Borough of Westville v. Whitney Home Builders, Inc.

Brief Fact Summary.

Plaintiff filed for an injunction of Defendant’s emptying of effluent in a pond used by Plaintiff’s citizens for recreational purposes. The trial court ruled in favor of Defendant.

Synopsis of Rule of Law.

Riparian owners may use water in any manner as long as it does not unreasonably interfere with the beneficial use of other riparian owners.

Facts.

The borough of Westville (Plaintiff) is a municipality that owns a public park containing a pond. Westville citizens use the pond for recreational purposes. Beginning in December 1954, Woodbury Terrace Tract Corp. (Defendant), a sewerage company, began operating a sewage treatment plant in Deptford, a township just south of Westville. Raw sewage goes through an eight-and-a-half hour treatment process at the plant, after which the resulting effluent is discharged into a stream or ditch, eventually emptying out into the park pond in Westville. According to Defendant’s experts, the effluent is theoretically fit for drinking or swimming. There is no documented increase in water pollution in the pond since operations began at the plant, nor is there any resulting odor. Plaintiff filed suit for an injunction. The trial court denied injunctive relief and ruled in favor of Defendant.

Issue.

Whether riparian owners may use water in any manner as long as it does not unreasonably interfere with the beneficial use of other riparian owners.

Held.

Yes. The trial court’s ruling is affirmed. Riparian owners may use water in any manner as long as it does not unreasonably interfere with the beneficial use of other riparian owners.

Discussion.

Under early English common law, water rights were governed by the concept of “first come, first served.” However, after the industrial revolution, the water rights of different riparian owners increasingly conflicted, requiring the development of a new standard. The “first come, first served” concept still survives today in the form of the prior appropriation doctrine. However, in the majority of jurisdictions, the concept of equal rights governs water rights. There are two theories under the concept of equal rights, known as the natural flow theory and the reasonable use doctrine. Under the natural flow theory, every riparian owner has the right to receive the flow of water on his land in its natural state. Thus, other users may only use the water to the extent that it does not affect another user’s ability to receive the water in its natural flow. In contrast, the reasonable use doctrine does not consider the effects of one’s use on the natural flow or quality of water. It allows all riparian owners to use water in any manner as long as it does not unreasonably interfere with the beneficial use of other riparian owners. Many courts do not realize the distinction between the natural flow theory and the reasonable use doctrine. As a result, many opinions apply both theories leading to inconsistent results. However, cases using language associated with the natural flow theory actually apply the reasonable use doctrine. Accordingly, this court finds that regardless of the language used, courts in this jurisdiction have consistently employed the reasonable use doctrine, and therefore the reasonable use doctrine should govern water rights. This is the approach adopted in the New Jersey Supreme Court case, Armstrong v. Francis Corp., 20 N.J.320 (1956). That court considered whether the utility of the defendant’s use of the water outweighed the gravity of harm to the plaintiff resulting from the change in the flow of surface water. Accordingly, this court must balance the utility of Defendant’s sewage plant against the harm to Plaintiff. After five months of operation, there is no evidence that the citizens of Westville used or enjoyed the park to a lesser extent due to Defendant’s operations. Further, there is no evidence of a threat to public health or an offensive sight or smell. At most, there is only a psychological impairment from the knowledge that effluent is streaming into the pond. On the other hand, the utility of the sewerage is substantial. Public policy recognizes the essential function of sewerage in order to preserve the public health. It is also commonly known that effluent from a sewage plant must be disposed of in running waters. Balancing the substantial need for Defendant’s operation against the minimal harm to Plaintiff, this court finds that the trial court did not err in denying Plaintiff injunctive relief. The harm to Plaintiff does not outweigh the benefit to Defendant.