On appeal from the Supreme Court, whose opinion is reported in 134 N.J.L. 325.
For the prosecutors-respondents, Peter Bentley (John A. Hartpence, of counsel).
For the respondent-appellant, Benjamin J. Spitz.
The opinion of the court was delivered by
OLIPHANT, CHANCELLOR. On January 20th, 1945, the respondent-prosecutor presented to the late Mr. Justice Porter a petition for the appointment of condemnation commissioners. It prayed that the said commissioners examine the right of the appellant to a perpetual easement in and its right to divert a daily average of 150 million gallons of water, more than the 22.6 million gallons it had the right to take through adverse use from the Passaic River or its tributaries, at any place or places located above the properties described in the petition which it alleged belonged to respondents named therein. The right acquired by adverse use was alleged to have been established in Grobart et al. v. Passaic Valley Water Commission, 134 N.J. Eq. 413; affirmed, 135 Id. 38. The petition prayed that the damages of the respondents resulting from such taking be assessed by the commissioners.
An order was made allowing an amendment to the petition for the diversion of 52.4 million gallons instead of 150 million gallons. The petition as amended was filed by the appellant pursuant to the authority granted by R.S. 40:62-108 and 150 and R.S. 20:1-1 to 33. An order was made by Mr. Justice Porter appointing the commissioners.
The respondents applied to the Supreme Court for a writ of certiorari to review Mr. Justice Porter's order appointing the commissioners and the order permitting the amendment of the petition. The writ was allowed.
The reasons urged were (1) there is no provision in the applicable statutes which authorizes the amendment of such petition, (2) that the appellant here failed to comply with the requirements of R.S. 40:62-108 to 40:62-150, inclusive, R.S. 58:1-17 to 23, inclusive, and (3) it failed to comply
with R.S. 58:6-3, in that it did not procure from the State Water Policy Commission, the right and authority to acquire the easement and rights described in the petition, which authorization or consent was a condition precedent to the filing of the petition for condemnation.
The respondents had the right to apply for certiorari on the grounds stated. It has been held that persons, who are named in a petition for condemnation as claimants of an interest in the land described therein, are parties to the proceeding and have the right to controvert the authority of the petitioner to institute such proceeding and to challenge the petitioner's alleged right to condemn. The legal remedy is certiorari. Central Railroad Co. v. Hudson Terminal Railroad, 46 N.J.L. 289 (at p. 295); Chambers, & c ., v. Carteret and Sewaren Railroad Co., 54 Id. 85 (at p. 90); Cf. Morris and Essex Railroad v. The Hudson Tunnel Railroad Co., 38 Id. 548; Sisters of Charity, & c ., v. Morris Railroad Co., 84 Id. 310.
The proofs taken by deposition show that the appellant had obtained through adverse use a prescriptive right to divert 22.6 million gallons per day against those taking through the Grobart estate. Grobart v. Passaic Valley Water Commission, supra. They show that no consent has been granted by the State Water Policy Commission to the appellants for the sought for additional diversion.
There was testimony in the case by two engineers of the appellant and State Water Policy Commission that in their opinion the appellant derivatively and by contract through its predecessors in title had the right to divert to its use up to 75 million gallons of water per day without the consent of the State Water Policy Commission. ...