Newark evening star and Newark advertiser. [volume] (Newark, N.J.) 1909-1916, 1911-02-17
POINT IS
GAINED BY
SNAKE"
ViCe-ChanCellOr Stevens
Rules in East Jer-
Sey Case.
DECIDES AGAINST
STATES APPLICATION
Says Diversion OF Water Is
Illegal When 1t Is for
Gain.
Especial to the Newark stnr.1

Especial to the Newark Stnr.]
TRENTON, Feb. lin an opinion
filed in the Court of Chancery today
Vice-Chancellor Stevens denied the
application of Attorney General Will
son to enjoin diversion of water from
the East Jersey Water Company. The
decision, however, Is, in effect, that
the company is without authority to
divert such water The denial is
based on the fact that the six munich
palities involved in the proceedings
were not made parties to the suit.
The decision Is only technically
against the State, Chancellor
Stevens having directed an order that
the attorney general have leave to
amend his information within thirty
days.
Questions to BE Decided.
Upon failure to file such an amend
ment, the East Jersey Water Com
pany may move for the dismissal OF
the suit brought against 1t. The Vice.
Chancellor shows that to grant an in
junction in the present state of the
case would mean the cutting off of the
water supply of Little Falls, Nutley,
Kearny, Bayonne, Harrison and East
Newark, without giving these towns an
opportunity to present their side of the
controversy. Two important questions
remain to be decided, according to the
Vice-Chancellor.
/ ayaA \ 1Hotx1 x1nlF
ties named in the information the
right, as against the State, to obtain a
water supply, second, II they have. does
the East Jersey Water Company stand
in the position of acting as their law
full agents in obtaining It?
1t is shown by the Vice-Chancellor
that the East Jersey Company would
not justify the taking of water be-
cause of any rights conferred by its
charter, nor because OF any statutory
right outside of its charter, conferred
either upon 1t or upon those with whom
1t has contracted. The company, he
said, had been unable to point to any
such right conferred upon itself, and
consequently must rest its power to
divert upon right conferred upon 9TH
ers.
Discussing this question. the vice
chancellor points out that II should be
borne in mind that the possession or
non-possession Of the power of eminent
domain by the contractor or the
municipality is not matter of much
consequence in the litigation.
This power is given not to enable the
company or the Individual to condemn
the land of the State, but the land OF
Individual proprietors. Vested with this
power conferred in the ordinary way
the conferee has no right to condemn
the property of the State. The States
right can only be obtained by grant
from the State itself.
Thus" said the court, III a railroad
telegraph and telephone company be
authorized to construct its line between
New York and Philadelphia 1t may
cross roads or navigable streams ir. so
doing Several Illustrations OF implied
grants are cited by the court One f
these Is the right of the city of Pater-
son to discharge its sewage into the
Passaic river, implied from the legislh-
tive authority to construct the ordin-
airy sewage system.
Continuing, the vtce-chancellor said:
"Bayonne and Harrison are organized
under special charter, East Newark,
Nutley and Kearny under the borough
or town acts, and Little Falls under
the township act Bayonne has the
right to contract for a waten supply
under its charter and other acts East
Newark, Nutley and Kearny have the
right to acquire a water supply by
general acts
Cites Provisions of Law.
After citing the provisions of the
general acts relating to the water sup
plies of these municipalities, Vice
Chancellor Stevens said: THE question
arising under these various acts is
whether the State has. by necessary
Implication, in view of the cases to
which 1 have referred, given its con-
sent to the appropriation by the mu-
nicipality. in the prescribed mode, of
its right In such amount Of water as
may be needed.
But, as L have said the munic-
ipalities affected are not parties. The
court has not had the benefit of their
views. In a question of such vital i'm
before the defect of the legislation
mentioned or other legislation, if there
be any is finally determined.
Assuming that the municipalities
have, as against the State, the right
to take the water, the next inquiry is
whether the East Jersey Company
may pump and transmit II. Unfor-
tunately the question does not take
this simple form. Unfortunately the
company is not accepting the case of
Nutley under the coLsract with the
municipalities to transmit it to them
It's contract is with other companies.
"The act of 1883 authorizes the
proper municipal authorities, not any
one else, to enter into a contract with
CContinue4 osa Second Psss.)