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

port Of the statute under review The
state has duty to perform in that it
must protect its citizens against the as
sumption by individuals OF eorporatians
Of any of its sovereign rights, or tho
conversion to private use Of such conf
mon property and rights as the state 81
said to hold in trust for the public usesi
the loss of which may destroy the healgE
and comfort of its subjects. The pshcy4
of the law is to assign to eyerytafngl
capable Of ownership a detsFminatos
owner. If capable of occupancy and sus-l
ceptible Of private ownership and enjoy.
ment, the common laws makes it exelu-il
sively the subject Of private ownerships
but if such private ownership and enjoy.I
ment are inconsistent with the nature eeI
the property. the title is in the sover~l
eign as trustees of the public holding 10
for the common use and benefit"
After citing number Of decisions rel
atiye to the rights of the state and of IN
dividuals in running water, which as far
back as the old Roman law was looked
upon as common property, the vice cham
cellor continues
1T is common knowledge that in all
our fresh water rivers and especially so
as to the passaic, there are long reaches
or basins. where the water remains fresh.
although subject to ordinary tidal infu-
ences and as the bed of such portions
of tidal streams is the absolute property
of the state. it acquires by virtue of such
ownership riparian rights in the flow Of
the water.
POSITION OF THE STATE.
'The position Of the state is different
from that of other riparian owners.
Large bodies of fresh water which have
already served the proper purposes Of
private riparian owners above the lands
of the state are received on common
property. forming great reservoirs of a
valuable natural element. necessary for
the health and comfort Of all the people,
and in which every vestige of private
right. subject to which the common right
is held, has been extinguished, for the
state. being the last riparian owner, has
no other to account to. the owners of the
upland along tidal waters having no
rights therein. and the state should be
considered as the ultimate owner of such
unused common property. to be held in
trust for the use of all its subjects.
.srhe constant increase IN our popula-
tien, considered in connection with the
unchanging extent of cur watershed.and
4 The consequent limit of the natural sup
ply Of water necessary for domestic ana
healthful purposes, may justly alarm the
State with regard to the future. and
neglect to insist upon its rights in the
past, when conditions did not require a
strict enforcement of its privileges works
no estoppel and justi6es the restriction
of the appropriation of its property.
1T is admitted that the Passaic river
is the most important of the available
sources of water supply for the people of
New Jersey, and that their necessity,
therefore, is constantly increasing. This
river in its natural condition carries from
its source to the ebb and flow of the tide
necessary element of life, the common
property of the public. subject to usu-
fructory use, and finally delivers it. when
not diverted, upon the public lands, as
1 free from private claims as the land upon
which it rests. and when thus delivered
it becomes the property of the sovereign,
who may or may not permit its diver
sion, and any obstruction Of aversion,
/ subject to the exceptions stated. which
tend to diminish the quantity whfeA~-
should flow upon its lands is an invasion
of its rights.
1T has the right, unless it grants it
to another, to the ultimate disposition
of what remains of all waters which nat
urally emptyy into tidal stream after
the transient rights Of riparian owners
have been exhausted. and no one has .
l {.. \
ciaI purposes without the grant of the
State. in the absence of which such an
straetion is the conversion Of public props
erty Without legislative authority. The
State may grant this right, but until il
Continued on fourth page.)
81 a,.A