Perth Amboy evening news., 1911-08-03
DECISION VS..
THE WATER co.
Cannot Lay Pipes to Sell
Water on Staten Island.
Special to the EVENING NEWS.

District Court Judge John Rellstab
has dealt another blow to the at
tempt of the Hudson County Water
Company in it's efforts to override
the laws Of New Jersey and furnish
water to Staten Island. Judge Rell-
stab in an opinion disposing of the
company's suit to lay pipes under
the XIII yOn Kull, holds that the per-
NIT obtained from the Secretary of
War to cross the Kill Won Kull
amounts to no authority at all. He
also holds that the state has the
power to protect it's submerged
lands against all corners, except by
authority from Congress, who has
superior rights over all states under
the provisions of the Federal consti-
tuition. The opinion has a sweeping
effect and dismisses the suit brought
by the water company to restrain the
state from interfering with the work
of laying pipes for the purpose of
delivering water outside of the
state. In his opinion Judge Rellstab
| says:
''This Is not a case OF the United
States Government seeking to make
a crossing OF Its interstate stream in
the exercise of its governmental pow
ers, but an attempt to override a SOW
ereign states opposition to the use
of its submerged land by d corpora
ton of its own creation. unerr the
claim of being engaged In interstate
commerce.
This can only be successfully &C
complished when it shall be shown
that Congress In the assertion of its
superior rights under the interstate
commerce clause of the United States
Constitution, has clearly and def
nitely authorized such crossing.
Until then the state of New Jersey
as against every conner, Is sovereign
master of the situation.
The grounds of demurrer are
several, but from the conclusion l
have reached 1t will not be neces-
sary to consider more than one,
namely, hat the permit Of the Sec
rotary of War to cross the XIII Won
kull amounts to no authority. and
that the state may forbid the cross
ing regardless of the permit. It is
conceded that the state of New Ter
sey Is the owner In fee of the lands
In the XIII Won Kull, in which the
water company intends to lay the
pipe lines, and that no grant or per
NIT has been obtained by the water
company from the state to ~excavate
h bed of that stream, or to lay its
pipe line therein.
NO such permit is Necessary.
however, If authority has been oh
tanned from the United States Con-
sresS 10 make such crossing. 1t is
Wen settled law that state author
lty IS not necessary to cross a navi-
gable stream between states with in
strumentalities engaged-tn Interstate
commerce, anG~rhat such crossing
may Ds by authority of the con-
sLSSS%-p1te of the states protest.
mo act of congress specifically
authorized water company to cross
the XIII o Kull exists, nor is there
any legislation which empowers gen.
orally the crossing of any n~avigable
interstate water. Complainants
claim, however, that such
stonal authority was secured by the
already referred to from the
Secretary of War. This authority
was a permission revocable at the
VIII or the Secretary of War to Law
water mains under the Kill in &C
with the recommendations
OF the chief OF engineers of the Uni
ted States Army, upon certain condi-
tons"
Taking up the question az to
whether the power vested In the Sec
rotary of War are plenary or merely
permissive, Judge Rellstab in his
opinion, in part says:
First. The creation OF any oh
struction to the navigable capacity
or any waters of the United States
Is prohibited unless affirmatively au-
thorized by congress.
Second. 1t shall not be lawful
to build any structures in a navi-
gable river or water Of the United
States, except on plans recommend
ed by the chief of engineers and au-
thorized by the Secretary OF War,
Third. 1t shall not be lawful to
eXcavate or fill the channel of any
naVigable water of the United States
unless such work is recommended by
the Secretary of War prior to begin
ming the same"
Concurring with the views express
ed by Vice-ChanceIlor Walker in the
Court of Chancery when he ordered
that an injunction Issue against the
company. Judge Rellstab in dealing
with the question of the authority of
the Secretary of War in the matter.
holds that the permit Of the Secre-
tary or Wal was a mere license to
do the YORK and not q power to do 1t.
continuing, the Court said:
1t is perfectly apparent that no
Where IN the river and harbor act of
1899 is there any intention. except
or implied, to grant to any person
or corporation the right to Law a
pipe line under navigable waters in
lands belonging to a state or indi-
vldual for the purpose Of transport
ing n merchantable commodity
whatever. The only intention dis
~coverable IS the authorization OF
such a work If It may be lawfully
done, and the intention is to author
lie it to be done only in such way as
to prevent its being any obstruction
to navigation.
Congress may some day be In
duced to enact a law under the COM
merce clause Of the Federal consti-
tuition which will make a grant OF
power such as is contended for by
the water company in this case. Tn
to the present time 1t has not done
so and the water company, without
a grant of power is seeking to pros
ecute an unlawful work. a work not