Fagen v. Mayor of Wharton

On appeal from the Supreme Court, in which court the following per curiam was filed: “The borough of Wharton, desiring a better water supply, applied to the North Jersey district commissioners for a permit to divert water from the Rockaway river, upon which it took no action. It then applied to the state board of conservation which granted a permit upon conditions (a) that it pay the state what may be required by law, (5) diversion not to exceed five hundred thousand gallons per day, (c) to contribute to Jersey City the proportion of the cost of additional storage it may require, to be determined by the board. “This writ was allowed to review the order of the state board. It is conceded that the board had the power to grant the permit, unless prohibited by section 18 of the act of 1916 (Pamph. L., p. 129), which provides that it shall be unlawful for any municipality to obtain a new or additional supply, ‘from any watershed other than the watershed or watersheds from which said municipality obtains its existing water supply, without the consent of -said district water supply commission.’ “The evidence shows that this application is for water from the present watershed, but aside from this, we think the limitation must be read in connection with the entire act, which has reference to granting permission to any municipality, and the prohibition was not intended to deprive the state board of its special oversight and powers in all cases. 1 f it be otherwise, then the state board is powerless to oversee the acts of the district board. “We also think the evidence shows that there is a public necessity for the new supply. “The diversion is not an interference with the riparian rights of Jersey City. That city has no riparian rights in the flow of water for merchandising purposes. The writ will be dismissed, with costs.”