On appeal from a judgment of the Supreme Court, whose opinion is printed in 14 N.J. Mis. R. 10.
For the appellant, James A. Hamill (Charles A. Rooney, of counsel).
For the respondent State Water Policy Commission, David T. Wilentz, attorney-general, and Robert Peacock, assistant attorney-general.
For the respondent Oak Ridge Lake Park Realty Company, Incorporated, King & Vogt (Harry V. Osborne and Harold A. Price, of counsel).
The opinion of the court was delivered by
HEHER, J. It is evident that the state water policy commission labored under a misapprehension of the nature and extent of its statutory power in relation to the subject-matter of the proceedings under review.
The question of the scope of the commission's jurisdiction was raised at the outset, and an adjournment was taken to afford the body an opportunity to consult the attorney-general. Upon the resumption of the hearing, the chairman disclosed the attorney-general had advised that the commission's jurisdiction was confined to the imposition of "such conditions, if any, as are necessary to preserve the channel and provide for the flow of water therein to safeguard the public against danger from the water impounded or affected by the structure," and that "the contamination of such water, after impounding, is for departments other than yours." He thereupon announced that the commission, in accordance with the opinion thus rendered, had determined it lacked jurisdiction of "the question of the sanitary condition of water, except as the taking of that water may affect such condition if an unusual or unwarranted draught is permitted upon any stream or source of supply by this commission."
We consider this to be a fundamental misconception of the expressed legislative policy.
The basic purpose of chapter 243 of the laws of 1912 (Pamph. L., p. 437), as amended by chapter 39 of the laws
of 1928 (Pamph. L., p. 95), was to invest the State Water Supply Commission (whose functions were, by operation of law, inherited by the present water policy commission) with jurisdiction over dams and reservoirs deemed essential for the "protection of life and property." There was granted an incidental authority to protect the shore land owners against such impairment of their property rights as would result from the destruction or abandonment of a dam or reservoir in existence for a specified period of time.
But chapter 267 of the laws of 1929 (Pamph. L., p. 631), as amended, creating and defining the powers of the water policy commission, was, as its title clearly indicates, designed to lay down a broad and comprehensive policy for the conservation and protection of the "surface, subsurface and percolating waters of the state," through control and regulation of the "use, development and diversion" of such waters. The commission was enjoined (section 5) to undertake investigations of the water resources of the state to secure the special objects of legislative solicitude, viz: (a) the supply of pure and wholesome water from water-sheds to municipalities and the inhabitants thereof and the disposal of sewage and wastes which may affect the supply; (b) the prevention of floods; (c) drainage and irrigation; (d) the conservation, development and utilization of water power; and (e) the protection of public navigation.
Potability is the outstanding objective of the special provisions of the statute. The commission is invested (section 7) with "general supervision over all sources of potable and public water supplies, including surface, subsurface and percolating waters, to the end that the same may be economically and prudently developed for public use." The use by a municipality or other civil division of the state, or private interests, of new sources of potable water is conditioned upon the approval of the commission; and it is provided (section 8) that the application therefor shall be accompanied "by such proof as to the character and purity of the water supply proposed to ...