.

Alfred Mills, for prosecutor.

Henry C. Pitney, Jr., for defendant.

MAGIE, J. The right of the corporation known as the "Proprietors of the Morris Aqueduct" to exercise the eminent domain for the purposes for which it was created has been established by the concurring judgment of this court and the court of errors. Olmsted v. Proprietors, 46 N. J. Law, 495, 47 N. J. Law, 311. But prosecutor contends that the corporation has no right to condemn the easements, privileges, and lands which it seeks to acquire by the proceedings before us, and that the order appointing commissioners ought to be vacated. This contention is mainly put upon the ground that the easements, privileges, and lands sought to be condemned are not necessary for the purposes for which the condemning corporation was created. The corporation was created by an act passed November 16, 1799, for the purpose of supplying Morristown with water. By supplements to its charter, and by general laws, which are collected in the opinions above cited, it acquired the right to supply water beyond the limits of Morristown, and also the right to acquire, by condemnation, lands, springs, and streams of water necessary for those purposes. The application in this case asserts that the corporation deems it necessary to take, by condemnation, the easements and privileges in lands of prosecutor therein described, and also other lands of his therein described; and it is verified by the oath of its president This was sufficient to confer jurisdiction upon the justice applied to, to make the order complained of. But it is settled in our courts that a landowner whose land is thus sought to be condemned may dispute the fact of necessity, and, by a writ of certiorari, require this court to determine on affidavits whether the asserted necessity in fact exists. The burden is on the corporation to show its right to condemn by establishing the condition precedent upon which the right was granted. Olmsted v. Proprietors, 46 N. J. Law, 495. In this case the condemning corporation must make it appear that the rights it seeks to acquire are necessary for the purposes of its incorporation, viz. to supply Morristown and its vicinity with water. In the Olmsted Case the court of errors held that the word "necessary," with application to the powers conferred on this corporation, was to be construed as justifying the taking of a supply of water so ample so as to remove any reasonable apprehension that it will not be sufficient for those purposes.

It appears in the case that the...