Doremus v. Mayor of Paterson

The opinion of the court was delivered by G-UMMERE, Cl-IIEE-JUSTICE. 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 [712] waters from, the river at a point above tidewater, and returns then into it again at a point some distance below. Others still do not own property bordering either on the river or the canal, but take water from the latter, under leases, for the purpose of supplying power to mills operated by them. The demurrer attacks the right of the respondents, or any of them, to tire relief sought by the bill. 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 co713 owners except those whose lands lie further down the stream. Higgins v. Flemington Water Co., 9 Stew. Eq. 533. Generally speaking, each riparian owner has a right to devote the waters to any use which he may see ht, provided that, in doing so, he does not injuriously affect the rights of any of the other proprietors therein. Miner v. Gilmour, 12 Moo. P. C. C. 156. And this right cannot be restricted by the act of any other of the proprietors. A proprietor may grant to third persons, who are. not riparian owners, rights in the waters; he may permanently abstract the waters for their use, or he may permit them to do so, without the consent of the owners above him; but he cannot, by such action, impose an additional burden upon, or create a new liability against, such owners. It was upon this ground that the court of exchequer, in the case of Stockport Water Co. v. Potter, 3 H. & C. 300, decided that an action would not lie in favor of the water company (which was taking water from the river Mersey under a grant from a riparian owner) against the defendant, Potter, who owned lands bordering upon the river above the intake of the plaintiff company, for polluting the stream to its detriment. The case of Butler Rubber Co. v. Newark, 32 Vr. 32, referred to in the opinion of the vice-chancellor and relied upon in the brief of the respondents, is not opposed to the principle underlying the decision of Stockport Water Co. v. Potter. In that case the city of Newark, conceding that the rubber company had a property right in the use of the water, sought to. condemn that right, and the matter came before the court on an appeal from the award of commissioners. The only question presented was what sum. of money the city should pay to the company as compensation for the deprivation of that right. Mr. Justice Depue, who delivered the opinion, points out that the case is to be .distinguished from the Stockport Water Company Case by reason of tlie fact that “the defendants (the city of Newark) are not asserting rights as riparian owners, but are taking property under the power of eminent domain.” In the case now under consideration, the city of Paterson is not seeking to acquire any right of the lessees or grantees of a lower riparian owner. They concede that such [714] lessees and grantees have rights and do not deny that they are property rights, but they contend that those rights are subordinate to the city’s right to vent its sewage into the stream. This contention, in our opinion, is sound. There being a misjoinder of complainants, and this having been specified as a ground of demurrer, the order overruling the demurrer should be reversed. For reversad — The Chief-Justice, Van Syckel, Dixon, Fort, Garretson Vredenburgi-i, Voori-iees, Vroom — 8. For affirmance — Hendrickson, Pitney — 2.