Mayor & Aldermen of Paterson v. Mayor & Aldermen of Jersey City

The opinion of the court was delivered by Swayze, J. The only objection urged to these proceedings is that Jersey City is seeking to condemn property already devoted to a public use. This is not an accurate statement of the ease. What Jersey City is seeking to acquire is a right to a joint user of running water. It is true that the use to which Jersey City is to put the water involves its abstraction from the stream, while the use to which Paterson puts it is for purposes of pleasure and recreation in connection with its parks, involving the use of the flow only. But as long as the legislature authorizes in response to public necessities, the abstraction of water from a river for a municipal water-supply, this use is as lawful as the other. The case therefore resembles the cases of joint user of a common easement. Morris and Essex Railroad Co. v. Central Railroad Co., 2 Vroom 205; National Docks, &c., Co. v. United Companies, 24 Id. 217. We need not consider the relative importance of supplying Jersey City with an absolute necessity and the importance of allowing [456] Paterson the pleasures of boating and skating. When the legislature in 1895 authorized cities to condemn water and water rights for the purpose of supplying the city with water (Comp. Stat., p. 2198, pl. 38), it by necessary implication authorized the condemnation of such rights as Paterson had in the flow of the stream, at least to the extent required in the present case. The situation differs from that in Van Reipen v. Jersey City, 29 Vroom 262. It was there held that the general grant in the act of 1895 of power to condemn did not carry the right to extinguish the franchises of the Morris canal. Jersey City in this case does not seek to extinguish the rights of Paterson in its public parks, or in the river flowing by them; it hardly seeks to disturb them under the evidence in the case, since the quantity of water necessary for the use of the river by Paterson depends on the two dams, rather than on the abstraction of water above. The proceedings are affirmed, with costs.