[191 NJSuper Page 468] In 1914 New Brunswick and Milltown entered into a contract that provided, in part, for the free disposal by New Brunswick of Milltown's sewage. In this suit New Brunswick seeks a judgment terminating its duty to perform the contract.*fn1 This is
not the first time New Brunswick has sought relief from its continuing obligations under the 1914 agreement. Its efforts have been uniformly unsuccessful. See New Brunswick v. Milltown, 135 N.J. Eq. 310 (Ch.1944); Milltown v. New Brunswick, 138 N.J. Eq. 552 (Ch.1946), rev'd 140 N.J. Eq. 565 (E. & A.1947); New Brunswick v. Milltown, 3 N.J. Super. 113 (App.Div.1949).
I hold that New Brunswick should now be discharged of the duty to dispose of Milltown's sewage without compensation. I do so because it would be inequitable to require New Brunswick to perform a contract made 69 years ago whose burdens have radically and significantly increased in ways never contemplated by the parties. I do so also because there is no longer any consideration of any consequence flowing from Milltown and because its past consideration is insufficient to require New Brunswick's continued performance. I do so also because the existence of the contract significantly impedes New Brunswick's ability to obtain and participate in necessary financing of regional and local sewage transmission and treatment facilities. This impediment further burdens New Brunswick in significant ways never contemplated by the parties.
A review of the history of this matter is necessary. Much of the below recital is taken from the prior reported opinions. The rest represents facts proven to my satisfaction in the hearing before me. Those facts fill interstices and describe the situation as it has developed since 1949. They do not conflict with the findings of earlier courts.
Background of the Contract
New Brunswick is a city on the south side of the Raritan River. In 1910 its population was 23,388. The Borough of
Milltown is to the southwest, separated from the city by a narrow area of North Brunswick. Its 1910 population was 1584. In those years Milltown drew its water from local wells. It disposed of its sewage by means of individual septic facilities and by discharging into Lawrence Brook, a stream that flowed through Milltown. Water pollution problems came to the attention of the State Board of Health, which issued complaints to Milltown property owners and ordered the borough to take remedial measures. A major problem was that raw sewage was running into Lawrence Brook as it flowed on its way downstream to Weston's Mill Pond, a body of water from which New Brunswick drew its drinking water.
Milltown's solution was to plan to build a system of local sewage collectors and a treatment plant. The plant was designed by Clyde Potts in 1912 to consist of holding facilities to permit the settling of suspended solid matter, the passage of liquids through sand filtration beds, and an ultimate discharge of liquid effluent into Lawrence Brook upstream of Weston's Mill Pond. The plant was modern for its time, but 1912 was a time of innocence in matters of waste water treatment.
In order to build the Potts-designed facility, Milltown had to gain approval of the State Sewer Commission. New Brunswick appeared at the Commission hearings to object to the facility and to express its fear of the effect on the Weston's Mill water source. With the encouragement of the Commission, the two municipalities reached an agreement whose principal purposes were to preserve the potability of Weston's Mill water for New Brunswick and to accommodate Milltown's obligation to dispose of its sewage properly.
The parties' agreement is not a complex one. Milltown agreed that it and its residents would not discharge polluted water into Lawrence Brook; that it would not build the planned sewage treatment plant and that, instead, it would build a
system of local collectors and a 12"-diameter force main through North Brunswick to deliver its sewage to the New Brunswick sewerage system. New Brunswick promised to pay $12,500 toward Milltown's construction costs.*fn2 The agreement also provided:
SECOND: That it will take charge and dispose of all sewage received from the Borough of Milltown through the twelve inch force main to be constructed under the sewer system adopted by said Borough from the time that the same reaches the sewerage system of the City of New Brunswick, . . .
THIRD: That it will dispose of all sewage so received from the Borough of Milltown in the same manner as its own sewage.
The agreement does not say that New Brunswick's disposal of Milltown's sewage would be free of charge. But that is certainly what the parties meant. In 1914 New Brunswick charged no one for sewage disposal. It was 30 years before New Brunswick began charging its local properties for sewage disposal. And, until that time, the city made no effort to charge Milltown.
The science of sewage and waste water disposal was in its infancy in 1914. Most sewage was discharged raw into water courses. Treatment methods were crude and only partially effective. Settlement and mechanical filtering were used. The disinfecting of effluent was known but not widely done. Combined storm and sanitary sewers were common, and, in times of rain and surface water runoff, overtaxed treatment plants became virtually ineffective.
But, the law prohibited pollution and, in a tentative and ineffective way, it was beginning to be enforced. The occasion for Milltown's 1912 plans was the action of the State Board of Health. By 1914 the Board had already sought a Chancery order requiring New Brunswick to cease pollution of the Raritan River. The problem was that New Brunswick discharged its
residential and industrial wastes, raw and untreated, into the river. After 1914 it added Milltown's contribution to its own. Despite state agency efforts through the 1920s and early 1930s, New Brunswick began to treat its sewage only in 1937, after it was enjoined from discharging untreated sewage into the river. The city's new plant provided advanced primary treatment by permitting settlement of solids and then disinfecting the effluent by chlorination before discharge into the river. State enforcement efforts in nearby municipalities were also having their effect, and soon the Raritan River basin was dotted with local, partly effective, primary treatment plants. They were better than nothing.
During these years scientific knowledge of the need for and the means of accomplishing effective sewage treatment was growing. In its wake followed steadily upgraded state standards for treatment and disposal. In 1938 the State Department of Health adopted a policy establishing minimum kinds of treatment for new plants to be built thereafter. In 1941 a new policy statement established, for the first time, minimum standards for effluent quality that applied to both new and existing plants. New Brunswick did not comply with the 1941 standards. Few municipal treatment plants did, but the country was entering World War II and its attention and resources were soon directed elsewhere.
By 1950, when the State Department of Health next upgraded its policy, it set minimum effluent standards for local treatment that were out of the reach of New Brunswick's and every other Raritan Valley treatment plant's capabilities. The State had decided to push for regional collection and treatment.
The Litigious 1940s and The Doctrine of Res Adjudicata
In February 1942 New Brunswick brought suit in Chancery, seeking to have the 1914 agreement set aside. New Brunswick v. Milltown, 135 N.J. Eq. 310 (Ch.1944). It argued that (1) the agreement was ...