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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.
New York proposed to divert a large amount of water from certain tributaries of the Delaware River and from the watershed of that river to the watershed of the Hudson River in order to increase the water supply to New York City. New Jersey insisted on a strict application of the rules of the common law governing private riparian proprietors subject to the same sovereign power. Pennsylvania intervened to protect its interests. The case was referred to a special master, who adopted the principle of equitable division, and found that the tributaries in question, based upon expert testimony, were not navigable waters of the United States at and above the places where New York City proposed to erect dams. The special master also determined that there was no showing of a present interest as to entitle New Jersey to relief.
Should New York’s diversion of water from certain tributaries of the Delaware River to the watershed of the Hudson River be restrained?
The court confirmed the special master's report, denied New Jersey’s motion for an injunction to restrain diversion, and held that the case was not governed by a strict application of the common law rules of private riparian rights, but by the principle of equitable apportionment applicable between the States of the Union. According to the court, the mere fact that the proposed diversion was to another watershed was not a bar. Moreover, the objection that the proposed diversion will interfere with the navigability of the river was met, for the purposes of this case, by proof that navigability will not be impaired. However, the diversion must remain subject to the paramount authority of Congress, and the powers of the Secretary of War and the Chief of Engineers of the Army, in respect of navigation and navigable waters of the United States. Thus, before any diversion occurred, a sewage plant was to be constructed, New Jersey's water level had to be maintained, and New Jersey and Pennsylvania had a right to inspect any dams, reservoirs, and other works constructed by New York City.