The Jersey City news. (Jersey City [N.J.]) 1889-1906, 1899-04-13
MORRIS CANAL.
Justice Lippincott's Discus
sion Of the Company's
Rights.
LICNECEssITY SUPREME
Contractor Can Attack the
Company by Condem-
nation or Otherwise.

Embodied in Justice Lippincott's decis-
| ion of the water question yesterday was
discussion upon the rights of the Nor
ris Canal and Banking Company. It was
omitted from ''The News" for lack OF
space For the benefit of those who are
interested in that part of the discussion
it is given today as follows.
| l do not think it necessary at all to ex-
anime into the question of the alleged
prior or inalenable rights of the Morris
Canal and Banking Company to take Wa
| ters under this charter for the purposes
of navigation (See laws Of 1920, nor Of the
rights to take certain surplus waters OF
Its feeders to furnish public water supply
to municpalities~adjace to the line OF its
canal (See laws, 1871). However secure or
| inalenable these rights may seem | do
not think 1t is within my province to grant
| a writ which prevents the contractor from
| attempting to obtain them under any legal
procedure, or legislative enactment, which
may be deemed appropriate and efficient.
| If a water supply such as Is provided by
| this contract be needed, and IL it be legal
| to provide 1t, if it can be provided, and
| the contract be one based on the good
sound Judgment and discretion of the
| municipal boards clothed with the power
| to contract for the benefit of the public,
then the aid of the Courts and the Legis-
lature should be fully extended to the
| public authorities or 70 the contract to Sc
cure those rights so necessary for the
protection of life and health. / do not
| see the reason for action on the part OF
| ~ rrybi ioh a
prevent the accumulation Of the means
| to carry out the contracts SO long as these
means are exercised under the law
| Under the general principle of law that
there exists no private ownership which
cannot under the constitutional limitation
of just compensation, be devoted to the
public when the good of the public de-
mands its acquisition I cannot perceive
wherein the water rights of the Morris
Canal cannot be acquired, If public neces-
sity requires such acquisition.
But it may be considerable very grave
question whether any such prior rights
exist to take the waters of this shed out
of the Rockaway River. I can doubt its
right under the act of 1874. I can doubt
whether that company ever set up such
right or maintained it. s. U. M. VS.. Nor
ris Canal, Saxton, 1856. And see Lehigh
| Valley R. R. Co. VS.. Society, Stewart.
| p. 14S-167 and note appended to the opin-
| ion in that case.
| I think the act of 1871, p. L. 1871, p. 444,
giving the right to the Canal Company to
| appropriate the surplus waters of said
| company, or it's feeders, for the purposes
of supplying municipalities along its line,
/ was simply privilege and not grant.
| have had no instance brought to my
knowledge of when the company ever
availed itself of the privilege. The con-
/ tractor in this case holds from it a con-
/ tract that it will never avail itself of
such privilege.
/ 1t is not shown to me here that these
| surplus waters mentioned in the act of
1871 are those of the Rockaway River.
| These surplus waters would appear to be
those of the stretch of the Canal con-
Meeting Lake Hopatcong with the Rock
| away River and Greenwood Lake with
the Morris Canal at Pompton. I think
this is apparent from the course of the
Canal, although / fail to find the fact
stated in any circumstantial manner in
the affidavits.
In the case of Van Relpen ct ais. VS.
which were to be taken were not the
waters of the Rockaway River, but these
surplus waters introduced into the canal
from it's feeders for the purpose of navi-
CATION and it was these waters that
the Canal Company had the right to use
for the benefit of the public, but even
these were held to be subject to the right
Of eminent domain when expressly provid-
ed by legislative enactment.
i l do not understand that under its
charter the Morris Canal and Banking
Company have any irrepeaiable or in
alienaDle rights as against the exercise OF
the force of eminent domain by appro-
pirate legislative enactment.
Mr. Justice Van Sycke1 in the case OF
Van Reipen VS.. Jersey City so expressly
decided. He said in that opinion that
| "the character of the Morris Canal, and
that its water rights are held for a quas
public use, furnish no insurmountable
obstacle to the appropriation of such
rights, to the uses of the State for the
preservation OF the public health and
safety upon just compensation being
made Citing many cases.
Again he said, Every government whicf
regards the welfare of its people will ex
ert its highest power to preserve the pub
lie health and safety. To that end sup
ply of pure water is essential. To secur,
it involves the exercise by the State no
only of the power of eminent domain bu
also of the police power.
1.-THE necessities of the public are su
preme and private right must yield II
them
In that case as against the Morris Cana
Company under the proviso of the act o
1895, the decision was that no power o
condemnation existed because the Morri
Canal and Banking Company was cor
poration, or which held land and waite
rights for the purposes of a public waite
supply.
But the Morris Canal and Banking Com
pany is not here as a prosecutor 1t is no
protesting against this contract, and if /
chooses in any way to surrender sucl
rights il 1t can do it, or IL it chooses t.
abandon them, or If its Incorporation b
dissolved, or its franchise be forfeited, o
if the Legislature chooses to confer upol
municipalities the power of eminent do
main, the prosecutors here cannot b
heard to object. Their interest is (,
have such proceedings taken as will in
vest Its contractor with the water right
in question.
3 But whether this be SO or not, the diff
o,,1fiea ~ this cnunaction which are relie{