NEWARK’S REPLY IN DIVERSION SUIT.
An answer filed in Trenton, N. J., by the Law Department of the City of Newark in a chancery action brought by the Weidmann Silk Dyeing Company of Paterson to enjoin alleged unlawful diversion of water from the Passaic River presents some interesting arguments why the injunction asked for should not be granted. In brief it is argued that the company waited too long, and that the company is one of several which pollute the water. The answer filed states as one point that it was a matter of common knowledge in Paterson and elsewhere prior to and during the construction of Newark’s present water supply system that as a result of the taking of water from the Pequannock watershed the flow of the Passaic would necessarily be substantially diminished; that the complainant concern with full knowledge of that fact “stood mutely by,” permitting Newark to expend the large sum of $6,000,000 in the erection of its works, and hence it is estopped from now obtaining an injunction against it, but “should be lett to its legal remedy against this defendant, if any it has under the circumstances.” In regard to pollution the city’s answer says that the complainant company is one of a number of dyeing concerns in Paterson that carrv on business below the Great Falls and above East Twelfth street in that city, which are jointly polluting the l’assaic River by discharging their sewage and chemical waste into that stream; that if it were not for that pollution, the cities of Newark, Jersey City, Paterson and Passaic and the various other municipalities that use the water diverted from the river could use that water and yet leave sufficient water in the river for all the legitimate uses of the dye houses and other riparian owners below the points of diversion. Newark submits, under these circumstances, the complainant does not come into court “with clean hands and should be denied any equitable relief on that account.” Further the answer says that all the water now taken by Newark is taken under legislative authority for public use of an imperative character; that the complainant is not entitled to the relief sought for, for the further reason that the injury to it from the impounding and diversion of said waters is nominal and inconsequential. The answer admits that the value of complainant’s premises is now and probably will hereafter be largely impaired by reason of the noxious and unhealthy condition of the river, but this, it is argued, is not due to the diversion of its waters by the defendant, but to the discharge into it of noxious chemicals and polluted matter by the city of Paterson and by the complainant itself and various other dyeing concerns that operate plants above the complainants’ plant. The history of the case in which this answer which ably sets forth the city’s claims is made is one of interest. The Weidmann company’s suit with those of other dyers against Newark and other takers of water from tributaries of the Passaic was tried in the Passaic Circuit Court and resulted in an award against several of the defendants. This request was denied, but the Court of Errors differed, holding, in an opinion by Justice Bergen, that the question raised was not one of law, but one of fact that should have gone to the jury. The case later came up before the Court of Errors and was sent back for new trial. The Weidmann company since then instituted its present Chancery action.