74 N.J. Eq. 49 | New York Court of Chancery | 1908
(after stating the facts as above).
Taking up the first branch of the case, that relating to complainant’s status as riparian owner, the first question, whether complainant’s deeds make it such owner, and the second, whether actual damage must be proved to establish the right of action, a preliminary question as to the necessity of settlement of title at law is proper to be considered. Had the defendant by its answer raised the question of such preliminary settlement of the question of legal title at law, that course might, perhaps, have been directed at the hearing, if the proofs disclosed such dispute in reference to the facts on which the question of the nature of the legal title depended as to either require a settlement by a jury or entitle the defendant to such trial. But, on the whole-proofs as presented, the question of the nature'of complainant’s title as riparian owner, and the impairment of its right by diversion for purposes of sale, arises, I think, as a question of law upon facts not disputed, and upon the construction of the deeds conveying title to complainant and claimed to constitute it a riparian owner. Assuming that the complainant, under its deeds and the undisputed facts, is, as riparian owner, entitled to protection as such against unlawful diversion, the further question,, whether the unlawfulness of the diversion depends upon proof of actual, perceptible damage, if the diversion is made perma-' nently and'for purposes of sale, is a question the solution of which depends, as I think, on decisions of our own courts which control it, and therefore that complainant, as a preliminary condition for equitable relief, should not be required to bring a suit
The third question, that of damage proved, involves the extent and efféct of the diversion on complainant’s lands along the river, and also on the river itself, as a solvent for the sewage of the city, a long and expensive inquiry into the conditions of the river for a period of years, and it was to this point that' the voluminous evidence upon both sides was mainly directed. This thorough investigation of the facts upon both sides was not only contemplated and concurred' in by both parties, but the cause, on all these points involving questions of legal title, has been fully argued and submitted by counsel without any objection or request that the question of legal right be settled at law. Under these circumstances the rule in reference to cases where the objection is not raised by the answer, as laid, down by Vice-Chancellor Reed in Coast Company v. Spring Lake, 56 N. J. Eq. (11 Dick.) 615, 626, 627 (1898); affirmed on appeal, 58 N. J. Eq. (13 Dick.) 586 (1899), should be applied, and in the absence,, of any objection, either at the answer or on the hearing, the primary question of legal title or right should be examined and determined by this court. I proceed, therefore, with the first inquiry, relating to complainant’s standing as riparian owner. Such standing as to any of the lots owned by it is denied, and, as different questions arise in respect to the complainant’s title to each of the three tracts of land, these will be taken up separately..
The tract known as “West Side Park” is located on the north bank of the river about three-eighths of a mile above the Great Falls at Paterson, contains about thirty acres, and has a frontage on the river of about two thousand five hundred and fifty feet. This frontage, however, is not continuous, the park being composed of two tracts of land, separated by a stream called “Old-ham brook,” which flows into the Passaic vabove the falls and between the two tracts. The tract, below the brook and towards the falls, constitutes the main portion of the park, and it is connected with the smaller tract across the brook by a bridge. This
“to the high-water mark on the northwesterly side of the Passaic river; thence (2) southwesterly, westerly, and northwesterly along said high-water mark of said river and of Oldham brook their several courses to the southeasterly line of Totowa avenue.”
From this point the description follows the line inland and away from the brook several courses to the beginning, and this part of the description has no bearing on the questions raised. The second tract (across Oldham brook and on the west side of it) is described as follows:
*61 “All that tract of land bounded on the east by high-water mark of the Oldham brook; on the north by Totowa avenue; on the west by lands of the estate of Richard Yan Houten, deceased; on the south by high-water mark of the Passaic river.”
From these tracts was made an exception, followed by a definition of what line was intended by high-water mark in the description, and in the following words:
“Excepting, however, from the said tracts, and not conveyed, all parts thereof that are overflowed by the river and brook at the present height of the dam at high-water mark. It is understood and agreed that the term ‘high-water mark’ is the edge of the water in said river and brook when the-Tvater is flowing at a height of six inches over the dam of the Society for Establishing Useful Manufactures above the falls at the present height of the dam.”
The deed also contained a covenant
“that the party of the first part [the Society’s Land Company] shall not be liable for any damages caused by the overflow of said river and brook at the present height of said dam,”
and also covenants of general warranty as to all the land and premises conveyed.
In connection with this deed, which bounded the complainant’s title toward the river by the line of “high-water mark” thus arbitrarily or rather artificially fixed, the city received a deed from the Society for Useful Manufactures itself, bearing the same date, conveying rights, privileges and easements in relation to the use of waters of the Passaic river and Oldham brook and the lands between this high-water mark and the water of the river and brook, upon certain conditions as to the diversion of the water of the Passaic and its use by the Society for Useful Manufactures, and as to the liability of the Society for Useful Manufactures for the overflow of the river and brook. By this deed, wh'ich it is important to set out at length, the Society for Useful Manufactures gave, granted, bargained and sold to the complainant, its successors and assigns,
“the right, privilege and easement to make use of the waters of the Passaic river and of the Oldham brook in front of and bordering on the lands conveyed to the party of the second part hereto by the Society’s Land*62 Company by deed of even date herewith as is customary and legal for riparian owners, and for such purpose to have access and right to cross over any intervening lands between high-water mark and the water of the Passaic river and Oldham brook, and also the use of any such intervening lands for the purpose of ornamentation; but it is distinctly understood and agreed, and this grant is made upon this distinct condition and agreement, that such access and use shall not, and shall not in any way be construed to, give to the city of Paterson the right to divert the water of the Passaic river or interfere with its use by the party of the first part hereto, or to make any erection that would cause pollution of said waters, and that the party of the first part hereto shall not be held liable for any damages caused by the overflow of said river and brook at the present height of said dam. To have and to hold the said easement, right and privilege unto the said party of the second part, its successors and assigns, to its and their sole use, benefit, and behoof, foreyer. And it is further understood and agreed that the said conveyance by the Society’s Land Company to the party of the second part hereto above referred to, to high-water mark of the Passaic river and the Oldham brook, carries the title of the party hereto of the second part to the edge of the water in said river and brook when the water therein is flowing at a height of six inches over the dam of the society above the falls at the present height of the dam.”
The deed contained no other covenants, and was a deed of grant, bargain and sale for the expressed consideration of one dollar.
Under these deeds for West Side Park the complainant’s title does not, as its bill alleges, go to the centre of the river, but its absolute title in fee is limited by an artificial or arbitrary boundary line beyond or above even the ordinary high-water mark of the river in its natural condition (unaffected by the dam), and this location of the line of title above the natural ripa is fixed with reference to the continuance in the Society for Useful Manufactures (which was the owner of the bed of the river) of the title up to a fixed boundary of the lands above its dam adjoining the natural ripa, with a right to overflow even above this limit if the existing dam caused such overflow. The title to the lands below this artificial or arbitrary line, and lying between this line and a line designated in the second deed as “the water of the Passaic river and Oldham brook,” was reserved, or rather not conveyed, by the Society for Useful Manufactures, who thus continued to be the riparian owner of the lands on the banks of the natural stream. As such riparian owner it gave to the complainant certain rights to the use of the waters of the river and brook.
Riparian rights, strictly and technically so called, are rights not originating in grants, but arise by operation of law, and are called “natural rights,” because they arise by reason of the ownership of lands upon or along streams of water, which are furnished by nature, and the lands to which these natural rights are attached are called in law “riparian lands.” Riparian lands, in the language of the cases and treatises, include by nature as well the lands over as those along which the stream flows, and riparian rights are incident to lands on the bank, as well as those forming
The reason on which the rule is founded, viz., that no owner can have an easement in his own lands, is not applicable to rights arising by operation of law from a condition fixed by the laws and forces of nature. As to rights in running streams thus arising,, the incidents are annexed by operation of law, with the view of regulating an equal and continuous right of use in succession,, and these continue to regulate the rights of riparian owners to access and use of the water, and its course was determined by nature, irrespective of any unity or division of ownership of the lands below and along the stream. These rights, therefore, attaching to the bed and bank of the stream and its waters as it was accustomed to flow by nature, are, as between upper and lower riparian owners, extinguished or affected only by the express;
This seems to have been the legal theory upon which the deed from the Society for Useful Manufactures to the city of Paterson rested, and I think it is the correct theory. This deed, as I con
The second dispute as to riparian ownership arises out of the description contained in the deed to the complainant for the small tract, about twenty-two feet in width, fronting on Water street and called the “Engine House Lot.” This lot was conveyed to the city by deed dated August 5th, 1869, and the description is apparently defective, the second course of the deed (which conveys by metes and bounds) being omitted. The description is
“all that tract of land and premises hereinafter particularly described, situate,” &e., “in the city of Paterson,” &c., “beginning on the southeasterly side of Water street at a point 5 feet 3% inches westerly from the westerly side of the house of the heirs of Adrian B. Van Houten, deceased, running thence (1) southerly at right angles to Water street as the same has been laid out,” &e., “to the Passaic river; thence (3) northerly parallel with the first course to the southerly side of Water street; thence,” &c. (by two courses, 4 and 5), “still along Water street 21 feet 11 inches to the place of beginning.”
The second course, that toward the river, is omitted, and it is insisted that, as the deed does not give any river frontage, complainant is not as to this lot a riparian owner, and its title does not, as alleged in the bill, extend to the centre of the river. In addition to the deed complainant proves, in reference to the engine-house lot, that from at least as far back as 1871 the city occupied the entire lot from Water street to the river for the purpose of an engine-house, and that along the river front there was a brick wall about fourteen feet high and standing on the edge of the water, which wall was used in connection with the occupation and use of the lot and the use of the river in front of it. Adverse possession for over twenty years of the lot, as extending to the edge of the river and including the whole river bank, has been proved, and the question is whether, either by the deed itself (notwithstanding the omission of the second course), or by this deed in connection with the proof of adverse possp-ssion of the ripa, complainant has, as to this lot, established
As to the lot conveyed by the description in the first course,' running “to the river,” it must be considered that “the river” is designated a boundaiy, and prima facie such designation takes the course to the centre of the river, the rule being that, where a fresh-water river is designated as a boundary, the centre line of the river, the “medium filum aquae,” is the boundary line. Arnold v. Mundy, 6 N. J. Law (1 Halst.) 1; 10 Am. Dec. 356 (Supreme Court, 1821, Chief-Justice Kirkpatrick) (at p. 67); Attorney-General v. Delaware and Bound Brook Railroad Co., 27 N. J. Eq. (12 C. E. Gr.) 631 (Court of Errors and Appeals, 1876, Justice Dixon) (at p. 636). And a line running “to the-river” generally, and without subsequent qualification or restriction, extends by settled rules of construction to the centre of the-river — of the “filum aquae,” or thread of the stream. Starr v. Child, 20 Wend. (N. Y.) 149, 152; on error, 4 Hill (N. Y.) 369, 377, 380; note to ex parte Jennings, 6 Cow. (N. Y.) 549. An owner “to the bank of the river” owns to the centre of the-river. Next, it is impossible to run the third course at all, commencing from the terminating point of the first course and parallel with the first course, but the location of this third course-can be fixed by running the courses backward from the last course. Running these fifth, fourth and third courses from the beginning and terminating point, a point from which the third course is to commence is fixed as a point in a line commencing-on Water street, twenty-two feet eleven inches from the place of beginning (the beginning of the fourth course as given in the-deed), and running parallel with the first course on a line to or toward the river. In the absence of any limitation by distance-of this line it can be thus limited only by the description that it is parallel to the first line, which, by construction of law, ends in the centre of the river. The line, therefore, as matter of construction and application of the description, will, I think, toward the river side, be terminated at the single point where it is parallel to the termination of the first line on that side, and beyond which mere construction cannot carry the title, viz., the centre of'
“where the grant to a riparian proprietor has no other boundary on the side thereof which is adjacent to the river, the legal presumption is that his grantor intended to convey to the middle of the stream.” 4 Hill (N. Y.) 373.
Title by adverse possession for over thirty years up to the edge of the river and to the river bank is established beyond doubt, and this also is sufficient to establish title to riparian lands along which the river flows. On both grounds, therefore, I conclude that complainant is entitled to assert against defendant, as a diverter of the upper waters, such rights as a riparian owner may have in reference to this engine-house lot.
In reference to the third tract, the East Side Park, situate on the other side of the river below the falls, and fronting about one thousand five hundred feet on the river, the deeds conveying the portion of the park along the river, and referring to it as a boundary or monument, expressly describe the property as beginning at the Passaic river and as running to the river and down the river its several courses. The description in its deed undoubtedly conveys title to complainant to the centre of the
The defendant does not claim that this is not the legal effect of the deeds; but inasmuch as these riparian lands were, by the deeds to the city or its grantors, made subject to a right of flow-age by the maintenance of a dam by a lower riparian owner, the Dundee Manufacturing Company, and as this flowage of the lands has continued for over forty years, it is claimed that defendant’s diversion of water does not in any respect injure the complainant‘as owner of this park, and, in the absence of such injury, complainant has, as to this park, no legal or other right to be protected by injunction. But this objection manifestly relates, not to the question of whether complainant is a riparian owner of these lands and entitled to assert the title and right of a riparian owner, but whether the complainant as riparian owner, asserting such right, must establish injury or damage as a foundation for relief either at law or equity. This is an important question relating to riparian’ rights, but very different from the question as to whether the complainant, claiming such right, is in law a riparian owner. On the first branch of the ease I conclude that complainant, as to all of the lands in question, the two parks and the engine-house lot, is entitled to assert against the defendant the rights of a riparian owner.
The second ’ inquiry on this branch of the case (complainant’s riparian rights) is whether the proof of actual, perceptible damage, resulting from the diversion of water by the defendant, is essential in order to establish the existence of a right to be protected by injunction. The diversion by the defendant is not for the purpose of use upon or in connection with the enjoyment of upper riparian lands owned or occupied by it, and to be returned to the river after such use, but for permanent diminution of the supply of the river, made for the purpose of sale of the water for the ultimate supply to municipalities, all of which, except Paterson and Passaic, are distant from the river, and some of which are not within the watershed of the river. This circumstance, permanent diversion for the purposes of sale, is claimed to have a material bearing on the question of the relative rights of upper and lower riparian owners, and the necessity of proving actual,
The general rule upon the subject of the necessity of proving-actual damage where a right is violated, and one applying to every description of right, was clearly stated by Baron Parke in Embrey v. Owen, 6 Exch. 353, 368 (1851), a leading case involving a suit for diversion for the purposes of irrigation. lie says: “Actual, perceptible damage is not indispensable as the foundation of an action, and it is sufficient to show the violation of a right, in which case the law will presume damage. Injuria sine damno is actionable, as was laid down by Lord Holt in Ashby v. White, and in many subsequent cases, all referred to in the very able judgment of Mr. Justice Story in Webb v. Portland Manufacturing Co., 3 Sumn. (U. S.) 189 (1839); 29 Fed. Cas. 506, where the truth of this proposition is powerfully enforced.” This latter leading case was a bill for injunction to restrain diversion by an upper riparian owner or occupant, and Mr. Justice Story, after a full examination of the cases, concludes (29 Fed. Cas. 509) that, whenever' there is a clear violation of a right, it is not necessary in an action of the sort there brought to show actual damage, but that every violation imports damage, and if no other be proved the plaintiff is entitled to a verdict for nominal damages, and a fortiori that this doctrine applied whenever the act done is of such a nature that by repetition or continuance it may become the foundation or evidence of an adverse right. He also holds that, were the doctrine otherwise at law, if the diversion of the water is a violation of the plaintiff’s right, and may permanently injure that right, and become by lapse of time the foundation of an' adverse right in the defendant, no case is more fit for the interposition of a court of .equity by way of injunction to restrain defendants from such an injurious act. This claim to an injunction, on the ground that otherwise the present appropriation by defendant may, by adverse exercise, ripen into a right and destroy complainant’s right as riparian owner, is perhaps its strongest claim to the interference of the court for the ascertainment and declaration of complainant’s present rights.
When we consider the extent of the territory now included in these contracts, and its rapidly increasing population, with consequent demands for pure water-supply, and the long terms of all the contracts, except with the Passaic and Acquackanonk companies, and the fact that the defendant by its answer and at the hearing insists that there has as yet been no violation of any legal right of the complainant, and asks dismissal of the bill upon that ground, there would seem to be no escape from the conclusion that complainant has shown a case where it is entitled to have the question of its legal right as riparian owner decided, and, if that right is found to be violated, then, in order to protect the acquirement of an adverse right, to have the right •declared and protected by the court. In view of these denials of •right by defendant and its contracts for long-continued and ^necessarily increasing future diversion, the maxim, “De minimis non curat lex ” can have no application to complainant’s suit for present declaration and protection of its right, even if it should ■be concluded that up to this time the diversion, compared with “the flow of the river, has been so slight as to bring the case within the maxim. My own conclusion on this point, as will hereafter appear, is that the present diversion relatively to the lowest flow
On the assumption, however, that this general rule protecting against the violation o£ legal right applies to the case of rights of riparian owners to running waters, and that the maxim, “de minimis” does not apply, the nature of those rights must now be considered, for the reason that the present contention between the parties involves the question whether there is any violation of right, unless the diversion by an upper owner or occupant results in actual, perceptible damage, even if the diversion of the water is permanent and for the purpose of sale. The claim of the defendant is that a lower riparian owner’s rights in the water are not violated or infringed by a diversion (for whatever purpose) of water which would otherwise reach him, unless the diversion occasions actual, perceptible damage. Under this view, the right of the lower proprietor to have the flow of the water continue past his land 'is not an absolute right to the entire flow, subject only to a reasonable use upon or in connection with upper riparian lands, but is the right only to have the flow continue subject to any diversion by an upper riparian owner, or under his authority, which does not perceptibly damage the lower owner. The complainant, on the other hand, claims that the-lower riparian owner has the right to the full flow of the river over and along his lands, without diminution or diversion by an upper riparian owner, except to the extent of a reasonable use of the flowing water upon or in connection with his lands, and that, subject to such reasonable use, the water is to be returned to its accustomed channel on leaving the upper lands. On the latter theory any right of diversion is restricted to reasonable uses, and any diversion (not so slight as to come within the “de minimis” rule) for unreasonable or unauthorized purposes is a violation of the lower proprietor’s right to the natural flow of the waters. If reasonable use by the upper owner is the test, then as the rights of diversion must be equal and common in all riparian owners, except so far as they are affected by the necessity of the use of being in succession and not simultaneous, the rule by which this reasonable use is to be gauged is the use and enjoyment of the flow of the water subject to the similar
“Every proprietor of lands on the banks of a river has naturally an equal right to the use of the water which flows in the stream adjacent to his lands, as it was wont to run (eurrere soleiat), without diminution or alteration. No proprietor has a right to use the water, to the prejudice of other proprietors, above or below him, unless he has a prior right to divert it, or a title to exclusive enjoyment. He has no property in the water itself, but a simple usufruct while it passes along. ‘Aqua ewrit et deiet eurrere’ is the language of the law. Though he may use the water while it runs over his land, he cannot unreasonably detain it, or give it another direction, and he must return it to its ordinary channel when it leaves his estate. Without the consent of the adjoining proprietors, he cannot divert or diminish the quantity of water which would otherwise descend to the proprietors below. * * * This is the clear and settled general doctrine on the subject, and all the difficulty that arises consists in the application. The owner must so use and apply the water as to work no material injury or annoyance to his neighbor below him, who has an equal right to the subsequent use of the same water. * * * Streams of water are intended for use and comfort of man, and it would be unreasonable and contrary to the universal sense of mankind to debar every riparian proprietor from the application to domestic, agricultural, and manufacturing purposes, provided the use of it be made under the limitations which have been mentioned; and these will no doubt inevitably be, in the exercise of a perfect right to the use of the water, some evaporation and decrease of it, and some variations in the weight and velocity of the current. But ‘de minimis non eurat lex,’ and a right of action by the proprietor below would not necessarily flow from such consequences, but would depend upon the nature and extent of the complaint or injury and the manner of using the water. All that the law requires of the party by or over whose lands a stream passes is that he should use the water in a reasonable manner, and so as not to destroy or render useless, or materially diminish or affect, the application of the water by the proprietors above or below on the stream.”
That diversion for use upon riparian lands and for domestic and agricultural or manufacturing purposes is in its nature a reasonable use is the settled law of this state, and diversion for irrigation has also been held to be a reasonable use in accordance with the general American doctrine and the English authority. Embrey v. Owen, supra; Farrell v. Richards, 30 N. J. Eq. (3
These are the only New Jersey decisions bearing upon the necessity of proving damage or perceptible injury, in order to estab
In Elliott v. Fitchburg Railroad Co., 10 Cush. (Mass.) 191; 57 Am. Dec. 85 (1852), referred to and approved in the Higgins Case, a riparian owner on a small brook granted to a railroad company the right to build a dam and reservoir on his lands to supply (by pipe) water to a depot for engines, &c. On this point in the case (which also involved others) the judge declined to charge that if the water was diverted for this purpose plaintiff
So far, therefore, as the decision in the Higgins Case is to be considered a controlling authority upon the present controversy, whether a diversion of water for sale to non-riparian owners is of itself an unreasonable use without proof of damage, it appears that the element of actual, perceptible damage to the lower riparian owner was proved in the case, and that this circumstance was expressly relied on as an incident going to make up com
But, subsequent to the filing of the present bill, the subject of diversion of water for sale in substantial quantities and for municipal water-supply has been distinctly and directly raised and decided by the same court and in a case of great importance, which involved, not only the question whether such use was a lawful and reasonable use, but also the question as to the nature of the riparian owners’ rights in the flow of fresh-water streams running to tide water, with reference to or in connection with the rights of the state itself, as the ultimate and lowest riparian owner under or along the streams. McCarter, Attorney-General, v. Hudson County Water Co., 70 N. J. Eq. (4 Robb.) 525. Vice-Chancellor Bergen, August, 1905, on appeal, 70 N. J. Eq. (4 Robb.) 695 (November, 1906). The legislature by an act of May 11th, 1905, prohibited the transportation through pipes, &c., of the waters of any fresh-water river, &c., of this state, into any other state, and authorized the attorney-general to prevent such transportation by application for injunction. The New York and New Jersey Water Company, which (as appears by its con
On appeal the decree for injunction was affirmed, but the right of the state to the injunction was based upon the statute alone, and. any expression of opinion was expressly withheld in reference to the grounds on which the vice-chancellor based his opinion, outside of the act of 1905. 70 N. J. Eq. (4 Robb.) 721, 722. The rights of the state to running water, and its rights as the lowest and ultimate riparian proprietor, by reason of its ownership of the bed of tidal fresh-water streams, were, however, examined carefully at length in the learned opinion of the court delivered by Mr. Justice Pitney, as bearing on the validity of the act of 1905. This examination necessarily included also a general inquiry into the nature of the riparian owners’ rights to the diversion of waters for sale, for the reason that it was claimed by the defendants that under the common law of this state, as settled by previous decisions, the riparian owners had such property or right of property in the water flowing over or along their lands as to entitle them to divert the same for the purpose of permanent
“That the ownership of t-he running waters is limited to a usufructuary interest, without right to divert any from its natural course, saving for the limited uses that naturally and of necessity pertain to the riparian owner, such as the supply of his domestic needs, the watering of his cattle, the irrigation of his fields, the supplying of power to his mill, and the like. This right of user is limited to so much as shall be reasonably necessary, and is qualified by the obligation to leave the stream otherwise undiminished in quantity and unimpaired in quality.”
And, further (Id.) :
“That riparian owners, as such, have not any such right in or ownership of the waters that flow upon or past their lands as will entitle them to divert portion of the flow and convey it elsewhere for the use of other than riparian owners. * * * Excluding the customary and lawful uses by means of which a riparian owner may properly diminish the flow of a stream, his right of ownership in the residue is the right simply to have the flow continue, * * * a valuable right, but partaking solely of the nature of realty, being, from the nature of things, inseparably annexed to the land itself.”
The permanent diversion of the water for sale to non-riparian owners Avas, as I understand this opinion, held to be an unlawful and unreasonable use of the waters by a riparian OAvner, and the validity of the act was sustained upon two- grounds — first, that the state, as the trustee for the public, had a residuum of
“a proprietary right to the continued flow of the stream, which is paramount to the rights of the upper riparian owners to withdraw water for purposes other than those incident to riparian ownership,”
and this riparian right of the state was declared by the court of appeals to be an additional reason for sustaining the act of 1905, it being considered to be an act in conservation of its property right.
On the appeal of the decree to the United States supreme court the question of the nature of the riparian owners’ rights in the water of running streams, under the common law. of New Jersey previous to the passage of this act and under the decision of the court of errors and appeals,' was also, directly raised by the appellants. It was contended (as appears by the briefs of counsel, which have been courteously sent to me) that the rights of the state in the running waters of fresh-water streams, either as the owner in trust of the residuum or as the ultimate riparian owner, as declared and established by the court of errors and appeals, had the effect of changing by judicial decision the common law of the state, as it was established by decisions made previous to this contract in question, and that because of this change by a subsequent decision of the state court the obligation of the contract was impaired, in violation of the federal constitution. This question, however, was not decided, nor was
This decision of the United States supreme court, putting-the affirmance of the decree upon a ground different from that taken by the opinion in our court of appeals, did not affect the-binding authority of that decision upon the point now considered, viz., whether the diversion of water by a riparian owner-for purpose of sale is a reasonable use of his riparian right. The decision of the court of appeals I take to be final and controlling upon the points that the state is a lower riparian owner, and that as such riparian owner it is entitled to the full flow of the stream in quantity and quality,, subject only to the lawful and reasonable uses of the stream- by upper riparian owners, and upon the further point that this lawful and reasonable use;
The rule declared in this later decision of the court of appeals, that the uses of the water of a flowing stream, both ordinary and extraordinary, by the-riparian owner, must, in order to be reasonable, be connected with the occupation and enjoyment of the riparian lands themselves, and as an incident to such enjoyment, and that the permanent diversion of the waters for non-riparian user and for sale is an unlawful use, is the one now generally, if not imiversally, adopted; and the courts taking this view also agree that, in order to obtain relief against such unlawful or unreasonable use, it is not necessary that the lower riparian owner show any actual damage. Where such diversion is not admitted toi be unlawful, but is claimed as of right, and its continuance is threatened, the prevention of the acquisition of an adverse right to divert is of itself sufficient ground for protection by the court of chancery. It was so finally settled by the house of lords in England in Swindon Water Co. v. Wilts & Berks Canal, L. R. 7 H. L. (Eng. and Ir. App.) 697. “Such use (a diversion by a water company for purposes of sale) arid a claim of a right to make it,” said Lord Chancellor Cairns, “in 'this case, is a use which virtually amounts to a complete diversion of the stream, as great a diversion as if they had
On this branch of the case, therefore, I reached the conclusion that the diversion of the water by the defendant for purposes of sale is an infringement of the complainant’s right as a lower riparian owner to tire continued flow of the stream, and that without proof of any actual or perceptible damage, so far as the establishment of its legal right is concerned, if the diversion is of such a perceptible and sensible amount as not to be excluded under the maxim “de minimis/'’ complainant is entitled to resort to this court for protection, in view of the fact, against defendant’s claim of the right to divert and to continue the diversion. If this view be correct, the examination in detail of the evidence bearing upon the matter of actual damage; and the extent to which the diversion has so far affected the use
The defendant produces a comparison of the average amount daily diverted with the average daily flow of the river, including high water and floods, and contends that the right of complainant to be protected at all by injunction must be considered as depending on or affected by this comparison. But for this
The flow past the West Side Park above the falls is at low water substantially different at times from that below the falls, for the reason that the flow of the entire river is, to some extent, controlled by the dam of the Society for Useful Manufactures erected above the falls. This dam, extending across the river a short distance above the brink of the falls, 'is now about five feet in height and about three hundred feet in length. It was originally constructed in the early part of the last century for the
The amount given by defendants as their present average diversion, about twenty-two million, is thus a material and sensi
On the use and enjoyment of the West Side Park the diversion of the water has some effect, but the character of the improvements made by the city since its purchase upon the strip of riparian land included in the Society for Useful Manufactures’ deed has been such as to reduce this effect very materially. This riparian strip was originally low land along the bank of the river and at the lower end toward .the falls about eighty feet in width. The bank curves at this locality, and the strip narrows rapidly toward Oldham brook, and at the bridge across the brook where the bank of the river nearly coincides with the “high-water mark” of the deeds. There was considerable low land, also, on the opposite side of Oldham brook and along the river between the high-water line of the deeds and the bank of the river at low water. The city, after its purchase, built a wall about three feet wide at the bottom; along the line of the river at low water, and this wall extended along the entire shore line of the park, both on the river and on both sides of Oldham brook, except about two hundred feet of the end of the park which is toward the falls. This wall is constructed of loose stone, is about three feet in width at the bottom, and three feet high. For nearly all of its length it is at some distance from the high-water line boundary of the deeds, and the quantity of ground between this boundary all the way round and the wall is computed to be about five and one-half acres, or about one-sixth of the whole area of the park. This low land in this riparian strip behind the wall has been filled 'in and included within the park lands by laying out walks and ornamentation. When the water is six inches over the dam, it rises about a foot above the bottom of this wall, and when the water is very low in the river the bed of the river below and beyond the wall is exposed. This bed, when' exposed, is muddy and unsightly. This exposure of the bed of the stream, with perhaps some slight effect the diversion by defendant may have on the use of the river for boating, is a sensible or perceptible effect or damage, and in view of the claim of right to divert, and in increasing quantities, made by defendant, this actual, sensible damage gives
The use and enjoyment of the East Side Park does not, however, appear to be in any way directly, sensibly or perceptibly affected by the diversion. This park along its whole shore line is subject to the backwater from the Dundee dam, erected some distance below, and it has never been improved along or near the shore line. This failure to improve has not been due to the diversion by defendant, but to other causes; one of them being the pollution of the stream. The height of water along this shore line of East Side Park is controlled by the height of water at the Dundee dam, and the diversion by defendant has at this point, and under these circumstances, no sensible, practical effect on the supply or flow of water along the shore, or in making any sensible, perceptible change in its shore line. So far, therefore, as relates to this park, the complainant’s right to protection as riparian owner must stand simply on the protection against defendant’s acquisition of an adverse right under claim of right. The same situation exists as to the engine-house lot; for the evidence does not show that, as to this lot, its use or enjoyment has been as yet affected in any sensible or material way by the diversion of water made by defendant at or since the filing of the bill.
In view of the conclusion I have reached in reference to the right of the complainant as riparian owner to the flow of the river 'past its lands, it is not necessary, perhaps, to decide the question whether the alleged authority to construct a sewer system to be discharged into the river confers upon it any different or other right to the continuance of an undiminished flow than a riparian owner would have. But as the matters have been fully-gone into, both on the proofs and arguments, a brief statement of the view I take of this branch of the case may be given. This claim of right, as I understand it, is that statutory authority was expressly given to construct a sewer systeúi according to a plan to be adopted; that such plan was adopted and included a system of sewers through the streets of the city, finally discharging into, the river. From this authority to construct a system discharging into the river, the city claims by implication only, and not by express provisions, legislative authority or right, as against an
The city of Paterson, outside of the three tracts of land, none of which are connected with the sewer system, is not a riparian owner, and if, as a municipality, it has been authorized to discharge its sewers into the river, no additional burden or obligation in reference to the flow of the waters can be imposed on upper riparian owners by statute, by reason of this use of the waters below them. In Doremus v. Paterson, 66 N. J. Eq. (20 Dick.) 711, 713 (Court of Errors and Appeals, 1903), this principle was applied in favor of complainant in reference to the pollution of the stream on the complaint of a non-riparian owner who received water from a lower riparian owner. It was held that no addi
I come, now, to that branch of the case which relates to the equitable defences to any injunction or other relief, admitting complainant’s riparian right, as above defined, to be established. The single equitable defence reaching to the whole claim for injunction and to the defendant’s diversion for all purposes is that •of estoppel. This is based on the claim that the complainant was apprised of defendant’s construction of its extensive works, including the laying of mains for the different municipalities, that it has sanctioned their construction and use, and has so acquiesced in them as to deprive it of any equity for injunction. The complainant proves that in April, 1898, the mayor of the city of Paterson called the attention of the common council to the operations-of the defendant going on at Little Falls, and advised that it be notified not to diminish the flow of water through the city. A resolution of the council was adopted, directing the city counsel to take the necessary steps for this purpose, and the city council prepared a notice to be served on the defendant, relating to the diversion of the water. This notice was signed by the mayor, and
But, whether served or not, there is, in my judgment, no estoppel against complainant’s protection of its rights as riparian owner by mere silence or failure either to give notice or to bring suit immediately. In Simmon v. Paterson, 60 N. J. Eq. (15 Dick.) 385, 392 (Court of Errors and Appeals, 1899), it was held that the acquiescence of the riparian owners, continued for years, did not deprive them of their right of property in the stream,.
There is, however, a special estoppel bearing on the diversion of water for the supply of Paterson and Passaic through the respective companies, the Passaic and Aequackanonk Water Companies. There is an obstacle to disposing of this question, arising from the fact that neither of these companies is a party to this suit. The Passaic Water Company is authorized by its charter, passed before the purchase of the parks, to supply water to the city from the Passaic, and up to 1899 did supply it with water taken at the Great Palis. This becoming polluted, and apparently to such an extent that serious epidemics of typhoid fever resulted, the water company, being under contract to supply the city with water, changed its source of supply to Little Falls, and laid down mains through the city streets for that purpose. Manifestly this change made by the company gives it the right to be heard and its day in court before the present and only supply of pure water for the entire city can be cut off, and it may be that, when its whole ease is heard, no injunction should be granted for this diversion, but the city should be left to its remedy for damages. I certainly am not disposed now, and without hearing these -water companies, if they desire to be
Assuming complainant’s right to the protection of this court to be established, the question of greatest difficulty in the case relates to the manner in which the protection shall be given, and the terms and conditions, if any, which should be imposed. Relief in equity should certainly extend, I think, to a declaration of complainant’s right; but under the general practice of the court, and independent of statute,, such declaration can be made only as incidental to and the basis of some equitable relief. 3 Dan. Ch. Pr. (6th Am. ed.) *2181, note. This power has been given to the court of chancery by statute in England, and in a leading case (Swindon Water Company v. Wilts & Berks Canal Co., supra) was followed in directing the injunction. See 1 Seton Dec. p. 214-
Complainant, having established its right, is entitled, if the general course of practice be followed, to the equitable relief by which alone the right can. be protected, an injunction against its violation. The defendant, however, contends that the case comes within an exception to this general rule protecting property rights by injunction, and under which courts of equity, where the property in question is actually taken for a public use, and serious ptfblic injury would result from the injunction, without corresponding benefit or advantage to the public, will decline to issue an injunction, if it is a case where compensation can reasonably be made and defendant is willing to make it. And
In Attorney-General v. Paterson, 58 N. J. Eq. (13 Dick.) 1 (1899), on an application, on the relation of riparian owners, to restrain the pollution of the Passaic river by defendant’s discharge of sewage, an interlocutory injunction was ordered, restraining the increase of the quantity of sewage, pending final hearing, but the question of further relief was ordered to await the final hearing, in order to provide, if necessary, for other means of disposition of the sewage. On appeal this order for injunction was reversed, Mr. Justice Yan Syckel delivering the opinion of the court. Simmons v. Paterson, 60 N. J. Eq. (15 Dick.) 385; 48 L. R. A. 717; 83 Am. St. Rep. 642 (1899). The portions bearing on the point whether complainant is entitled to the exercise of the injunction power are as follows
“Ordinarily, where the riparian owner is injured by an unlawful diminution of the quantity of water, or by its excessive pollution, when his legal right is established, he is entitled to the exercise of this power of injunction. Whether in this case it should be interposed must be solved by determining whether in the situation of the parties here there are such circumstances and such equities as may justify the court in withholding its restraining arm.”
Against granting the injunction, were considered to be the facts that Paterson had, at enormous expense and under legislative authority, put into operation and used a sewerage system accommodating a population of 'over one hundred thousand people, and that by the restraint prayed for this system would be suddenly destroyed, and the homes of this multitude of people rendered perilous to health and life and unfit for occupancy, and that in view of the magnitude of the injury which would fall on the public by prohibiting the use of the sewers, it would be inequitable to enjoin, if relief could otherwise be afforded, and that the substituted remedy of adequate compensation would be just and equitable under all these circumstances. The complainants were allowed to amend their bill, or file a new bill for injunction, unless the city made compensation, to be determined by the court, with leave to elect to bring suits at law for damages.
The city of Paterson has no express statutory authority to pollute the river by its sewage system, or any authority at all to condemn riparian or other property rights for that purpose, and the case is therefore a direct authority to the point that a court of equity will, when the circumstances and equities require it, withhold the writ of injunction ordinarily issued for the protection of property rights, on the condition that compensation in damages be made. But it is clear, I think, that the circumstances must be exceptional; that the public injury must be great and manifest, and that there is no other method of preventing a great public injury, while protecting the individual property right by the ordinary lawful process. In such cases of plain and irreconcilable conflict, individual right of protection
The East Jersey Water Company, the defendant here, is a private corporation only, incorporated under the general corporation law, and has itself no power of condemning or appropriating the water rights in question against the will of the owner. Neither is it by law obligated to supply to the public, or any portion of it, any water diverted by it, and such supply is purely voluntary and a matter of contract on its part. Water companies or municipalities, which by their charters or general laws are vested with power of condemnation for water-supply, have this power only for public use, and are under legal obligation to supply the public, or the portion of it included within the scope of their statutory control. Olmsted v. Morris Aqueduct Co., 47 N. J. Law (18 Vr.) 311. The fact that the defendant company voluntarily supplies to public bodies the water diverted may show that the diversion of the water, or the bulk of it, ultimately inures to the public benefit, but in the absence of any legal obligation to supply the water for public use, and perhaps for such use only, the diversion by the East Jersey Water Company is not such an appropriation of private property for public use as may, under our constitution, be made upon compensation. For the purpose of this constitutional provision the true criterion by which to judge of the character of the us'e is whether the public may enjoy it of right or by permission only. Olmsted v. Morris Aqueduct Co., 47 N. J. Law (18 Vr.) 332. This plain distinction between a public use for which
For these reasons I conclude that, so far as relates to any increase in the quantity of water diverted, the complainant, for the protection of its rights, is entitled to an injunction restraining such increase, except to the extent indicated in the memorandum I have already sent to counsel. As to the equitable terms or conditions on which the present diversion should be enjoined, including the time when an injunction should be directed to issue, I have already in the same memorandum indicated to counsel the points upon which I desire to hear them, and the decree will be settled after further hearing.