The plaintiffs herein have filed a complaint under which they demand relief by way of injunction as against the defendants. The complaint sets forth the following alleged facts.
The defendant Whitney Home Builders, Inc., a corporation engaged in the erection of dwelling houses in the Township of Deptford, Camden County, New Jersey, adjacent to the boundary line between said township and the Borough of Westville, proposes to erect a sewerage disposal plant in the former township and adjacent to said dividing line. Said disposal plant will be erected and operated through a corporation known as Woodbury Terrace Sewerage Corporation. The effluent from the said disposal plant will be discharged into an open ditch for the drainage of surface waters, which extends in a northeasterly direction from the said boundary line through the Borough of Westville to the waters of Big Timber Creek. The ditch flows through a
public park located in the Borough of Westville, where it widens into a pond. Bordering and bounding this public park is a tract of land owned by the Board of Education of the Borough of Westville, which has a school erected upon it. During long periods of time in each year the ditch is dry. The plaintiffs anticipate that the release of the effluent into the ditch and the pond will cause a public nuisance and create a situation detrimental to health.
In furtherance and in connection with the proposed construction of said sewerage plant the plaintiffs allege that the defendant Township of Deptford adopted an ordinance giving its consent to the construction of said sewerage disposal plant, upon the expressed condition that the defendant Woodbury Terrace Sewerage Corporation would give an irrevocable option to said township to acquire the sewerage disposal plant and system at a price fixed in said ordinance.
Pursuant to the proposed construction, application was made to the Department of Health of the State of New Jersey for a permit or license. Under date of September 8, 1954 the Department of Health of the State of New Jersey forwarded a letter to the applicant, a copy of which follows:
"September 8, 1954. Mr. Lewis S. Kapnek, 122 South 40th Street, Philadelphia 4, Pennsylvania. Dear Mr. Kapnek: Re: New sewage treatment plant and pumping station, Woodbury Terrace Sewerage Corp., Deptford Township, New Jersey. Please be advised that the engineers of this Department have examined the plans and allied data relative to the above proposal submitted by your consulting engineer, Mr. A. J. Lanning, under application dated June 14, 1954. The examination indicates that the project as designed complies with the Rules and Regulations of this Department on such design. Formal permits for construction and operation will be issued upon receipt of certification by the New Jersey Board of Public Utility Commissioners. Very truly yours, Robert S. Shaw, Chief, Bureau of Public Health Engineering. 6E2:G4, cc Mr. A. J. Lanning, Southern State Health District."
The plaintiffs seek relief upon two grounds: (1) the common law concept that the lower riparian proprietor has a right against his upper riparian proprietor that the waters which flow through the lands of the former shall not be unreasonably
contaminated or polluted by the upper riparian proprietor, and (2) that the projected or threatened acts of the defendants will cause a condition dangerous to the health of the inhabitants of the Borough of Westville. As to this latter cause of action, the Borough of Westville asserts no rights, but the Local Board of Health of the Borough of Westville, hereafter referred to as the local board of health, sues to enjoin such a nuisance in the name of the State of New Jersey.
The defendants move for a summary judgment upon the grounds that (1) the action of the Borough of Westville is premature, (2) the suit is ultra vires insofar as the local board of health is concerned, and (3) the complaint fails to state a cause of action against the Township of Deptford.
At the time of the argument the defendants admitted that the Borough of Westville had a right to maintain this action as a lower riparian proprietor against the defendants, the upper riparian proprietors. This cause of action contemplates the commission of a private nuisance. The admission was apparently based upon the theory that the Legislature cannot authorize or ...