Important Water Decision.

Important Water Decision.

The Court of Errors and Appeals, of the State of New Jersey, recently handed down a decision in the case of Frank W. Meeker against the city of East Orange, which, if sustained, may be regarded as indicating the outcome of the water diversion troubles in that state, by settling the question as to the ownership of subterranean water supplies.

Briefly, the facts are as follows: The complainant had on his farm a spring which the sinking of wells, on adjacent property, for the purpose of providing a water supply for East Orange, rendered worthless. Tie sued the city for damages for the loss of the spring, and the lower court gave a decision practically in favor of the city. This court held that water under land was the property of the landowner and could he used by him in any way he desired regardless of the effect such use might have on water on neighboring land. Meeker appealed to the Court of Errors, and the latter tribunal has now reversed the lower court. “Percolating underground waters,” writes Chancellor Pitney, in his decision, “may not be withdrawn for distribution or sale, if it thereby result that the owner of adjacent or neighboring land is interfered with in his right to the reasonable user of sub-surface water, or if his wells, springs or streams are thereby materially diminished in How. or his land rendered so arid as to be less valuable for agriculture, pasturage or other legitimate uses.” This decision sets aside the old English rule, so far as New Jersey is concerned, as to private property rights in underground percolating water. The defects in the Meeker case, as well as the stand taken by the water monopoly that it had a right to divert well water, was based on tile supposition that the Court of Errors and Appeals had alreadv confirmed this old English rule as applicable here.

The court further lays down the rule that a land owner has not an absolute and unqualified property in all water that may be found percolating in his soil to do what he pleases with it. His right is to use such waters only in a reasonable manner and to a reasonable extent for bis own benefit and without undue interference with the rights of other land owners.

This disposes of the contention of the Hudson County Water Companv. that the water it seeks to divert to Staten Island, is not covered by the Bacheller law, being sub-surface water, unless it can prove that the water it obtains in the wells it has sunk at Belleville, alongside the Passaic river, is derived from an underground water course and is not merely’ the percolations of surface waters.

The decision is of more than ordinary importance. and with the injunction obtained by which the laying of pipes in the bed of the Passaic river and the Kill von Ktill is prohibited. as an invasion of the state’s riparian rights, effectually bars the further operations of the predatory water company.




IN common with many gas companies, there are some water companies which refuse to turn on the water for a new incoming tenant till the arrears of water left unpaid by the preceding tenant are paid. These arrears the companies expect the incoming tenant to discharge. The Supreme court of Massachusetts has rendered that practice illegal, so far as concerns that State. The Revere Water Company, on being offered the water rent in advance from January t, 1897, to January 1, 1S9S, refused to turn on the water till the arrears left by the preceding tenant, extending over a period of nine months and ten days had been paid up. The company in question acted under one of its own regulations to that effect. The aggrieved tenant filed a bill of equity to compel the company to turn on the water, and won the suit. The court thus expressed its views on the subject:

It may be desirable that a water company or a gas company shall have an easy way of collecting its debts; but we see no reason why it should be enabled by the court to collect a debt from one who is not a party to the contract, when it sells its commodity on credit. The legislature may give such a company a lien, as it has given one to mechanics. We have no doubt that pay may be demanded in advance, as it is done in Boston— though whether the owner of the house could not have the water shut off during the year and recover for what he had not used, may be considered an open question.

The court held that a water company, like a gas company, could, of course, demand a deposit in a case where the new taker is unknown to it, and winds up its decision as follows:

It seems to us that, if an unpaid gas or water bill is made a charge upon the land, without authority of a statute, there are numerous difficut. ties to be encountered; and that the better rule is that any such regulation as that before us, if construed as the defendant seeks to control l in this case, is unreasonable and void. Decree confirmed.