The star and Newark advertiser. [volume] (Newark, N.J.) 1908-1909, 1908-05-14
Vice=ChancelIor Emery Says City
Has Riparian Rights to
Passaic.
INJUNCTION WILL NOT
HAVE PLENARY POWER
Paterson Must Not Divert Water
to Aid City Sewage
System.

Chancellor Emery today handed
down a memorandum of his conclu-
sions in the suit brought by Paterson
against the East Jersey Water Com
pany to compel the water company
to abandon its plant at Little Fails,
and to cease diverting the waters of
the Passaic River.
An injunction will be granted i'm
favor of Paterson, but the measure of
its effectiveness will be largely deter
mined by further inquiry into the case
to determine whether Paterson intends
TO continue pouring its sewage into the
Passaic.
The diversion of water by the East
Jersey Water Company to be sold by
that company is held to be other than a
reasonable and lawful purpose.
The court decides in favor of an in
junction solely on the standing of the
city as a riparian owner and not as a
municipality.
The vice chancellor holds that the
city is a riparian owner of the lands at
East and West Side Parks and the dis
puted engine house lot, and that its
ownership extends to the centre of the
river. He further declares. that as such
riparian owner, the city has a right TO
the full flow of water over its lands,
with the exception Of the amount di-
verted for lawful and reasonable"
uses by riparian owners above.
The vice-chancelor holds that the
city has no standing in the court of
equity when it attempts to enjoin the
diversion of water so that the supply
may be used to dilute the great quanti-
ties Of sewage discharged daily by the
city into the river.
Entitled 10 Relief.
"Such diversion for sale is of itself
a violation of the rights of riparian
owners" says the chancellor
"without perceptible damage, and whore
such right of diversion is complained
as in his case, and for long periods of
time and in considerable quantities
the complainant is entitled to equitable
relief for the prevention of the ac-
QUESTION of the right by the defend
ant"
The conclusions state that the effect
of the diversion must be determined
by the low flow of the river, and not
by the average or ordinary flow.
"The right of the complainant to re-
rests on it's standing as a riparian
owner and not as municipality"
contending for the right of the full
flow of water to dilute its discharge of
sewage into the river.
The vice-chancellor also takes cog
nizance of the municipalities below
Paterson, which formerly got their
potable water from the river. but had 10
1l..,,
charged into the stream, saying that
the complainants come into the court
of equity and ask it's aid to further the
pollution of the river, preventing towns
below from getting their water supply
from the Pass1ic for this reason.
The complainant is not precluded
from asking relief. the vice-ohancellor
holds, because of the fact that the
practise of diverting the water is Of
long standing.
Restricted Injunction.
Taking notice of and providing for
the rights of the present customers of
the water company, the vice-chancellor
goes on to say that the ordinary means
of preventing diversion by injunction
will have to be restricted to a certain
extent in this instance. Ordinarily, it
is adequate, he holds, but exceptional
cases, where danger to the public safety
and Inconvenience would result, COM
pensation is sometimes made. In this
case, however. he believes that the
question can be settled by injunction.
There is no question, he holds, con-
cerning the right of the city of Pater-
son to an injunction restraining the
water company from increasing the
amount of water diverted, beyond a
gradual increase to care for the growth
in the size of the present customers,
during the suspension of the injunc
tion.
The case, he holds, is not completed,
and to establish the basis of an equ
table arrangement, he suggests that the
Iitigants be heard further on certain
points.
The chief point he says, is
whether an injunction should not be
directed to issue only after the COM
plainant has ceased the pollution of the
river because of the municipalities be
low Paterson, which formerly got their
water supply from the river, but have
abandoned it because of the pollution
Other points raised are:
Whether the diversion of water dur
ing times of low water should not be
enjoined now.
Whether any Of the municipalities
now supplied by the water company
can condemn the water rights in ques-