The Newark star and Newark advertiser. [volume] (Newark, N.J.) 1909-1909, 1909-11-23
Robert H. McCarter Files His An
swer to States Suit to
Enioin Trust.
SAYS ACTION IS BASED ON
GROUND OF TRESPASS
Not Even Pretended, He Argues,
That Laying Pipes Would
Damage Property.
[Frop, a stafr corre.pond.nt,l !

IFroD1 Stan Correspondent
TRENTON. Nov. 2s.-Former Attor-
ney-General Robert H. McCarter, repre-
senting. the Hudson County Water
Company, today filed his answer, to the
suit brought by Attorney General Will
son. to restrain the water company
from laying pipes under the Kill Won
Kull for the purpose of supplying water
to Staten Island from driven wells near
Belleville.
MI McCarter also appeared before
vice-Chancellor Walker in answer to
the rule requiring the water company
to show cause why the restraining or
der granted by the court should not
be made permanent injunction.
Taking up the case Mr.. McCarter
said that the application for a prelimi-
nary injunction relied entirely upon
the right of the State. as owner of the
bed Of the stream between low water
mark and the centre line, to prevent
the work being done. He held that
it was not pretended that injury was
threatened, or would be done to the
property of the State, but that injunc-
tion was sought on the ground of a
mere .tresspass on State property.
Continuing Mr.. McCarter said that
the case in no way involved the right
OF the water company to transport
sub-surface waters through its pipes
when laid to another State. He took
the grouE1 that the Bachelor law ID
not involved in this litigation, and IN
sisted that the court is not compelled
to consider the effect of the recent
Errors Court decision In the case u
Meeker vs. East Orange. This case
involves the right OF q Landowner TO
pump sub-surface waters to the ir.-
jury of his neighbor.
Answering the suit brought against
it. the water company sets up the fact
that the XIII Won Kuil is a public
navigable stream of the United States:
that the water company proposes to
supply Richmond Borough. Staten
Island, with water; that this contract
and its fulfilment constitutes commerce
between this State and New York over
which, by Federal constitution, Con-
gress has sole control; that the pipe
sought to be laid Is an fundamentally
of such commerce, and that the COM
pany has the license or consent Of the
Secretary of War to lay 1t in the bed
Of the stream, and that neither the
Court of Chancery nor the State of
New Jersey has any right under our
system of government to interfere with
the laying of the pipe.
Mr.. McCarter cited the case of, the
Kansas Natural Gas Company in sup
port of his contention. that the trans
portation of water to Staten Island will
constitute Interstate commerce. The
right Of Congress to legislate to control
interstate commerce, Mr. McCarter
argued, made the permission granted by
the Secretary of War ample authority
for laying the pipes. He insisted that
the Meeker case in no way infringes
but only holds that the right to abb
stract water from wells is a qualified
right, subject to restraint by a neigh
Dor who Is injured thereby.
Mr.. McCarter contended that the
water company's license from the
Guffey Petroleum Company to lay pipes
across the Kill Won Kull was in keep
ing with the Federal war department
regulations governing the permit
granted by the Secretary of War to the
oil company. The State, he said, was
powerless to legislate against Congress
and the War Departments acts were
to be viewed in the same light as those
Of Congress.
This proposition, of course, deals en-
tirely with the question of navigable
waters and their beds.
In the State grant to Guffy. he point
ed out, there is limitation that it
should not bestow the right to build
anything but dock piles beyond the
solid filling line. The limitation. he
held, was a confession of Congresses s
sole jurisdiction.
1.-THE defendant is not an out-and-out
trespasser." Mr.. McCarter said. "but Is
proceeding under license ven to it
by the Federal government. 1t Is pro-
ceeding under claim Of right"
whether 1t can avail itself of that
right is a matter which should be de-
termined only after full hearing and
not upon preliminary application. ADJ
mittedly no irreparable injury is being
done, and no harm would come from
the refusal of a preliminary Injunction.
1t is clear the injunction should not be
granted"