The Jersey City news., 1899-03-06
NUISANCE
MUST co.
Chancellor's Decision at Last
in Passaic Pollution
Case.
NATURAL RIGHTS IN WATER
City of Paterson a Gross
Offender Must Provide
Remedy in a Rea-
sonable Time.


emptying it's sewage into the Passaic
River. Every safeguard is thrown about
the city by the Chancellor in his decision,
SO that no hardship can be imposed in
consequence of the issue of the restraining
order, but until final hearing can be
had in the case the city of Paterson must
not take any action that win increase
the volume of Sewage that now flows in
to the river.
The decision is of the utmost Importance
1t is the first declaration by the courts in
this State against the wholesale pollution
of the large streams of water from sew
age emptied into the rivers by cities along
the banks of such streams.
After making a statement of the case as
presented to the court, the Chancellor says
in part:-
Assuming that all the complainant re-
lators except the Mayor and Aldermen of
Jersey City are owners of portions of the
banks of the river above the point to
which the tide goes, their ownership ex
tends to the middle of the stream, and
they are entitled to have the water flow
TO them unpolluted. that they may use it
for their ordinary domestic purposes and,
within reasonable limits, for business or
other purposes. Their common injury,
beyond the discomfort and ill-healtn ocea-
stoned by the noxfous and offensive odors
arising from the water, is in the pollution
and consequent deprivation of the uses of
the water to which they have right.
The Mayor and Aldermen of Jersey
City, merely as riparian owner upon
tidal stream, have no right in the waters
of the stream distinct from the rights of
the general public therein.
As grantee of the State, of the right to
take "pure and wholesome water from
the river at the location of its pumping
plant for the uses of its Inhabitants, Jer-
sey City suffers special injury from the
pollution of the stream. That injury lies
not alone in the depreciation of the value
of the plant erected for the purpose of
utilizing the right given by the statute,
but also in the deprivation of the inhabi-
tants of Jersey City of the use of the
waters of the Passaic River, for which
benefit the grant was made, and whom
the corporate relator and complainants
represent.
Passaic River affects injuriously all the
REALTORS and complainants in depriving
them of their respective lawful uses of
the water.
Each complainant has the right to have
the identical water reach him i'll its pure
natural condition, except as the proper
domestic and reasonable uses of the RI
parian owners above him may affect 1t.
Above them all riparian owner, for its
own advantage, deliberately defiles pol
lutes and corrupts that water, SO that
when it passes to those below 1t is bur-
dened with noisome stenches and is ut
terly corrupted and unfit for the uses
they each had the right to make of it.
Can they not join, as may those affected
by the common air defiled by the smells
of a slaughter-house, in an appeal to this
court, not to award each his damages,
but to stop the defilement?
/ perceive no reason, founded either up
on danger of confusion or danger of in
justice which should induce me to hold
that the complainants or relators are mis-
is the common injury to the common
right to pure and unpolluted water, diff
feriag only degree from the injury to
others according to the uses made of the
right
has the right to empty its sewers into
the Passaie River, i whatever the he conse nasts
in part upon the ground that 1t is
natural and reasonable use of the river,
and in part upon the insistence that leg
islative authority to the city of Pater-
son to construct sewers contemplated
their discharge into the Passaic and i'm
pliedly authorized it,.
The sewage in question. 1t is remember
ed, is discharged into stream above tide
and where the stream is not nav1gable
1t does not naturally flow to the stream.
erson in sewers from numerous buildings,
cesspools, culverts and drains. over
large area of land. and by uniform ar
tificially constructed grades Is gravltated
to and discharged into the river. 1t Is
vastly more than the mere natural DRAM
age of riparian owners. / cannot con-
ceive of any tenable ground upon Wnlcn
such drainage can be classed as either
natural or reasonable use of the river.
/ do not find that either of these laws
(authorizing the building OF sewers
~ \, "nItff IN IA
tion of the sewage or to the use of the
Passaic River for that purpose Inc au-
thority conferred is limited to mere, con-
with the maps 1t does not license either
public or private nuisance through pollu-
ton of the waters of the river.
As to private rights ! need only say
that they have constitutional protectlon
against such legislative enactment. In
England, where the power OF Pariiament
Is omnipotent in matters OF this kind
both as to public and private rights. 1t is
well settled that legislative authority to
merely drain into a stream does not au-
thorize the contamination OF the water
Legislative license to create PUBIC
nuisance of the kind considered must be
given in express terms, or by absolutely
necessary Implication
That he city of Paterson has any right
IN nollute the waters of the Passaic River
by the discharge of Its sewage into them
is clearly an untenable position.
1t is further urged by the defendant
that the relief asked for should not pe
afforded in equity because OF the laches
in this application. The allegations in the
Information and bill show that since about
the year 1890 the city of Paterson mas
been discharging its sewage INTO the
Passaic River in considerably increasing
quantities and that since the year 1898
the waters of the river have been corrupt
ed SO as to create the nuisance COM
planned OF.
do not perceive that the defendant has
suffered by the delay of which 1t COM
plains. 1t would seem that to 1t the delay
has been rather a benefit in relieving It
of the expense of other osposltion OF
its sewage and in enabling it to consider
the most economical and advantageous
Way of ultimately making that disposi-
tion.
termination became an accomplished fact
fhe dirty of the REALTORS and complain
ants were plain. Performance of the
duty. however. was fraught with import
ant consequences to the defendant as the
representative of 100000 people to De
affected. and as well. to question in po-
iitical economy was presented, how 100000
people living along the river were to be
nrotected against their own sewage.
: The defendant has presented affidavitS
which with the affidavits annexed to the
hill show conclusively, to my mind. II an
irtoIerable nuisance does not already ex-
ISL about the Dundee Dam pollution that
is well night intolerable does exist, and
defendants sewage. Some filth. flows in
to the river directly from factories in the
citv of Paterson, but the bulk of the poll
intinp matter above the Dundee Dam
comes from the defendants sewers.
Below the dam, where the tide ebbs and