Newark evening star and Newark advertiser. [volume] (Newark, N.J.) 1909-1916, 1911-01-05


the old English doctrine of absolute
ownership and set up in its place the
principle of reasonable use, Mr.. wilson
says:
ut would seem that this conclusion
is not open to successful ATTACK. 1t is
consistent with the trend or modern
judicial opinion, is wholly equitable IN
its application, and is a view when Is
rendered necessary, having due fegaru
to modern conditions, If the rights Oh
landowners as a class are to be mu-
tually conserved.
"If this view of the matter be correct
then the complainant company mas no
absolute and unqualified property in all
the water which it may take from ne
meath the soil of land which IL nap
pens to own The right to use ihe
water is limited to a reasonable use
1t may take such water in a reason
able manner and to a reasonable eA-
tent for its own benefit as may be
needed in agriculture, irrigation nanu,
featuring. etc. but having so taken, so
much water as may still remain is not
the absolute property of the complain
ant.
sJn the aspect of the matter we are
now ~onsiderin it is not necessary 10
determine to whom such excess belongs
Nor is ii necessary that the owner OF
such excess shall as a party TO TINS
proceeding assert his right. lt ID
enough IL it appear that the complain
ant Is not lawfully entitled to take and
sell such excess. It is enough II the
complainant fail to establish absolute
ownership in such excess. for 1t Is only
by ownership of such a character tnat
the necessary elements of lawful 40
minion are present. 1t is the settleo
law that nothing can be merchandise
for the purpose Of interstate
unless absolute, unqualified and law
full ownership be first established.
IF this element be absent then the
traffic in the commodity does not fall
within the operation Of that clause OF
the Federal constitution which has re-
lation to between States and
the complainant must be denied the
relief sought"
Cnse Us cited.
If this view should not be accepted
by the court Is Is contended by the at
torney-general that the company must
still establish that the subsurface water
in respect to which its ownership Is
complete is wholly free from statutory
control. 1t has been contended by the
company that the statute of 1910 is
Unconstitutional in that it is an un-
lawful interference with interstate
commerce. Mr.. Wilson cites the case of
Geer against the State of Connecticut
in which the United States Supreme
Court sustained a statute prohibiting
| the expectation of game from the
! State, on the ground that the control
nf all vfild ua mo raciHaz in the Sfate
not as a proprietor, but in it's sovereign
: capacity as representative and for the
benefit of all the people in commo
In this connection Mr.. Wilson applies
this doctrine to water which he says is.
In it's natural state, as fugitive in char
acter as game and as little susceptible
of private ownership.
MI. Wilson contends that the rule in
regard to ~subsurface water should be
no different in principle from that
which obtains in respect to superficial
water.
Arguing on the point that the State
Is the owner of the water remaining
after the individual has appropriated
what he ma rightfully and lawfully
take for his own use, the attorney
general
THE State will conserve the water
and hold it and protect 1t and keep 1t
& for the common good of all. This rule
SHOULD be applied to all water fit for
potable purposes. If the individual may
take only SO much of the subterranean
water as may be necessary for his
reasonable use, to whom does the ex-
cess belong, and to whom is the control
of it to be entrusted? If 1t be not within
the control of the State for the common
roA1 Of al than to urhnn1 NAV owner
ship and control and dominion be
ascribed?
1.-THE control in the residue must be
vested somewhere, for all property Is
subject to complete dominion. If the
control devolved in the State then the
\ statutes being attacked are an exercise
of legitimate Legislative function. The
State may not hay an inequalities
ownership in his excess. but 1t must
have devolved upon it the duty of con-
Derivation; this duty need not involve
he right to distribute or make sale of
khe same, but of necessity it must i'm
2ly the obligation of at least prevent
az the Individual from taking more
ian he may rightfully take. II this
~asoning be true, then the State has
kedefinite interest in subterranean
liter, and the statutes now attacked
Q but a recognition OF that interest
Id relate to one aspect of duty which
fseS out of such interest"
Pointing out hat the United States
upreme Court justified the Connecti-
it statute in the Geers case not only
on the theory already referred to,
Upon the broader grounds that 1t
5 a legitimate exercise of police
yer. Mr.. Wilson adds:
Parallel la shown.
bis case seems to present a definite
Y. The killing of the game while
nd in a state of nature renders
me the exclusive property of the
who has so acquired II, pro-
lof course, the game is reduced
ession. 1t may be conceded for
pose of this argument that the
Refinite ownership would be
by who gathers water from
rranean source, who reduces II
Hssion, and who then seeks to
merchandise.
a legitimate concern of the
he exercise of its police power
we for its people a valuable
lply. by preventing the sale of