Newark evening star and Newark advertiser., 1915-11-17
lives newark
LEGAL TANGLES
Water Diversion Ruling Pre-
vents Further Suits
Against City.


ceases to exist and no damages can
be secured for alleged diversion by a
second party
! This is the opinion of the Court of
Errors and Appeals in deciding the
case of Anger & Simon Silk Dyeing
Company OF Paterson against the Jet-
lsey City Water Supply Company.
The court holds that when q ripa-
rian owner abstracts water from a
stream for the purpose of using it so
that it win be returned polluted an
abuse of this right Is apparent and
greatly affects the reasonable use OF
the stream.
/ The findings of the court are so far
reaching In their effect that riparian
rights are now confined TO a proper
use OF the water.
In the decision handed down by the
Court of Errors and Appeals at Tfen-
] ton Monday, judgments IN favor of
the Weidmann SILK Dyeing Company
and the Auger & Simon Silk Dyeing
Company, botn OF ratersufi, t,sss..,.ss
the Jersey City Water Supply Conn
pany, were reversed The city of
Newark hereafter, 1t is said, Will not
be subjected to numerous law suits
for alleged diversion of water from
hut GdSbdlC river. Sif1Ec IL was dBlAtb
that the findings of the court would
be accepted by this city in their cases.
Point by Kaliseh.
! city Attorney Harry Kalisch, of the
/ legal department, conducted the cases
for Newark. 1t was on point raised
by him that the court based its opin-
ion In reversing the judgment OF the
Circuit Court in Passaic county In
favor of the Paterson firms.
! Since the establishment of water
shed on the tributaries of the Passaic
river in 1892 the city of Newark has
been made q. defendant in many suits
for alleged diversion of waters.
/ In reversing the opinion of the Cir
cult Court the Court of Errors and
Appeals considered the cases of the
| Weidmann silk Dyeing Company,
which corporation secured a Judgment
of $5.536,O6, and the Anger q Simon
Silk Dyeing Company, to which COM
pany a judgment of $2.5S3 was rem
dered. The decision Is most impor-
] tant. inasmuch as the companies de-
pending on water from the Passaic
river can no longer claim any diver
sion from the stream and secure
damages from the city of Newark.
/ Mr.. Kalisch in brief submitted to
the court contended: 1.-THE city of
Newark Is not attempting to justify
its acts. The Weidmann company had
no right to the use they made OF the
water, hence the company could not
complain of any wrong. As TO the
plaintiffs right to use the water
have insisted that PLAINTIFFS use OF
the water constituted public nui-
sance, that interference with such Is
not interference with right" 1t was
/ claimed that the pollution of the
river by the pumping of discolored
! and foul-smelling water constituted a
violation of the crimes act and tnat
! this violation of use was criminal,
and therefore the Weidmann company
could not base any claim for damages
on an unlawful act of their own un-
dertaking When a public nuisance
was created, City Attorney kallscn
claimed, the use ceases to be respoh-
sible and the right to use ceases. Ine
use of the Passaic river by the Weld
mann company was unlawful ana
therefore could not be legal right,
and hence interference with II did not
constitute a wrong.
Started In 1910.
The first of the actions for alleged
diversion of water from the Passaic
river against the city of Newark were
started in 1910, when the Chestnut
HIN Land Company, owning consider
able property along the Passaic river,
secured a judgment by consent OF
500. In 1911 another Judgment by
consent was entered In favor of the
same company. 80, =.
In MAY, 1911, suit was started py
the Weidmann Silk Dyeing Company
and a verdict of $4,000 was brought
In by a jury. This verdict was tatsh
, on appeal on the ground that U,
amount allowed was excessive, a
new trial was ordered and following
a Judgment of $17,S00 was entered
against the city of Newark. This sec
ond suit was appealed and the higher
courts held that 1t was excessive. Az
a third trial started by the Weidmann
COMPANY a Judgment of 9,7bl.59 was
! contained, and this amount was paid.
fourth action was brought by the
4 Weidmann company In FEBRUARY ana
| a judgment of S5,b36 was given by
/ jury. This judgment was appealeo
/ from and the Court of Errors TO-DAY
decided that the case was not well
Jersey City, Newark and the East
| Ie~aav Water Company were defend-
ants in the actions brought by the
silk dyeing companies, while tine
| Acouacknonk Water Company ana
| Montclair Water Company were aiSo
Interested parties to the suits. -,
The suit of the Anger g. simon Eotn,
nanv against the East Jersey Water
Company and the Jersey city Water
sunnIv Company we're fried, and al
tbe reauest OF MT. Kalisch the jury
wearing the evidence were asked 20
make their decision on the same evi-
dence in the case of the city of New
ark. since the cases and facts were
lparallel. In this a judgment agalnsI
the city of Newark was founo toi
s2,5Ss.
There are now four suits pending u
which the city of Newark Is defend
ant and the SILK dyelng concerns o.
Paterson are plaintiffs. In view OF
the decision of the Court of Errors
. these actions will likely be discon'
! tinued. This is the opinion OF GMs
Counsel Spaulding Frazer and Guy
| Attorney Kaliseh, Under the decision
/ Of the court the silk dyeipg com
J panies cannot base any further suit
, on the claim that Newark divert'
water from the Passaic river.
The opinion OF the court was de
iiyered BY Justice Bergen, who SAID
fIn the present cases we have plain
ltiff claiming damages because It !
lnot allowed 10 divert, as rlparlai
2 owner. the water Of a running stream
II is in a condition as TO quality whicl
: is probited by law. In other words
, N claims damages because II Is de
rived of the means of committing al
, unlawful act.
] I'VE are Of opinion that when tn
. .. riparian owner abstracts water from
.. a.erunninK stream for the purpose Q
SO using Il that 1t will be returned Z
the stream in such a polluted condi
: ton as to appreciably deprive II Q
it's natural qualities and render IL un
! al for the use of the public, thereb,
: cosnmitting a nuisance, he Is not max
.1..- - n.1..a a l.1n aa.o Aharanf 4