New Jersey v. New York, 283 U.S. 336 (1931)

283 U.S.
336
51 S.Ct. 478
75 L.Ed. 1104
STATE OF NEW JERSEY

v.
STATE OF NEW YORK et al. (COMMONWEALTH OF
PENNSYLVANIA, Intervener).
No. 16.
Argued on Exceptions to Report of the Special Master April 13-15, 1931.

Decided May 4, 1931.
[Syllabus from pages 336-338 intentionally omitted]
Messrs. Duane E. Minard, of Newark, N. J., James M. Beck, of
Washington, D. C., and William A. Stevens, of Red Bank, N. J., for
complainant.
Mr. Thomas Penney, Jr., o Buf falo, N. Y., for defendant State of New
york.
[Argument of Counsel from pages 339-340 intentionally omitted]
Mr. Arthur J. W. Hilly, of New York City, for defendant City of New
york.
Mr. George G. Chandler, of Philadelphia, Pa., for intervener State of
Pennsylvania.
[Argument of Counsel from page 340 intentionally omitted]
Mr. Justice HOLMES delivered the opinion of the Court.
This is a bill in equity by which the State of New Jersey seeks to enjoin the
State of New York and the City of New York from diverting any waters from
the Delaware River or its tributaries, and particularly from the Neversink River,
Willowemoc River, Beaver Kill, East Branch of the Delaware River and Little
Delaware River, or from any part of any one of them. The other rivers named
are among the headwaters of the Delaware and flow into it where it forms a
boundary between New York and Pennsylvania. The Delaware continues its
course as such boundary to Tristate Rock, near Port Jervis in New York, at
which point Pennsylvania and New York are met by New Jersey. From there
the river marks the boundary between Pennsylvania and New Jersey until
Pennsylvania stops at the Delaware state line, and from then on the river
divides Delaware from New Jersey until it reaches the Atlantic between Cape
Henlopen and Cape May.
2
New York proposes to divert a large amount of water from the above-named
tributaries of the Delaware and from the watershed of that river to the
watershed of the Hudson River in order to increase the water supply of the City
of New York. New Jersey insists on a strict application of the rules of the
common law governing private riparian proprietors subject to the same
sovereign power. Pennsylvania intervenes to protect its interests as against
anything that might be done to prejudice its future needs.
We are met at the outset by the question what rule is to be applied. It is

established that a more liberal answer may be given than in a controversy
between neighbors members of a single State. Connecticut v. Massachusetts,
282 U. S. 660, 51 S. Ct. 286, 75 L. Ed. 602, February 24, 1931 (see, also, Id.,
283 U. S. 789, 51 S. Ct. 356, 75 L. Ed. ). Different considerations come in
when we are dealing with independent sovereigns having to regard the welfare
of the whole population and when the alternative to settlement is war. In a less
degree, perhaps, the same is rule of the quasi-sovereignties bound together in
the Union. A river is more than an amenity, it is a treasure. It offers a necessity
of life that must be rationed among those who have power over it. New York
has the physical power to cut off all the water within its jurisdiction. But clearly
the exercise of such a power to the destruction of the interest of lower States
could not be tolerated. And on the other hand equally little could New Jersey be
permitted to require New York to give up its power altogether in order that the
river might come down to it undiminished. Both States have real and substantial
interests in the River that must be reconciled as best they may. The different
traditions and practices in different parts of the country may lead to varying
results but the effort always is to secure an equitable apportionment without
quibbling over formulas. See Missouri v. Illinois, 200 U. S. 496, 520, 26 S. Ct.
268, 50 L. Ed. 572; Kansas v. Colorado, 206 U. S. 46, 98, 117, 27 S. Ct. 655,
51 L. Ed. 956; Georgia v. Tennessee Copper Co., 206 U. S. 230, 237, 27 S. Ct.
618, 51 L. Ed. 1038, 11 Ann. Cas. 488; Wyoming v. Colorado, 259 U. S. 419,
465, 470, 42 S. Ct. 552, 66 L. Ed. 999; Connecticut v. Massachusetts, February
24, 1931.
This case was referred to a Master and a great mass of evidence was taken. In a
most competent and excellent report the Master adopted the principle of
equitable division which clearly results from the decisions of the last quarter of
a century. Where that principle is established there is not much left to discuss.
The removal of water to a different watershed obviously must be allowed at
times unless States are to be deprived of the most beneficial use on formal
grounds. In fact it has been alowe d repeatedly and has been practiced by the
States concerned. Missouri v. Illinois, 200 U. S. 496, 526, 26 S. Ct. 268, 50 L.
Ed. 572; Wyoming v. Colorado, 259 U. S. 419, 466, 42 S. Ct. 552, 66 L. Ed.
999; Connecticut v. Massachusetts, February 24, 1931.
New Jersey alleges that the proposed diversion will transgress its rights in
many respects. That it will interfere with the navigability of the Delaware
without the authority of Congress or the Secretary of War. That it will deprive
the State and its citizens who are riparian owners of the undiminished flow of
the stream to which they are entitled by the common law as adopted by both
States. That it will injuriously affect water power and the ability to develop it.
That it will injuriously affect the sanitary conditions of the River. That it will
do the same to the industrial use of it. That it will increase the salinity of the
lower part of the River and of Delaware Bay to the injury of the oyster industry
there. That it will injure the shad fisheries. That it will do the same to the
municipal water supply of the New Jersey towns and cities on the River. That
by lowering the level of the water it will injure the cultivation of adjoining
lands; and finally, that it will injuriously affect the River for recreational
purposes. The bill also complains of the change of watershed, already disposed
of; denies the necessity of the diversion; charges extravagant use of present
supplies, and alleges that the plan will violate the Federal Water Power Act, 16
USCA 791-823 (but see U. S. Code, tit. 16, 821 (16 USCA 821)),
interfere with interstate commence, prefer the ports of New York to those of
New Jersey and will take the property of New Jersey and its citizens without
due process of law.
The Master finds that the above-named tributaries of the Delaware are not
navigable waters of the United States at and above the places where the City of
New York proposes to erect dams. Assuming that relief by injunction still
might be proper if a substantial diminution within the limits of navigability was
threatened, United States v. Rio Grande Dam & Irrigation Co., 174 U. S. 690,
709, 19 S. Ct. 770, 43 L. Ed. 1136, he called as a witness General George B.
Pillsbury, Assistant Chief of Engineers of the United States Army, who was
well acquainted with the River and the plan, and who although not speaking
officially for the War Department, satisfied the Master's mind that the
navigable capacity of the River would not be impaired. Of course in that
particular as in some others New York takes the risk of the future. If the War
Department should in future change its present disinclination to interfere, New
York would have to yield to its decision, and the possible experiences of the
future may make modifications of the plan as it now stands necessary in
unforeseen particulars. This will be provided for in the decree. Subject to these
considerations and to what remains to be said the New York plan as qualified
here is reasonably necessary. Some plan must be formed and soon acted upon,
and taking into account the superior quality of the water and the other
advantages of the proposed site over others, it at least is not arbitary or beyond
the freedom of choice that must be left to New York.
7
With regard to water power the Master concludes that any future plan of New
Jersey for constructing dams would need the consent of Congress and of the
States of New York and Pennsylvania and though possible as a matter of
engineering probably would not pay. He adds that there is no such showing of a
present interest as to entitle New Jersey to relief. New York v. Illinois, 274 U.
S. 488, 490, 47 S. Ct. 661, 71 L. Ed. 1164; New Jersey v. Sargent, 269 U. S.
328, 46 S. Ct. 122, 70 L. Ed. 289. We have spoken at the outset of the more
general qualifications of New Jersey's rights as against another State. The
Master finds that the taking of 600 millions of gallons daily from the tributaries
will not materially affect the River or its sanitary condition, or as a source of
mnici pal water supply, or for industrial uses, or for agriculture, or for the
fisheries for shad. The effect or the use for recreation and upon its reputation in
that regard will be somewhat more serious as will be the effect of increased
salinity of the River upon the oyster fisheries. The total is found to be greater
than New Jersey ought to bear, but the damage can be removed by reducing the
draft of New York to 440 million gallons daily; constructing an efficient plant
for the treatment of sewage entering the Delaware or Neversink (the main
source of present pollution) thereby reducing the organic impurities 85%, and
treating the effluent with a germicide so as to reduce the Bacillus Coli
originally present in the sewage by 90%; and finally, subject to the
qualifications in the decree, when the stage of the Delaware falls below 50 c. s.
m. at Port Jervis, New York, or Trenton, Mew Jersey, by releasing water from
the impounding reservoirs of New York, sufficient to restore the flow at those
points to .50 c. s. m. We are of opinion that the Master's report should be
confirmed and that a decree should be entered to the following effect, subject to
such modifications as may be ordered by the Court hereafter.
1. The injunction prayed for by new Jersey so far as it would restrain the State
of New York or City of New York from diverting from the Delaware River or
its tributaries to the New York City water supply the equivalent of 440 million
gallons of water daily is denied, but is granted to restrain the said State and
City from diverting water in excess of that amount. The denial of the injunction
as above is subject to the following conditions.
9
(a) Before any diversion shall be made an efficient plant for the treatment of
sewage at Port Jervis, New York, shall be constructed and the sewage of Port
Jervis entering the Delaware or Neversink Rivers shall be treated to such an
extent as to effect a reduction of 85% in the organic impurities. And the effluent
from such plant shall be treated with a chemical germicide, or otherwise, so that
the B. coli originally present in the sewage shall be reduced by 90%.
10
Untreated industrial wasts from plants in said town of Port Jervis shall not be
allowed to enter the Delaware or Neversink Rivers, and the treatment of such
industrial wastes shall be such as to render the effluent practically free from
suspended matter and non-putrescent; and said treatment of sewage and
industrial waste shall be maintained so long as any diversion is made from the
Delaware River or its tributaries.
11
(b) At any time the stage of the Delaware River falls below .50 c. s. m. at Port
Jervis, New York, or Trenton, New Jersey, or both (.50 c. s. m. being equivalent
to a flow of 1535 c. f. s. at Port Jervis and 3400 c. f. s. at Trenton), water shall
be released from one or more of the impounding reservoirs of New York City in
sufficient volume to restore the flow at Port Jervis and Trenton to .50 c. s. m.,
provided, however, that there is not required to be released at any time water in
excess of 30% of the diversion area yield, and the diversion area yield having
been ascertained to be 2.2 c. s. m., the maximum release required shall be 30%
of that amount, or .66 cubic feet per second per square mile of the areas from
which water is diverted.
12
In determining the quantity of water to be released so as to add to the flow of

the Delaware River, the Neversink River shall be treated as if it flowed into the
Delaware River above Port Jervis, and the number of second feet of water
released from the impounding reservoir on the Neversink River shall be added
to the number of second feet of water released from other reservoirs, so as to
determine whether the quantity of water, required by this decree to be released,
has been released.
13
(c) That the State of New Jersey and the Commonwealth of Pennsylvania,
through accredited representatives, shall at all reasonable times have the right
to inspect the dams, reservoirs and other works constructed by the City of New
York nd t o inspect the diversion areas and the inflow, outflow and diverted
flow of said areas, and to inspect the meters and other apparatus installed by the
City of New York and to inspect all records pertaining to inflow, outflow and
diverted flow.
14
2. The diversion herein allowed shall not constitute a prior appropriation and
shall not give the State of New York and City of New York and superiority of
right over the State of New Jersey and Commonwealth of Pennsylvania in the
enjoyment and use of the Delaware River and its tributaries.
15
3. The prayer of the intervenor, Commonwealth of Pennsylvania, for the

present allocation to it of the equivalent of 750 million gallons of water daily
from the Delaware River or its Pennsylvania tributaries is denied without
prejudice.
16
4. The prayer of the Commonwealth of Pennsylvania for the appointment of a

river master is denied without prejudice.
17
5. This decree is without prejudice to the United States and particularly is

subject to the paramount authority of Congress in respect to navigation and
navigable waters of the United States and subject to the powers of the Secretary
of War and Chief of Engineers of the United States Army in respect to
navigation and navigable waters of the United States.
18
6. Any of the parties hereto, complainant, defendants or intervenor, may apply

at the foot of this decree for other or further action or relief and this Court
retains jurisdiction of the suit for the purpose of any order or direction or
modification of this decree, or any supplemental decree that it may deem at any
time to be proper in relation to the subject matter in controversy.
19
7. The costs of the cause shall be divided and shall be paid by the parties in the
following proportions: State of New Jersey 35 per cent, City of New York 35
per cent, State of New York 15 per cent, Commonwealth of Pennsylvania 15
per cent.
20
The CHIEF JUSTICE and Mr. Justice ROBERTS took no part in the
consideration or decision of this case.

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283 U.S.

STATE OF NEW JERSEY

Argued on Exceptions to Report of the Special Master April 13-15, 1931.

We are met at the outset by the question what rule is to be applied. It is

In determining the quantity of water to be released so as to add to the flow of

3. The prayer of the intervenor, Commonwealth of Pennsylvania, for the

4. The prayer of the Commonwealth of Pennsylvania for the appointment of a

5. This decree is without prejudice to the United States and particularly is

6. Any of the parties hereto, complainant, defendants or intervenor, may apply

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