The Jersey City news. (Jersey City [N.J.]) 1889-1906, 1899-04-13

on by the prosecutors in order to sustain
the contention that the contract Is void
because performance is impossible, are
not insurmountable In one way or am
other these rights may be acquired. and
if they can be sufficiently acquired the
interest of the prosecutors are at an end.
The Court will not by this writ place any
difficulties in the path of the performance
of this contract on this ground, because
it is one in which the prosecutors can
have no interest If it cannot be per-
formed then the relief which the prosecut-
ors seek results. If 1t can be performed
the objections of the prosecutors on this
ground fail.
1 do not understand that these water
rights of the Morris Canal and Banking
Company are not the subject of alienation
in some form or other. Considering IT as
a franchise solely possessed by the cor
poration for it's own private gain there
would appear to be no rule repugnant to
its disposition unless the State should IN
tervene to prevent. The right or privilege
to sell or furnish the surplus water may
not be taken against the consent or the
company, but the right of the company
to dispose of it is quite another thing,
especially as against all but those for
whose public benefit the franchise IS
exercised, or the State which conferred
it. The question who it is which can
object would not be of any interest to the
prosecutors here in this matter, for they
are not amongst those for whose benefit
the franchise was conferred. This object
cannot arise from any who are not bene-
fiicialIy interested in the franchise, or IN
some proceeding by or in behalf of the
State.
I do not wish to pursue this matter any
further than to say that the contractor
can, in the name of the city, exercise
all the existing power of eminent domain;
all the powers of purchase by deed or
otherwise and all the engineering skill at
tainable by him to control the water area
and it's supply of water, which 1t IS, In
this proceeding, conceded will, If obtain
ed, be amply sufficient for the purpose
of the contract The affidavit laid be-
fore me in behalf of the prosecutors for
the purpose of the decision OF this case,
quite clearly shows, that this water area
would furnish, after the withdrawal OF
the water required by the Dover and
Boonton and the Morris Canal Company,
about seventy million gallons OF water
daily. 1t is entirely within the range of
probability that the production of this
water area can be increased far beyond
the amount required On. P.) Again it
is insisted that the contract cannot be
performed because the contractor cannot
divert water from the streams to the det-
riment of the riparian owners below
1t must be assumed that he can control
the waters of this area the same as the
water of any other area can be controlled.
In the name of the city condemnation is
permitted for such purposes, and the city
in the contract agrees to exercise this
right in his behalf This right was up
held in the case of Slingerland VS.. New
ark Is Vroom, g. The act of 1885, think,
also confers this power. P l.. 1895. p. 769.
If the view of the prosecutors be correct
in this particular, then Jersey City is
helpless, for 1t could not obtain any
water supply in its own name, nor from
any person or corporation. The statute
of 1883 would have no force and effect
The position taken is conspicuously I'M
sound and cannot prevail as a reason for
the allowance of the writ here requested.