Civil action. On motion to strike complaint.
The Monmouth Consolidated Water Company (hereinafter called "the company") on December 1, 1960 filed a complaint reciting that it is a public utility corporation authorized and empowered to condemn land by virtue of R.S. 48:19-15. It seeks the appointment of commissioners to appraise the value and fix the compensation to be paid defendants for lands to be taken by the company in connection with the enlargement of its Swimming River water supply reservoir.
The company has obtained a permit, dated May 9, 1957 from the State Water Policy and Supply Council to divert water from Swimming River.
Defendants move to dismiss the complaint on the ground that the court lacks jurisdiction over the subject matter by reason of the failure of the company to comply with R.S. 58:6-3.
Defendants concede that the company has been invested by sovereign legislative grant with the power of condemnation. See R.S. 48:19-15, which provides:
"Every company organized under this chapter desiring to take, use and occupy any lands or to take or divert any spring or stream of water for the purposes of its incorporation, may acquire by condemnation such lands, rights and privileges in the manner prescribed by chapter 1 of the title Eminent Domain (§ 20:1-1 et seq.). * * *"
Defendants are of the belief that the company's power to condemn is conditioned by R.S. 58:6-3 to the extent of requiring the approval for its exercise by the Water Policy and Supply Council. R.S. 58:6-3 provides as follows:
"Before the right of condemnation conferred by this chapter is exercised, the approval of the state water policy commission or other state agency succeeding to and exercising the jurisdiction and powers of such commission, shall be first secured thereto."
In 1931, there being some concern as to which water companies had rights of condemnation and which did not, the Legislature adopted L. 1931, c. 120, secs. 1 to 5, inclusive, now R.S. 58:6-1 to 5, inclusive.
An examination of R.S. 48:19-5, 6, 7 and 8 indicates that in 1919, 1925, 1933 and 1934 the Legislature established procedures whereby water companies not clearly under the Water Company Act, N.J.S.A. 48:19-1 et seq. , could acquire the rights and powers conferred by that act, including the right of condemnation. See R.S. 48:19-15, supra. R.S. 58:6 is clearly another legislative effort to make the power of condemnation available to those water companies which for some reason or other do not clearly ...