65 N.J. Eq. 711 | N.J. | 1903
The opinion of the court was delivered by
The appeal in this case is from an order overruling a demurrer to the bill of complaint filed by the respondents. The object of the bill is to restrain the appellant from polluting the Passaic river with its sewage, unless and until it makes compensation to the respondents for the injury resulting therefrom to their respective property rights. The respondents are forty-three in number. Some of them are the owners of lands bordering upon the river above the ebb and flow of the tide therein. Others are the owners of lands bordering, not upon the river but upon an artificial canal which opens out of, and draws ita
The right of a riparian owner, above tidewater, to an injunction restraining the pollution of the river by the appellants, unless the latter make just compensation to him for the diminution in the value of his property occasioned therebjq has already been affirmed in this court. Simmons v. Paterson, 15 Dick. Ch. Rep. 385. The conclusion reached by the vice-chancellor in the court below was that the respondents, who own land bordering on the canal referred to, and those who lease water-power supplied by it, were also entitled to the same relief.
This conclusion, in our opinion, is not well founded. The bed of the Passaic river, above tide, is private property, the proprietorship of which is in those who own the lands bordering on the stream. Attorney-General v. Delaware and Bound Brook Railroad Co., 12 C. E. Gr. 631. And not only the bed of the river, but the waters flowing over it until they reach tide, are the private property of such owners. Cobb v. Davenport, 3 Vr. 369, 378; Simmons v. Paterson, 15 Dick. Ch. Rep. 389. And this is so because the waters are part and parcel of the.land itself. The bed of the stream belongs to the riparian owners in severalty, each owner owning the land under water in front of his ripa'to the middle of the stream. Each owner is entitled to have the waters flow past his lands undiminished in quantity and unimpaired in quality bjr the act of any of the other of the owners thereof. Each owner is entitled, as against the others, to use the passing water in a reasonable manner for domestic uses and •for the irrigation of Ids lands. He may also divert the flow thereof for Ms own purpose, provided he returns the waters again to the stream, unpolluted and in the same volume, at a point above the lands of lower owners. More than this, he is entitled to abstract them permanently as against all his co-