The Jersey City news. (Jersey City [N.J.]) 1889-1906, 1905-08-23

does not alter the proposition, for its
property rights, if any, are no greater
than those Of the original abstraetor
from whom it purchases.
.sThe statement Of the proposition in-
dicates serious import of the matters
involved, for if the contention Of the
defendant expresses the law persons and
corporations may be acquiring the pri-
vate rights in any srunning stream, OBJ
tain such an ownership in the water
passing down the stream as to permit
its total withdrawal and transportation
to e foreign jurisdiction, leaving the citi-
zens of this state entirely destitute of
natural and necessary element of life,
so far as the same may be derived from
streams supplied from the running sur
plus or overflow of water from lakes,
ponds, springs and other natural sources
Of potable water.
IF the public has any common rights
in or to the running waters of our rivers
and streams at any point, during its
flow to the sea, such right is manifest
" held by the state in trust for the pub
lie and it, by virtue Of its sovereign
power, may grant or restrict the appro-
priation therefore with the reasonable
rights of other owners of land over
which it flows, and any unauthorized di-
version of such water above the point
where the public rights appear is a
wrong of which the state may justly
complain and seek to restrain. and the
fact that it has not heretofore objected
is no reason why it may not now protest
against further spoliation Of public
property. t-may lawfully permit its
own citizens the benefit of property held
in trust for them. and at the same time
limit such permission to those who have
common right therein
THAT the Passaic river is a tidal
stream, the bed of which. so far as the
tide Gibbs and flows, is the property of
the state, is fact the court will judi
ciously notice, and the state. if a ripa-
rian owner along such stream. is entitled
to have the ordinary flow Of water re-
main in the channel, and to have it
come to its lands 'undiminished in guam
tity and unimpaired in quality by the
act of any other of the owners thereof,
subject to the use of the passing water,
in a reasonable manner, for domestic and
irrigation purposes
sAnd the State, upon whose lands it is
finally cast before it mingles with the
ocean and becomes the property of the
world, is endowed with all the rights
thereto, which are accorded by law to the
preceding owners of land through which
it flows and any diversion of what, TN
diverted, would flow to and over the lands
of the State, and thus become public
property, is the subject of legislative ac-
ton, the method employed by the public
to express its wishes.
DUTY OF THE STATE.
"In my opinion. running water having
served its transient uses as it passes ty,
comes to the lands of the State freed
from any charge on behalf of the upper
land owner, except such as he may have
as one of the public, and it is the duty OF
the State, to guard is riparian rights as
zealously as does @ne individual. Being
convinced that the State, as the lower
riparian owner, has the right to have the
water of streams flowing into tidal rivers
reach its property undiminished in guam
| tity with the rule above expressed, can
see no reason why it may not regulate
and control the matter of the disposition
of its property rights, for acquiescence in
the diversion of water, which right ought
to flow to it's lands. is a surrender OF
property interest the extent of which il
may limit.
sThe objection that the questioned law
is void as a violation of the federal con
stitution regarding interstate commerce
does not appeal to me, for we could MOI
consistently say that an effort ON the
part of the State TO preserve the common
property, whether in the interest of navi-
CATION or for the domestic uses of the
| public. after it had satisfied the proper
private charges against it. could be frus-
trated simply because the unlawful alb
stractor of its property intends to trans
port it into another State The defend
ant and those under whom it claims are
corporations organized under the general
corporation act Of this State, which
cannot discover confers any right to