On appeal from the Morris County Circuit Court.
For the appellants, William M. Seufert and Ryland E. Lippincott.
For the respondent, Walter C. Ellis.
The opinion of the court was delivered by
CAMPBELL, J. The respondent, the city of East Orange, obtained from the board of conservation and development, a
consent to condemn lands of the appellants, and, by means of wells to be driven, abstract therefrom subterranean waters, not exceeding two million gallons per day for the purpose of augmenting the water supply of the city. Commissioners in condemnation were appointed and they made their award. The appellants, landowners, being dissatisfied with the amount of such award, appealed to the Circuit Court of Morris county, where such lands are located. On the trial of this appeal the landowners insisted that they were entitled, not only to the value of the land taken, but also to all damages resulting from the taking thereof for the use to which it was proposed to be put, which was the abstraction of two million gallons of subsurface water, and, as such taking of water would damage appellants' lands in reducing the subsurface water to which they were entitled (the appellant Braidburn Country Club, using water so obtained to the amount of sixty thousand gallons per day) they were entitled to an award which would include such damage.
The respondent, city of East Orange, contended that the withdrawing of this water by it was not a matter to be considered in determining the damage done to the remainder of the tract; that there was nothing which established, with any certainty, that the sinking of wells upon the land sought to be taken by it would produce any water; that if water was so produced and obtained it was equally uncertain that such taking of water would result in the abstraction of any water from the remaining lands of the appellants, and that under all the circumstances it would be impossible at this time to measure such damage. Meeker v. East Orange, 77 N.J.L. 623, appears to have been rested upon as authority for these contentions. The learned trial judge adopted this theory as sound and made it the law of the case. It was error so to do. In Meeker v. East Orange, supra, the plaintiffs in the actions were owners of land who claimed damage through the withdrawal, by East Orange, of underground waters from a tract of land owned by that city.
That case settled the principle in this state of "reasonable user" and it was held, "this does not prevent the proper
user by any landowner of the percolating waters subjacent to his soil in agriculture, manufacturing, irrigation or otherwise, nor does it prevent any reasonable development of his land by mining or the like, although the underground water of neighboring proprietors may thus be interfered with or diverted. But it does prevent the withdrawal of underground waters for distribution or sale for uses not connected with any beneficial ownership or enjoyment of the land whence they are taken, if it results therefrom that the owner of adjacent or neighboring land is interfered with in his right to the reasonable user of subsurface water upon his land, or if his wells, springs or streams are thereby materially diminished in flow, or his land is rendered so arid as to be less valuable for agriculture, pasturage or other legitimate uses."
The proceeding before us is one in eminent domain through which the city of East Orange is taking a portion of a tract of land of the appellants.
In Van Schoick v. Delaware and Raritan Canal Co., 20 N.J.L. 249, 254, decided in the Supreme Court in 1843, Mr. Justice Nevius, in considering whether the owner of land, taken by condemnation, was entitled to recover compensation for the damages done to the remaining part of his property by the overflowing of parts of it by the waters of a canal, notwithstanding such canal was constructed with due care and skill, held, that the legislative intent was that "all damages accruing to the owner of lands from any and every physical effect produced by the construction and use of the canal; whether the same were clearly to be seen and easily estimated before the construction of the canal, or whether they were uncertain and doubtful results from such construction," were to be determined and awarded. In that case the Condemnation act directed the commissioners to "make a just and equitable estimate of the value of the same and assessment of damages." The statute under ...