Title: McCarter v. Hudson County Water Co. - Court of Errors and Appeals of New Jersey, Nov. 19, 1906
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Title: McCarter v. Hudson County Water Co. - Court of Errors and Appeals of New Jersey, Nov. 19, 1906
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Publisher: 65 Atlantic Reporter
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Spatial Coverage: North America -- United States of America -- Florida
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Abstract: Jake Varn Collection - McCarter v. Hudson County Water Co. - Court of Errors and Appeals of New Jersey, Nov. 19, 1906 (JDV Box 86)
General Note: Box 22, Folder 3 ( Court Cases of Water Rights in States Other Than Florida - 1990 ), Item 20
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Full Text




icCARTER v. HUDSO1

: .-c e parties, down to the time of
the: e bill. This is a subject which
:,e ,iiena rise to much difficulty were
: e position which the complain-
"-in respecting the same. As I
; fc.,ul said, the authorities are clear
:, ,,ne decree did not relieve the
tI,:r ability under this agreement,
s: t;hat he is relieved from liabil-
,-d. r.:!er because he no longer is in
.. l e rents and profits of the real
S L ,.. defendant is in possession of
f r. '. of the net proceeds of the sale
:., :- estate is answered by the fact
it ,rely by his own act and voll-
,.. ~:! ach is the case. I think it a very
S.,,., ...-i whether he could escape lia-
u: k : iill extent of his contract under
-...-:nces of this case. So far as.the
..i :.s concerned, she has done noth-
;.re him of every right which he
i. t pl possibly claim to have under
-~;.::-t. Any right which he once
,.. -,..;,dcr. and which he has not now,
S;* : t real estate is concerned, he has
.,- waived or relinquished. It is
,* :.-'i,::iable whether a defendant who
S,, ii-.elf given away his rights or
S: *.*:-n;a is in any position to ask a court
,. ,.::. rto extend protection to him when
S, :s.':; liability is sought to be enforced
.,.;. .::n. If any such right is accorded
-.-i;.: nt. its utmost extent would be
.,. ::.- ,-a.itract would not be enforced in
S: `:;. :,s to leave him in a worse posi-
:i li, would have been in if he had
S. t i. upon the share of the proceeds
4, :- -i; which belonged to Mrs. Buttlar.
:" .:..m-r of the proceeds of the sale of
F :,: ,-;:ate were impounded and put out
; "'. -'. a-ad he received the interest there-
uld. l:..,i.bl Ie getting all to which he
..,::;-.by be entitled, and the complain-
,id ,..1 then be entitled to a decree for
' 3 7> m;i iouth as provided in the agree-
-.. *';: cinmiplainant concedes to the de-
=--*-,: .rrt more than this. I say "con-
'-a.- ::,'use I am not deciding that he
': '-.ihr, and haye suggested as above
:* .: \ry questionable whether he has,
; -: > ~ is-'** is all that the complainant asks
.i certainly all to which the defend-
'-. s:i:!fd. In the original and in the
.b rief of the complainant it is
'. .: ;'. Iosition which she takes is that
i.:::;iiint should be allowed the
'- '!, li,'s tl: legal rate of interest
::'> of the proceeds in the equity
S' u." To the extent that the legal
S :>t.t would exceed the actual rate
S : w:iclh tle investment of this sum
':.- wu!d realize, this is gratuitously
*': t th:e defendant.
S*':.,' therefore, with respect to the
: ":: .-I thle date of the receipt by the
.'.' : of her share of the proceeds of


N


~^------ -'--- -~


COUNTY WATER CO. 4S9

sale and the filing of the bill, will be that
the defendant is liable for $75 a month less
the legal rate of interest on the amount re-
ceived by her as her share of the proceeds
of the sale.
The cross-bill of the defendant must be dis-
missed, with costs.
I will advise a decree an accordance with
these conclusions.


(70 N. J. E. 695)
McCARTER, Atty. Gen., v. IHr'T ON COUN-
TY WATEIER Ct.
(Court of Errors and Ap-.nls of NYe- .. --
Nov. 19, 1906.)
1. WATERS AND WATER COURSES-DrIVf.':,-iN
-STATUTORY PROVISION-CONSTITiTUTI:i AL-
ITY.
The act of May 11, 1905 (?. L. 19(.. p.
461), whereby it is made unlawful fr- -, r-
sons or corporation to transport thr ._;, pi; ,
conduits, etc., the waters of any fresE-wa'er
lake, pond or stream of this state into any other
state, is constitutional.
2. CONSTITUTIONAL LAw PERSONAL AND
CIVIL RIGHTS-ACQUInING PROPERTY.
The first section of the bill of rights con-
tained in our Constitution, which declares that
all men have certain unalienable rights, among
which are those of acquiring, possessing, and
protecting property, etc., does not guaranty to
any man the right of acquiring property in
anything that is not the subject of private
property by law, nor the right of disposing of
property that has not been duly acquired under
the law of the land.
3. SAME PRIVILEGES AND IMMUNITIES -
CITIZENS OF SEVERAL STATES.
The federal Constitution, art. 4, 2, in
declaring that "the citizens of each state shall
be entitled to all privileges and immunities of
citizens in the several states," does not guaranty
to citizens of the state of New York, while
resident there, all the privileges that they would
enjoy if resident in New Jersey.
[Ed. Note.-For cases in point, see Cent. Dig.
vol. 10, Constitutional Law, 625.]
4. WATERS AND WATER COURSES WATER
COMPANIES POWERS CONSTRUCTION OF
CIHARTER-STATUTORY PROVISIONS.
A charter acquired under our general cor-
poration act of 1875 (Rev. St. 1875. p. 1). ann
its supplements (Rev. 1877. p. 179, 1282;
Gen. St. p. 907; P. L. 1870, p. 103) for the
purpose of damming rivers and streams, and
storing, transporting, and selling water, can-
not be deemed to authorize the depletion of our
streams for the purpose of conveying water be-
yond the borders of this state.
[Ed. Note.-For cases in point, see Cent. Dig.
vol. 48, Waters and Water Courses, 287.]
5. SAME.
The act of May 11, 1905 (P. L. 1905, p.
461) amounts to a repealer of the power of
any company organized under the corporation
act of 1875 and its supplements to transport
water out of the state, even if such power be
assumed to have been acquired under the latter
acts.
0. SAME.
The general corporation act of 1890 (P. L.
1806, p. 277, 6; P. L. 1899, p. 473) does not
authorize the incorporation of companies for
the purpose of diverting water from streams
and storing and selling the water thus diverted.
fEd. Note.--or cases in point, see Cent. Dig.
vol. 48, Waters and Water Courses, 287.]








65 ATLANTIC REPORTER.


7. SAME-CoOMMO LAW-RIPARIAN RIGHTS-
DIVERSION AND RESTORATION OF WATER.
The common law recognizes no right in the
riparian owner, as such, to divert water from
the stream in order to make merchandise of it.
[Ed. Note.-For cases in point, see Cent. Dig.
vol. 48, Waters and Water Courses, 72, 33,
86.1
8. SAME-STATUTORY PROVISIONS.
This state has not, by statute, changed the
rule of the common law so as to make the wa-
ter of our lakes and streams the subject-mat-
ter of commerce in the ordinary sense, nor has
it authorized water diversion for other than
ririan uses, saving for a limited class of
purposes beneficial to the people of this state.
[Ed. Note.-For cases in point, see Cent. Dig.
vol. 48, Waters and Water Courses, 72, 27.]
9. SAME.
The legislative policy of this state has been,
and is, to preserve and administer our water
rights for the benefit of our own people, to
whom, by right of proximity and sovereignty,
they naturally belong.
10. SAME.
The state of New York, or the people
thereof, have no inherent right to withdraw a
supply of water from the territory of New
Jersey by artificial means.
11. SAME.
The control of fresh water running in the
natural streams, and in lakes and ponds that
have outlet in such streams, subject to the
interests of riparian owners therein, resides
in the state in its sovereign capacity as repre-
sentative of, and for the benefit of, the people
in common, and the Legislature may prohibit
the abstraction of such water, saving for ripa-
ran uses and for purposes authorized by legis-
lative grants.
12. COMMERCE-POWER TO REGUTLATE-WATERS
AND WATER CouRSEs.
The act of May 11, 1905 (P. L. 1905, p.
401), which forbids the abstraction of such wa-
ter for transportation beyond the bounds of
the state, is not in violation of the interstate
commerce clause of the federal Constitution, be-
cause water abstracted contrary to the statu-
tory prohibition cannot legitimately enter into
interstate commerce.
13. NAVIGABLE WATERS-RIGHTS OF PUBLIC
-OWNERSHIP.
The state of New Jersey, as owner of the
bed of the Passaic river where flowed by the
tide, has a proprietary right to the continued
flow of the stream which is paramount to the
rights of upper riparian owners to withdraw
water for purposes other than those incident
to riparian ownership.
[Ed. Note.-For cases in point. see Cent. Dig.
vo.. 37. Navigable Waters, 245.]
(Syllabus by the Court.)
Appeal from Court of Chancery,
Action by Robert H. McCarter against the
Hudson County Water Company. From a
decree in favor of the informant (61 Atl.
710), defendant appeals. Affirmed.
Richard V. Lindabury and Collins & Cor-
bin, for appellant. Robert H. McCarter,
Atty. Gen., for respondent.

PITNEY, J. The decree that is here under
review awards an injunction to restrain the
Hudson County Water Company from carry-
ing or transporting any of the waters of the
Passaic river into Staten Island, in the state
of New York, or elsewhere out of the state


of New Jersey. The cause was instit-ted ia
the court below by the filing of an infornax-
tion to which the defendant (now appelaant
made answer, and was heard before the vice
chancellor upon these pleading and. upon the
proofs and admissions of the parties i~m-
cerning certain matters that did not dearjy
appear from the pleadings. It appears tha
the East Jersey Water Conpany, a c.rpo-
ration of this state, organized under the -a-
eral corporation act of lS.Z5 and its supple-
ments and amendments (Gen. St p. !V7), !ha
established extensive works at Little Falls
upon the Passaic river, a shrtdistance ab-ve
the city of Paterson, and diverts water
therefrom daily to the amount of 30.~0t.t'r
gallons or more for the supply of certain
municipal corporations and other consumiers,
and is engaged in the sale of water from the
river to water companies and to municipal
corporations. A system of water mains has
been constructed, owned In part by the East
Jersey Water Company, In part by another
corporation of this state known as the "New
York & New Jersey Water Company," sna
in part by the present appeIant, exteniag
from the intake at Little Fals to and into
the city of Bayonne in Hudson county, which
city lies upon the borders ofthe tidal waters
of the Kill-von-kull, oppositeto Staten Islan&
And that the Hudson County Water Compaq
has entered into certain contracts in pur-
suance of which it purposes to supply certain
municipal corporations and other consumers
upon Staten Island from the waters- of the
Passaic river,, employing for this purpose ex-
tensions of its water mains that are to be
constructed beneath the waters of the Kil-
von-kull. The information of the Attorney
General purports to be exhibited "on behalf
of the state, and at and by the relation of
Henry B. Kummel, state geologist." The
status of the state geologist as relator arises
solely from a recent act of the Legislature
(P. L. 1905, p. 461), the constitutionality of
which is the principal question in dispute.
It is insisted by the appellant that, if the act
be unconstitutional, there is no other basis
upon which the information can Ir sustain&
The learned vice chancellor, how-!ver, dealt
with all the grounds upon which the prayer
for injunction was rested, and we think the
averments of the pleading are broad enugb
to warrant this course. Not only does the
information purport to be exhibited on be-
half of the state, as well as at the relaeon
of the state geologist, but its averments in-
clude mention of many matters that wuald
have been unnecessary had thle stature a2:cne
been invoked, and the prayer is "'th;t ihe
Hudson County Water Comprany, pur-aat
to the provisions of the act entitled, etc.. sp-
proved May 11, 1905. and ott-rwi,.,. may be
enjoined from carrying or transporting any
of the waters of the Passaic river into States
Island or elsewhere out of the state of New
Jersey," with a further prayer for general
relief.


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-Ip-------------------------------------


-~-~ c~--- ----- . .~- ~


(N. I








McCARTER v. HUDSON COUNTY WATER CO.


The act In question (P. L. 1905, p. 461)
reads as follows:
"An act to preserve and maintain the lakes,
ponds, brooks, creeks, rivers and streams of
this state, and to prevent the waters thereof
from being carried by pipes, conduits, ditches
or canals Into other states, for use therein,
and to authorize the Court of Chancery to
assist in the observance of this act.
"Whereas, the available waters of the
fresh-water lakes, ponds, brooks, creeks, riv-
ers and streams of this state do not increase
with the growth of population, and unless
the same are carefully preserved, will be-
come inadequate to perform the functions
they were by nature designed to do, which
functions are essential to the health and
prosperity of all the citizens of this state;
therefore,
"Be it enacted by the Senate and General
Assembly of the state of New Jersey:
"1. It shall be unlawful for any person or
corporation to transport or carry, through
pipes, conduits, ditches or canals, the waters
of any fresh-water lake, pond, brook, creek,
river or stream of this state into any other
state, for use therein.
"2. It shall be the duty of the state geolo-
gist to keep a general oversight over the
fresh-water lakes, ponds, brooks, creeks, riv-
ers and streams of this state, and to see that.
the same are preserved for the use and bene-
fit of the citizens and inhabitants of this
state, and to prevent the waters thereof
from being carried or transported by pipes,
conduits, ditches or canals into other states
for use therein; upon its being brought to
his knowledge that it is the intention of any
person or corporation to so carry or transport
into any other state for use therein, the wa-
ters of any such fresh-water pond, lake,
brook, creek, river or stream of this state,
it shall be his duty, through the Attorney
Tineral, to apply to the Court- of Chancery
for injunction to restrain the same, and the
Court of Chancery is hereby authorized anid
empowered to entertain jurisdiction of a suit
in equity to preserve the waters aforesaid
for the use and benefit of the citizens and in-
habitants of this state, and to prevent their
being, by pipes, conduits, ditches, or canals,
carried or transported to other states for use
therein; and to that end to issue such re-
straining order or injunction, both prelim-
inary and final, as may be necessary, and to
'-iforce the same in the same manner it is
'Miowvered to enforce other injunctions or
,rtlers.
"3 This act shall take effect immediately.
"Approved May 11, 1905."
In the printed brief for the appellant a
point was raised which, although abandoned
':i'on the oral argument, deserves mention.
It is rested upon the alleged fact that the wa-
ter ln question Is not diverted from the Pas-
s"ic river by the defendant, nor even by the
New York & New Jersey Water Company; it
being insisted, first, that the latter two comn-


Ipanies are necessary parties defendant; and
secondly, that, since the East Jersey Company
Is permitted to divert the water for purposes
of sale, the water diverted becomes an arti-
cle of commerce, traffic in which, between the
state of New Jersey and the state of New
York, cannot be constitutionally prohibited by
this state. The question of interstate com-
merce will be dealt with hereafter. With re-
spect to the first suggestion we do not con-
sider the E..t J-.irsey Water Company and
the New Yo,:k A N'w Jersey Water Company,
or either of thM :i. c '- -ry parties to this
proceeding, whose .bjt-. is to restrain the
transportation of fresh z a -er from the Pas-
saic river by means of pirp- and conduits to
any point or pc!nts outside if tie state. The
actual situation d i-t.si- is thi.: that an
intake exists at Little t ails, at which certain
water mains are filled, and these mains ex-
tend continuously from that point to some
point or points in the city of Bayonne at or
near the state line. At their terminus in
Bayonne the pipes are under the control of
the present appellant, which may either open
them or keep them closed, at its option, unless
restrained by injunction. It purposes to con-
tinue these mains to and into Staten Island,
and to use them there for furnishing water
to divers large consumers. If this be per-
mitted, the water that Is thus dealt out by the
appellant to consumers in Staten Island will
flow in a continuous stream from the Passaic
river at the Little Falls intake, and while,
for a part of the intervening distance, this
water will be indistinguishable commingled
with waters that are destined for distribu-
tion to other consumers along the line of
the mains, it is manifest that, if the de-
fendant does not desist from constructing or
using its main to Staten Island, the outflow
from the river at Little Falls will be dimin-
ished by the precise quantity that otherwise
would go to Staten Island. In effect, the wa-
ter that defendant proposes to supply to Sta-
ten Island would be diverted from the Pas-
sale river by defendant; without its interven-
tion this water would continue to flow in the
river. No injunction nor any other relief is
needed against the two companies who are
owners, respectively, of the intake and of the
mains above Bayonne, and therefore these
companies are not necessary parties to the
present proceeding.
Coming, therefore, to the merits, it is im-
portant to keep it clearly in mind that, if the
defendant carries out the project that it has
in contemplation, a considerable part of the
fresh and potable waters of the river Passaic
will be diverted out of the river at Little
Falls, and conducted thence in a continuous
artificial channel or channels to some point
outside of the state of New Jersey, and will
there be permitted (subject to defendant's
control) to escape and flow forth, to the bene-
fit of citizens of the state of New York, and
to the incidental profit of the defendant. The
Questions are whether such an artificial and


__


----I


N. J.)









65 ATLANTIC REPORTER.


extraterritorial outlet can be prevented by the
people of the state of New Jersey, with or
without an act of the Legislature; and, If an
act be needed for the purpose, whether the
act of 1905 is a constitutional piece of legis-
lation.
It must, we think, be sufficiently obvious
that the government established in this state
by and for the people thereof has complete
dominion (subject only to constitutional limi-
tations) over all things within the borders of
the state, Including all lands and waters, and
the mode of acquiring and disposing of rights
of property therein. The fresh-water lakes,
ponds, brooks, and rivers, and the waters
flowing therein, constitute an important part
of the natural advantages of this territory,
upon the faith of which its population has
multiplied in numbers and increased in ma-
terial and moral welfare. The regulation of
the use and disposal of such waters, there-
fore, if it be within the powers Of the state,
is among the most important objects of gov-
ernment. The act of legislation above quoted
has for its avowed object the preservation
of. our fresh-water lakes, ponds, rivers and
streams, for the use and benefit of the citizens
and inhabitants of this state. Aside from the
immediate importance of the diversion in a
given case, the act aims to prevent at the out-
set any extraterritorial diversion that, if per-
mitted, might give rise to a claim of vested
rights.
It is insisted the act in question is uncon-
stitutional: First, as contravening the first
section of the Bill of Rights contained in our
state Constitution, which declares that ail men
have certain natural and unalienable rights,
among which are those of acquiring, possess-
ing, and protecting property, etc. In our view,
however, this clause does not guaranty to any
man the right of acquiring property in any-
thing that is not the subject of private prop-
erty by law, nor the right of disposing of
property that has not been duly acquired un-
der the law of the land. It is argued that,
while the act does not prohibit the owner of
water from selling It to another person or
corporation within this state, it absolutely
prohibits hin from selling it to any person or
corporation without the state, to be used with-
out the state. The answer is that the act,
properly construed in subordination to the
Constitution, does not prohibit the owner of
water from selling it where he will; what it
prohibits is the acquisition of ownership in
flowing waters for the purpose of transport-
ing them out of the state. Secondly, it is ob-
jected that the act contravenes the fourteenth
amendment of the Constitution of the United
States, which declares that no state shall de-
prive any person of life, liberty, or property
without due process of law. To this the like
answer may be made. Thirdly, the appellant
cites article 4, 2, of the federal Constitution,
that, "The citizens of each state shall be en-
titled to all privileges and immunities of citi-
zens in the several states." It may be a suff-


client answer to this to say that the appellant
is a citizen of this state, and cannot be heard
to plead the privilege of a citizen of any oth- .
er state. But, besides, It is clear that the
statute does not discriminate between citizens
of different states; its prohibition is aimed at
all persons; whether citizens of this state or
of any other state, who may presume to do
the prohibition act. Certainly it is not with-
in the intendment of the constitutional clause
that citizens of the state of New York, while
resident there, shall have all the privileges
that they would enjoy if resident within our
borders. Fourthly, the principal constitu-
tional argument is rested upon that clause of
the federal Constitution (article 1, 8) which
empowers Congress to regulate commerce
among the several states. If the water whose
transportation is prohibited, including the wa-
ter of the Passaic river, of which the appel-
lant seeks to make merchandise beyond our
territorial borders, is the proper subject of In-
terstate commerce, the state, of course, can-
not interfere with the proposed traffic. Such
right as the appellant claims to withdraw the
water from the Passaic river and make mer-
chandise of it is derived by grant from the
East Jersey Water Company. Whatever
rights this company may have as against the
state must rest either upon its chartered pow-
ers, upon its status as a riparian owner upon
the Passaic river, or upon both of these com-
bined.
The charter of the East Jersey Company
has not been introduced in evidence. It ap
pears to have been admitted upon the hear-
ing below that, in fact, the company was
incorporated under "An act concerning cor-
porations," approved April 7, 1875, and its
supplements and amendments (Gen. St. p.
907, etc.). Respecting the date of its incor-
poration, the record is silent, but we must
infer that it was prior to July 12, 3S95, for
a contract is in evidence made by the East
Jersey Company on that day. Concerning
the powers of the company we know nothing
except that in fact it is engaged in the sale
of water from the Passaic river to munici-
pal corporations, and to water companies en-
gaged in the supply of water to municipal cor-
porations and other consumers within the
state of New Jersey. We assume, therefore,
that it possesses the amplest corporate pow-
ers in respect of the diversion and sale of
water that could be acquired by any com-
pavy organized under the general corpora-
tion act of 1875 and its supplements and
amendments at any time prior to July 12,
1895. Section 10 of the corporation act of
1875, as originally enacted (Rev. 1877, p. 179),
made it lawful for any three or more per-
sons to organize "a company to carry on
any kind of manufacturing, mining, chemical,
trading or agricultural business, the trans-
portation of goods, merchandise or passen-
gers upon land or water, inland navigation,
the building of houses, vessels, wharves or
docks, or other mechanical business, the rec-



I ;
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_ I, -- 81 ~B)IC~L~5~Sj9ep~~U-~f~g;l~


ON.J.








MoCARTER v. HUDSON COUNTY WATER CO.


lamation and improvement of submerged
lands, the Improvement and sale of lands,
the making, purchasing and selling-of manu-
factured articles, and also of acquiring and
disposing of rights to make and use the same,
the renting of buildings and steam or other
power therewith, the cutting and digging
peat, stone, marl, sand or other like sub-
stance and dealing in the same, manufactured
or unmanufactured, or any wholesale or re-
tail mercantile business, or any lawful busi-
ness or purpose whatever. Provided
that nothing herein contained shall be con-
strued to authorize the formation of any rail-
road company, turnpike company, or any oth-
er company which shall need to possess the
right of taking and condemning lands, nor
of any insurance company, banking company,
savings bank, or other corporation intended
to derive profit from the loan or use of mon-
ey." By P. L. 1876, p. 103 (Rev. 1877, p. 1282,
pl. 4), this section was amended by inserting
among the authorized objects the following:
"The damming of rivers and streams, in-
cluding the storage, transportation and sale
of water, and water power and privileges,
with the right to take rivulets, raceways and
lands, and erect and maintain dams, reser-
voirs, raceways, mills, manufactories and oth-
er erections, and lease, mortgage, sell and
convey the same or any part thereof;" and
the proviso was amended by inserting in the
clause that excluded companies which shall
need to possess the right of taking and con-
demning lands, the words: Except for the
damming of rivers and streams and for pur-
poses pertaining thereto, as hereinbefore spec-
ified." A further proviso was added as fol-
lows: "That this act shall not apply to any
river or stream of a less width and volume
of water than the Delaware river, ordinarily,
at Phillipsburg in this state, below its junc-
tion with the Lehigh, nor to any river or
stream below the head of tide water in the
same." .The same supplement empowered
companies established for the purpose of dam-
ming rivers and streams to construct, erect,.
and maintain dams on rivers and streams
of the width before mentioned not exceeding
10 feet in height above low water, and to
establish raceways and other works for the
purpose of creating and using the water or
water power for manufacturing purposes,
provided the water so diverted should be re-
turned again to the rivers and streams after
being used. Powers of condemnation were
likewise conferred; whether constitutionally
or not is of no present consequence. By sup-
plement of March 3, 1880 (P. L. 1880, p. 92;
Supp. Rev. 1SS6, p. 159, pl. 48), and by sup-
plement of February 29, 1888 (P. L. 18S8, p.
112, Gen. St. p. 946, pl. 189), section 10 of the
corporation act of 1875 was further amended,
but not so as to enlarge the power of erecting
and maintaining dams, etc. Upon the whole,
therefore, we may assume, that the East
Jersey Water Company is endowed with cor-
porate power to dam rivers and streams, and


to store, transport, and sell water, subject
to the limitations contained In the act just
cited. But we cannot assume (understanding
the fact to be otherwise) that the Passaic
river at Little Falls is of a width and volume
as great as those of the Delaware river at
Phillipsburg.
It appears, by admission of parties made
upon the hearing below, that the defendant
and i; .'-int was Incorporated under and
pursna'i, :' "An act concerning corporations"
(Revisi:ou a of 1l P. L. p. 277). The sixth
section of thli ;2 m:--, : -erates the objects for
which corporrtio'a. may be formed there-
under. The power of Jamming streams and
storing and selling -:.-ter as conferred by the
suppleme.-nt to the o, t of 1875 are eliminated
from the act of 1i-n;, and in a proviso to sec-
tion 6 it is declared that nothing in this act
shall authorize the formation of any insur-
ance, safe deposit, or trust company, bank-
ing corporation, savings bank, or other cor-
poration intended to derive profit from the
loan and use of money, or of any railroad
company, except companies formed for the
purpose of constructing and operating rail-
roads in other states and territories or in
foreign companies, or any turnpike company
or other company which shall need to pos-
sess the right to take and condemn lands.
By section 118 (P. L. 1896, p. 317) the cor-
poration act of 1875 and all acts amendatory
thereof and supplementary thereto are re-
pealed, with a saving of the corporate powers
acquired and rights vested under the acts
thus repealed. By supplement of March 24,
1899 (P. L. 1899, p. 473), section 6 of the
corporation act of 1896 was amended, but
without Including any authorization for the
organization of companies for the purpose
of diverting water from streams and storing
and selling the water thus diverted. Not-
withstanding such water companies are not
within the express prohibition of the proviso
to section 6 of the act of 1896, either as orig-
inally enacted or as amended li 1899, it
seems reasonably clear that it was not the
legislative intent that the incorporation of
such companies was to be permitted under
those acts. The exclusion of the express
authorization of such companies that resulted
from the repealer of the act of 1875 and its
supplements, and the express exclusion, uI
the act of 1896, of companies needing to pos-
sess the right to condemn lands in this state,
are circumstances that point in this direc-
tion. The appellant's charter, therefore, con-
fers no power to divert water from streams,
and to sell the same, beyond the mere power
to engage in "any lawful businesss" If we
were to assume, however, that the East Jer-
sey Water Company, by obtaining a charter
under the general corporation act of 1S75 and
its supplements for the purpose of damming
streams and of storing and selling water
within the purview of the amendments of
that act, acquired, not merely the corporate
capacity to do thosp things, but the consent


I,


N. J.)




ML*2k "


.65 ATLANTIC REPORTER. *' at


of the state that they might be done to the
depletion of the natural flow of the stream,
so far as the state, either in its sovereign
capacity or as riparian owner of the lands
covered by the tidal flow of the stream at its
outlet, had the power to grant such consent,
and were to assume that the consent could
apply to the Passaic river at Little Falls, still
it seems to us that such consent could not,
by any fair intendment, be deemed to author-
ize the depletion of our streams for the pur-
pose of conveying water beyond the borders
of this state. The act should be construed
in view of the then existing circumstances,
usages and practices. The transportation of
water from this state to any other state was
at that time unknown, save as it might be.
carried in bottles or other closed receptacles.
It cannot be deemed that the Legislature in-
tended to confer, upon any persons who de-
sired to embark the necessary capital for the
purpose, the privilege of establishing an inter-
state aqueduct, and, although the act author-
Izes the storage and sale of water, this, by
reasonable interpretation, must be held to
limit the distribution of water by pipes and
aqueducts to such as is designed for the sup-
ply of the inhabitants of this state. But
could the license be deemed to have a broader
scope, it was, nevertheless, revocable until
acted upon. By the Constitution of the state,
as amended in 1875 (P. L. 1875, p. 72), art.
4, 7, pl. 11, corporate powers were required
to be conferred by general laws, subject to
repeal or alteration at the will of the Legis-
lature. And by the general corporation act
of 1875 itself (which antedated the final adop-
tion of the constitutional amendments) it Is,
In section 6, provided (Rev. 1877, p. 178; Gen.
St. p. 911) that the charter of every corpora-
tion thereafter granted by or-created under
any act of the Legislature shall be subject
to alteration, suspension, and repeal in the
discretion of the Legislature. As already
pointed out, the repealer of the general cor-
*poratlon act of 1875 that was embodied In
section 118 of the revised corporation act of
1896 (P. L. 1896, p. 317) saved all the powers
of existing corporations and preserved their
vested rights. There is nothing to indicate
that up to this time the East Jersey Water
Company had entered into the business of
transporting water outside of the state of
New Jersey. Whether so or not, it is clear
that the act of 1905 now under consideration
by its necessary effect operated at least as
a repealer of the corporate capacity to em-
bark in any new enterprise of that kind,
even if such capacity was or could be gained
by a charter under the general act of 1875.
And, since that charter was, by the express
terms of the act, repealable, no right or li-
cense that arises solely out of its terms, and
that has not been acted upon, can be deemed
to be beyond revocation by the Legislature.
Pearsall v. Great Northern Railway, 161 U.
S. C46. 16 Sup. Ct. 705, 40 L. Ed. S3S; Galves-
ton, etc., Railway v. Texas, 170 U. & 226,


18 Sup. Ct. 603, 42 L. Ed. 1017. Upon tht
whole, therefore, it is clear that the alaed
right of the appellant to transport watersem-
side of the state cannot be rested upon any
chartered powers derived by the East Jisey
Water Company under the general corsr.a-
tion act of 1875 and its supplements.
Is the case for the .appellant bettere- b
the circumstance that the East Jersey Water
Company is a riparian owner upon the as-
sale river? Since that company owns the
intake at Little Falls, we may assume hia
it is a riparian owner. But it is not eldim-
ed, and the case shows no ground for ve
claim, that as such owner it has any pt'-
erty right in the flow or water of 'the -Ter
other than such as pertains to any other ri-
parian owner similarly circumstances 4e-
where in the state. If we assume that ituas
acquired the rights of all riparian owse-s
from the intake to the tide, still, what zre
the nature and extent of those rights? In
the consideration of this question, as it hbrs
upon the case before us, it is important to
keep in mind that we are dealing now yaf
with water as it stands or flows in laks
ponds, rivers, or other streams that h we
a natural outlet to the sea. Such was-
in its natural state so far as respects Yri-
vate ownership thereof, is not personal lat
real property, being as much a part of he
land itself as the soil and rocks. In its
aspect it is viewed by the common laI.
which holds that he who owns 'the soil oas
all above it and all beneath it But, In
view of the transient and flowing nature a
water, the landowner's property therein is
not absolute but qualified. In a sens- he
owns it while it is upon his land. but is
ownership is limited to a usufruetuary t-
terest, without right to divert any from ts
natural course, saving for the limited uss
that naturally and of necessity pertain to a
riparian owner, such as the supply of N5
domestic needs, the watering of his cat-M
the irrigation of his fields, the supplying 4f
power to his mill, and the like. This rigt
of user is limited to so much as shall be
reasonably necessary, and is qualified by the
obligation to leave the stream otherwLie
undiminished In quantity and Iuirpi;rre
in quality. The common law recognizes o
right in the riparian owner as such to dives
water from the stream in order to make
merchandise of it, nor any right to tranu
port any portion of the water from the
stream to a distance for the use of others
By the common law of England the rigi-
of diversion appears to have been coufine@
to lands of 'the riparian proprietor, extend-
ing a reasonable distance from the bed ef
the stream. In some of the states of the
Union, where large portions of territorT
are arid and not capable of raising crop?
or sustaining a population without artificial
irrigation, this rule has been much relaxed.
but not so as to extend irrigation beyond


f
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;:
t
1
3


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a


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~i~t~~Y~c~


A


_ .







MoCARTER v. HUDSON COUNTY WATER CO.


the limits of the water shed that is naturally
drained by the stream. Chauvet v. Hill,
93 Cal. 407, 410, 28 Pac. 1066; Bathgate v.
Irvlne, 126 Cal. 423, 58 Pac. 442, 77 Am. St.
Rep. 158; Southern California Investment
Co. v. Wilshire, 144 Cal. 68, 77 Pac. 767;
Clark v. Allaman (Kan.) SO Pac. 571, 585.
It will 'thus be seen that riparian owners,
as such, have not any such right in or own-
ership of the waters that flow upon or past
their lands as will entitle them to divert
a portion of 'the flow and convey it elsewhere
for the use of others than riparian owners.
It is, indeed, often said that a riparian own-
ed may grant to others the right to a por-
tion of 'the flow, provided he do not in-
fringe upon the rights of other riparian own-
ers thereby. But, in strictness, no more is
meant by this than that, if such grant be
made, the grantor and his sudcessors in title
can no longer complain of such diversion.
Stockport Waterworks Co. v. Potter, 3 H.
& C. 800; Ormerod v. Todmorden Mill
Co., L. R. 11 Q. B. Div. 155. See, also, Dore-
mus v. City of Paterson, 65 N. J. Eq. 711, 55
Atl. 304. If the East Jersey Water Company,
as riparian owner, had that kind of owner-
ship of the water itself which would give
it the right to make merchandise of 10,000,-
000 gallons per day, It might, of course, do
the same with entire flow of the river. If one
riparian owner had a right to do this, the
like right must pertain to each other ri-
parian owner, as well those above as those
below the works at Little Falls; and this
is of course a manifest absurdity. Nor can
the riparian owner who first takes be given
a better right than the others, without es-
tablishing the rule of "prior appropriation."
Such a rule was established by act of Con-
gress of July 26, 1866, with respect to cer-
tain lands in the mining states of the west,
for reasons explained in Jennison v. Kirk,
98 U. S. 453, 25 L. Ed. 240. Any such
rule is foreign to the common law, whose
maxim is "Aqua currit, et currere debet, ut
currebat" We are referred to the language
of Mr. Justice Depue (afterwards Chief
Justice), speaking for the Supreme Court
in Cobb v. Davenport, 32 N. J. Law, 369,
at page 378, where he said: "By the common
law all waters are divided into public waters
and private waters. In the former, the pro-
prietorship is in the sovereign; in the latter,
in the Individual proprietor. The title of
the sovereign being in 'trust for the benefit
of the public-the use, which includes the
right of fishing and of navigation, is common.
The title of the Individual, being personal in
!im, is exclusive-subject only to a servitude
in the public for purposes of navigation if
the waters are navigable in fact." Upon the
strength of this, it is contended by counsel
for the appellant that it was intended to
be held by the Supreme Court 'that the title
of the individual riparian owner to the water
itself-the fluid considered as a commodity


-Is exclusive against the public and agabst
all persons other than his co-riparian owner
An examination of 'the context, however,
shows that nothing of the sort was intended.
The question at issue was whether the land
covered by Green Pond, an inland lake hav-
ing a navigable depth but no navigable out-
let, and entirely remote from the flow of
the tide, was in the plaintiff, who claimed
title thereto under grants from the board
of pro.rietors, or whether it was in the pub-
lic, -.5, that the plaintiff could not exclude
the dei.-:d r.- om fishing upon the lake
What was ui-,-. at by the language quoted
is that, in lirds covered by'private water,
and the case properly applied the tidal test
as diistanguishi:- public from private waters
exclusive :?'iu was originally in the boards
of proprietors and could be derived by them
to individuals. That the interest of the
riparian ownec in the water is confined to
the usufruct is clearly set forth in Higgins
v. Flemington Water Co., 36 N. J. Eq. 53S
Excluding, therefore, all the customary and
lawful uses by means of which a riparian
owner may properly diminish the flow of
a stream, what private ownership remains
in the residue? His right of ownership,
manifestly, is the right simply to have the
flow continue; a valuable right, truly, but
a right that partakes solely of the nature
of realty, being from the nature of things
inseparably annexed to the laud itself.
We may concede, for the purposes of the
present discussion, that a landholder may ac-
quire an absolute private title to water as
water, by employing artificial means to inter-
cept it as it falls in rain from the clouds;
thus preventing it from reaching the natural
streams. See dissenting opinion of Field, J.,
in Spring Valley Water "Works v. Schottler,
110 U. S. 373, 4 Sup. Ct 48, 23 L. Ed. 173.
We may concede, also, for present purposes,
that subterranean waters, such as may be
reached only by driving wells, when thus
acquired, become absolutely the property of
the proprietor of the soil, and may be dealt
with by him as merchandise, and that, if
they be thus converted into a merchantable
commodity, the state would not be permitted
to prohibit its transportation beyond the con-
fines of the state. Water thus taken from
wells may be placed on the same plane with
oil and natural gas, concerning the latter
of which it was held by the Supreme Court
of Indiana in State ex rel. Corwin v. Indiana
& Ohio Oil, etc., Co., 120 Ind. 575, 22 N. E.
778, 6 L. R. A. 579, that the state could not
constitutionally prohibit its transportation
beyond the confines of the state. The act of
1905 deals only with fresh water running in
the natural streams, and in lakes and ponds
that have their outlets in natural streams.
The decree under review, likewise, deals
alone with water of this character. The
common law recognizes no right of private
ownership therein except to a limited extent


~i~r~rP ------- -7-r


N. J.)









65 ATLANTIC REPORTER.


by the riparian owners. And since the exer-
cise of all rights of private ownership, by
all riparian owners, still leaves the stream
to remain as a running stream, there remains
a residuum of common or public ownership
that, under our system, rests in the state as
a trustee for all the people. Blackstone says:
"Water is a movable, wandering thing, and
must of necessity continue common by the
law of nature, so that I can have only a
.temporary, transient, usufructuary property
therein." 1 Black. Com. 18. And in Cobb
v. Davenport, 32 N. J. Law, at page 378, Dep-
ne, J., said: "The policy of the common law
is to assign to everything capable of owner-
ship a certain and determinate owner.
If capable of occupancy, and suscept-
Ible of private ownership and enjoyment, the
common law makes it exclusively the subject
of private ownership, but, if such private
ownership and enjoyment are inconsistent
with the nature of the property, the title is in
the sovereign, as trustee for the public, hold-
ing it for common use and benefit." What the
learned justice proceeded to say, to the effect
that in this state nontidal waters are pri-
vate, not public, had reference, as already
shown, to the right of fishing, and was not
Intended to assert a complete private owner-
ship in the water as water. Such private
title as may be acquired in water, the liquid,
when separated from Its natural bed, may
for convenience be described as a title by oc-
cupancy, and the question remains, how far
does the law authorize the acquisition of
such a title? As already shown, the common
law authorizes its acquisition only by ripari-
an owners, and for purposes narrowly lim-
ited. Beyond that the ownership is common
and public.
The present case is closely parallel to Geer
v. Connecticut, 161 U. S. 519, 16 Sup. Ct. 600,
40 L. Ed. 793, where the Supreme Court of
the United States held that a state law pro-
hibiting game killed within the state from
being transported beyond its borders did no
violence to the interstate commerce clause
of the federal Constitution, the decision be-
ing put upon the ground that, by the com-
* mon law, wild game is subject to-govern-
mental control; that the state might exer-
cise its control in such manner as to confine
the use of it to the people of that state; that,
although the statute under consideration per-
mitted the killing of game, and its sale within
the state, yet the prohibition against ex-
portation entered into every such transaction
of sale, and rendered it strictly internal com-
merce; that the state, in granting to its resi-
dents the right to kill game, had lawful au-
thority to impose a condition prohiting its ex-
portation; and that, In the face of such a
prohibition, the game killed did not become
the subject of interstate commerce. Upon
the argument here an attempt was made to
distinguish this decision upon the ground
that it turned upon the ownership of game
by the state as successor to the king's pre-


rogative. An examination of Jusfte White's
opinion, however, shows that he based the
king's prerogative and the states rignt of
control, alike, upon the fact that game was
public property because not susceptible of ab-
solute private ownership by anybody Hence
is derived the doctrine that control resides in
the state, not as a proprietor, but f1its sover-
eign capacity as representative ad for the
benefit of all the people in common Water,
the liquid, in its natural state, is asftgitive in
character as game, and as little susceptible
to private ownership. And so the riparian
owner, as such, has no common-law right to
make merchandise of the water ti-t other-
wise would naturally flow to the sea. But
it Is argued, in effect, that in this state we
have by statute departed from the common
law in this regard, and have aratorized
riparian owners and others to make general
merchandise of the water of our 3akes and
streams. No doubt if such were the- general
policy of our statute law, it wou1 not be
competent for the Legislature to preibit the
exportation of such merchandise be-ond the
state. But no statute to this effect is cited,
and we know of none. From the organiza-
tion of the state government until the con-
stitutional amendments of 1875, wMxih pro-
hibited special laws for the purpo-s, many
special charters were granted by the Legis-
lature conferring corporate powers that In-
cluded the right to divert and use the waters
of lakes, ponds, and streams for purxpes of
power, for purposes of artificial nani-ation.
and for the purpose of supplying cdies and
towns of the state with water for omnsump-
tion. In most, although not in all, if these
special charters, there was no grant of the
right to interfere with the natural course
of the water other than such'as may be Im-
plied from the grant of corporate powers
that could not be exercised without the diver-
sion of water from its natural courses and
the expenditure of money by the cormrators
In the development of the various enterprises
thus chartered. In a few cases the grants
of water rights were more explicit, as. wit-
ness the charter of the Society for the Estab-
lishment of Useful Manufactures, passed
November 22, 1791 (P. L. p. 730, t): the
act to develop and improve the water power
of the Passalc river, approved 3it-ch 30.
1868 (P. L. p. 545, 1, etc.), which confers
further powers upon the same socily: the
charter of the Morris Canal & Bank'l_ Com-
pany, passed December 31, 1824 (P. L. p.
158, 5, 11, etc.); the charter of the Dela-
ware & Raritan Canal Company. passe in
1830 (P. L. p. 75, 11). Shortly af~er the
constitutional amendments of 3875 theLezgs-
lature passed two general laws, one 1-r the
organization of private corporations for the
purpose of supplying municipalities wfth wn-
ter (P. L. 1876, p. 318; Rev. 1877, p. 1301:
Gen. St. p. 2199), and the other authorizing
cities to establish works of their own (P. L.
1876, p. 366; Rev. 1877, p. 720; Gen. St. p.


_ ~-" ~~~..--.m~-+-sMar~s~Lsl~~i*n~


~s~nc;;


(N. J.





N. J.)


646). Since then,. numerous other general
acts have been passed, looking to the supply
of our various municipalities with water.
Reference has already been made to the sev-
eral supplements to the corporation act of
1875 that dealt with the damming of streams
and the storage and sale of water. These
supplements have been repealed (P. L. 1S96,
p. 317, 118). Conceding all that may rea-
sonably be claimed to be the effect of these
various enactments, and others of like char-
acter, they do not evince any legislative poli-
cy to make the waters of our lakes and
streams the subject of general merchandise,
nor indeed of merchandise at all in any prop-
er sense. The water that is diverted from a
stream into an artificial canal for navigation
does not become the subject of commerce.
Water that is withdrawn for power purposes
returns shortly .to the natural bed. That
which is withdrawn for the supply of mu-
nicipalities shortly re-enters the common
stock of the state. In a limited sense it
may become for a time personal property,
and to a limited extent be made the subject
of barter and sale, but only for public pur-
poses pertaining to the welfare of our own
citizens, who, by the very fact of residence
within our borders, have a prior claim upon
such natural advantages as pertain to our
territory. Any grant of the power of eminent
domain is by the Constitution limited to pub-
lic uses, and the withdrawal of water from a
stream in order to make general merchandise
of it could hardly be deemed a public use.
All our legislative grants, express or im-
plied, of the right to divert water, for other
than the common-law riparian uses, have
been contained in corporate charters, general
or special. The special charters are all by
fair intendment confined to purposes that are
of necessity limited to the territory of this
state. The broadest charter for purposes of
water diversion that could at any time be
acquired under our general laws, is such a
one as we have above assumed to be pos-
sessed by the East Jersey Water Company.
Its utmost scope, and its limitations, have
already been indicated.
There is, in all of this legislation, no gener-
al purpose, much less any specific enactment,
that changes the rule of the common law so
as to make the water of our streams and
lakes the subject-matter of commerce in the
ordinary sense. Nor was anything of this
kind Intended to be intimated in New Jersey
Suburban Water Company v. Harrison, 72
N. J. Law, 194, 195, 62 Atl. 767, where it was
said: "There was evidence that the water
in question had become a commodity, and
had been bought and paid for by the water
company." This water had been acquired
from the East Jersey Water Company for
the supply of one of the municipalities In
this state. It was, at the most, converted
into personal property for that limited pur-
pose, but. while in the distributing pipes,
65 A.-32


MoCARTER v. HUDSON


-~-awnare~la~a~-~DII----- ------------------------


COUNTY WATER CO. 497

was not the subject of commerce In the gen-
eral sense.
It is suggested that, where the Legislature
authorizes a municipality or a water com-
pany to-sell and dispose of water to private
consumers, the consumer may put the water
into bottles or other receptacles and sell it
abroad in the market. For present purposes,
this may be fully conceded, and we may
assume, without conceding, that the state may
not limit commerce in the bottled water to its
own citizens. The statute under review im-
poses no such limitation; its prohibition being
confined ,o the transportation of water with-
out the sta.!te b -:nus of pipes, canals and
the like. ufWhe;'.-; ae Legislature, while au-
thorizing the div-:-si--n of water from the
streams for municipal purposes, might not
at the ~sme time .-iirely prohibit Its being
bottled for s:a!. is quioe a different question,
concerning which ino intimation is intended.
It is said that neither the act of May 11,
1905, nor the information of the Attorney
General, seeks to prevent the diversion of
water from the stream, but only its trans-
portation into another state for use therein.
A sufficient answer to this is that the Legis-
lature may well have confined its prohibi-
tion to that which required to be prohibited,
and that the information of the Attorney
General is exhibited to prevent a specific
Infraction of the law, and need not concern
itself with other matters. Implicit in the
argument, however, is the suggestion that
the absence of statutory prohibition against
the diversion of river waters, saving where
the water is intended for transportation out
of the state, amounts to a legislative recogni-
tion of the right of riparian owners, and
perhaps of others, to divert water from the
streams at their will so long as it is disposed
of within the state. To this argument we
cannot yield our assent. The prohibition
of artificial channels to lead our fresh waters
out of the state does not at all imply a gen-
eral license to divert waters provided they
be used within the state. As we have just
pointed out, it is, and long has been, the
legislative policy of this state, while recog-
nizing fully the common-law right of diver-
sion on the part of riparian owners, to allow
no statutory extension of this right, nor to
authorize water diversion for other than
riparian uses, saving for a limited class
of purposes beneficial to the people of this
state, such as the establishment of water
powers for manufacturing purposes, the con-
struction of artificial channels for naviga-
tion, and the supply of our own inhabitants
with water through aqueducts. So far from
sanctioning any general commerce in water,
our legislative policy has been, and is, to
preserve- and administer our water rights
for the benefit of our own people, to whom by
right of proximity and sovereignty they
naturally belong. A recent instance is to be
found in P. L. 1905, p. 200, 5 3, whereby the









65 ATLANTIC REPORTER.


power of the flood commissioners to be ap-
pointed under P. L. 1904, p. 518, is limited
so that they shall have no power to sell or
divert water beyond the state limits.
Throughout the whole of the argument for
the appellfint it is suggested, rather than
distinctly urged, that the people of the neigh-
boring state of New York have a natural
right to use the water of New Jersey if such
use can be gained without impairing the
rights of Individual riparian owners upon
our streams. It is said that the appellant
purposes to take only the surplus water of
the Passaic that is of no particular benefit
to any one while running in a natural state,
and the impression is sought to be conveyed
that the people of New Jersey have no law-
ful power to interfere with what is called
the natural right of the people of New York
to gain a water supply from this source.
Counsel, indeed, assails the act of 1005 as
"a most unreasonable and unneighborly piece
of legislation, highly discreditable to the
state." Such epithets are of no service in a
judicial tribunal. If the act under considera-
tion be impolitic, arguments to that effect
may well be addressed to the lawmaking
body, but are out of place here. Whether
the proposed diversion of the appellant is
material in quantity is a question that may
receive consideration in its proper order.
At this point we are concerned particularly
in denying that the state of New YorKt, or
the citizens thereof, have any inherent right
to withdraw a supply of water from the
territory of New Jersey by artificial means.
In this aspect the case for the appellant can
stand certainly on no higher ground than
the people of New York themselves would
occupy If, in their sovereign capacity, they
were asserting similar rights in the courts.
Stripped of all circumlocution, what is assert-
ed is the right of the people of New York to
derive an artificial water supply from the
territory of New Jersey without the consent
of the people of this state. This argument,
however, is at once overthrown by reference
to the established principle that one state
cannot expropriate for its public purposes
property within the territory of another
state. Randolph on Eminent Domain, 28,
citing Crosby v. Hanover, 36 N. H. 404, 423;
State v. Boston, Concord & Montreal R. R.
Co., 25 Vt. 433, 444; Saunders v. Bluefield
Water Works Co. (C. C.) 58 Fed. 133, 136.
See, also, 10 Am. & Eng. Encyc. Law (2d Ed.)
1051; Iolyoke Water Power Co. v. Connecti-
cut River Co., 52 Conn. 570, 575. To admit
that the people of the state of New York have
any inherent right to gain a water supply
from the lakes or streams of New Jersey by
means of an artificial aqueduct constructed
for the purpose is to assert that the sover-
eignty of New York extends to some extent
and for some purposes over the soil of New
Jersey. To state the proposition is to refute
it. Such interstate rights can be acquired
only by Interstate compact. We have been


privileged to see in print an opinion recently
submitted to the Merchants' Association of
New York by Mr. Randolph, author oe the
well-known work on Eminent Domain, jpon
the question of an interstate water supply
for that city. Referring to "that interest
in water which each state possesses as the
guardian of its community," he says: "I
think it is clear that the right of an individ-
ual or a corporation to divert water, whether
gained by public grant or by prior appropria-
tion, is presumed to be utilized within the
state, which may forbid the carriage of the
water beyond its bounds." Again, he user
this language: "And when we point out that
each state holds all the property in its terri-
tory free from the eminent domain of an-
other, and cannot be compelled to surrender
its property to another In any way, I think
we approximate the irreducible measure of
sovereignty in this relation."
It will, of course, be observed that the case
before us is not at all parallel to the case
that would be presented were the state of
New Jersey, or citizens thereof, setting up a
right to interfere with a flow of water that
otherwise would, in its natural course, reach
the territory of a neighboring state. Such a
case was presented in New York City v. Pine,
185 U. S. 93, 22 Sup. Ct. 592, 46 L. Ed. 820.
There the city of New York constructed a
dam on the west branch of Byram river with-
in the state of New York, this being a non-
navigable stream of fresh water arising in
New York, flowing thence through the state
of Connecticut, and emptying ILrr ;ug i-'
land Sound. The plaintiffs *-w- Z:--
owners of land in the state of Coinu-, n..:,
and brought action in the federal circuit
court for an injunction to restrain the city
from diverting the waters of the west branch
from their natural flow through the plain-
tiff's lands. The Supreme Court assumed,
without deciding, that, although the west
branch above the dam and all the sources
of supply of water to that branch are within
the limits of the state of New York, that
state has no power to appropriate such
water or prevent its natural flow through its
customary channel into the state of Connecti-
cut. The injunction was denied, however,
and the right of the plaintiffs to pecuniary
compensation established in its stead, on the
ground of their acquiescence in the construc-
tion of the works by means of which the di-
version was to be effected. In the great case
of Kansas v. Colorado, 185 U. S. 125, 22 Sup.
Ct. 552, 46 L. Ed. 838 (decided on demurrer.
but not yet determined on final hearing). the
state of Kansas, partly on the basis of its
ownership of riparian lands upon the Arkan-
sas river, and partly in the right of its citi-
zens who are riparian owners thereon, is
seeking to enjoin the state of Colorado from
withdrawing from the river for irrigation of
the arid lands of Colorado so much of the
waters of the river as to materially injure
the riparian lands in Kansas. A demurrer


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(N.J.








MoCARTER v. HUDSON COUNTY WATER CO.


to the bill was overruled on the ground that in for the purpose of conducting It out of the
a case of so great Importance a determination state. It is no answer to say that the ab-
of the questions involved ought to be left until straction of the entire flow of the Passaic
the facts were established by proofs. Im- would not lower the "level" of the water that
pliedly the right to prevent an undue Inter- covers the state's land, which, as asserted,
ference with the natural flow of the river is "governed by the level of the sea. The
was recognized. But whatever recognition assertion is not accurate, for of course the
these two important decisions Imply of the downward flow of the river combines with
right of one state to prevent another state the flow of the tide to determine the water
from interfering with the natural flow of a level at the mouth of the river and for a
river in which the complaining state has an long distance above its mouth. But, aside
interest, is directly opposed to the conten- from thiW question, the state as riparian
tion of the appellant here, for what it is owner is Sat rested in the "quality" of the
asserting, in effect, is the right of citizens of water that f'.,,ws .:Tn its land. In the face
the state of New York to interfere with the of an express statLtiory prohibition, resort
natural flow of one of the rivers of New Jer- cannot be had to the maxim "de minimis."
sey, without the consent and contrary to the It is for the lawmaking power to determine
express prohibition of the people of the lat- whether the amount oe water proposed to be
ter state. abstracted is .s s.i;.ht that it ought to be
In our opinion, therefore, the Legislature disregarded; and it Is within the com-
may prohibit the abstraction from the lakes, petency of the Legislature to determine, as
ponds, and streams of the state of waters to they have done in this act, that the diversion
be used for any other purpose than to meet shall be absolutely prohibited. A similar
the lawful uses of riparian owners, saving, question was presented in State Board of
of course, other rights vested under grants Health v. Diamond Mills Paper Co., 63 N.
already made, and when the Legislature has J. Eq. 111, 51 Atl. 1019, affirmed 64 N. J.
forbidden its abstraction for a stated pur- Eq. 793, 53 Atl. 1125. There a statute pro-
pose not within such uses, abstraction for hibited the discharge of polluting material
that purpose becomes unlawful, and may be into any stream from which municipalities
restrained at the instance of the Attorney receive a water supply for domestic uses
General. The act of 1905 forbids its abstrac- above their point of intake, and authorized
tion by canals or conduits for transporta- the state board of health to institute an
tion beyond the state. This is not in viola- action In the Court of Chancery to enjoin
tion of the interstate commerce clause of the the continuance of such pollutioir.- L was
federal Constitution, because, until the water contended that the pollution proved did not
is lawfully abstracted, it does not become the affect the water of the stream beyond a short
subject of legitimate commerce. Ames v. distance from the point of pollution, and the
Kirby, 71 N. J. Law, 442, 59 Atl. 558. The proofs did not show that the water supply
state having power to prohibit the diversion of any municipality was in fact polluted.
of the water from the lakes and streams for But Vice Chancellor Stevens held, in effect,
transportation beyond the state, the prohibi- that, in the face of the legislation, the
tion is a condition imposed upon Its diver- amount of pollution was immaterial. His
sion, and so the water diverted cannot decision was affirmed by this court for the
legitimately enter Into interstate commerce, reasons given by him.
Geer v. Connecticut, 161 U. S. 519, 530, 16 We must not be understood, however, as
Sup. Ct. 600, 40 L. Ed. 793. The act of 1905 intimating that the mischief at which the act
is thus vindicated as a legitimate exercise of 1905 is aimed is trifling or unsubstantial,
of the sovereignty of this state, not Inter- nor that the diversion proposed by the appel-
fering with private property rights, with the lant Is of no present practical moment. The
rights of citizens of the other states, nor with amount proposed to be presently diverted is
interstate commerce. a material part of the dry-weather flow of
It must not be forgotten, however, that the the Passaic at Little Falls. Comparisons
state of New Jersey is itself a riparian between this amount and the volume of the
owner upon the Passaic river below the in- river in times of flood are not of the slight-
take of the East Jersey Water Company. est value. Nor can it be properly said that,
The state owns the bed of the stream where when the river runs unobstructed to the sea
flowed by the tide, saving so far as it may its water, either in time of drought or in
have made grants to private owners. The time of flood, is "wasted," in any general
state, therefore, has a proprietary right to sense. It carries off polluting material (see
the continued flow of the stream which is the practical situation disclosed in Simmons
paramount to the rights of the upper riparian v. Paterson, AO N. J.- Eq. 85, 45. Atl. 995,
owners to withdraw water for purposes other 48 L. R. A. 717, 83 Am. St. Rep. 642, and Van
than those incident to riparian ownership. Cleve v. Passaic Valley Sewerage Com'rs,
Por this additional reason the state In its 71 N. J. Law, 201, 53 Atl. 571, etc.), it
sovereign capacity may prohibit any ex- fructifies the soil, and performs the other
traordinary diversion such as would be normal functions of a fresh-water stream.
occasioned by withdrawing water from the The withdrawal of 3,000,000 to 10,000.000
river by means of artificial canals or pipes gallons per day is not a matter that may be


~"P""llll~lo"----~-~----~-----
:1


S. JJ








65 ATLANTIC REPORTER.


treated as of little consequence. If the de-
cree under review were to be justified only
by resort to the police power, and if it in-
terfered with any property rights of the ap-
pellant, it might be necessary to show a
substantial present necessity for such inter-
ference. Such, however, is not the case. The
act of 1005 looks not only to the present, but
to the future. It recognizes that the growth
and prosperity of the state depend not alone
upon the advantages that it presently affords,
but upon the assurance that the like ad-
vantages, to the extent of our natural re-
sources, properly conserved, will remain for
posterity. This policy of foresight, and the
desire to foreclose In advance any claim of
a vested right to transport the waters of our
lakes and streams beyond the borders of the
state, doubtless entered into the motive of
the Legislature in imposing a present pro-
hibition.
NWe find It unnecessary to discuss the
grounds upon which the learned vice chan-
cellor based his conclusions, aside from the
act of 1905.
The decree under review should be affirm-
ed, with costs.


(7. N. J. L. 699)
SISTERS OB CHARITY OF ST. ELIZA-
BETH v. COREY, Collector.
SAME v. THOMPSON, Collector.
(Court of Errors and Appeals of New Jersey.
Jan. 3, 1907.)
1. TAXATTON-PROPF.ITY SUBJECT -EXEIP-
TIONS-CITARITABE INSTITUTIONS.
The clause of paragraph 4. 3, of the
general tax law of 1903 (P. L. 1903. pp. 395,
96), which declares that "all buildings used
exclusively for purposes considered charitable
under the common law, with the land whereon
the same are erected, and which may be neces-
sary for the fair enjoyment thereof," shall be
exempt from taxation, contains within itself
a double limitation with relation to the amount
of land to be embraced within its provision:
First, the exemption is limited to the identical
tract upon which the building is erected; and,
second, it is limited to so much of that par-
ticular tract as is necessary for the fair en-
joyment of the building.
[Ed. Note.-For cases in point, see Cent. Dig.
vol. 45, Taxation, 3S9, 395-397, 406-408.1
2. WRIT OF ERROR-DISPOSITION OF CAUSE-
EFFECT IN LOWER -COURT QUESTIONS OF
FAcT.
When, in a certiorari proceeding to decide
the validity of a tax as'sesed upon the property
of a charitable organization, it becomes neces-
sary to determine whether the whole of a given
tract of land upon which a building used ex-
clusively for charitable purposes has been erect-
ed is necessary for the fair enjoyment of the
building, the matter being one of fact, must be
determined by the Supreme Court. and cannot
properly be bound by the Court of Errrors and
Appeals sitting in review of a judgment of the
Supreme Court.
[Ed. Note.-For cases in point, see Cent. Dig.
vol. 3, Appeal and Error, 3442.]
3. SAMr.
The question whether a given building is
entitled to exemption from taxation, by virtue
of the statutory provision referred to, is one of
mixed law and fact. The ascertainment of


the particular purpose for which the building
is being used is a finding of fact. The de-
termination that the ascertained use is, or is
not, a charitable one, is a conclusion of law.
On a certiorari proceeding which involves the
question, the particular purpose for which the
building is being used is a matter determinable
by the Supreme Court, and a finding of thac
fact by the Court of Errors and Appeals sitting
in review of a judgment of the Supreme Court
is not binding upon the lower tribunal.
4. TAXATroN PROPERTY SUBJECT EXEMLP-
TIONS-EXTENT.
A grant of exemption from taxation, beinl
in derogation of the sovereign authority and
of common right, must invariably be construed
most strictly against the grantee, and can
never be permitted to extend, either in scope
or duration, beyond what the terms of the
concession clearly, require.
[Ed. Note.-For cases in point, see Cent. Dig.
vol. 45, Taxation, 322.]
Green, J., dissenting.
(Syllabus by the Court.)
Error to Supreme Court.
Certiorari by the state, on the prosecution
of the Sisters of Charity of St. Elizabeth,
against Frederick A. Corey and William H.
Thompson, tax collectors. From a judgment
in favor of plaintiff, defendants bring error.
Reversed and remanded.
John M. Mills and Charles A. Rathbun, for
plaintiffs in error. Alfred E. Mills and Ro-
bert H. McCarter (Edward K. Mills, on the
brief), for defendant in error.

GUMMERE, C. J. The taxing authorities
of the township of Horris and those of the
borough of Florham Park laid an assess-
ment for taxes in the year 1904 upon the
property of the Sisters of Charity of St.
Elizabeth located within their respective
municipalities, and comprising altogether
about 316 acres. The Sisters claim that the
whole of'the property in question, both the
land and the buildings thereon, is exempt from
taxation by virtue of paragraph 4 of section
3 of the general tax act of 1903 (P. L. 1903, pp.
395, 396), because, as they say, the buildings
are used exclusively for charitable purposes.
and the lands are necessary for the fair en-
joyment of the buildings.
The legislative provision appealed to is
that "all buildings used exclusively for pur-
poses considered charitable under the com-
mon law, with the land whereon the same are
erected, and which may be necessary for the
fair enjoyment thereof shall be exempt from
taxation under this act." The Supreme
Court held that by force of this provision
the whole of the property upon which the
assessment was laid was exempt from taxa-
tion. They rested their determination, not
upon any original investigation. but upon the
decision of this court rendered in 1890 in a
suit prosecuted by the same charitable organi-
zation against-the former township of Chat-
ham for the purpose of testing the validity
of a tax then assessed upon their property
(Sisters of Charity v. Township of Chatham,
52 N. J. Law, 373, 20 Atl. 202, 9 L. R. A.


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(3. 3.




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