[172 NJSuper Page 494] Plaintiffs' residence, purchased in 1968 and situate in Pemberton Township, Burlington County, New Jersey, was supplied with water for domestic use by a well extending into the Wenona-Mt. Laurel aquifer. In 1972 defendant township constructed a water plant and two wells, drawing from the same aquifer, to provide water for public consumption. Required approvals were obtained from state agencies. Bonds were issued in the amount of $1,370,000 to finance the project. It was estimated that the new plant would extract 18,800,000 gallons of water a month. It is the plaintiffs' contention, taken as true for
present purposes, that the operation of the new plant lowered the water table reached by their well to the point where they were deprived completely of any water supply. As a result they were obliged to vacate the house and to rent other quarters. The dwelling has been vacant ever since and, despite efforts by plaintiffs, has been vandalized and substantially damaged. Plaintiffs' water supply could have been restored by deepening their well at a cost of $750 to $1,700 (depending on whether a "packer" could be removed without damage). They had no funds for that purpose and were unable to borrow; consequently, the work was never performed. They claim damages from the township, the individual members of its governing body, its municipal utilities authority, the members of that authority, and its engineer. (Suit against defendant Layne-New York was previously dismissed.)
The basic issue in this controversy concerns the respective rights of the parties in the subterranean waters used by both of them. The law concerning such rights, at least in a contest between overlying owners and a merchandiser of water, as here, was last established by Meeker v. East Orange , 77 N.J.L. 623 (E. & A.1909). Significant changes in scientific knowledge, demand for water and legislation have occurred in the 70 years since Meeker was decided. Hanks, "The Law of Water in New Jersey: Ground Water," 24 Rutg.L.Rev. 621, 649 (1970); Restatement, Torts 2d, c. 41 at 255 (1979). Nevertheless, no court has had an opportunity to interpret Meeker in the light of those events, until now.
Plaintiffs' claims for damages are based upon two theories: (1) the township's interference with their water supply was a "taking" of their property without due process, contrary to U.S.Const. , Amend. V and N.J.Const. , Art. 1, par. 20, permitting recovery in a direct constitutional action, and under the Federal Civil Rights Act, 42 U.S.C.A. § 1983, and (2) the actions of defendants were negligent in their construction of the new water plant and in their breach of a duty to correct plaintiffs'
water problem once it became known. Consequential and punitive damages are sought. The complexity of these issues invited a pretrial conference at which defendant was ordered to move for summary judgment. That motion was made, considered and denied. As trial approached, additional information was received. The court reopened the summary judgment proceedings, required and received additional briefs, heard further oral argument and, in this opinion, readdresses the issues which are subject to resolution by summary judgment pursuant to R. 4:46. The facts were stipulated for the purpose of the motion.
I. Water Rights; the Background
The issues here concern ground water as opposed to diffused surface water and surface stream water. Ground water consists of underground streams and percolating waters. It is the presumption in New Jersey, as in most states, that underground water is percolating water and not a stream. Ocean Grove Camp Meeting Ass'n v. Asbury Park , 40 N.J.E. 447 (1885); Hanks, supra at 626. No party here argues for the existence of an underground stream; all refer to an aquifer as the source of supply of plaintiffs' and the township's wells. In this opinion, all references to ground water are intended to mean percolating water.
Changes in our understanding of the nature of water and its movements through the earth are illustrated by the following quotations, 113 years apart, noted in Hanks, supra:
Water, whether moving or motionless in the earth, is not, in the eye of the law, distinct from the earth. The laws of its existence and progress, while there, are not uniform, and cannot be known or regulated. It rises to great heights, and moves collaterally, by influences beyond our apprehension. These influences are so secret, changeable and uncontrollable, we cannot subject them to the regulations of law, nor build upon them a system of rules, as has been done with streams upon the surface. Roath v. Driscoll , 20 Conn. 532, 540 (1850).
Water gets into the ground wherever and whenever it is available in excess of the field capacity of the soil and can move downward by gravity through the
zone of aeration to the water table, or wherever and whenever water in a surface body has a higher head than the adjacent ground water; [it] moves through the rocks around, over, under and through obstacles formed by zones of lower permeability; it approaches the land surface or a body of surface water where the head is lower; and it is discharged by seepage or spring flow into streams, lakes or the ocean or is dissipated by water-loving plants or by evaporation from the soil. As a phase of the hydrologic cycle the ground water reservoir serves as nature's great delaying and storage medium for water. In it water is relatively safe from evaporation and contamination. It furnishes large supplies of water and can furnish more. And, of great importance to the comprehensive multiple-purpose developments of the future, its storage and water-transmitting properties in many places offer a means for integrated management of ground and surface water. That is, floodwaters can be stored underground while they are available, and water supplies can be sustained by natural or artificially assisted ground water discharge in dry weather. The Role of Ground Water in the National Water Situation, U.S. Geological Survey, Water Supply Paper 1800 (1963), reprinted in part in Sax, Water Law: Cases and Commentary , 243-44 (1965); see also, Rest., Torts 2d, Ch. 41, at 254. [at 624-625]
We are dealing here with the use of an aquifer, defined as follows:
The term 'aquifer' describes a body of rock (as used in this report, 'rock' includes unconsolidated material such as sand, gravel, clay and soil) that is filled with water and is permeable enough to carry or yield water in useful quantities. The term 'ground water reservoir' may be used interchangeably with 'aquifer'. Or, the term 'ground water reservoir' may be broadened to include all the rocks beneath a given area from the top of the zone of saturation to its bottom at an indefinite but great depth where openings in the rocks cease to exist. According to the latter usage, all the rocks in the zone of saturation are a part of 'the ground water reservoir' -- aquifers and confining beds (aquicludes), and both fresh and salty water. ["The Role of Ground Water in the National Water Situation," as reprinted in Sax, supra , at 242, n. 7, quoted in Hanks, supra at 629]
New Jersey's water situation is as follows:
New Jersey, like many Eastern states, has an abundance of water resources, which if properly protected and developed should be sufficient to supply all
foreseeable needs. The source of its good fortune is an average annual precipitation of 45.5 inches. Approximately half of this precipitation goes to evaporation and transpiration (use by plant life), with evaporation losses being relatively minor except for large lakes and reservoirs. The balance infiltrates into the ground or becomes surface runoff, forming streams and ultimately reaching the sea. These two -- ground water and surface runoff -- are the basic sources of water supply. [Footnote omitted.]
The distribution of precipitation between infiltration and surface runoff varies greatly in New Jersey due primarily to its complex geological structure and secondarily to pronounced differences in urbanization within the state, with urbanization tending to increase the proportion going to surface runoff. The state is divided into five ground water provinces: the Appalachian Valley, the Highlands, the Piedmont Plain, the Inner Coastal Plain and the Outer Coastal Plain.
The Appalachian Valley Province's geology is such that there is a great range in the dependable yield of ground water. Wells in those areas underlaid by limestone may yield over 50 gallons per minute but those areas underlaid by slate often yield less than 20 gallons per minute.
The Highland Province is underlaid for the most part by limestone. It provides wells with a dependable ground water yield of 20 to 50 gallons per minute. Neither the Appalachian nor Highlands provinces produce a ground water supply which could support industrial or heavy residential development.
The Piedmont Plain offers greater potentiality for ground water supplies than either the Appalachian Valley or Highlands provinces. It is underlaid for the most part by sandstone, shale, and traprock. Most of the wells in this province will yield from 100 to 150 gallons per minute. Also, local occurances [sic] of material from glacial origin yield fairly large quantities of water for municipal supplies in this Province. These materials fill ancient river valleys generally adjacent to or under present rivers. In the Piedmont Plain Province, which includes the heavily populated northeast, the local ground water sources are substantially developed . . .
The Inner Coastal Plain is underlaid by unconsolidated sands, clays and greensand marls. Wells in this Province yield approximately 200 gallons per minute but some yield as high as 500 gallons per minute. This Province is highly developed for industrial and residential uses in many portions and extensive future development is expected.
The last Province, the Outer Coastal Plain, contains the greatest ground water potential. It is underlaid by unconsolidated sands, clays and gravels. Wells are able to yield 500 gallons of water per minute. Most of southern New Jersey's
population and industry depend upon ground water from the Inner and Outer Coastal Plain Provinces and these sources are able to provide much more than this half of the state is able to use. The Outer Coastal Plain Province contains one of the most abundant ground water sources in the world. Because its estimated potential supply is at least one billion gallons per day, it could supply water to ease the northeastern [New Jersey] problem, if the necessity arose.
The highly urbanized Northeastern section of New Jersey unfortunately does not coincide with the vast ground water basins in the Inner and Outer Coastal Plains. As a result North Jersey depends primarily on surface water supplies while South Jersey relies primarily on the ground water supplies. Of the 696.6 million gallons per day (mgd) used by the state's population from public supplies in 1961, 455.1 mgd were from surface sources and only 241.5 mgd were from ground water sources. Nonetheless, ground water is likely to become as important as surface supplies in the years ahead. For some time the increase in ground water usage has been exceeding the increase in surface source usage on a percentage basis and has been about equal to it on an absolute basis. Increased urbanization in Central and South Jersey will draw heavily on ground water supplies; and further urbanization in North Jersey may require that it look to the ground water riches of South Jersey to supplement its surface supply. [Footnote omitted; N.J. Dept. of Conservation & Economic Development, "New Jersey's Water Resources" (undated but apparently 1964), at 32 33; quoted in Hanks, supra at 622]
II. The Law to Date -- In General
Different doctrines governing the use of ground water have been established at different times and in different places. They must be described in order to provide a proper perspective and to determine the extent of their application in the present case.
The common law rule, established in England in 1843 by the Court of Exchequer in Action v. Blundell , 12 M. & W. 324, 152 Eng.Rep. 1223 (1843), as set forth in Meeker v. East Orange, supra , was as follows:
A landowner has no such right or interest in a subterranean water course as to enable him to maintain an action against a landowner who, in carrying on
mining operations upon his own land in the usual manner, drains away the water from the land of the first-mentioned owner and lays his well dry. This decision may well have been based upon the doctrine of reasonable use; but it was rested upon the absolute ownership, on the part of the mine owner of all that lay beneath the surface of his land. [77 N.J.L. at 629]
See discussions, Powell, Real Property , § 725 at 417 (1979); 56 Am.Jur., Waters , § 114; Hanks, supra at 631.
It was this rule of absolute ownership that prompted the Connecticut court in Roath v. Driscoll, supra (20 Conn. 532), to say that "water whether moving or motionless in the earth, is not, in the eye of the law, distinct from the earth." Under this concept an overlying owner may extract as much of the subjacent water as he wishes, for any purpose he wishes, notwithstanding the effect on other owners who thus may be deprived entirely of their expected supply of percolating waters. The present case illustrates the difficulties of this harsh rule. If it were applied here, plaintiffs would have the absolute right to withdraw all of the water passing through or lying within their land, regardless of depth, while, at the same time, the Township of Pemberton would have an equivalent absolute right to withdraw all of the waters below the surface of its lands notwithstanding its effect upon plaintiffs. In the final analysis, the overlying owner with the biggest pump and deepest well would control the water otherwise available to both. Further, neither owner could ever be sure that the supply of water would remain available; any other landowner, having access to the same aquifer, could install a still bigger pump and use the entire supply of available water.
American courts, recognizing the problems inherent in the common law, devised modifications and substitutions. The two rules of principal concern here are known as the American Rule and the Rule of Correlative Rights. Meeker involves both.
The Court of Errors and Appeals, in Meeker , announced its adoption of the doctrine of "reasonable user." It defined that doctrine only by indirection, saying:
This does not prevent the proper user by any landowner of the percolating waters subjacent to his soil and 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 result therefrom that the owner of adjacent or neighboring land is interfered with in his right to the reasonable user of subsurface 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. [77 N.J.L. at 638]
This rule has been called the American Rule of reasonable user. It is set forth succinctly in Annotation, 29 A.L.R.2d , "Subterranean Waters," at 1362, in this language:
In order to confer immunity from liability for the obstruction or diversion, the causative activity or conduct must be a reasonable exercise of a proprietary right.
See discussion, Powell, supra at 422; 56 Am.Jur., Waters , § 114; Hanks, supra at 633.
Under the American Rule it seems clear that malicious or wasteful use is not reasonable, while the extraction of ground water for use in connection with the enjoyment of one's own property is reasonable notwithstanding injury to a neighboring landowner. 6 Powell, Real Property , at 422. However, when the overlying owner uses the water for some purpose that takes it beyond the boundaries of his property, such use, under the American Rule, is unreasonable. Such transporting or merchandising was prohibited in Meeker , and that has been the standard interpretation of the American Rule. Hanks, supra at 636; 6
Powell, supra at 422. Note that there is no objection to the transportation or merchandising of water, however, when there has been no injury to the neighboring owner. Seemingly, this would be a reasonable use.
While Meeker is cited frequently as adopting the American Rule in New Jersey, that conclusion is not necessarily correct. The opinion may well support a theory of correlative rights.
C. The Correlative Rights Rule
Difficulties have arisen in connection with the law of water rights by reason of the common law concept that water and land are essentially one and that proprietary rights in land and water should be the same. This approach ignores an important reality. Ground water does not stand still. It flows or trickles or runs or oozes through the land from one place to another. Its sources are many: rain, surface streams, surface runoff and percolation, to name some. Consequently, a gallon of water extracted from a particular acre of land at one moment probably could not have been so extracted at any other moment. Thus, ownership of subterranean water is transient; water cannot be occupied, seized or used in the same manner as land. For these reasons, it is reasonable and practical to apply rules to the use of water which are different from rules applied to the use of real property.
This difference is recognized by the Correlative Rights Rule under which it is held that there is no proprietary interest in ground water -- only a usufructuary interest. As a consequence of this approach, the rule requires a sharing of water, the proportions to be determined by considering both the use of water and the rights of all landowners. As in the case of the American Rule, the test is reasonable use, but in a broader context with a different objective. If offers protection to all users, while giving a priority to all overlying users when they are competing with transporters. In times of water shortage,
overlying owners must share the water, and all transporters extracting water from the same source must also share among themselves. However, an overlying owner is not required to share water with a transporter in times of shortage, at least when the overlyer is first in time of use, which is the instant case. In the final analysis, this rule requires "that water be put to reasonable beneficial use. What is a reasonable beneficial use is determined in light of all the circumstances, absent statutory definition, and contains a large dose of reasonableness criteria." Hanks, supra at 644, n. 96; Restatement, Torts 2d, c. 41 at 257; 56 Am.Jur., Waters , § 114.
The American Rule and the Correlative Rights Rule have been used interchangeably. 56 Am.Jur., Waters, supra; Hanks, supra at 631; 29 A.L.R. 2d, supra at 1361 and 1364-1365 (where Meeker is cited for both rules). As noted above, however, the rules are not the same. Their differences are explored with some care in Hanks, supra at 639. Meeker adopted the doctrine of "reasonable user," at 638, and is thereby said to have adopted the American Rule. However, the Correlative Rights Rule also demands reasonable use so that Meeker used language applicable to both rules. The appellant in Meeker argued that
The Meeker court referred to the "well-considered" case of Bassett v. Salisbury , 43 N.H. 569 (Sup.Ct.1862), which ...