Newark evening star and Newark advertiser., 1910-07-07
GOURLEY STATES
PATERS0NS SIDE
IN DIVERSION SUIT
City Riparian Owner Because of
Its Parks, Is Assertion
of Counsel.
Especial to the Newark star.I


TRENTON, July THE argument on
the appeal from Chancellor
Emery's decision. that the East Jer-
sey Water Company must discontinue
the diverting OF the waters from the
Passaic river, in the suit brought
against the water company by the city
OF Paterson, was resumed again today
when the Court of Errors and Appeals
reconvened. William B. Gourley, rep
resenting the city of Paterson, opened
the argument on behalf Of tho city, and
he was followed by former Governor
John w. Griggs. who is associated with
Mr.. Gouriey in arguing that the vice.
chancellor's decision should be af-
f1rmed.
The status of the city Of Paterson, as
a riparian owner, was the first subject
discussed by Mr.. Gourley He showed
that the city was the owner of two
parks and an engine-house on the
banks Of the Passaic river. and as such
owner had a riparian right. The city
being riparian owner, he said, accord
ing to the common law. was entitled to
the full and natural flow of the waters
of a stream, and another owner has no
waters from the owners below.
City Is Riparian Owner.
The city, Mr.. Gourley insisted, as a
riparian owner, has the right to enjoy
the flow of the stream In It's natural
channel, carrying spring and surface
water, as well as an ordinary flow.
without disturbance. He contended
that the Legislature cannot take away
this right even for q public purpose
without making compensation to the
owners below the point of diversion.
Mr. Gourley next discussed the legal
right of the water company to divert
the waters. He said that even though
the company was a riparian owner,
they had no right to use the waters for
the purpose of furnishing a water sup
ply to distant towns. or selling 1t to
other companies, backing up this con-
tention by the argument that riparian
owner can only divert the water for
the lands owned by 1t located on the
stream. but under no circumstances
convey the water to nor-riparian lands
Company Lacks Power.
'As corporation" continued coun-
sci. "the East Jersey has not the power
to divert and sell the waters Of the Pas
sale river. It is not a water company
organized under any act of the State
which authorizes and empowers water
companies to be incorporated and give
to them the power of condemnation. II
has no power of condemnation and nc
power of eminent domain.
"The fact that the East Jersey Com
pany supplies this water for the use OF
municipalities does not clothe 1t with
any right to divert and sell the water
None of the diverted water Ia supplied
and sold directly to any municipality
by it except Nutley 1t diverts and
sells the water to other water COM
panies. which supply the various mu-
inequalities"
Damages Are Extensive.
1t was next argued by counsel that
the damages suffered by the city are
extensive and not nominal as contend
ed on the part of the water company.
In this connection counsel said:
Unless the diversion is enjoined the
city will be entirely deprived of the
right to use the water for ornaments
ton, the construction of artificial lakes
and ponds, the use of fountains and
the like, as well as water for sprinkiine
and the cultivation OF shrubbery and
flowers: for the use of boating and fish
ing and other purposes for which the
water of the river may be used in con-
nection with the land for park pur-
poses.
May Abstract Entire Flow.
"The water company, unless re-
strained by an Injunction, may uiti-
mately abstract the entire flow of the
river, or what is left of it after the
upper diversion by Jersey City and
Newark. 1t is bound to furnish as
much water as the water companies
with which 1t has contracted require. $
Other points advanced on behalf of
the city were that the East Jersey can
not pay damages and continue the d.
version; that the city is entitled to an
unconditional injunction. not damages
and that the water rights belonging to
the park lands are public and cannot
be taken under the general power of
eminent domain. 1t was also contended
that the city cannot be charged with
laches, inasmuch as it had. through its
then mayor, John Hinchliffe. given
notice. even before the plans of the
East Jersey we're known, that If the
water of the river was diverted it would
proceed to restrain such diversion