This is an action to enjoin defendant Borough of Essex Fells (herein referred to as the "borough") from conducting a 72-hour pumping test of a water well that it has drilled on lands of the Essex County Park Commission in the Borough of West Caldwell. Plaintiffs own property in the vicinity of the well and obtain their water supply from their own private wells. By stipulation the action as against the Essex County Park Commission was dismissed with prejudice and without costs. Initially, the matter came before the court on plaintiffs' motion for interlocutory injunction and defendant's motion for summary judgment. The parties stipulated that final judgment be entered upon the conclusion of oral argument.
The borough owns and operates a water supply system which furnishes water to the borough and five neighboring Essex County municipalities, one of which is the Borough of West Caldwell. Since 1954 Essex Fells has recognized the need for additional water sources, due to the demands being placed on the system by the rapid building and population expansion in the municipalities served, particularly in the Borough of West Caldwell. Initially defendant attempted to find new water sources near its transmission mains, but the test wells which it drilled failed to develop enough water to justify the expense of permanent pumping and accessory equipment.
Pursuant to the request of the Borough of Essex Fells, the Essex County Park Commission on June 2, 1960 granted permission to drill a test well on its land in West Caldwell. Drilling started June 28, 1960. On July 19, 1960 a pump was installed and tested for about two hours. On July 21 an attempt was made to start a 72-hour test, when one of the plaintiffs notified the borough that no water could be obtained from her well. Affidavits from the other plaintiffs are to the effect that the pumping also diminished their water supplies. It was then decided that the pump should be removed and pumping tests deferred until arrangements could be made with the local well owners and well users to
furnish them with a temporary water supply from the public main during the test period. A letter sent to property owners and tenants using wells in the area which could be affected by the test offered a free water supply during the test, to be furnished by a temporary connection with the defendant's water mains. It explained the need for a new source of water, the need for a pumping test, and stressed that the present well was only for test purposes. It pointed out that if a permanent well were to be drilled, "arrangements will be made to take care of the water needs of those affected." The application for a temporary water supply was stated to be without prejudice to any legal rights. The letter further said that the pumping test would be renewed on or about November 7, 1960. Plaintiffs rejected defendant's offer and brought this action.
The affidavit of defendant's engineer asserts:
"It is standard practice to determine the quantity of water that may be anticipated from a new well by means of not less than 72 hours of continuous pumping of a test well. Data relative to such a test together with data to support the need for additional water must be submitted to the Water Policy and Supply Council as part of an application for additional diversion rights."
The Council's approval is a prerequisite to the acquisition of such rights. Monmouth Consolidated Water Co. v. Baris , 66 N.J. Super. 9 (Law Div. 1961); R.S. 58:1-17; N.J.S.A. 13:1A-9; 13:1B-50.
The plaintiffs urge that in New Jersey the principle governing adjoining landowners' rights in percolating waters is the doctrine of "reasonable use," the so-called "American rule." The rule is referred to in Meeker v. City of East Orange , 77 N.J.L. 623, 638-639 (E. & A. 1909), as follows:
"* * * 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 sub-surface 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."
Plaintiffs urge that the borough has as its ultimate purpose the transportation of water away from the land for sale to other municipalities, and since it is not even the owner of the land on which the well is located, its proposed use is unreasonable since it will deplete the water supply available to plaintiffs through their wells.
Plaintiffs take the position that the defendant borough could not use the waters which it now seeks to discover by way of testing; that it has no statutory authority to acquire sources of water supply beyond its territorial limits, for the purpose of supplying water to other municipalities; that since the end result is unlawful, this court should not countenance any proposed testing in furtherance of such unlawful use and to their irreparable injury. Hence plaintiffs need not await the outcome of the proposed tests and are entitled to injunctive relief.
We are not here concerned with the rights of a private land owner to divert water from the land. Authorities that have been cited which preclude such diversion are inapplicable. The pertinent statutes, which empower a municipality to acquire lands and water rights as sources of water supply for the municipality and other municipalities serviced by it, are as follows:
R.S. 40:62-49 in part provides:
"Any municipality may provide and supply water, or an additional supply of water, for the public and private uses of such municipality and its inhabitants, in ...