The Jersey City news. (Jersey City [N.J.]) 1889-1906, 1901-04-16
WATER CONTRACT
Cooperation Counsel Nc
Dermott's Opinion on It's
Modification.
CITY MAY MAKE CHANGE
If Canal Company's Claim Is
Good Flynn Cannot Keep
His Agreement.

Corporation Counsel Allan L. McDer-
mott this afternoon submitted the follow
ing opinion to the Street and Water
Board in relation to the requested modi-
fication of the contract for the new water
supply
To the Honorable the Board of Street
and Water Commissioners
Gentlemen-I am in receipt of your
communication, referring to me the Pc
titions of P. H. Flynn and the Jersey
City Water Supply Company for a modi-
fication of the contract heretofore made
TO supply Jersey City with a water plant.
The necessity for this application arises
from the fact that Mr.. Flynn, in sub
mitting his bid to Jersey City, offered, as
source of supply, the whole flow of the
Roel1away River. At the time the bid
was made. it is evident that Mr.. Flynn
believed that the whole flow of the river
would be tributary to the intake and
reservoir, and he had most excellent
grounds for this belief. as the Morris
Canal and Banking Company had, in
litigation to determine this very question,
denied that. in the exchange of waters
necessitated by the physical relations of
canal and river, it subtracted from the
AON VI tie T4NGE ulOI0 WdleT ludu 1t re-
placed Long after the contract was
awarded, the Canal Company claimed that
the Rockaway River was tributary, in
part, to its canal. The Water Supply
Company and Mr.. Flynn having applied
to a banking syndicate for large loan
to enable completion of the contract the
question of the validity of the contract
was referred, by the syndicate, to me.
u certified to the legality of the con-
tract, but declined to certify anything
upon the question of the ability of the
contractor to deliver to the city a plant
in strict accordance Herewith, stating
that could not, being counsel of the city,
undertake to pass upon any question that
eoaid be raised between the contractor
ana tlse city. The Canal Company having
rdised the question, loans were of course
refused, because if the Canal Company
is entitled 70 any Sof the waters of the
Reeks way River, it is self-evident that
the ylsais flow of that river cannot be
made tributary to Jersey City. I Joined
IN asking that power be given to the
Canal Company to abandon its disease
breeding ditch, but the Legislature re-
fused to pass bill for that purpose. In
stead there was passed an act allowing
Jersey City and the contractor to SO
modify the contract as to enable avoid
anee of the claim of the Canal Company.
The bill provides that the notifications
shall not relieve said contractor or his
sureties from furnishing and delivering
to the municipality the quantity and
quality of water required by the original
contract. Under this act respectfully
advise YOU that the city may agree to
such notifications, upon such terms as
-
and quality of water called for.
'fThe claim of the Canal Company does
rot appear to me to have any foundation
in law or fact, but the claim is made and
could not, under the present contract
advise the city to accept the plant, II
rendered as completed, while such clam
remained unsettled by adjudication. 1t is
desirable that the whole flow of the Rock
away River should be secured, not as
necessary to supply the city with the
maximum of seventy million gallons of
water per day, but for the remote time
when the city's needs will exceed that fig
ure. I therefore suggest that any modifi-
cations in the contract shall not only Sc
cure to the city the quantity and quality
of water provided for in the contract, but
that the contractor shall join the city
IN litigating the claim of the Canal
Company to any of the flow of the
Rockaway River; that If it Shall be de-
cided that the river is not servient to the
canal, the whole flow Of the river shall
be tributary to the intake and storage
reservoir; that if it shall be decided that
the Canal Company has the right to con-
tribution from the RockaWay River, the
contractor shall undertake to secure the
rights of the Canal Company, upon the
abandonment of the canal or before that
time, and that security be given to the
city for the performance of these under
takings. The litigation proposed would
probably take several years, as the ques-
tion involved could be carried to the SUI
preme Court of the United States, and,
as the proceeding will involve very con-
siderable expense, it should be conducted
at the cost of contractor, for while all
citizens must regret that the claim of the
Canal Company is iIiterposed, the city is
In no way in fault.
eff the city does not assent to the modi-
fications proposed, the contractor should
be directed to proceed with his contract.
II he does not do SO, the contract pro-
vjdes that the city may complete the
work at the cost of the contractor. Be-
fore the city, under existing conditions.
proceeds to any expense in this direction,
the claim of the Morris Canal Company
should be litigated. If the claim should
be 6nany sustained, the contract, without
notifications, would be impossible of per-
Torrance, and the city could insist upon
the penalty provided in the contract and
seek another source of supply.
''Yeurs respectfully
ALLAN L. McDERMOTT,
Corporation Counsel"