Opinion
12-29-1909
CITY OF PATERSON v. EAST JERSEY WATER CO.
Suit by the City of Paterson against the East Jersey Water Company. Decree for complainant. Memorandum concerning form of decree. See, also, 70 Atl. 472.
The application to open the proofs for the purpose of proving the contracts for water supply between Paterson and the Passaic Water Company, Passaic and the Acquackanonck Water Company, and the defendant company, with the Montclair Water Company, is denied. It is stated by counsel that one object of this application to open the proofs is in order to insist that no decree for injunction in the cause should be made unless the three water companies be brought into court and made defendants in the suit. This objection to any decree for injunction, based on the absence of parties, if valid, should have been made before the long and expensive hearing was begun, and when the water companies, if necessary parties, might have been brought in. Such of the contracts as were in force at the beginning of the suit in 1905 may, however, be proved on this application to settle the decree, for the purpose of showing the effect of any decree for injunction on the municipalities and fixing the time when it should be directed to issue. A reasonable delay is just and equitable, in order that an opportunity may be afforded for the water companies or municipalities affected to institute proceedings to condemn complainant's water rights, if they now have the right to do so, and to apply to the Legislature for additional legislation if they have not now the right. The complainant's counsel, while they do not admit that their riparian rights can be condemned, do not object to a delay in issuing the injunction for the purpose of instituting the proceedings or attempting to procure further legislation. They suggest six months, while defendants ask two years' delay. I will fix the time for issuing the injunction as not earlier than April 1, 1911, and will also direct that, if proceedings for condemnation be taken before that time, then injunction shall not issue without further order of the court. The contracts with Passaic and Montclair Water Company existing at the time of the commencement of the suit have since expired, but the contract between the Passaic Water Company and the city of Paterson does not expire until August, 1910. The time fixed for the issuing of the injunction will, I think, be ample for the municipalities affected to legalize their present source of water supply, if this can be done. Another circumstance has an important bearing on the matter of fixing the time for issuing injunction. Since the filing of the opinion in this case the Attorney General, on behalf of the state, has filed an information against the defendant water company, charging that its diversion of water at Little Falls for the purpose of supplying the inhabitants of Bayonne, Harrison, East Newark, Kearny, Nutley, and Little Falls with water for domestic use, is without authority of law, and asking an injunction to restrain further diversion. Diversion for these municipalities is part of the injury complained of in this case To this information the defendants have filed an answer, and the suit is now pending. The issuance of the injunction in the present suit should also be delayed a reasonable time for the final determination of that suit. The reason is that, if an injunction cutting off the only present water supply of these municipalities is obtained by or on behalf of the state itself, it would be more likely to lead to the legislation necessary to meet the situation thus arising than an injunction obtained by a mere riparian owner in a suit like the present. The conservation and control of the water supply of our fresh-water streams in their use for potable purposes, which must be paramount, has become a most urgent and pressing question. The necessity of legislation to meet present conditions becomes more and more apparent, and if the state, by its authorized officials, seeks to enjoin the supply of these municipalities by the defendant company, because of its lack of authority to divert the water, it is not unreasonable to suppose that this radical step is taken in view of the general interests involved in the control of potable waters, and that some general system of conservation and control is contemplated. Some legislative advances in this direction have already been made since the hearing of the present suit. Ry the act approved June 17, 1907 (P. L. p. 633), a state water supply commission has been created, charged with the general supervision over all the sources of potable and public water supply, to the end that the same may be economically and prudently developed for the use of the people of this state, and no new or additional water supply for the inhabitants of any municipal corporation can be condemned or diverted without their approval on behalf of the state. The act does not seem to give the commission supervision over any water supply existing at the time of the net. but if the existing supply to any municipality should be declared to be an illegal diversion, there would seem to be no reason why the municipalities whose legal supply is thus cut off or threatened should not have relief under the act by applying to the commission for a legal source of supply. And as the state, by the state water supply commission act, has now assumed, in the public interest, some supervision of the potable water supply, and of its extension beyond the existing lawful use or authority, it seems most reasonable to expect that the present legislation will, at the instance of the officers in control, be supplemented by such further legislation as will afford to any municipality whose present supply may be stopped by the state as illegal the right to obtain a lawful supply. The questions involved in the Attorney General suit are so important that the opinion of the appellate court will probably be sought, and sufficient time for the hearing and determination of the case on appeal should be allowed. All things considered, the issuing of the injunction should therefore be delayed until April 1, 1911, and, if before that time proceedings for condemnation of the riparian rights of the complainant be commenced, then the injunction should not be issued without further application to the court.