For reversal -- Chief Justice Weintraub and Justices Jacobs, Francis, Proctor, Hall, Schettino and Haneman. For affirmance -- None. The opinion of the court was delivered by Haneman, J.
This appeal involves the effort of Hackensack Water Company (Hackensack) to condemn 26 acres of land owned by Robert and Anna Juzek (Juzeks).
Hackensack is a public utility corporation which provides water in Bergen and Hudson Counties. The main source of its supply is the Hackensack River which flows southward into New Jersey from New York. The water requirements of this territory have increased in recent years due to the industrial and population growth of the area. In order to fully develop the potential of the river to adequately serve the area, Hackensack proposes to construct a reservoir, parts of which will lie in the Township of River Vale and the Borough of Old Tappan respectively. The proposed reservoir will have a water surface of 1,225 acres and a capacity of 4 billion gallons. A portion of the land required for this purpose is owned by the Juzeks. The Juzeks' total property of slightly over 32 acres, is rectangular in shape being approximately 500' wide and 2,700' long. The easterly six acres lie in the bed of the reservoir, east of the proposed impounding dam. The Juzeks have no objection to the taking of these six acres. However, Hackensack also seeks to take an additional 20 acres down stream, west of the dam. Said land is allegedly needed to prevent pollution and contamination of the overflow water from the reservoir.
Pursuant to N.J.S. 48:3-17.6 and 48:3-17.7, Hackensack filed a petition with the Board of Public Utility Commissioners (Utility Commission) on January 5, 1965, requesting permission to condemn the aforementioned land. The Juzeks filed an answer contesting the condemnation of the westerly 20 acres. Hearings were held on February 17, March 18 and April 20, 1965. During the course of the hearings the Juzeks moved to dismiss the petition on the ground that the plans for the dam and reservoir had not been approved by the Water
Policy and Supply Council of the Department of Conservation and Economic Development (Water Council). On February 18, 1965, subsequent to the Juzeks' motion, Hackensack applied to the Water Council pursuant to R.S. 58:1-17, et seq., for "approval of plans for construction of a regulating reservoir." The application as filed did not seek the right to exercise the power to condemn any lands.
As required by the Water Council, notice of a hearing on said application was published in a local newspaper and copies mailed to Park Ridge Water Department, Ho-Ho-Kus Water Department, Waldwick Water Department, Ridgewood Water Department, Edward Salsberg, Clerk, Township of River Vale, and Frank B. Recktenwald, Clerk, Borough of Old Tappan. The notice advised that Hackensack had filed an application "for approval of plans for construction of a new reservoir" and that a hearing would be held on a specified date at which persons could be heard "for or against the approval of the application."
Although Juzeks had actual knowledge of the proceedings seeking approval of plans by the Water Council, they did not participate therein. The Water Council conducted hearings on April 19, May 10 and May 20, 1965. On the latter date and for the first time, counsel for Hackensack made a request for permission to condemn. The Water Council rendered its decision giving approval to the construction of the dam and authorizing the condemnation of the Juzek lands. On July 20, 1965 the Utility Commission issued the order initially sought, granting Hackensack permission to exercise the power of condemnation. The Juzeks appealed to the Appellate Division from the Utility Commission order but did not appeal from the Water Council order. On Hackensack's motion, the appeal was dismissed, the Appellate Division stating:
"Granted in view of the fact that Hackensack Water applied for and obtained approval of the Water Policy and Supply Council of the Department of Conservation and Economic Development for the construction of the dam and reservoir in question, and for the condemnation of the necessary lands therefor. The present appeal is therefore academic."
Juzeks' petition for certification to this Court was granted. (R.R. 1:10-2)
The focal question is whether the granting of permission to a public utility water company for condemnation is within the exclusive jurisdiction of the Water Council or whether the Water Council and Utility Commission have concurrent jurisdiction.
Insofar as the Water Council is concerned the applicable statutes provide as follows:
"The commission shall have general supervision over all sources of potable and public water supplies, including surface, sub-surface and percolating waters, to the end that the same may be economically and prudently developed for public use."
R.S. 58:1-17 reads in part:
"* * * no person or corporation supplying or proposing to supply the inhabitants of any municipal corporation or other civil division of the state with water, shall have power to condemn lands, water or water rights for any new or additional source of water supply, whether such source be surface, subsurface, well or percolating water, or to divert water from such new or additional source (other than for new or additional sources of water supply, the maps or plans for which, in conformity with permits for the taking thereof, were heretofore approved by the state water policy commission or the board or body theretofore authorized by law, to grant such approval), until such * * * person or corporation has first submitted a petition to the commission, as hereinafter provided, and until the commission shall have ...