Newark Aqueduct Board v. City of Passaic

46 N.J. Eq. 552

• Court: Supreme Court of New Jersey
• Decided: March 15, 1890
• Status: Published

Opinions

The opinion of the court was delivered by

Dixon, J.

On March 18th, 1889, the complainant exhibited its bill in chancery to restrain the defendants from constructing in the city of Passaic certain public sewers therein described, which, when in operation, would cast their contents into the Passaic river, and thereby, the bill alleged, would render noxious the water drawn by the complainant from the river for the use of the inhabitants of the city of Newark. On filing the bill the complainant obtained a rule, that the defendants show cause why a preliminary injunction to the effect stated should not forthwith issue, and, at its return, the city of Passaic presented its answer, with accompanying affidavits, which, inter alia, negatived the charge that the sewage to be emptied at Passaic would affect the water at the complainant’s intake. The rule to show cause was then discharged by the chancellor, upon two grounds — -first, that the complainant had no authority to maintain a suit to prevent such pollution of the water of the river as would be injurious to the inhabitants of Newark; second, that, as the apprehended pollution had not yet taken place, and was not immediately threatened, and it was doubtful, under the proofs, whether such pollution would be caused in any degree deleterious to the city of Newark, therefore, no case for a preliminary injunction had arisen.

We are not prepared to endorse the conclusion of the learned chancellor upon the first point, but upon the second, his conclusion seems to us well founded in fact and in the law, as repeatedly •announced by this court. Citizens Coach Co. v. Camden Horse R. R. Co., 2 Stew. Eq. 299; Stitt v. Hilton, Stew. Eq. 285; Delaware, Lackawanna and Western R. R. Co. v. Central Stock-Yard and Transit Co., 16 Stew. Eq. 605; Hagerty v. Lee, 18 Stew. Eq. 255.

The order discharging the rule should be affirmed.