G28.I 
 
 N8GGfc> 
 
 
 
 IN CHANCERY OF NEW JERSEY. 
 
 Between 
 
 The Mayor and Aldermen 
 of Jersey City, 
 
 Complainant , 
 
 and 
 
 Patrick H. Flynn and Jer- 
 sey City Water Supply 
 Company, 
 
 Defendants. 
 
 >0 n Bill for In- 
 junction, Etc. 
 
 Opinion of Hon. Frederic W. Stevens, 
 Vice Chancellor. 
 
 FILED MAY 1, 1508. 
 
 ♦Printed for Collins & Corbin, Solicitors for Jersey City 
 Water Supply Company. 
 
D45 , ^ , 54-H^L u^U-t f MzLtr HEDRICK 
 
 
 /)/ 4-UL 
 
 3ltt (Eljattrprg nf Nrtu Jprapg. 
 
 Between 
 
 The Mayor and Aldermen of 
 
 Patrick H. Flynn et al., 
 
 Defendants. 
 
 Jersey City, 
 
 and 
 
 Complainant, 
 
 , Opinion. 
 
 Filed May 1, 1908. 
 
 10 
 
 MR. RECORD and MR. JAMES B. VREDEN- 
 BURGH for complainant ; 
 
 MR. EDWARDS, MR. WILLIAM H. CORBIN/ 2 0 
 and MR. CHARLES L. CORBIN for defendants. 
 
 Stevens, V. C. 
 
 On August 1, 1905, the complainant filed its bill 
 against the defendants, Patrick H. Flynn and the 
 Jersey City Water Supply Company, praying that 
 they might be decreed to convey to it the water 
 works constructed by them, or so much of them as 
 they were able to convey, upon payment by the 
 City of such part of the consideration ($7,595,000) 30 
 
 as might be ascertained to be due. The bill further 
 prayed that the suits at law to recover the price of 
 water that was being furnished by the million 
 gallons should be restrained. 
 
 The suits were restrained on equitable terms, 
 pending the decision on the merits. 
 
 Prior to October 12, 1895, Jersey City had ob- 
 tained its water supply from the Passaic river, 
 near Belleville. As the river water below Pater- 
 
2 
 
 son had, by that time, become unfit for domestic 
 purposes, Jersey City, on that day, contracted for 
 a temporary supply to be furnished by the East 
 Jersey Water Company. By this contract and by 
 supplementary ones this supply was continued un- 
 til May, 23, 1904, when the new supply obtained 
 from the defendants’ works was turned on. 
 
 The original contract looking to such a supply 
 was made between the City and Flynn on February 
 IQ 28, 1899. Flynn thereby agreed “ to construct a 
 new system of water works for Jersey City and to 
 supply said City therefrom with pure and whole- 
 some water ” in two years and a half thereafter, 
 i. e., by August 28, 1901. After doing some work 
 he assigned the contract to the Jersey City Water 
 Supply Company. By a supplementary contract, 
 made on March 31, 1902, the time for completion 
 was extended to December 25, 1903. It was not, 
 in fact, completed to such an extent that the water 
 2 q could be turned on until May 23, 1904. Since that 
 time the City has received its water supply from 
 the new works, which are still in the possession of 
 the Water Supply Company. 
 
 The water is taken from the Rockaway water- 
 shed, 122 1-2 square miles in extent above the in- 
 take, or reservoir, at Boonton. Its principal 
 sources are Green Pond, Denmark Lake, Split 
 Rock Lake, Dixon’s Pond, Shongum Lake and 
 other smaller ponds and brooks. Rising in the 
 30 Longwood valley, the Rockaway flows in a circuit- 
 ous course past the towns of Port Oram, Dover, 
 Rockaway and Boonton, and it finally empties in- 
 to the Passaic at a point about seven and a half 
 miles (in an air line) above Little Falls, and about 
 twelve miles (in an air line) above Paterson. The 
 plan adopted was to construct a reservoir, just be- 
 low Boonton, which would be both an intake and a 
 storage reservoir, capable of containing above the 
 effluent pipes 7,362 million gallons, and capable of 
 
3 
 
 supplying’ fifty millions of gallons a day. Jersey 
 City, at the time of the writing of this opinion, 
 uses about forty millions of gallons daily. From 
 this reservoir the water is conducted through a 
 steel pipe and through tunnels to Jersey City by 
 gravity. The old Belleville mains have been 
 abandoned. 
 
 The case involves a variety of questions, nearly 
 all of them depending upon the proper construe- 
 tion of the contract of February 28, 1899, and of 
 three other contracts supplemental thereto. Some 
 of these questions are, by no means, easy of solu- 
 tion. 
 
 The contract of February 28, 1899, is based up- 
 on the act of 1888 (P. L., 1888, p. 366). This act 
 reads as follows : “That it shall be lawful for the 
 board of aldermen, common council, city council, 
 aqueduct board, board of public works, water com- 
 missioners, township committee, town committee ^0 
 or other board, body or department of any munic- 
 ipal corporation in this State, having the charge 
 or control of the water supply of any such munic- 
 ipal corporation to make and enter into a con- 
 tract or agreement with any water company or 
 other company, contractor or contractors, for one 
 year, or for a term of years, for the obtaining and 
 furnishing of the supply, or a further or other 
 supply of water to such municipal corporation, for 
 the purpose of extinguishing fires and for such 
 other lawful uses and purposes as may be deemed 
 necessary or convenient ; and any such contract 
 and agreement, when so made, shall be the valid 
 and lawful contract of such municipal corporation, 
 as well as of any such water company or other 
 company, contractor or contractors, according to 
 the tenor thereof, and the sum or sums of money 
 in such contract agreed to be paid in each year by 
 
4 
 
 any such municipal corporation, or by any board, 
 body or department thereof, or so much thereof 
 as may be necessary after appropriating to the 
 payment thereof the water rents or proceeds of 
 sales of water collected by such municipal cor- 
 poration applicable to that purpose, shall be an- 
 nually appropriated, levied, assessed and collected 
 as a tax upon the real and personal estate within 
 such municipal corporation and liable to taxation 
 for other municipal purposes, and the said real 
 and personal property is hereby made liable to 
 and for the assessment and collection of such tax ; 
 provided, however, and it is hereby expressly en- 
 acted, that no such agreement and contract shall 
 be made for a period longer than twenty-five 
 years in any one term ; and provided further, that 
 in any municipal corporation having a board of 
 public works and a board of finance and taxation, 
 if the contract and agreement be made and en- 
 tered into by any such board of public works, it 
 
 20 shall not be binding upon such municipal corpora- 
 tion until the same shall have been approved by 
 such board of finance and taxation ; and provided 
 further, that such contract may contain an option 
 for the acquiring by such municipal corporation of 
 the land, water and water rights for such supply, 
 on terms to be fixed in said contract.” 
 
 This act, it will be seen, authorizes two things : 
 
 OQ first, a contract for a water supply, to be furnished 
 by the owner of the works for a term of not more 
 than twenty-five years ; second, a contract for 
 an option for the purchase of the land, water and 
 water rights (including, of course, the works 
 erected in connection therewith). The validity 
 and efficacy of this act was affirmed in Slinger- 
 land v. City of Newark, 25 Vr., 62, and in Van- 
 Reipen v. Jersey City, 29 Vr., 262. 
 
 The contract in question provides for a twenty- 
 five years’ supply, and it also contains an option. It 
 
5 
 
 is admitted by both sides that the original contract 
 as made conforms to the provisions of the act. By 
 act of 1895 (P. L. p., 775) it was provided that the 
 question of purchase, according to the option, 
 should be submitted to a vote of the people of the 
 city. This was done. The voters voted to accept, 
 and formal notice of the result was given to the 
 Water Company. Now, counsel differ widely as to 
 the effect of this vote and notice upon the status 
 of the parties. Counsel for the City contend that ^ 
 its effect was to abrogate or nullify the provisions 
 of the contract in reference to the supply of water 
 for a term of years and to put the City in the posi- 
 tion of one who had merely agreed to purchase, 
 while counsel for the Water Company contend 
 that the provisions relative to the quarter-yearly 
 payments of water continued in force until the 
 price of the works ($7,595,000) was actually paid or 
 tendered by the city. Obviously, this question can 
 only be solved by considering the terms of the 
 agreement. 
 
 The agreement of February 28, 1899, provides 
 that the specification prepared by the city, on 
 which the bidding took place and the accepted 
 proposal are to be regarded as a part of it. 
 
 The specification declares that the Mayor and 
 Aldermen of Jersey City will receive proposals for 
 a supply of pure and wholesome water under the 
 following plan : Then follows the plan. At the 
 sacrifice of brevity, it will be necessary to set 39 
 forth such of its provisions as throw light upon 
 the point at issue. They are the following : 
 
 “ The water must be delivered by gravity at 
 Bergen reservoirs. ” (These were the old reser- 
 voirs in Jersey City into which the Passaic water 
 had been conducted from the intake at Belleville.) 
 
 “ The first works must be constructed with storage 
 and intake reservoirs of sufficient capacity and so 
 located as to be capable of collecting and deliver- 
 ing fifty million gallons daily, at all times. ” 
 
6 
 
 “ Whenever during the term of the contract, but 
 prior to the exercise of the City's option to pur- 
 chase, the City shall notify the contractor to in- 
 crease the capacity of his water works, then the 
 contractor shall immediately proceed to construct 
 such additional storage and intake reservoirs as 
 may be necessary, so located and of such capacity 
 as to be capable, together with those previously 
 constructed, of collecting and delivering seventy 
 million gallons at all times." 
 
 “Bidders must state a price per million gallons 
 for a supply of twenty-five million gallons 
 daily, a price per million gallons for all 
 in excess of twenty-five million gallons daily up to 
 thirty million gallons daily ” &c., &c. 
 
 “ Bidders must also state a price for which the 
 City can buy and own the water works of a capa- 
 city of fifty million gallons daily, together with 
 the water supply, water rights, lands, reservoir 
 sites, rights of way and all easements necessary to 
 20 fulfill the requirements of this specification and to 
 the extent of seventy million gallons of water 
 daily; said purchase to take effect on completion 
 and acceptance of the works , if the City shall give 
 notice of its intention to purchase within one year 
 after date of contract." 
 
 “ The city will pay quarterly the sum due to the 
 contractor at such depositories as the contractor 
 may designate and at such times as are agreed 
 upon in the contract." 
 
 “ If a contract is entered into, it will run for 
 twenty-five years from the date of the contract, 
 undoubtedly, a penalty. Jessel mentions another 
 unless sooner terminated by a purchase of the 
 water works by the City as herein provided for ." 
 
 On this specification Flynn’s proposal was as 
 follows : 
 
 “ I hereby propose to provide a new supply of 
 water * * * for the following prices : 
 
7 
 
 “ For each million gallons of water furnished up 
 to twenty-five million gallons daily, thirty-six dol- 
 lars per million gallons. For each million gallons 
 in excess of twenty-five million gallons daily, 
 thirty-four dollars per million gallons daily,” &c., 
 
 &c., (up to limit of capacity of works). 
 
 “ For the water works and all appurtenances 
 thereof necessary fo fulfil the requirements of 
 these specifications to the extent of fifty million 
 gallons daily, together with the water supply, 
 water rights, lands, reservoir sites, rights of way 
 and all easements necessary to fulfil the require- 
 ments of these specifications and to the extent of 
 seventy million gallons daily forever, which pur- 
 chase can be made by the city when the water 
 works are completed and accepted hereunder ; pro- 
 vided, that the city shall give notice of its inten- 
 tion to purchase within one year after the date of 
 contract, the sum of $7,595,000. ” 
 
 On this specification and proposal, the contract 
 was drawn. After binding the contractor to con- 
 struct the works in strict conformity with the 
 above specification and proposal, it continues : 
 
 “Such works shall be so constructed and main- 
 tained by the contractor that the water delivered 
 therefrom shall be pure and wholesome and free 
 from pollution deleterious for drinking and domes- 
 tic purposes, during the time that Jersey City 
 shall take water by the million gallons. If such 
 works and supply are purchased by Jersey City 30 
 they shall be delivered to said city as a completed 
 operating plant free from pollution as afore- 
 said. ” 
 
 In its third section it expressly provides for pay- 
 ment for each million gallons, as mentioned in the 
 proposal. 
 
 Its fifth section reads as follows : 
 
 “ The said contractor hereby covenants and 
 agrees that he will upon the receipt of notice as 
 
8 
 
 provided in the specifications and the 'payment of 
 the purchase price , sell and convey said water 
 supply with the appurtenances upon any of the 
 following options.’' Then follow the options men- 
 tioned in the specifications and 
 
 The sixth and ninth sections also bear upon the 
 present inquiry. “ Sixth. It is understood and 
 agreed in case the City shall give notice within one 
 year from the date of this contract of its intention 
 
 IQ to purchase said water supply and water works 
 under said specifications, when the water works 
 are completed and accepted, that then the city 
 shall have such reasonable time to test said works 
 and the water supply after completion and before 
 the acceptance thereof for purchase Jersey City 
 may deem necessary and reasonable for that pur- 
 pose, provided such test shall not extend beyond a 
 period of four years and eleven months from the 
 date of this contract.” 
 
 2^ “ Ninth. It is further understood and agreed 
 
 that as long as Jersey City shall continue to take 
 the water by the million gallons without purchas- 
 ing the water supply and works under the options 
 aforesaid, no water shall be sold or furnished to 
 any other person,” &c., &c. 
 
 It seems to me that these clauses, read consecu- 
 tively, show a very clear and definite scheme ; a 
 scheme that may be stated in the words of the 
 specification. “ If a contract [i. e. a contract for 
 
 3Q the supply of water by the million gallons and 
 containing an option ] is entered into, it will run 
 for twenty-five years from the date of the con- 
 tract, unless sooner terminated^by a purchase of 
 the water works by the city as herein provided 
 for.” What is the meaning of the word “pur- 
 chase ”? Is it used, inaccurately, as synonymous 
 with agreement to purchase, or is it used in its 
 proper signification of actual acquisition of full 
 title for a valuable consideration? The contract 
 
9 
 
 itself gives the answer. It reads, in clause fifth : 
 
 The contractor hereby covenants that he will “ upon 
 the receipt of notice ” (i. e., notice of the popular 
 vote of acceptance) “ and the payment of the pur- 
 chase price sell and convey said water supply with 
 the appurtenances to Jersey City.” And in clause 
 sixth, “in case the city shall give notice within 
 one year from the date of this contract of its inten- 
 tion to pur chase * * * when the water 
 
 works are completed and accepted then the city ^ 
 shall have such reasonable time to test said works 
 and water supply after completion and before ac- 
 ceptance thereof for purchase as Jersey City may 
 deem necessary and reasonable for that purpose, 
 provided such test shall not extend beyond a period 
 of four years and eleven months from the date of 
 this contract.” This clause only follows and ampli- 
 fies similar language in the specification— “said 
 purchase to take effect on completion and acceptance 
 of the works if the city shall give notice of its in- 
 tention to purchase within one year after the date 
 of the contract.” 
 
 Here, then, is an express declaration that the 
 notice is not to be treated as a present purchase 
 but as a notice of intention to purchase at a future 
 time, after completion and after test. The con- 
 tract is to be performed in two years and one 
 half after its date, but the test may be made at 
 any time within four years and eleven months. In 
 other words, two years and five months may inter- 39 
 vene between the completion and the test that is 
 to precede the purchase. But during all this in- 
 terval Jersey City must take the water by the 
 million gallons, for here again the contract pro- 
 vides as follows : “ Second, Jersey City agrees to 
 
 take the water aforesaid and use the same for its 
 water supply when said works are completed in 
 accordance with the specification and plan No. 1, 
 as soon as said contractor is ready to deliver pure 
 
10 
 
 and wholesome water from such supply. ” “ Third, 
 Jersey City agrees to pay for such water when de- 
 livered as follows. ” Then follows the price per 
 million gallons on a graduated scale. It is hard 
 to imagine how language could have been more 
 explicit. Counsel for the City when pressed to 
 say what would be the City’s obligation in case it 
 actually took and used the water during the inter- 
 val of two years and five months, made two sug- 
 ]Q gestions : (1) That the City was not obliged to 
 
 pay anything ; that the test that the City had the 
 right to make was the receipt and use of the 
 water, and that such test might be extended over 
 the entire period, and (2) that the express provis- 
 ions of the contract were suspended during the 
 two years and five months and that the City was 
 only obliged to pay as much as the water was rea- 
 sonably worth ; the assumption, without proof, 
 being that it was reasonably worth less than the 
 price fixed. 
 
 Neither of these suggestions finds any support 
 in the language of contract. They are directly 
 opposed to the express stipulation that the City 
 agrees to take and use the water as soon as the 
 contractor is ready to deliver it and to pay for it 
 according to the schedule prices. 
 
 Nothing is more obvious or more reasonable 
 than the scheme as thus defined. Jersey City 
 could no longer use its old supply. It wanted 
 3Q a new one. It was for its advantage not 
 to assume the cost of construction until it 
 had given the works a trial ; until it was dem- 
 onstrated that the plan and supply were good ; 
 in other words, the risk was thrown upon the con- 
 tractor. It is conceivable that he, under these cir- 
 cumstances, would be willing not only to construct 
 works costing over seven millions of dollars, from 
 which he bound himself not to deliver water to 
 anyone except Jersey City, but also to supply 
 
11 
 
 either gratis or without fixing any price for a 
 period of two years and five months, water worth 
 over $800,000. The Jersey City officials had no 
 such idea, in the first instance, for they paid with- 
 out objection for two quarters, at schedule rate. 
 
 But, it is further argued that equity looks upon 
 things agreed to be done, as actually performed 
 and that, consequently, equity considers the vendee 
 as the purchaser of the estate sold, and the pur- 
 chaser as a trustee for the vendor of the price. 
 Counsel for the city contends that as a consequence 
 of this doctrine (I quote from his brief), “ the City’s 
 rights reverted to the date of the contract and 
 thereby the smaller and inconsistent contract, to 
 purchase water from this plant for twenty-five 
 years, was discharged and thereafter the contract 
 to purchase alone remained. ” This statement will 
 not stand examination. It is true that, speaking 
 generally, equity regards the vendee as a purchaser 
 for whom the vendor holds the legal title in trust, 
 but the doctrine is not carried to an unwarrantable ^0 
 extreme. It is kept within reasonable limits by 
 the perfectly well settled rule that in the absence 
 of express stipulation the purchaser takes the rents 
 and profits and pays interest on the purchase 
 money only from the time fixed for the completion 
 of the contract ; not from the time of its execution. 
 
 Fry Sp. Perform., Sec. 891 ; King v. Ruckman, 9 C. 
 
 E. Gr., 298 ; DeVisme v. DeVisme,! McN. & Gor., 
 
 336, and as I shall show hereafter, not always as 
 early as that. And again, the court never applies 
 the doctrine in such a way as to override the ex- 
 press stipulation of the parties. I have already 
 shown that this requires the water to be paid for 
 by the million gallons until the time of the com- 
 pletion of the purchase by the transfer of the title 
 and payment of the price. And so the express 
 stipulation is in conformity with the rule of equity 
 which would prevail in the absence of express 
 stipulation on the subject. 
 
12 
 
 Looking, therefore, at the original agreement 
 alone, it is quite plain that the City was required 
 to pay for the water by the million gallons at the 
 schedule rates, until it actually took the title and 
 paid the price. 
 
 But the works were not completed within the 
 time agreed upon, and supplemental agreements 
 were made. Do they lend countenance to the 
 City’s contention? By contract of March 31, 
 IQ 1902, the time for the completion of the works was 
 extended to December 25, 1903, and the time for 
 the testing of the works was extended to October 
 1, 1905. There is nothing in this supplemental 
 contract that lends added force to the argument 
 of counsel for the City. It contains this provision : 
 “ It is further agreed that the limit of time for the 
 testing of the works and water supply and the 
 payment therefor by the City after completion and 
 before the acceptance thereof for purchase shall 
 be extended, if desired by Jersey City, to a period 
 ^ not beyond October 1, 1905.” Here again we see 
 that the distinction between the time allowed for 
 completing the works and the acceptance thereof 
 for purchase is sharply indicated. That the con- 
 tractor was bound to begin to furnish the water 
 immediately upon completing the works appears 
 from the clause following : “ The Mayor and Ald- 
 ermen of Jersey City do hereby agree that the 
 time to complete the work and furnish the water 
 3Q specified in said contract of February 28, 1899, 
 shall be and hereby is extended until December 
 25, 1903.” The water to be furnished was neces- 
 sarily the water which Jersey City had agreed to 
 take and use and pay for as therein provided. In 
 deference to counsels’ earnest argument, I have 
 spent perhaps more time upon this question than 
 it may seem to deserve. 
 
 The next question is whether the position of the 
 parties in reference to payments was altered by 
 
13 
 
 the filing of the bill. The water, as I have said, 
 was turned on on May 23, 1904. The bill was filed 
 August 1, 1905, that is, before the time for testing 
 and acceptance (October 1, 1905) had expired. 
 
 The bill does not contain an offer to pay the 
 whole price, but only such part of it as may be 
 decreed to be due. It does not aver a willingness 
 to pay any definite sum and it does not charge that 
 any particular sum is justly payable. It has never 
 tendered any part of the price. This being so, can ^ 
 the mere filing of the bill be regarded as the 
 equivalent of a completion of the contract ? The 
 question seems to answer itself. The mere filing 
 of the bill is, certainly not the equivalent of a 
 tender of the price. It bears more resemblance to 
 an application to this Court to postpone payment 
 until such time as this court may determine how 
 much is justly due. The allegation is as follows : 
 
 “ The voters of Jersey City having voted to pur- 
 chase said water works, and the water works 
 having thereafter been constructed for your orator ^ 
 under said contract, your orator became and is the 
 owner thereof in equity and entitled to the posses- 
 sion thereof. Your orator is compelled for the 
 reasons aforesaid to accept said water works, not- 
 withstanding they are not completed in accordance 
 with said contract. It desires to pay therefor but 
 it should not be compelled to pay to the defend- 
 ants said sum of $7,595,000 for the following rea- 
 sons.^ Then follow the reasons. The prayer is gQ 
 that this Court may ascertain “how much and 
 what part of said water works system the said 
 defendants can convey to your orator ; and what 
 part of the said consideration of $7,595,000 should 
 be paid by your orator,” and that Flynn and the 
 Water Company “ may be ordered by decree of 
 this Court to convey to your orator said water 
 works or so much thereof as they are able to 
 convey upon payment by your orator of such part 
 of said consideration as may be so ascertained.” 
 
14 
 
 The position of the City is, therefore, this : “ I 
 
 am not willing to take the works as you have con- 
 structed them and say the contract price. I am 
 willing to accept and take them so far as con- 
 structed for such part of the contract price as the 
 Court shall decide that I ought to pay.” It had 
 legislative authority to raise money by an issue of 
 bonds bearing interest at five per cent, which, how- 
 ever, it is not authorized to sell below par (P. L. 
 
 ^ 1895,768). Its water board has not as yet author- 
 
 ized an issue. Defendants' counsel say they can- 
 not be sold. Whether they can or cannot, it is ad- 
 mitted that there has never actually been in the 
 treasury money available for the payment. 
 
 If the City had, before suit, tendered the pur- 
 chase money, or so much as was really due, or, if 
 after bill filed, it had paid the money into Court, 
 its position with reference to the question now 
 under consideration would have been very differ- 
 ent But it has not. I do not see how, under 
 these circumstances, the mere filing of the 
 bill could be said to have altered the contract 
 rights of the parties and to have conferred 
 upon the City that right to the possession 
 which the contract only gave upon payment or 
 tender. 
 
 In Reddish v. Miller's Executor, 12 C. E. Gr., 
 514, the facts were these. An intestate had 
 agreed to convey by a time fixed. Before that 
 
 3Q time he died. The vendee's assignees tendered the 
 purchase money on the day, but the widow and sole 
 heir, having quarrelled, refused to join in a con- 
 veyance and the purchasers refused to take a con- 
 veyance from one alone. Then the vendor's 
 administrator filed a bill. The Chancellor decreed 
 a specific performance and gave interest on the 
 purchase money from the date of the filing. This 
 the Court of Errors said was wrong. Justice Van 
 Syckle said : “ Conceding that on the day the bill 
 
 was filed R. and 0. (the purchasers) should have 
 
15 
 
 accepted a good title if it had been offered ; that 
 they were bound to perform on that day if the 
 other party was ready to execute the contract, it is 
 obvious that by no fault of their own, but on ac- 
 count of the default of the other party they could 
 not have obtained a title. * * * If 
 
 they had offered to consummate the contract on 
 the day the bill was filed or at any time hefore 
 final decree, their offer would not have been 
 accepted. It is not equitable, therefore, to regard ^ 
 the filing of the bill as the offer of a deed, because 
 the parties who should have conveyed would not 
 do so on that day, or at any time before, and 
 equity could not compel a conveyance until the 
 case was ripe for final decree. The filing of the 
 bill did not enable the purchasers to obtain posses- 
 sion of the land, nor give them any control what- 
 ever over it for the purposes of the plan they had 
 adopted to dispose of it. * * * The filing 
 
 of the bill cannot be regarded in any just sense as 
 an offer to make the title.” 
 
 The principle upon which Justice Van Syckle 
 decided the above case is directly applicable to 
 this. 
 
 But if the contractual obligation to pay for the 
 water by the million gallons did not terminate 
 when the city notified the Company of the popular 
 vote and if it did not terminate upon the filing of 
 the bill, when did it terminate ? There are two, 
 and only two possible periods. Either the last 30 
 day named for test and acceptance (October 1 , 
 1905), or the date of the decree. As I have al- 
 ready said, prima facie, in the absence of stipula- 
 tion to the contrary, the time fixed for the com- 
 pletion of the contract is the time from which the 
 purchaser is entitled to the rents and liable for 
 the payment of interest. But this rule has its ex- 
 ceptions, and the principle of one of them is, I 
 think, applicable, to the case in hand. It is this : 
 
16 
 
 Where the bill is filed by the vendor and his title is 
 first made out (that is, shown to be good) in the 
 master’s office, the day when the title is made out 
 is the day from which the purchase money begins 
 to bear interest. The case is one, of course, 
 where, under the English system of conveyancing, 
 the vendor is in fault for not having produced a 
 good title prior to or at the time set for perform- 
 ance, and the vendee has refused to perform on 
 that ground. Lord Cottenham thus states the 
 
 10 matter in DeVisme v. De Visme, 1 McN. & G., 
 352. “The vendors being in default, the delay 
 having been occasioned by their not performing 
 their part of the contract, are not to exact from 
 the purchaser the payment of interest until the 
 time they show a good title on their abstract. 
 The effect of that is to postpone the day agreed 
 on for the completion of the contract, until the 
 time when the vendors put themselves right and 
 show their title to be good.” 
 
 20 The case in hand is much more complicated than 
 that just cited. The complainant’s failure to per- 
 form consists in not having tendered so much of 
 the price as was really payable. Its excuse is that 
 it did not know how much to tender. But it has 
 not only neglected to pay the price ; it has advanced 
 several claims that it has not made good by proof ; 
 claims, therefore, that the defendant was not 
 bound to submit to. On the other hand, the de- > 
 fendant has insisted that it was entitled to the full 
 purchase price. It has never indicated that it 
 would take less. But the court finds that it was 
 entitled to considerably less. The exact sum pay- 
 able has, therefore, remained a matter of doubt 
 until decree. 
 
 The matter may be viewed in another way. The 
 water was turned on in May, 1904. The City had, 
 therefore, a year and a half in which to make the 
 final test and to determine for itself the sum 
 
17 
 
 which it thought itself at liberty to deduct for 
 deficient performance, and it might have tendered 
 the sum which it considered to have been due at 
 its peril. It did not take that course. It chose, 
 rather, to make its tests during the progress of the 
 cause, and to let the Court decide whether those 
 tests showed complete performance by the Water 
 Company, and what, in equity, it was bound to pay. 
 Having thus sought, as far as it could, to postpone 
 performance until decree ; having thus refused to 
 take the responsibility of tendering the money 
 actually due, or of paying it into Court, it is hardly 
 in a position to say that it should have the same 
 benefit that it would have had had it performed 
 by the time prescribed by the contract. 
 
 There are many cases in which the question has 
 come up. They show that in dealing with the 
 subject the Court does that which on the particu- 
 lar facts is equitable, unless it feels itself con- 
 trolled by some stipulation so clear and positive 
 as to preclude all discretionary action. Wil- 
 liams v. Glenton, L. R., 1 Ch. Ap., 200, and Mayor 
 of London & Tubbs Contract (1894), 2 Ch. Div., 
 
 524, are recent illustrations of such preclusion. 
 
 On the other hand, Sherwin v. Shakespear, 5 de G. 
 McN. &Gor., 517, shows how the Court does equity 
 notwithstanding the strict letter of the contract. 
 
 An extended review of the cases would be super- 
 fluous because we have a leading case in our own 
 courts. In King v. Ruckman, 9 C. E. Gr., 556, the law 30 
 was settled by the Court of Appeals. There King 
 sued Ruckman for a specific performance of an 
 agreement to convey several tracts of land, to 
 some of which he had title and to some of which 
 he had not. A part of the purchase money was to 
 be paid on June 1, 1868 ; the rest, so far as it was 
 to be paid in cash, on July 1st ; the balance of the 
 price to be then secured by a mortgage. The 
 money was not paid on June 1, 1868. Whether it 
 
18 
 
 was properly tendered was one of the questions in 
 dispute. The Chancellor thought it was not and 
 that time was of the essence of the contract. The 
 Court of Appeals thought it was and that time 
 was not of the essence of the contract. It ac- 
 cordingly directed a specific performance, as far as 
 performance was possible, with an abatement, if 
 equitable, of the price. The case came back to 
 this Court (9 C. E. Gr., 298) and Dodd, V. C., gave a 
 specific performance with variations. It appeared 
 that the vendor had remained in possession 
 and that the rents were not more than 
 equal to the taxes. One of the questions 
 was whether Ruckman was entitled to interest 
 on the purchase money from the day fixed for the 
 completion of the contract. It was held that he 
 was not. Dodd, V. C. said : “ It seems to me clear 
 that Ruckman is not entitled to the interest and 
 that the complainant is entitled to give the mort- 
 2 q g a & e f° r ^e balance for the time it would have to 
 run (five years) and on the terms it would have 
 had, if given on the first of July, 1868, in pursuance 
 of the contract. ,, It will thus be seen that at the 
 instance of the purchaser the contract was varied 
 in two particulars. Interest was to run from the 
 date of the decree and not from the time set for 
 completion, and the mortgage given was to contain 
 the same terms as to future payment of install- 
 ments of the principal as it would have con- 
 3 Q tained had it been executed at that time. 
 The decree was affirmed on appeal. Beas- 
 ley, C. J., quoting from Lord St, Leonard, 
 thus states the rule : “ Where interest is 
 more in amount that rents and profits and 
 it is clearly made out that the delay was occa- 
 sioned by the vendor * * * the Court 
 
 gives the vendor no interest but leaves him in the 
 possession of the interim rents and profits. ” Then 
 he says : “ It has been intimated that in order 
 
 to put the rule in force it was necessary that the 
 
19 
 
 vendor should not only be in fault but that such 
 fault should be wilful. I think there is not the 
 least foundation for such a contention. Indeed, 
 the rule has been almost universally applied in 
 those instances where there was no suggestion of 
 anything intentionally wrong in the conduct of the 
 sale of the property. It has received its most 
 frequent exemplifications in cases in which the 
 delay in completing the contract has arisen from 
 the discovery of latent defects in the title. On 
 such occasions the vendor was no further in fault 
 than every one is in fault who undertakes to do 
 what he afterwards discovers he is not prepared 
 to do. In such cases, the vendor is simply blama- 
 ble for having, perhaps, omitted to have his title 
 looked into with sufficient care. These illustra- 
 tions make it demonstratably clear that the 
 point as to the degree of the culpability of the 
 vendor has not in the least affected the course of 
 equity in the particular in question. ” 
 
 The above cases show very clearly that where a 
 specific performance is sought and where, if de- 
 creed, it is decreed on equitable terms, the letter 
 of the contract is not allowed to stand in the way 
 of an equitable adjustment, as to interest on the 
 one hand and rents and profits on the other. Had 
 the City on this bill taken the position that it was 
 not obliged to pay interest on the purchase money 
 from October 1, 1905, but only from the time of 
 the decree, the above case of King v. Ruckman 30 
 would have been directly in point. But it takes no 
 such position. On the contrary, it takes the posi- 
 tion that it should not be obliged to pay for the 
 water by the million gallons at the scheduled 
 rates ; that it should be obliged to pay interest on 
 the purchase money from the time of the popular 
 vote, not, indeed, interest upon the sum named in 
 the contract, but upon such sum as this Court 
 shall find to be due : and, further, that this inter- 
 est should not be interest at the legal rate of six 
 
20 
 
 per cent, but at some lesser rate, to be determined 
 arbitrarily by the Court, Singularly enough, the 
 Water Company, on the other hand, against its ap- 
 parent interest, insists that water rents at the 
 schedule rate should continue to be paid until de- 
 cree : that not until then should interest upon 
 purchase money begin. 
 
 The following table will show how the matter 
 stands. The amounts are computed at the sched- 
 
 ule rates : 
 
 Quarter ending Aug. 23, 1904 $105,089 
 
 “ “ Nov. 23, 1904 106,846 
 
 “ “ Feb. 23, 1905 115,744 
 
 “ “ May 23, 1905 105,733 
 
 Total for first year $433,412 
 
 Quarter ending Aug. 23, 1905 $106,548 
 
 “ “ Nov.23, 1905 107,995 
 
 “ “ Feb. 23, 1906 111,659 
 
 “ “ May 23, 1906 106,791 
 
 20 — 
 
 Total $432,993 
 
 Quarter ending Aug 23, 1906 $114,957 
 
 “ “ Nov. 23, 1906 117.321 
 
 “ “ Feb. 23, 1907 123,043 
 
 “ “ May 23, 1907 117,085 
 
 Total $472,406 
 
 Interest at 6 per cent, on $7,595,000. . . . $455,700 
 Cost of operation (as agreed by parties) . 50,000 
 
 Total $505,700 
 
 The cost of operation is, of course, added to the 
 interest because, on the assumption that the City 
 is to be regarded as in possession, it would be pay- 
 ing what the Company is now paying to make that 
 possession effective and useful. 
 
 The above table shows that if Jersey City should 
 pay interest at six per cent, and be charged with 
 a sum equal to the cost of maintenance, it would 
 
21 
 
 pay more than it would if it paid for the water by 
 the million gallons. The interest is computed on 
 the table upon the whole contract price ; but, with 
 the allowances made, the result is the same. 
 
 If payment is not to be made by the million gal- 
 lons at the contract rate, can it be made in any 
 other way or at any other rate ? Counsels’ sug- 
 gestion is that Jersey City should only pay what 
 the water is fairly worth. There is no evidence 
 that, even if this proposition is sound, the contract 
 rate is not reasonable. The contract rate is, for 
 each million gallons up to twenty-five millions, 
 
 $36 per million gallons ; for each million gallons in 
 excess, up to thirty millions, $34 ; for each million 
 gallons in excess of thirty millions, up to thirty- 
 five millions, $32 ; for each million gallons in ex- 
 cess of thirty-five millions, up to forty-five mil- 
 lions, $24 ; and for all beyond, $20. Judging by 
 the evidence and by the reported . cases, this price 
 is reasonable. There is, at least, no evidence to 
 the contrary. 20 
 
 That the Company would, in any event, be 
 chargeable with interest at the legal rate is, I 
 think, perfectly plain. The rate chargeble for the 
 forbearance of money is, in the absence of agree- 
 ment to the contrary, the legal rate. Jersey City 
 v. O’Callaghan, 12 Vr., 349, is in point. It was there 
 held by the Court of Errors that where damages 
 for breach of contract are to be assessed or where 
 an equivalent is to be given for the use of money 30 
 forborne, the statutory rate is the rate to be com- 
 puted. If then, interest be given at all, it would 
 be given at the rate of six per cent. 
 
 The matter, then, stands thus : It is for the 
 interest of Jersey City that she should be charged 
 with water rents and not with interest up to the 
 time of decree. The particular equities of the case 
 and the principle of King v. Ruckman require such 
 
22 
 
 a charge and the defendants concur in demand- 
 ing it. 
 
 I will notice, very briefly, one other point made. 
 It appears that prior to March 31, 1902, the East 
 Jersey Water Company was furnishing Jersey City 
 with water at the rate of $35 per million gallons. 
 On that day it joined with Flynn and the Jersey 
 City Water Supply Company in an agreement with 
 Jersey City to continue to furnish it at that price 
 jq until the City should have obtained and put in use 
 the new supply ; but not beyond March 1, 1907. 
 It was stipulated that it (The East Jersey Com- 
 pany) would guarantee that the Supply Company 
 would construct and complete the water works to 
 such an extent that the water could be turned on 
 from the new source on or before March 1, 1904, 
 and that if the works were not sufficiently com- 
 pleted and the water so turned on by that date, 
 the East Jersey Company would continue to deliver 
 the temporary supply of water from March 1, 1904, 
 “until such new supply was so turned on at the 
 rate of $353,800 per annum until March 1, 1907.” 
 As I have already said, the water was actually 
 turned on on May 24, 1904, and Jersey City paid 
 at the rate so stipulated for only two months and 
 twenty-four days. 
 
 The City argues that if it must pay under the 
 provisions of the contract, it should only be re- 
 quired to pay this fixed item of $353, COO per 
 OQ annum. But it seems to me very clear that the 
 agreement to furnish the water at these figures 
 was ihe agreement of the East Jersey Company 
 alone. It was to last for a perfectly definite time, 
 viz. until the Jersey City Supply Company had so 
 far constructed its own works as to be able to turn 
 on its own water. I am quite unable to under- 
 stand how an agreement by the East Jersey Com- 
 pany can be converted into an agreement obliging 
 the Water Supply Company to continue to furnish 
 
23 
 
 water at the same price;— more especially when, 
 as I have shown, there was an express agreement 
 between Jersey City and the Water Supply Com- 
 pany for a different rate. The figures named by 
 the East Jersey Company laid the foundation for a 
 temporary order made pendente lite in a case 
 where everything was in dispute. They cannot be 
 used as a substitute for the contract right of the 
 parties. 
 
 10 
 
 LIQUIDATED DAMAGES. 
 
 The question next to be considered arises in re- 
 spect of the City’s claim for liquidated damages. 
 
 In the specification which, as I have said, is made 
 part of the contract, there are the following 
 clauses : 
 
 “ The contractor will be allowed two years and 
 six months from the date of contract to complete 
 the work and furnish the water specified. ” 
 
 “ For every day’s delay beyond the term of con- ^0 
 tract, the contractor shall pay the City of Jersey 
 City the sum of five hundred dollars per day as 
 liquidated damages and not by way of penalty. ” 
 
 The contract was not completed within the 
 time specified, and the work begun by Flynn 
 was continued by the Jersey City Water Supply 
 Company. 
 
 By agreement dated July 8, 1901, reciting that 
 Flynn had assigned his contract to that Company, oq 
 the contractors, who are stated to be Flynn and 
 the Jersey City Water Supply Company state that 
 it is and remains their duty to furnish Jersey City 
 with the water supply originally contracted for 
 and that the modifications contained in the second 
 contract shall not relieve Flynn or his sureties from 
 furnishing and delivering to Jersey City the quan- 
 tity and quality of water required by the original 
 contract, nor from constructing it in accordance 
 with the original contract as thereby modified. 
 
24 
 
 The modifications do not affect the present ques- 
 tion, but a further contract, dated March 31, 1902, 
 contains, among other things, the following clauses: 
 
 “ Whereas the water works provided for in said 
 contracts have not yet been completed and it is 
 apparent that the same cannot be completed for a 
 long time to come, and the said party of the second 
 part [who are stated to be Flynn and the Jersey City 
 Water Supply Company] desire the party of the 
 first part [the City] to extend the time for the com- 
 pletion of said works and the fulfilment of said con- 
 tracts as hereinafter provided and to waive # any 
 claim for liquidated or unliquidated damages for 
 delays, until the expiration of such extended time. ” 
 “ Now therefore in consideration of the premises 
 and of one dollar to them in hand paid by the 
 party of the second part, the Mayor and Aldermen 
 of Jersey City do hereby agree that the time to 
 complete the work and furnish the water specified 
 2 ^ in said contract of February 28, 1899, shall be and 
 hereby is extended until December 25, 1903, and 
 that the payment of five hundred dollars per day 
 as liquidated damages for delay under said con- 
 tracts and specifications shall be incurred or reck- 
 oned only from and after December 25, 1903. ” 
 
 It is so clear that the Jersey City Water Supply 
 Company, as well as Flynn, is, under these stipula- 
 tions, answerable for such liquidated damages as 
 may be awarded that no argument is attempted on 
 3 Q that head. The contention is that, notwithstand- 
 ing the explicit language employed, the sum of 
 $500 per day is liquidated damages. It would be 
 quite impossible for the parties to have expressed 
 themselves with greater clearness. They not only 
 say that the sum named is liquidated damages, but 
 they also say that it is not a penalty. The argu- 
 ment must, therefore, be that the parties are pre- 
 vented by some rule or law or equity from so stipu- 
 lating. I know of no such rule nor have I been 
 referred to any. 
 
25 
 
 The cases on the subject are very numerous. 
 Certain rules have been laid down, some of which 
 have been doubted and other of which are per- 
 fectly well settled. I shall refer to them only in 
 so far as they illustrate the present question. 
 
 They are elaborately considered by the Appel- 
 late Division in Wallis v. Smith, 29 Ch. Div., 243, 
 where Jessel, M. R., classifies them as follows : 
 
 1. Cases in which a sum of money is stated to 
 
 be payable, either by way of liquidated damages ^ 
 or by way of penalty, for a breach of several stip- 
 ulations, one of which at least is for the payment 
 of a sum of money of less amount. In this case 
 the sum is regarded as a penalty for a breach of 
 any and all of such stipulations and only the actual 
 damages can be recovered in respect of any of 
 them. (Astley v. Weldon, 2 B. & P., 346, and 
 Kemble v. Farren, 6 Bing., 148, are leading cases.) 
 
 2. Cases in which a sum of money is stated to 
 be payable by way of liquidated damages for de- 
 faults or breaches of covenants other than for the 
 payment of money. With respect to such, there 
 is or may be a distinction founded upon the tri- 
 fling character of one of the breaches. If the con- 
 tract contains a variety of stipulations and they 
 are all of equal or nearly equal importance, the 
 sum stated is regarded as liquidated damages and 
 the whole of it is recoverable for a breach of any 
 one of them. This was the precise point decided 
 
 in Wallis v. Smith. If, on the other hand, the gq 
 contract contains a variety of stipulations and 
 they very substantially in importance, or relate to 
 very trifling matters, whether certainly ascertain- 
 able or not, then it appears to be unsettled, so far 
 as the English cases are concerned, whether the 
 sum named is to be regarded as a penalty properly 
 so-called or as liquidated damages, properly so- 
 called. The dicta on this point are conflicting and 
 they do not require consideration here. 
 
26 
 
 3. Cases in which the sum is called liquidated 
 damages and is given for a single breach. Here 
 again we have to distinguish. The breach may 
 consist in the non-payment of a smaller sum of 
 money. In this case there is no conflict of au- 
 thority. The sum named, however designated, is 
 a penalty. Then again the stipulation, if broken, 
 may result in damages uncertain in amount and, 
 necessarily, very insignificant : in the words of 
 Lord Eldon (Astley v. Weldon, 2 B. & P. 351), so 
 ^ gross that a man would start at the bare mention 
 of it.” Here, too, the sum, however designated, is 
 undoubtedly a penalty. Jessel mentions another 
 class which I need not refer to because it does not 
 bear upon the matter in hand. The class to which 
 the present case belongs has been the subject of 
 consideration by the Court of Errors. The rule 
 applicable to it is thus expressed by Justice Dixon, 
 in Monmouth Park Asso. v. Wallis Iron Works, 26 
 Vr., 132 : “ When damages are to be sustained by 
 the breach of a single stipulation and they are 
 uncertain in amount and not readily susceptible 
 of proof under the rules of evidence, then, 
 if the parties have agreed upon a sum as 
 the measure of compensation for the breach and 
 that sum is not disproportionate to the presuma- 
 ble loss, it may be recovered as liquidated dam- 
 ages. ,,, This is a very guarded statement ; more 
 so, I think, than may be found in many of the ju- 
 gQ dicial utterances on the subject and as favorable 
 to the Water Supply Company as it would be pos- 
 sible to phrase it. It is stated, in somewhat differ- 
 ent terms, in a subsequent case in the same Court 
 by Judge Vroom (Robinson v. Centenary Fund, 39 
 Vroom, 723) : “ The rule may then be fairly stated 
 
 to be that when the term ‘ penalty ’ is used in the 
 agreement and a single act is forbidden, if upon 
 breach it is not possible to ascertain the damages, 
 then the sum named as penalty may be recovered, 
 if on any reasonable view of the case the damages 
 
27 
 
 might equal that sum.” In this latter case, not- 
 withstanding the fact that the parties used the 
 word “ penalty,” it was construed to mean “ liquid- 
 ated damages.” The case is the more noteworthy 
 for that reason ; for if in this class of cases, as in 
 every other, the object be to ascertain the inten- 
 tion, some regard must be paid to the words used. 
 
 The word “ penalty ” is generally used in contradis- 
 tinction to liquidated damages. Says Lord Escher 
 in Law v. Local Board of Redditch, (1892,) 1 Q. B., ^ 
 
 127, “ the contract goes on to say that the sums so 
 forfeited may be recovered as and for liquidated 
 damages.” I do not think much reliance ought to 
 be placed on those words for even if the sums were 
 called penalties, the same considerations might be 
 applicable, but I do not think that they ought to 
 be left out of account altogether. 
 
 The two New Jersey cases cited were cases at 
 law and not in equity, but that cannot make any 
 difference. The construction to be put upon the 
 language of contracts is the same in both courts. 
 
 As to the matter of consideration “the rule”, says 
 Pomeroy (Eq. Jur., Sec. 926) “is entirely settled, 
 that mere inadequacy, that is inequality in value 
 between the subject matter and the price, is not 
 ground for refusing the remedy of specific per- 
 formance. In order to be a defence the inade- 
 quacy must either be accompanied by other in- 
 equitable incidents or must be so gross as to show 
 fraud.” 3Q 
 
 Judged by the foregoing rules, I do not see why 
 the sum named as liquidated damages for delay of 
 completion should not be payable. There are three 
 aspects of the matter. In two of them there was 
 no injury ; in the third there was. First, there 
 was no pecuniary injury because of the City’s be- 
 ing obliged to get its water from the East Jersey 
 Company. It was consuming, in December, 1903, 
 less than 35 millions of gallons a day (the exact 
 
28 
 
 amount does not appear) and in July, 1905, about 
 32i millions. If it paid for this water at the 
 schedule rates ($36 up to 25 million gallons, $34 
 for the excess up to 30 millions and $32 for the 
 excess over 30 millions up to 35 millions) it would 
 have paid more than it was paying for the water 
 received from the East Jersey Company, viz. $35 
 per million gallons for all amounts. It would have 
 paid considerably more than it was paying after 
 IQ March 1, 1904, and until the Rockaway supply was 
 turned on, viz. at the rate of $353,800 per annum. 
 The City can claim no actual damage on this score. 
 Second, no real injury resulted from the fact that 
 the water supplied from December, 1903, to May, 
 1904, was taken from the East Jersey Works above 
 Little Falls, and not from the Rockaway. The 
 proof does not show that the East Jersey Com- 
 pany’s water was not as pure and wholesome as 
 the Rockaway water. It was water that came, in 
 part, from the Rockaway lower down and from 
 ^ other unpolluted sources. The injury on this head is 
 hardly more than fanciful. 
 
 The third ground of injury is, I think, substan- 
 tial. It is that by the delay in completing the 
 works, Jersey City was deprived of the right of 
 selling its surplus water to municipalities and other 
 persons outside of its corporate limits. In East 
 Newark v. New Jersey Water Supply Company et 
 al, an interpleader suit to which Jersey City was a 
 gQ party, (1 Robb., 266) I came to the conclusion that 
 while Jersey City could not first buy and then sell 
 water by the million gallons, in other words, could 
 not buy, merely for the purpose of selling, yet that 
 if it had a water supply of its own more than suffi- 
 cient for its needs, it could sell the surplus water 
 within the limits of the counties of Hudson and 
 Bergen. My opinion was concurred, in by the 
 Court of Errors on appeal (2 Robb., 783). Both this 
 and other reported cases show not only that Jersey 
 
29 
 
 City had statutory authority thus to dis- 
 pose of its suplus water but that while it 
 was using its former supply, obtained from 
 the Passaic above Belleville, it exercised its 
 privilege and sold that surplus to various 
 towns. It appears, therefore, that Jersey City 
 would have had no authority to sell such water as 
 it was receiving from the East Jersey Water 
 Company to persons or towns outside of its limits, 
 even if, as is not likely, the East Jersey Company 
 would have been willing to furnish it for that pur- 
 pose ; but if the Water Supply Company had com- 
 pleted its contract by December 25, 1903, it could 
 have, at once, paid the price and taken over the 
 works and been in a position to compete with the 
 East Jersey Company for the patronage of persons 
 and corporations in the counties mentioned. The 
 reported cases show that in some instances Jersey 
 City had been getting as high as $90 per million 
 gallons for the water thus supplied. Now Jersey 
 City would have had at least 15 million gallons of 
 surplus water to thus dispose of. If she had been 
 able to dispose of it at even a $35 advance per 
 million gallons she would have received for it $525 
 per day, the liquidated damages being $500 per 
 day. I do not, of course, wish to be understood as 
 asserting that it is likely that she would have at 
 once found purchasers for this amount of water, or 
 for anything like as much. But I do say that it 
 was quite within the bounds of possibility that she 30 
 might have found purchasers for a considerable 
 amount of it and at prices higher than she 
 was herself then paying. It will, of course, 
 be argued that, judging from her indispo- 
 sition to take any step towards raising 
 and tendering the price before she commenced this 
 suit, it is unlikely that she would have reaped any 
 substantial benefit from her mere legal right to 
 pay and take immediate possession. But it can 
 hardly be said with any show of plausibility that 
 
30 
 
 because Jersey City failed or refused to accept 
 and pay for works that were not, in fact, com- 
 plete — I mean complete in the sense of providing 
 against those sources of pollution which I find she 
 was bound to provide against, therefore, I am to 
 assume that if the contract had been fully and 
 completely performed, she would have been equally 
 dilatory. It would have been for her interest, 
 avoiding captious objections, if she could have 
 found customers for her water, to have taken the 
 works at once. 
 
 It cannot be doubted that the parties contracted 
 together in view of a known situation. Jersey 
 City was, and for many years had been, a com- 
 petitor of the East Jersey and of its subsidiary com- 
 panies. The damages which Jersey City would suffer 
 by delay from this or any other cause were alto- 
 gether uncertain in amount and not, in the words 
 of Justice Dixon, “readily susceptible of proof 
 9 q under the rules of evidence.” It was the very 
 situation in which the courts have allowed the 
 parties to assess their own damages in advance. 
 The original contracts stipulating for these dam- 
 ages were prepared by counsel of great ex- 
 perience. That it was intended to assess these 
 damages in advance there can be no manner 
 of doubt, for it is expressly provided that 
 the sum agreed upon shall be paid “as liquidated 
 damages and not by way of penalty.” But the 
 30 case does not rest here, for the works not being 
 completed within the time limited, the parties in 
 ^ their supplemental contract of March 31, 1902, 
 took cognizance of the fact that liquidated dam- 
 ages might be insisted upon for past delays and so 
 they use this language: “ Whereas for the purpose 
 of inducing the City to grant the extension of time 
 hereinafter mentioned and to waive all claims for 
 liquidated or unliquidated damages for delay dur- 
 ing such extended time and as a consideration 
 
31 
 
 therefor ” they have secured the consent of the East 
 Jersey Co. to continue the temporary supply, &c., 
 and then they go and expressly provide “that the 
 payment of $500 per day as liquidated damages for 
 delay under said contracts and specifications shall 
 be incurred and reckoned only from and after De- 
 cember 25, 1903.” 
 
 The parties were dealing at arms length. They 
 had competent advice. They were peculiarly well 
 informed in respect of the matters they were con- ^ 
 tracting about and they were dealing with a sub- 
 ject incapable of being reduced to a certainty by 
 any legal rule for the assessment of damages. No 
 oppression, no unconscionable circumstances are 
 shown ; no inequality such as to shock the con- 
 science of the Chancellor. It cannot be asserted 
 with certainty that the damages named might not, 
 under certain contingencies, have equalled the 
 damages that might have been actually sustained. 
 Under these circumstances, it seems to me that it 
 is the duty of a court of equity to specifically 
 enforce the contract and not to nullify it. 
 
 One other question remains. For what period 
 shall the damages be assessed ? The main object 
 was to get the fifty million gallon supply. For 
 this purpose it was not very material that the last 
 stone should have been put in place, the last bank 
 sodded, and the Jast nuisance removed. In view 
 of the paramount object to be attained, I think 
 that the words “ the contractor will be allowed two 30 
 years and six months from the date of contract to 
 complete the work and furnish the water ” may 
 reasonably be read “ to complete the work so as to 
 furnish the water.” The company began to furnish 
 it on May 23, 1904. The works were then cap- 
 able of delivering fifty million gallons per day, 
 and so the damages would be computed from De- 
 cern er 25, 1903, to that date, were it not for the 
 fact that the City, by reason of legal proceedings 
 taken in respect of the tunnel, retarded delivery 
 
32 
 
 five or six days. These, I think, should be de- 
 ducted. I may add that the abstract question how 
 much water Jersey City will on conveyance ac- 
 quire the right to subtract, either by reason of its 
 riparian ownership of the lands conveyed or of 
 any legislative grant, license or authority, is not 
 raised by the pleadings and has not been argued 
 or considered. 
 
 EFFICIENCY OF RESERVOIR AS SEDIMEN- 
 10 TATION BASIN. 
 
 I now come to what is, undoubtedly, from a 
 sanitary standpoint, the most important question 
 in the cause, and that is whether the Water Com- 
 pany has provided Jersey City with a water supply 
 such as the contract calls for. 
 
 As to the amount of the supply, there can be no 
 question. It is not disputed that the works are 
 capable of furnishing fifty millions of gallons a 
 20 day and that if enlarged they will be capable of fur- 
 nishing seventy millions. It is the quality of the 
 supply, under certain conditions, that is disputed. 
 Are the works of such a character as that they can 
 be relied upon constantly to furnish pure and 
 wholesome water? It is the evidence with rela- 
 tion to this question that has filled most of the 
 four thousand printed pages of testimony. Much 
 of that part of it, however, relating to certain 
 minor nuisances existing on the watershed at the 
 30 time the witnesses testified has become irrelevant, 
 for the nuisances have now been removed. 
 
 On the scientific questions involved, the ex- 
 pert witnesses on both sides agree in their views 
 to an extent that is all the more surprising, be- 
 cause the science of bacteriology, originating in 
 the wonderful discoveries of Pasteur and Koch, 
 dates its origin from a period within the last 
 thirty years. 
 
33 
 
 The Rockaway watershed is 122 square miles 
 in extent. The river rises in the Longwood 
 Valley to the east of Lake Hopatcong. It flows 
 past Wharton, Dover, Rockaway and Boonton be- 
 fore it reaches the reservoir. The population per 
 square mile above Boonton is 169, regarded as a 
 very large population for a watershed used to 
 furnish a water supply. 
 
 In addition to the towns named there is the min- 
 ing camp of Hibernia which lies upon a brook that 
 empties into the Rockaway six or seven miles above 
 the reservoir. There are also many large factories 
 along the river. In its natural state the shed is 
 capable of furnishing water of excellent quality. 
 
 As it is, the water as it enters the reservoir is 
 much contaminated. The reservoir itself, a little 
 over two miles long and a mile wide, is an artifi- 
 cial structure, damming up the river just below 
 Boonton, and its greatest depth is about eighty-five 
 or ninety feet. It contains above the lowest gate 
 from which water can be delivered, 7,300 million 
 gallons. This is a supply for 146 days if fifty mil- 
 lions of gallons a day be taken, or a supply for 104 
 days if seventy millions be taken, assuming that 
 during those periods nothing flows in. But this is 
 an impossible assumption, for even if no rain 
 should fall during all those days the ground water 
 would still, in gradually diminishing quantities, 
 continue to flow first into the river and then into 
 the reservoir and thus add to the water supply 30 
 stored up. 
 
 The water is conducted from the reservoir to 
 Jersey City, part of the way through a single steel 
 pipe six feet in diameter, and part of the way 
 through a conduit and tunnel eight feet six inches 
 in diameter, the distance being 22 6-10 miles. 
 Reaching Jersey City it flows, in part, into two 
 small reservoirs, and in part, for the use of Jersey 
 City Heights, directly into the City pipes. There 
 
34 
 
 is no pumping, the entire supply being delivered 
 by gravity. The height of the reservoir spillway 
 above high tide is 305 1-2 feet and the bottom of 
 the lowest gate or effluent pipe 256 6-10 feet. It 
 takes seventeen hours for water, at the present 
 rate of consumption, to flow from the reservoir to 
 Jersey City. 
 
 It is a fact admitted by all the witnesses on both 
 sides that the water of the river as it enters the 
 jq reservoir is polluted to such an extent as not to be 
 potable. The defendants’ insistment is, however, 
 that the reservoir acts as a sedimentation basin 
 and that the water when it reaches Jersey City is 
 free from all objectionable impurities and of ex- 
 cellent quality. 
 
 It is not denied by the City that the water when 
 it reaches Jersey City, is ordinarily good. It is, 
 however, insisted that it is not always so ; that the 
 sedimentation to which it is subjected is at times 
 imperfect, and that in certain conditions of wind, 
 temperature and flow, particularly in times of 
 freshet, the water passes so rapidly from the 
 river, across the reservoir, to the effluent pipes 
 that it has not time to settle and that it reaches 
 Jersey City with many of its impurities still in it. 
 The insistment is, therefore, that the reservoir, as 
 a mechanism for purification, is unreliable and not 
 such as stipulated for by the contract. 
 
 I shall consider, first, what the contract requires. 
 3 Q The first clause provides as follows : “ The con- 
 
 tractor agrees to construct a new system of water 
 works for Jersey City and to supply said City 
 therefrom with pure and wholesome water in 
 strict conformity with said specifications and 
 his proposal under plan No. 1. * * * 
 
 Such works shall be so constructed and 
 maintained by the contractor that the water 
 delivered therefrom shall be pure and whole- 
 some and free from pollution deleterious for 
 drinking and domestic purposes, during the time 
 
35 
 
 that Jersey City shall take water by the million 
 gallons. If such works and supply are purchased 
 by Jersey City they shall be delivered to Jersey 
 City as a completed operating plant free from pol- 
 lution as aforesaid. ” 
 
 The contractor thus refers the matter to his pro- 
 posals under plan No. 1. Referring to this plan 
 (made part of the contract) we read as follows : 
 
 “ there will be tributory to the storage reservoir 
 the whole flow of the Rockaway River, having a ^ 
 water shed and gathering grounds of 1224 square 
 miles.” * * * 
 
 “ The water proposed to be furnished is pure 
 and wholesome. The plan has been prepared so as 
 to prevent all contamination thereof from any 
 source in accordance with the specifications.” 
 
 The specifications provide as follows : 
 
 “ The water to be furnished must be pure and 
 wholesome for drinking and domestic purposes.” 
 
 “ The City will agree to exercise on demand of 
 the contractors all its legal powers to prevent pol- 
 lution of waters tributory to the proposed works, 
 but all expenses attendant upon the prevention of 
 such pollution shall be borne by the contractor.” 
 
 The contract further provides as follows : 
 
 “Eighth. It is further understood and agreed 
 that all sewers and sewage disposal works con- 
 structed or arranged for by the contractors to 
 prevent pollution or to carry off pollution existing 
 in the watershed, shall under said specifications 30 
 and plans be so constructed and arranged for by 
 him that in the event of the purchase of the water 
 supply and plant by Jersey City under any of the 
 options aforesaid, the operation and maintenance 
 of such sewers and sewage disposal works for the 
 purposes aforesaid shall not be a charge upon and 
 expense to Jersey City.” 
 
 Finally, the specifications provide : “All powers 
 possessed by the City shall be exercised in aiding 
 
36 
 
 such prevention. The City shall not be obliged to 
 accept any plant or water therefrom until the sup- 
 ply is free from pollution.” 
 
 These are the principal provisions on the sub- 
 ject. There are others of minor importance, 
 which do not in anywise lessen the obligation of 
 the contractor ; if anything, they tend rather to 
 emphasize it. 
 
 Contracts must have a reasonable construction 
 and must be read in the light of the surrounding 
 ^ circumstances. The evidence shows that before 
 the contract in question was executed the city au- 
 thorities visited the watershed and actually saw 
 what the conditions were. They knew that the 
 river flowed through a thickly populated region 
 and that some pollution at the points where the 
 population was thickest was inevitable. I think it 
 is quite plain that the contention of counsel for the 
 City, that because it is provided that the supply is 
 to be free from pollution and because the river is 
 20 a part of that supply, therefore, the river must be 
 free from pollution, from its source to the point 
 where it flows into the Boonton reservoir is unten- 
 able. In view of the evidence, the City would be 
 demanding an impossibility. I think the contract 
 means that the supply, at the time it reaches Jer- 
 sey City and is delivered into the reservoir or pipes 
 there, must be free from pollution. For example, 
 if after the water should leave the Boonton reser- 
 gQ voir but partially purified, it should be subjected 
 to the action of a filter plant established at any 
 point along the route and be there freed from pol- 
 lution, I have no doubt the terms of the contract 
 would be fully complied with. 
 
 Again, the requirement that the water must be 
 pure and wholesome does not mean that it shall 
 be absolutely pure — of such purity as could be 
 obtained in a laboratory — all that is required is 
 
37 
 
 that it be “free from pollution deleterious for 
 drinking and domestic purposes.” 
 
 There is still another observation that I must 
 make on the argument addressed to me by coun- 
 sel for the Water Company and that is this : It is 
 in the event of a purchase by the City, the supply 
 that is required to be free from pollution and not 
 the water that has from day to day been thus far 
 delivered. In the words of the contract “ if such 
 works and supply are purchased by Jersey City ^ 
 they shall be delivered to Jersey City as a com- 
 pleted operating plant, free from pollution as 
 aforesaid. ” This supply must be delivered free 
 from pollution not half the year or three-quarters 
 of the year, but all the year ; not in times of low 
 water or moderate flow, when the reservoir is 
 still and sedimentation uninterrupted, but also in 
 times of high wind and freshet. If the evidence 
 shows that the works are, as they stand, adapted 
 to the delivery of pure and wholesome water 
 only during part of the year, no matter how ^ 
 large a part, then the contract has not been 
 completely performed. Suppose, for instance, it 
 were shown that on two or three days of the year 
 the water at the Jersey City intake contained 
 typhoid germs in such number as to cause epi- 
 demic and that this condition of things was not 
 the result of accident but the lack of precautions, 
 such as reasonable engineering and sanitary prac- 
 tice required, then I apprehend the language of c>q 
 the contract would not have been satisfied ; for it 
 says, “ the water proposed to be furnished is pure 
 and wholesome,” “ is ” being here used in the sense 
 of “will be.” It was not the affirmation of a_ 
 then existing fact, for the fact, as both parties 
 knew, was otherwise. The water of the river was 
 then grossly polluted. The contract continues, 
 
 “ the plan has been prepared so as to prevent all 
 contamination thereof from any source in accord- 
 
38 
 
 ance with the specifications,” which were that 
 “the water to be furnished must be pure and 
 wholesome for drinking and domestic purposes.” 
 
 Now, it was argued for the Water Company 
 that the contract should be construed in the light 
 of conditions then existing and that Jersey City 
 must have known that if it accepted the Rockaway, 
 it would get water somewhat polluted. This argu- 
 ment would be unanswerable if the contract had 
 jq been only that the contractor would impound the 
 water in a large reservoir and deliver it to Jersey 
 City. If Jersey City got polluted water it would 
 get just what it had bargained for. But both par- 
 ties knew that the Rockaway at and below Dover 
 was highly polluted. The contractor knew it better 
 than the city. The evidence is that the stream as it 
 flowed past Dover was then little better than an 
 open sewer. It was in view of these known condi- 
 tions that the parties contracted, and what the con- 
 tractor expressly contracted to do was to deliver 
 pure and wholesome water from a polluted stream. 
 “ The plan,” he says, “ has been prepared so as to 
 prevent all contamination from any source.” 
 
 The company proceeded on the theory that it 
 must furnish pure , not on the theory that it could 
 furnish polluted water. It did not wait to see 
 whether the pollution at Dover and other places 
 would make itself apparent at Jersey City. It 
 began at once to remove many of the sources of 
 30 pollution ; and the only question is whether it has 
 gone far enough. 
 
 There is one other remark, in order to avoid 
 misapprehension, I wish to make before consider- 
 ing the evidence. The Company is not bound to 
 provide against that which may arise in the future ; 
 in other words, against future conditions. Jersey 
 City will have to provide against them as occasion 
 may require. For example, if the present popula- 
 tion of the watershed does not create a situation 
 
39 
 
 calling for the installation of a filter plant, the 
 Company is not obliged to furnish it, merely be- 
 cause, when the population increases, such a plant 
 may be a necessity. 
 
 To sum up, the contract requires that the plant 
 (using that word in its broadest sense) shall at all 
 times and on all occasions (barring accidents and 
 occurrences that could not by the exercise of rea- 
 sonable foresight and care be provided against) 
 be constructed or adapted to use so as, in the ^ 
 words of the contract, “to prevent all contamina- 
 tion from any source. ” The thing to be delivered 
 is a plant capable of preventing contamination 
 from any source, at any time, under any condi- 
 tions likely to occur, and not a plant that may be 
 effective under favorable conditions for a part of 
 the year but ineffective at other times. As this is 
 a very important part of the case, I may be per- 
 mitted to illustrate further. Drought in summer 
 is no uncommon occurrence ; heavy rain following 
 drought is no uncommon occurrence ; high winds ^ 
 accompanying rain is no uncommon occurrence. 
 
 If the plant be capable of delivering pure and 
 wholesome water in ordinary weather but not on 
 the happening of the occurrences mentioned, 
 either separately or together, then I take it that 
 the plant would not be so completed as to meet 
 the requirements of the contract. 
 
 With this view of the legal aspects of the case, 
 
 I proceed to a consideration of the evidence. It is 
 so voluminous that it will not be possible, within 
 the limits of an opinion, to do more than summa- 
 rize its more important features. 
 
 No fault is found with the construction of the 
 reservoir as a piece of masonry It is admitted to 
 have been extremely well built. It contains as 
 much water as was bargained for. It is hardly 
 conceivable that up to the limit of fifty million gal- 
 lons a day it could ever, under any circumstances 
 of drought, be exhausted. The proof shows, too, 
 
40 
 
 that, in general, the reservoir does act effectively 
 as a sedimentation basin and that when the water 
 reaches Jersey City it is of excellent quality. It 
 has been on trial since May 23, 1904, and up to the 
 close of the evidence last June (1907) the plant 
 has, for much the greater part of the time, deliv- 
 ered water satisfactory in quality. The statistics 
 show that since Jersey City has ceased to take its 
 water from the lower Passaic, there has been a 
 IQ great decrease in the number of typhoid cases 
 and that the yearly average of deaths from that 
 disease has, for the last four years, compared 
 favorably with that of those cities the purity of 
 whose water supply is undoubted. 
 
 This, at first blush, seems to be pretty satis- 
 factory evidence of the effective working of the 
 plant. For the reasons that I am about to state, it 
 is not conclusive. It does not necessarily follow 
 that because the works may be capable of furnish- 
 2 q ing from 35 to 38 millions of gallons of pure and 
 wholesome water, therefore it is capable of fur- 
 nishing 50 millions ; nor does it necessarily follow 
 that because the water has been pure and whole- 
 some in the practical absence of water borne dis- 
 eases on the watershed, therefore, the water might 
 not be contaminated if such diseases prevailed. 
 
 Within the last thirty years science and ex- 
 perience have revolutionized the ideas of sanitary 
 experts on the subject of water supply. Repeated 
 30 instances here and in Europe have shown that 
 water admirable in appearance may contain the 
 germs of typhoid and of other water borne dis- 
 eases, in such numbers as to cause epidemic. It 
 used to be a favorite theory of sanitary and hy- 
 draulic experts that running water purified itself. 
 Experience has shown that it is not running water, 
 but still water that tends to do this. It is agreed 
 by the experts on both sides that if water be 
 allowed to stand for a sufficient length of time, 
 
41 
 
 whatever pathogenic germs may be contained in it 
 will die or disappear. None of these experts put 
 the^time under forty or fifty days, and several of 
 them do not regard six months as too long. 
 Disease germs have been carefully studied by bac- 
 teriologists who have, among others, been able to 
 isolate the typhoid germ ; cultivate it and study 
 its peculiarities. Its proper habitat is found to be 
 only in the human intestine. There it thrives and 
 multiplies, as nowhere else, except under artificial 
 culture. Millions of these germs may be dis- 
 charged by a single patient and some of them, 
 the hardiest, will survive in water for weeks and 
 months. Consequently, if the faeces of a patient 
 be allowed to go into a stream from which a 
 water supply is taken they may be carried to the 
 consumer and if taken through the mouth, may, 
 in their passage through the intestine, attach 
 ^themselves to it and multiply ; and after a period 
 of incubation (about ten days) the patient begins 
 to exhibit those symptoms which are characteris- 
 tic of the disease. This is no theory. It is an 
 established fact admitted by all sanitary experts. 
 
 The Plymouth case, mentioned several times in the 
 course of the testimony, is a remarkable illustra- 
 tion. The faeces of a single patient, thrown upon 
 the ground during the late fall and frozen there, 
 were in the spring washed into a brook which con- 
 tributed to a water supply, and one-tenth of 
 the entire population contracted the disease. In 3Q 
 this case enough of the germs to produce the re- 
 sult survived in the ice for a period of four 
 months. Several other striking instances are 
 mentioned in the evidence. Doctor Leal, 
 one of the officers of the defendant corpora- 
 tion, himself an eminent sanitary expert, 
 testifying to the time the germs will sur- 
 vive outside the human body, says : “ I think 
 within the first five days fifty per cent, would 
 die ; I think within ten days ninety per cent, would 
 
42 
 
 die ; I think within three weeks ninety-nine per 
 cent, would die and the other per cent, might live 
 for several months. ” This statement is not dis- 
 sented from by the experts for the City. Thus, 
 Mr. Whipple says : “ If we assumed a certain 
 
 number of germs put into the Rockaway River 
 water, they would die out somewhat rapidly at 
 first. I mean, many of them would die out rapidly 
 and some would live longer ; others would live still 
 longer ; and a few might live for a number of 
 months but the number that did so remain would be 
 small compared with the number that was put in. ” 
 The experts for the City, however, point out that 
 where it concerns a matter of millions in each stool 
 the residuum surviving would-be by no means insig- 
 nificant. Mr. Whipple says that he has seen urine 
 that contained a billion germs in a single discharge. 
 
 The theory is, that when these germs escape 
 from their natural habitat in the intestine their 
 environment becomes unfavorable and hence they * 
 20 tend to die off. Professor Sedwick, of the Boston 
 Institute of Technology, thus states the matter : 
 
 “ Once they begin to travel through soil pipes and 
 sewers, their food becomes scarcer and less avail- 
 able, and when finally they mingle with the waters 
 of the lake, which are relatively pure and destitute 
 of organic matters, their pabulum must be dis- 
 tinctly scanty. At the same time, in sewage and 
 in the lake, they are subject to the influence of 
 gravity which tends to draw them down into the 
 deeper, quieter layers and finally into the mud at 
 the bottom, while predatory infusoria running 
 through the water, may devour them altogether. 
 Lastly, if they tend to float or linger on the sur- 
 face, they may there suffer from the germicidal 
 action of the rays of light and perish.” In addi- 
 tion to what is here stated, several of the witnesses 
 are of opinion that the longer they remain out of 
 the intestine the weaker and less virulent they be- 
 
43 
 
 come and therefore the less likely to cause disease. 
 
 Now it is on this theory that still water is seen 
 to be a better purify er than running water, but in 
 order that still water may, so to speak, do its work, 
 it must have time. A running mountain stream 
 may carry the germ and be the vehicle of disease 
 fifty miles below the point at which it was dis- 
 charged into the water. Hence the theory of sed- 
 imentation. 
 
 It may be asked why, if the entire body of water -j^ 
 be infected, everyone who drinks it is not made 
 sick. The answer is that some subjects are more 
 susceptible than others ; that the majority of 
 healthy persons appear to have the power to resist 
 the attacks of the micro-organisms or to neutralize 
 their poisons. 
 
 There is no doubt that in a certain sense and to 
 a certain extent running water does tend to purify 
 itself. It is matter of common observation that 
 if foreign matters, whether factory waste, sewage 
 or surface water, be discharged into a stream, 
 that stream will gradually clear. The heavier parti- 
 cles, held in suspension, tend to sink because of their 
 greater specific gravity. The substances held in 
 solution may undergo chemical reactions among 
 themselves and be precipitated ; the sunlight and 
 the oxygen of the air exert their influence and so 
 it comesTo pass that after water, not too highly 
 polluted, has flowed for a considerable distance it 
 is, to all appearances, clear and pure. Now, what 30 
 bacteriology has added to our stock of knowledge 
 is this : that water apparently pure may be in- 
 fected wflth germs that, introduced into the sys- 
 tem, produce disease and death and that running 
 water will not kill them. It will rather serve as a 
 vehicle to transport them long distances. How 
 many diseases are thus water borne is not as yet 
 definitely known. The more recent investigations 
 seem rather to add to their number than diminish 
 
44 
 
 it. Prof. Sedgwick says : “We have had a good 
 deal of new light in the last two or three years, 
 and as I said in my direct testimony, from the di- 
 arrhoeal group, including typhoid, cholera, gastro- 
 enteritis, dysentery, &c., we have got considerable 
 evidence that perhaps nearly all infectious dis- 
 eases, the germs of which might find their way in- 
 to sewage and so into water, may be to a little ex- 
 tent carried by water. ” 
 
 Professor Winslow thinks that the germ of para 
 typhoid fever may be carried by water and that 
 epidemics of diarrhoeal disease may be traced 
 to it. Dr. Leal admits that cholera, no less than 
 typhoid, is a water borne disease ; he thinks that 
 diarrhoea may be caused by water, though not a 
 water borne disease, and he says that he cannot 
 say whether dysentery is a water borne disease or 
 not and he does not believe that anyone else can. 
 
 Throughout the testimony will be found con- 
 stant reference to the presence of b. (bacilli) coli 
 in the water. These exist in large numbers in the 
 intestines of warm blooded animals, including 
 man. They, or most of them, do not cause disease. 
 One of the bacteriological methods of determin- 
 ing the purity of a water supply is to determine 
 the number of these b. coli in a cubic centimeter 
 (c. c.) of the water or in some decimal part thereof. 
 If the number is found to be large, it indicates the 
 presence, to an undesirable extent, of animal mat- 
 2Q ter, discharged from the intestines. It does not 
 necessarily, or even usually, prove the presence of 
 disease germs. It merely shows that if the ani- 
 mal, including man, that gave off the b. coli, hap- 
 pened to have some water borne disease, then the 
 same water which conveyed the b. coli would 
 probably bring the dangerous germ ; or, putting it 
 in another way, it would show that the method of 
 purification employed had not freed the water 
 from intestinal products ; that they had neither 
 
45 
 
 settled nor been destroyed in their progress toward 
 the consumer. These b. coli are exceedingly 
 minute. The typhoid bacillus is one-twenty-five- 
 thousandth of an inch in diameter but several 
 times longer than it is wide. It and the b. coli 
 cannot be seen by the naked eye until they are- 
 in bacteriological phrase — cultivated. The culti- 
 vation consists in putting a measured portion of 
 the suspected water on a plate containing some 
 substance upon which they will thrive and in- ^ 
 crease. If present, they will multiply with great 
 rapidity. Each bacillus will divide and grow and 
 sub-divide until a “ colony ” appears on the plate, 
 easily discernible by the naked eye. The number 
 of colonies counted on the plate indicates the num- 
 ber of bacilli in the given quantity of water. 
 
 By this method alone the typhoid bacillus could 
 not be differentiated from the other and harmless 
 bacilli. Such differentiation is made by further 
 tests unnecessary to describe. • 
 
 Reference will also be made to bacteria. These, 
 as I understand the evidence, are microscopic or- 
 ganism, some harmful, most of them harmless, 
 found in water, and whose count affords an indi- 
 cation of its purity. The term includes b. coli, 
 but is much more comprehensive. 
 
 We have now reached a point when the precise 
 question at issue can be understood. The conten- 
 tion on the part of Jersey City is that the con- 
 formation of the reservoir is such that in times of qq 
 freshet polluted water will pass so rapidly from 
 the river to the reservoir outlet that there will be 
 no time for proper sedimentation ; that if there are 
 pathogenic germs in the river when it enters the 
 reservoir they will be carried across it in two or 
 three days, and be borne to Jersey City within 
 seventeen hours after they leave the reservoir 
 gate. 
 
 It will be proper, in the first place, to consider 
 more particularly the character of the water to be 
 
46 
 
 purified. The Rockaway is a comparatively small 
 stream, with enormous variations of flow. Its 
 lowest flow, as shown on the Cook chart for the 
 year 1905-6, was 32,000,000 ; its highest, 899,000,000 
 gallons per diem. Of the four towns that it 
 passes, the most considerable is Dover, with a 
 population of ^ . Dover is built 
 
 up on both sides of the stream and in places the 
 ground slopes rapidly toward it. It has no sewer 
 
 IQ system and the contents of the cesspools, unce- 
 mented, leech into the adjacent soil. Boonton, 
 built upon the side of a high hill, with its natural 
 drainage toward the river and its factories on the 
 Cooper-Lord property almost overhanging, are 
 within a mile or two of the reservoir. Smaller 
 towns and factories are found along the streams 
 and its tributaries. The droppings of animals on 
 the numerous roads throughout the watershed, 
 and the water flowing off the manured fields, are 
 likewise sources of pollution. There is compara- 
 u tively little forest and except in the Longwood 
 Valley not much unused land. These conditions 
 are in contrast with those obtaining on the Pequan- 
 nock. In view of this situation, it will not be dif- 
 ficult to understand why the experts on both sides 
 agree that the water as it enters the reservoir is not 
 potable. 
 
 The experts tell us just how the water is con- 
 taminated. Mr. Whipple, the City’s expert, says : 
 
 3 Q “ I should say the water was contaminated to a 
 considerable extent for the reason that the num- 
 ber of bacilli was very large for a river of this 
 character and that the number of coli present was 
 very large and incidentally that the amount of 
 chlorine was above normal for that region and 
 also because the water has continuously a mouldy 
 odor. ” 
 
 Dr. McLaughlin was the bacteriologist con- 
 stantly employed by the Water Company to test 
 the quality of the water, both where it flowed into 
 
47 
 
 the reservoirand at the tap at Jersey City. His 
 analyses do not differ materially from those of 
 Mr. Whipple. On his direct examination, counsel 
 asked the question : Q. Would it be safe in your 
 opinion, Doctor, to deliver water from the Rocka- 
 way River at any point below the town of Dover 
 and above the headwaters of the Boonton reser- 
 voir — that is, from the plain river — and send it to 
 consumers without purification? A. It would not 
 be possible. It would be dangerous. ^ 
 
 Dr. Leal, testifying on behalf of the Water 
 Company, says in answer to the question : 
 
 Q. Doctor, in your opinion, is the flowing water of 
 any river in a populated district proper to be taken 
 for a potable water supply, without first being 
 brought into a reservoir, or in some other way 
 treated ? 
 
 A. “ No, it would be utterly unsafe and unjust 
 to doit. -To take water from a running stream, 
 draining a populated watershed and delivering it 
 directly to the consumer— that would be danger- 
 ous and inexcusable. ” Professors Winslow and 
 Sedgwick and Mr. Kuichling testify substantially 
 to the same effect. 
 
 We start out, then, with the admitted fact that 
 the water of the Rockaway as it enters the reser- 
 voir contains germs that, if taken into the system, 
 are a menace to health. The question, then, is 
 whether the reservoir itself is an effective instru- 
 mentality for getting rid of them. The Company 30 
 has provided no other. As I have already said, it 
 takes only seventeen hours for the water to flow 
 through the pipes from the gate house or outlet of 
 the reservoir to Jersey City. 
 
 Now it is manifest that if the river water, in 
 considerable quantities, can pass from the river to 
 the gate house in two or three days, or even a 
 week or two, it may carry with it living germs, 
 dangerous to life and health, if those germs have 
 been discharged into the stream. 
 
48 
 
 The City has sought in various ways to show 
 that the water does so pass. I will first advert to 
 the shape of the reservoir and to the points at 
 which the water enters and leaves it. The follow- 
 ing sketch taken from the sanitary map suffi- 
 ciently depicts the situation: 
 
 10 
 
f 
 
 G*/*he House 
 
50 
 
 The bridge across the river is about 9,200 feet 
 from the Parsippany Dike end. It is about 3,200 
 feet from the gate house and 3,400 feet from the 
 spillway or overflow. The distance from the gate 
 house to the spillway is about 1,300 feet. From a 
 bacteriological standpoint it is unfortunate that 
 the exit of the water is not at or near the Parsip- 
 pany Dike. It would then have flowed through 
 the whole length of the reservoir and more time, 
 IQ necessarily, would have been had for sedimenta- 
 tion. But at the Parsippany end it is shallow and 
 if the water were discharged there Jersey City 
 would not have the benefit of the water stored for 
 times of drought. Whether the water will flow 
 from the mouth of the river to the gate house in 
 a longer or shorter time will depend largely upon 
 conditions. It might occur to anyone, at first 
 blush, that because the water is being constantly 
 discharged at the gate house there would 
 be a constant current between the two 
 " points mentioned. But the aperture through 
 which it is discharged is only three feet long by 
 six inches wide. The current created in so con- 
 siderable a body of water by such an aperture 
 would necessarily be very small. The water, of 
 course, would flow along the line of least resist- 
 ance. Some of it, for that reason, would, when the 
 reservoir was full, flow toward the spillway. The 
 greater the volume of water in the river the 
 3Q greater would be this flow. From an inspection of 
 the Cook diagram of the flow of the river for the 
 year 1906, I should judge that its mean flow 
 throughout the year was over one hundred thou- 
 sand gallons per day. But the river varies greatly. 
 On nine occasions in that year for a period of sev- 
 eral days at a time its flow exceeded 350 millions, 
 and on two occasions, 800 millions. From 35 to 38 
 millions are taken by the pipe and so on such oc- 
 casions the greater current would be toward the 
 
51 
 
 spillway. It is at least certain that the water 
 that enters the river would, because of this situ- 
 ation, tend rather to flow toward the north- 
 easterly end of the reservoir than toward the 
 Parsippany Dike, and this tendency would be 
 aided by the contour of the bottom. The 
 foregoing diagram shows in a rude way the ancient 
 bed of the stream, and so, the deepest part of the 
 reservoir. It is between the spillway and the gate 
 house, but nearer the spillway. The contour lines 
 shown on one of the maps indicate the existence 
 of comparatively high ground to the right of the 
 ancient river bed, shortly after it flows into the 
 reservoir and this, too, would tend to divert all 
 but the upper stratum of the water from the Par- 
 sippany end. It is to be borne in mind, however, 
 that even when the river is discharging into the 
 reservoir one hundred millions of gallons a day it 
 encounters a volume of over seven billions of gal- 
 lons, or seventy times its own bulk. When a very 
 large volume of water is flowing in the river there 
 would be a tendency to run down hill, so to speak, 
 and spread out in every direction. But this ten- 
 dency, too, might be counteracted by the wind. 
 
 4 difference of temperature between the upper 
 and the lower strata of the water would originate 
 local currents and the wind would cause others. 
 
 It will thus be seen that the problem presented is 
 exceedingly complex ; so complex that Mr. Her- 
 ing, a noted hydraulic engineer, called by the 30 
 Company, declared himself unable to solve it. It 
 was attempted by means of floats, of varying 
 length, sunk beneath the water at varying points 
 to determine how the currents chiefly ran. These 
 experiments were not carried on for such a 
 length of time and under such conditions as to 
 prove anything very definitely. Mr. Hering said 
 it was his firm conviction that float experiments do 
 not give a true idea of currents. Counsel did not 
 attempt to obtain from him, except in this general 
 
 LIBRARY 
 
 UN!VERSIT V . ILLINOIS 
 UK. \ 
 
52 
 
 way, his opinion of the result of the experiments 
 of Mr. Bardner, who made them for the company, 
 and of Mr. Watson, who made them for the City, 
 but Mr. Kiuchling, the City’s engineering expert, 
 said, “The experiments of January 16 [Mr. Wat- 
 son’s] of which there were two, and the first six 
 experiments of December 5, 1906, [Mr. Bardner’s] 
 show conclusively that there was a persistent sub- 
 surface current from the mouth of the river where 
 IQ it enters the reservoir, down stream and across 
 the reservoir and thence down the reservoir to the 
 dam and gate house. In both of these cases the 
 direction of the wind was opposite, or nearly oppo- 
 site, to that of the float. * * * The 
 
 figures show an enormously wide difference be- 
 tween these actual observed facts and the opinion 
 expressed by Mr. Hering on purely theoretical 
 grounds as to the rate of speeds of currents in the 
 reservoir.” The allusion here is to Mr. Her- 
 ing’s statement that under certain hypotheti- 
 ^ cal conditions (which, however, he admitted 
 would not be likely to exist in fact) the 
 water, if in a condition of quiescence, would 
 take 80 days to pass from the river to the gate house. 
 The value of this statement by Mr. Hering, as 
 proof for the Company, is greatly lessened by his 
 further statement: “ In times of flood the condition 
 would be quite'different. * * * I have 
 
 not been able to satisfy myself as to just how 
 3 Q many days it would take the water to flow from 
 the mouth of the river to the intake under these 
 freshet conditions, because it is an extremely com- 
 plicated problem, but I would say it would take a 
 number of days; just how many, I could not say.” 
 Q. More than a week? A. I cannot change my 
 answer. I don’t know whether it would be more 
 or less than a week. That, of course, only applies 
 to those times when freshet water goes into the 
 reservoir in large flows. 
 
53 
 
 All the experiments made by Bardner, except 
 the last series taken on December 14, were made 
 when the wind was light and but little water flow- 
 ing in the river. On December 14, however, the 
 volume of water flowing in the river was much 
 greater (134 million gallons) and there was a 
 steady breeze blowing all day from the east, north- 
 east, that is, directly from the dam to the river. It 
 is unfortunate that he did not then put his floats 
 into the water between the river and the gate ^ 
 house or spillway, as Mr. Watson did later. He 
 merely contented himself with putting them in the 
 middle of the lake where they went with the wind 
 and proved practically nothing. 
 
 This much would seem to be certain : That the 
 current, such as it is, on the principle that the 
 water goes along the line of least resistance, 
 necessarily tends to flow from the mouth of the 
 river toward the gate house and spillway. If more 
 water is flowing over the spillway than through 
 the gate house then the current would be more 
 pronounced in that direction. If the wind is 
 blowing hard from the northwest this tendency 
 would be augmented. The larger the volume of 
 water flowing in the river the stronger the cur- 
 rent. It nowhere appears in the testimony how 
 far down these currents would extend, so far as 
 they are set in motion by the passage of the water 
 toward the spillway. It is as least probable that 
 the friction of the upper currents upon the lower, 30 
 created either by a considerable wind or by a 
 freshet, would tend to set the lower currents in 
 motion in the same direction, in accordance with 
 the result of Mr. Kuichling’s observations in Lake 
 Michigan, and that these currents would be di- 
 rected toward the gate house rather than toward 
 the Parsippany dam. 
 
 There is another fact which seems to me to pos- 
 sess some significance. Mr. Ccok, hydraulic engineer 
 by profession, a gentleman of much experience, 
 
having the actual superintendence of the reservoir 
 and more famiiiar with the conditions existing 
 there than anyone else, did not testify on this im- 
 portant subject, although he was called more than 
 once on other subjects. Nor did Mr. Gardner, the 
 president of the defendant company, also an engi- 
 neer. What Dr. Leal and Dr. McLaughlin, neither 
 of them experts so far as this matter is concerned, 
 said I shall consider later on, when I contrast their 
 evidence with that of the bacteriologists called by 
 the City. 
 
 There is a fact in this connection which seems 
 to me to be very strong indeed. I called attention 
 to its significance on the argument and counsel 
 for the Water Company could not, so far as I 
 could see, explain it away. In the freshet of 1893 
 and during 108 consecutive hours, or nearly four 
 and a half days, there was discharged at Boon ton 
 9,885 million gallons. The reservoir contains, 
 above the lowest efflaentpipe, 7,300 million gallons. 
 What would have become of the water in the re- 
 servoir had it then been full ? It is absurd to sup- 
 pose that this immense volume of water would 
 have flowed over the top of the water already 
 there and left it undisturbed. It would undoubt- 
 edly have mingled with it and very largely dis- 
 placed it. There can be no question that in two 
 or three days some of the inflowing water would 
 have reached 'Jersey City. It will, no doubt, be 
 said that this was an exceptional flow, but the 
 fact is that a very similar freshet occurred only a 
 year or two before. 
 
 I will take, however, what was admittedly a nor- 
 mal year ; in fact, a year of very moderate and 
 very even flow. The flow for 1906 is illustrated by 
 Mr. Cook on a diagram. It appears therefrom 
 that on March 4th and 5th it was about 900 mil- 
 lion gallons per day; on March 6th, 600 hundred 
 millions and on March 7th, 400 millions. In other 
 
55 
 
 words nearly 2,800 millions of gallons flowed into 
 the reservoir during those four days. This was 
 considerably more than one-third the contents of 
 the reservoir above the lowest point of discharge. 
 
 Now considering with what velocity the freshet 
 must have entered the stream and how the contour 
 of the bottom must have given direction to its cur- 
 rents ; how the friction of the upper strata would 
 have acted upon the lower, is it conceivable that a 
 considerable portion of the river water would not ^ 
 have found its way to the gate house within a very 
 few days ? This freshet occurred in the early part 
 of March. If coincident with a thaw, then the 
 water would have contained the animal matters 
 which had accumulated on the surface during the 
 freezing weather. 
 
 The question will at once suggest itself, whether 
 the observed facts accord with this, a priori con- 
 clusion. I think it clear that they do. 
 
 In the first place, the results of examinations of 
 the water after it reached Jersey City, both Mr. 
 Whipple’s results and Dr. McLaughlin’s, show the 
 number of bacteria to be very variable. Mr. 
 Whipple, the principal expert witness for the City, 
 made analyses of the water during 1904 and 1905. 
 
 He says, that the number of bacteria at the point 
 of discharge in the small acqueduct on Jersey City 
 Heights varied from 120 to 2,500 per cubic centi- 
 meter, and being asked by the Water Company’s 
 counsel for the average, he said it was 642 ; that 
 53 per cent of the samples gave positive tests for 
 colon bacillus in one cubic centimeter and that 
 twenty per cent of the samples gave positive tests 
 for b. coli with one-tenth of a cubic centimeter. In 
 1905 the results were better. The bacteria varied 
 from 210 to 2,400, the average being 700. Four 
 and a half per cent, of the samples gave positive 
 tests for b. coli both when one cubic centimeter 
 and when one-tenth of a cubic centimeter were 
 used. 
 
 V 
 
56 
 
 Dr. McLaughlin’s tables show like differences. 
 From the printed tables, it appears that between 
 May 24, 1904, and January 1, 1905, (omitting the 
 months of July and August when no examinations 
 were made) the number of bacteria varied from 50 
 on December 26 to 3,700 on June 27th. On no two 
 successive weeks were they the same. In 1905, 
 omitting three weeks in July and all of August, the 
 numbers varied from 30 in July to 1300 in January. 
 In 1907, they varied from 10 in June to 400 in De- 
 cember. B. coli were discovered in one cubic cen- 
 timeter three times in 1904 ; twice in 1905 and four 
 times in 1906. 
 
 The last test by Dr. McLaughlin in 1906 was on 
 December 23rd. He then found 240 bacteria pres- 
 ent in one cubic centimeter and b. coli present in 
 ten cubic centimeters. Within three days there- 
 after (December 26th) Prof. Winslow analyzed the 
 water. He found 200 bacteria present in one of 
 the small reservoirs (Res. 2) on Jersey *City Heights 
 and 300 in the other (Res. 3). On the same day he 
 found b. coli present in both in a single cubic cent- 
 imeter. In March, 1907, he made two analyses on 
 two successive days. On March 19th, he found in 
 Reservoir 2, in the morning, 1000 bacteria, and in 
 the afternoon 1200 ; in the other, 700 and 600. 
 On March 20th, he found in Reservoir 2, 700 in the 
 morning and 800 in the afternoon ; in the other, 
 300 and 900. On March 19th, in Reservoir 2, he 
 30 found b. coli present in one cubic centimeter in 
 two samples and in one-tenth of one cubic centi- 
 meter in another sample. In Reservoir 3, he ob- 
 tained a similar result. 
 
 These analyses show that when the water 
 reaches Jersey City it contains many more bac- 
 teria on some days than it does on others. In 
 other words, that the sedimentation is not always 
 complete. The full significance of these varia- 
 tions will be more apparent when we consider 
 them in connection with Dr. Leal’s statement with 
 
57 
 
 respect to the bacteria that are found in the fil- 
 tered water after it passes through the filter plant 
 at Little Falls. “We don't care so much about 
 the rate of efficiency, but we want less than 100 
 bacteria. If it is more than a hundred we add a 
 little more sulphate of aluminum." Dr. Leal's 
 evidence on this point will be given more at length 
 in another connection. 
 
 There being then considerable variations in the 
 number of bacteria found in the water tap at Jer- ^ 
 sey City and in the small reservoirs there, the 
 question that next suggests itself is whether there 
 is any observed connection between freshets flow 
 and an increase in the number of b. coli and 
 bacteria there and freshet flow. This increase 
 does in fact appear to be marked and diagrams 
 have been prepared to illustrate it. It is unfor- 
 tunate that our data are somewhat defective, for 
 two reasons : first, because Dr. McLaughlin made 
 his tests from water drawn from the tap at Christ 
 Hospital and not from the Jersey City reservoirs. 
 
 % I have already said that as a matter of law, the 
 Water Company was bound to deliver water that 
 was pure and wholesome at these reservoirs or, so 
 far as it did not pass through them, at the point 
 where it passed from the pipes of the Water Com- 
 pany into the service pipes of Jersey City. The 
 evidence indicates that the water is a little better 
 after it flows through the City's pipes. This 
 would be especially true of the water flowing out 30 
 of the Jersey City reservoirs, for in that case there 
 would be some little additional sedimentation. 
 Consequently, Dr. McLaughlin's results are a 
 little too favorable for the Water Company. 
 
 The data are, secondly, defective because not 
 made by Dr. McLaughlin oftener than once a week. 
 Suppose a heavy rain on the first day of the 
 month and no analysis until the seventh. If the 
 water does, in fact, pass from the mouth of the 
 river to Jersey City in two or three days, the 
 
58 
 
 analysis would not necessarily show an increase in 
 bacteria. The storm water might have had four 
 days in which to settle or to become more diluted 
 with the waters already in the reservoir. Hence, 
 Dr. McLaughlin’s analyses might not, and, on the 
 assumption I have made, often would not indicate 
 the full extent of the pollution. Keeping these 
 things in mind, let us look at the data such as we 
 find them. At the beginning and end of the entire 
 -j^ period we are assisted by the analyses of Mr. 
 Whipple and Prof. Winslow. One other prelimin- 
 ary observation may be made. When a rainfall 
 succeeds a period of dry weather it finds the air it- 
 self full of dust and the ground contaminated to a 
 greater or less extent with foecal matter and gar- 
 bage, the amount of contamination depending, of 
 course, upon the length of the drought and upon 
 the density of the population. I exclude from view 
 altogether the case of sewers constructed to carry 
 off sewage, for upon this watershed there are none. 
 ^ The first rain, if at all heavy, carries a large pro- 
 portion of these impurities into the stream. If it 
 continues to rain, the river water, while it may be 
 colored by the vegetation of peaty bogs, &c., grad- 
 ually becomes purer. It is the first heavy rain 
 succeeding a period of drought that is, from a bac- 
 teriological standpoint, most to be feared. If the 
 drought has been sufficiently prolonged and the 
 reservoir drawn down in consequence, then the 
 3 Q mouth of the Rockaway is nearer the dam 
 and the water entering it has a lesser volume of 
 settled water with which to intermingle. 
 This condition of affairs was remarkably illus- 
 trated by what occurred in September, 1904, when 
 the reservoir had not yet filled. Here we have Mr. 
 Whipple’s figures to supplement Dr. McLaughlin’s 
 On September 15, there occurred a very heavy 
 rainfall of five inches. On the day previous Mr. 
 Whipple found in the Jersey City reservoir, 520 
 bacteria per c. c., and on that day, 850. On Sep- 
 
59 
 
 tember 16, the number rose to 1,700, and on Sep- 
 tember 17, to 2060. The following day, (September 
 18) was Sunday and no test was made. On Monday, 
 September 19, the bacteria had fallen to 690 in the 
 small reservoir. But Dr. McLaughlin also made a 
 test of the water at Christ Hospital on that day 
 and whereas on September 14 his analysis showed 
 at the tap only 275 (against Mr. Whipple’s 520 at 
 the reservoir), on September 19 his test showed 
 750 and the presence of b. coli in one c. c. Not- ^ 
 withstanding, therefore, the additional purification, 
 if any, that the water had undergone in the Jersey 
 City pipes, the rise in the number of bacteria was 
 very marked. It is difficult to draw any other in- 
 ference from these facts than that the influence of 
 the storm began to be felt in the Jersey City reser- 
 voir the day after it began and that two days after 
 it began it was still more marked, and that two 
 days after that it was clearly perceptible at Christ 
 Hospital. Of course, we would have had still more 
 light thrown upon the matter if Dr. McLaughlin 
 had tested the water between September 14 and 
 September 21. 
 
 The next heavy rain (3i inches) occurred on 
 October 21. Mr. Whipple’s table does not extend 
 beyond September ; but Dr. McLaughlin’s analysis, 
 made October 25, shows that whereas on October 
 19 there were only 110 bacteria found, on October 
 25, four days after the rain, the number had in- 
 creased to 800, and again b. coli were present in 30 
 one c. c. On November 1 it fell to 120. 
 
 These were the two heaviest rainfalls of the 
 year. In the following year there was a rainfall 
 of 2i inches on January 7th, and the number of 
 bacteria rose to the unusual number of 1300. The 
 rainfall may have been accompanied with a thaw. 
 There was another rain on January 12th, and on 
 January 17th the number still stood at 1300. How 
 they stood in the interval we can only guess. In 
 February and March the numbers varied. The 
 
60 
 
 precipitation was not great and some of it was 
 probably snow. The number of bacteria was con- 
 siderably higher in March, when the melting snow 
 caused the river to rise, than it was in February. 
 It is quite in accord with the previous results that 
 five days after the river was highest in the reser- 
 voir, the number of bacteria was slightly greater 
 than at any other test time in either of 
 those two months. The rains for the rest of 
 IQ the year were not very heavy, the heaviest 
 (21 inches) being on September 4th and 12th. 
 On September 7th the bacteria were 130, Sep- 
 tember 12th, 120, and September 18th, 190. 
 
 The rise on September 18th occurred four or 
 five days after the water in the reservoir was at 
 its highest, but the difference in the number of 
 bacteria is too slight to afford ground for any 
 reasonable inference. 
 
 The year 1906 was characterized by very moder- 
 ate rainfalls — I should say unusually so for on only 
 u two occasions throughout the year did they amount 
 to 21 inches. There was less variation in the 
 number of bacteria than in the two years prior. 
 It is in this year that Mr. Cook, on behalf of de- 
 fendants, has furnished us a diagram in which he 
 compares the flow of water in the reservoir with 
 the number of bacteria found at the tap. His com- 
 parison terminates in November. 
 
 In December, 1906, we have for the first time 
 3Q Professor Winslow’s figures. In consequence, ap- 
 parently, of the melting of the snow that had fallen 
 during the month, the reservoir was at its highest, 
 according to the diagrams both of Mr. Cook and 
 Mr. Whipple, on December 22nd. On December 
 26th, Professor Winslow found in Reservoir 2,200 
 in the morning and 150 in the afternoon. On De- 
 cember 27th, he found 200 in the morning and 150 
 in the afternoon. On December 27th, he found 
 200 in the morning and 650 in the afternoon. 
 Very similar results were found in the other reser- 
 
61 
 
 voir (300 and 200 on December 26th and 400 and 
 600 on December 27th). On December 23rd, Dr. 
 McLaughlin found at the tap 240 as against sev- 
 enty-five on December 17th, and on December 
 31st, 600. There was a heavy rain on December 
 30th or 31st and the water again rose very rapidly 
 in the reservoir, reaching its highest point on Jan- 
 uary 1st and 2nd, 1907. On January 6th the num- 
 ber of bacteria at the tap still remained high (550). 
 
 In March, 1907, as shown by the Whipple diagram, ^ 
 the water rose rapidly on March 13th and 14th and 
 was high in the reservoir up to March 30th. On 
 March 19th, Professor Winslow's analyses show 
 the presence in the morning of 1,000 bacteria in 
 reservoir No. 2, and in the afternoon of 1,200 as 
 against 700 and 600 in reservoir No. 3. On March 
 20th, the numbers were 700 and 800 as against 300 
 and 900 in reservoir No. 3. I have already said 
 hat these analyses showed, in three of the testst, 
 b. coli present in one-’tenth of a c. c. % 
 
 There appears to be one rather marked case in 
 which higher water in the reservoir was not fol- 
 lowed by an increase of bacteria at the tap. In 
 July, 1906, there was a considerable rain and 
 about the first of August the water rose in the 
 reservoir in consequence. The bacteria appears 
 to have decreased. But it appears from the dia- 
 gram that between June 15 and July 31 no less 
 than twelve inches of rain fell. This large 
 amount fell throughout that period in very mod- 30 
 erate quantities, but on a good many days. The 
 greatest fall (li inches) occurred on July 27th. 
 These numerous rains occurring with much uni- 
 formity throughout this entire period would 
 have been, a priori, likely to have produced the 
 very result that happened. The earlier rains 
 would have gradually washed off the impurities 
 found upon the surface of the earth and the 
 latter rains would have gone into the stream 
 comparatively pure. The contention of com- 
 
62 
 
 plainant is not that rain, per se, even in con- 
 siderable quantities, is favorable to an increase 
 of bacteria, but that heavy storms are— storms 
 which wash the earth and carry the impurities 
 that have accumulated upon it in periods of 
 drought, in a concentrated form, into the river. 
 This apparent exception, therefore, would seem, if 
 anything, to prove the rule. 
 
 Mr. Whipple also testifies to certain color tests 
 IQ made in 1904 while the reservoir was unfinished. 
 As far as they go, they lead to the same conclusion 
 that the bacteria counts do, but I do not care to 
 rely upon them, for other causes might have con- 
 duced to the results obtained. 
 
 I am, on the whole, obliged to conclude that all 
 the evidence favors the theory that water, under 
 certain combinations of circumstances occurring 
 perhaps on an average two or three times a year, 
 will pass from the mouth of the river to the Jersey 
 City reservoirs in two or three days. Every fact 
 is favorable to this view and no fact, so far as I 
 can discover, is opposed to it. So strong is the 
 evidence that no expert has been found willing to 
 assert the contrary. Mr. Hering, a gentleman of 
 great experience, would not, as I have already 
 shown, commit himself on the subject and, what 
 is still more noteworthy, Mr. Cook, the engineer 
 in charge of the works, was not asked to testify 
 about it. Under these circumstances I accept the 
 3 Q opinion of Mr. Kuichling, an expert of wide ex- 
 perience, based as it is upon grounds that seem to 
 be unanswerable, and fortified as it is by the 
 other proven facts. 
 
 Now, this appears to be the difficulty with the 
 defendants' case on this branch of it. The reser- 
 voir does its purifying work imperfectly at the 
 time when that work is most needed. 
 
 To meet the force of this objection, the Water 
 Company resorts to proof of averages and to opin- 
 
63 
 
 ion evidence. It uses averages in two ways. 
 First, it compares what it calls the average effic- 
 iency of the reservoir as a sedimentation basin 
 with the standard prescribed by the expert wit- 
 nesses of the City. Second, it compares its 
 average efficiency with that of filter plants. I may 
 say that in view of the evidence, I regard aver- 
 ages, thus used, as altogether misleading. 
 
 The Water Company’s expert, Dr. McLaughlin, 
 says, “ Water which does not contain b. coli in ^ 
 one cubic centimeter, judging from my work on 
 this subject, more than fifty per cent, of the 
 times of examination of this particular water of the 
 Rockaway would indicate good wholesome water, 
 in my opinion.” He says, further, speaking of 
 the result of his tables, in 1904, b. coli in one 
 centimeter were present seven per cent, of the 
 time ; in 1905, seven per cent, of the time ; in 1906, 
 eight per cent, of the time. “I deduce from 
 that, that the water is good water.” 
 
 This method of deducing his conclusion is at- 
 tacked by the city’s experts. They assert that he 
 cannot examine the water once a week for a year 
 and then judge of the excellence of the supply by 
 taking an average of the tests for that year ; that 
 the only way in which he can use averages is by 
 applying them to the results of several examina- 
 tions made of samples taken at the same time from 
 the same place. To illustrate : If fifty samples 
 were taken from the same place on the same day gQ 
 and it were found that b. coli were not present in 
 one cubic centimeter in more than fifty per cent, 
 of the samples, then the water would be considered 
 good ; but if one sample were taken on one day in 
 eaffi week of the year and it were found chat on 
 forty-five days b. coli were not present and on 
 seven days they were, all that that would indicate 
 would be that on forty-five days the water was good 
 and on seven days it was either bad or, at least, 
 open to suspicion. We certainly would not be justi- 
 
64 
 
 fied in concluding that it was unobjectionable dur- 
 ’ ing seven weeks, (if a day is to stand for a week) 
 only because it was good for forty- five weeks ; if, in 
 point of fact, it were found that for those seven 
 weeks it was bad. 
 
 Prof. Winslow’s attention being directed, on cross 
 examination, to a statement made by him in a 
 discussion published in the Journal of the New 
 England Water Works Association to the effect 
 -j q that the commonly accepted standard is that water 
 good to drink should not give a positive test for 
 the coli bacillus in one cubic centimeter, certainly 
 not over fifty per cent, of the time, said : “ What 
 
 I meant by that, as I explained a few minutes ago, 
 is that if samples (be) taken from the same source 
 undet the same conditions, not more than 50 per 
 cent, should show b. coli. When they are taken at 
 different times with varying conditions that con- 
 clusion does not apply.” This statement, as ap- 
 plied to the reservoir, seems to me so obvious that 
 nothing but its bare annunciation would seems 
 necessary ; and yet the defendant’s entire case is 
 built up on the opposite theory. In fact, so strong 
 and positive has been the testimony of defendant’s 
 experts on this subject that I should feel hesita- 
 tion in presuming to differ from them were it not 
 that at least an equal weight of names is on the 
 other side. I think that perhaps the witnesses for 
 the Company were unconsciously construing the 
 contract in a sense advantageous to that side. 
 They may have assumed that when the contract 
 called for pure and wholesome water it really 
 meant that the general average of the water 
 throughout the entire year should not be below 
 the standard. In other words, that if the fifty- 
 two samples tested taken on fifty -two different 
 days were all blended together and the blend were 
 up to the standard, the contract would be satis- 
 fied. If the inhabitants of Jersey City could drink 
 
65 
 
 this blend every day the position would be more • 
 plausible. 
 
 The Company endeavored to demonstrate the 
 efficiency of the reservoir as a purifier in another 
 way. Their witnesses compared the number of 
 bacteria in the water of the river, where it flowed 
 into the reservoir, with the number of bacteria in 
 the water both at the gate house and after it 
 reached Jersey City. Dr. Leal, on this basis, for 
 the whole period between June 13, 1904, and De- ^ 
 cember 10, 1906, computed the average efficiency 
 at the dam to be 97i per cent, and at the tap in Jer- 
 sey City to be 99 2-10 per cent. He compared this 
 average efficiency with the average efficiency of 
 the Little Falls filter, which he himself superin- 
 tended. This, he says, was from September 1, 
 
 1903, to September 1, 1904, 97.8 per cent ; Septem- 
 ber 1, 1904, to September 1, 1905, 96.4 per cent ; 
 September 1, 1905, to September 1, 1906, 96.1 per 
 cent. Comparing the two, it would seem that in 1905 
 and 1906, so far as bacteria were concerned, the ^ 
 reservoir showed a higher percentage of efficiency 
 than the filter. But the question is not whether, 
 on an average , the water was good, or whether, on 
 an average, it compared favorably with the average 
 of some other water, but whether there were 
 times when it was polluted. Such a comparison 
 shows nothing on this head. Dr. Leal is obliged 
 to admit, on cross examination, that according to 
 Dr. McLaughlin’s tables, in June, 1904, the effici- 
 ency of the reservoir was only 73 per cent. He 
 does not pretend that this was a good showing or 
 that such variations are to be found in the filter 
 plant. And the reason is obvious, if we consider how 
 the work of filtering is accomplished. This is Dr. 
 Leal’s description of the process : “ The system 
 
 of purification at Little Falls is this : As the water 
 enters the filter plant, sulphate of aluminum, from 
 half a grain or a quarter of a grain up to a grain 
 
66 
 
 and a half or two grains to a gallon, is added to 
 the water. The sulphate of aluminum on being 
 added to the water splits up into hydrate of 
 aluminum which is a flocky precipitating mass. It 
 is the same principle as the settling of coffee 
 grounds with white of an egg. This gelatinous 
 matter is spread all through the mass of water and 
 it sinks down to the bottom, carrying with it and 
 tangling in its meshes, carrying into it all sus- 
 pended matter, including bacteria. This process 
 takes place in a large sedimentation basin which 
 holds 1,800,000 gallons of water and the water 
 stays in that about two hours. * * * The 
 
 free sulphuric acid which is left when the hydrate 
 (of aluminum) is split off, unites with the lime base, 
 carbonates of lime and soda (in the water in its 
 natural state). * * * The water flows 
 
 back and forth in this sedimentation basin and fin- 
 ally flows on to the surface of the (sand) filters. 
 What little is left of the coagulating mass and 
 what few bacteria are left are almost entirely 
 removed on the surface of the filter.” 
 
 From this description it is evident that the 
 amount of alumina introduced depends upon the 
 condition of the water. It is so regulated, says 
 Dr. Leal, that “ the order to the man in charge is 
 to keep within 100 bacteria. We don't care so 
 much about the rate of efficiency , but we want less 
 than 100 bacteria. * * If it is more than a hun- 
 gQ dred we add a little more sulphate of aluminum.” 
 
 This, no doubt, is a perfectly accurate statement 
 of the matter. It agrees with what is testified to 
 by all the experts ; but so far from bearing out Dr. 
 Leal’s theory of the reservoir as a purification 
 basin, it shows very clearly that the important 
 thing is not so much high percentage of effi- 
 ciency as it is absolute results. If 500 bacteria 
 are left in the water, no matter how high the per- 
 centage of efficiency, the result obtained is unsat- 
 
67 
 
 isfactory. “ We want less than 100 bacteria. If 
 it is more than one hundred we add a little more 
 sulphate.” Many striking illustrations could be 
 drawn from Dr. McLaughlin’s tables. Thus, in 
 March, 1905, the number of bacteria per c. c. is, in 
 the river, 9100. The number at the gate house 
 is 600. The percentage of efficiency, cal- 
 culated according to the method employed 
 by Dr. McLaughlin, (p. 3221 of printed case) 
 is 93%. I use the gate house figures because the ^ 
 reservoir as a purifier is compared with the filter 
 plant as a purifier. In the case of this latter, the 
 figures relate to the water as it passes out of the 
 filter, not to the water as it is delivered to Bay- 
 onne or other suburban towns. In December of 
 the same year the number of bacteria in the river 
 was 2700 ; the number at the gate house was 
 1000 ; the percentage of efficiency, therefore, 63%. 
 
 In January, 1906, the number of bacteria in the 
 river 1500 ; at the gate house 900 ; the percentage 
 of efficiency, 40%. If this mode of computing the 
 efficiency could be relied upon it would condemn 
 the reservoir, regarded as a purification agency, 
 as inefficient and almost useless. The fact is, 
 however, that it is entitled to no such condemna- 
 tion. The method adopted appears to be abso- 
 lutely worthless for the following reason : What 
 Dr. McLaughlin did was to take samples of water 
 out of the river and out of the reservoir at the 
 gate house, and at the tap in Jersey City on the 
 same day, and each sample was taken at about the 
 same or nearly the same time on that day. Now 
 according to all the evidence it must, except under 
 such extraordinary conditions as the Water Com- 
 pany would not be obliged to provide against — for 
 instance, an unprecedented drought lasting so long 
 that all the water in the reservoir was exhausted, 
 followed by an unprecedented freshet — it must, I 
 say, take a day or, more likely, two or three days, 
 for the water to pass from the mouth of the river 
 
68 
 
 to the gate house and it takes just seventeen hours 
 for the water to travel from the gate house to 
 Jersey City. To take, therefore, figures showing 
 the bacteria in the water at these three different 
 places, at the same time, is not the slightest evi- 
 dence of reservoir efficiency. To find out the 
 efficiency, we must know how the water flowing 
 into the reservoir has been affected by its passage 
 through the reservoir. This, of course, we cannot 
 know absolutely for the reasons heretofore ad- 
 verted to and besides the water of the river would, 
 under any circumstances, be diluted with the 
 water already in the reservoir. But if we had had 
 a daily test at the gate house and at Jersey City it 
 could, 1 think, have been approximated. 
 
 Another illustration is a reduction ad absurdum 
 of the method employed. On January 12, 1905, 
 the bacteria in the river per c. c. amounted to 
 2,700 ; the bacteria at the gate house, 5,400. If 
 we could draw any inference it would be that the 
 reservoir had increased the pollution. When Dr. 
 McLaughlin’s attention was called to this he sug- 
 gested that in the long run the figures given would 
 correct themselves. I doubt if we have enough 
 instances, even for this purpose ; but the funda- 
 mental difficulty would remain ; we would still 
 have average efficiency and not the efficiency of 
 the reservoir in times of freshet or drought, fol- 
 lowed by heavy downpour. It is very easy to see 
 3Q that by taking averages, very good water— water 
 above the standard— delivered at one time may 
 be used to cover up the faults of polluted water 
 delivered at another time. 
 
 There is another and, as it seems to me, import- 
 ant observation to be made with respect to the 
 table showing the efficiency of the filter plant. 
 This table shows monthly averages only, although 
 daily tests were made at the filter works. And 
 this table deals only with bacteria and not with b. 
 
69 
 
 coli. It is hardly possible that the East Jersey 
 Water Company made no analyses for b. coli and 
 yet these are not shown with a view of comparing 
 them with the analyses for b. coli made by Dr. 
 McLaughlin. However, taking the table as we 
 find it, it appears that the greatest number of bac- 
 teria present in the filtered water in any month is 
 300, as the average for February; 1906. On only 
 two other occasions did the bacteria rise above 
 200. In far the larger number of cases it was 
 much below 100. It is not likely, in view of Dr. ^ 
 Leal's statement about adding aluminum, that 
 these averages were much exceeded on the several 
 days of those several months. The showing thus 
 made is a far better one than is afforded by Dr. 
 McLaughlin's monthly showings of the water at 
 the gate house. On January 12 of the year 1905, 
 there were 5,400 bacteria per c. c. On three days 
 of three other months in the same year, 1,000, or 
 more. In the three years covered by his monthly 
 report once they numbered 900, once 750, six times 20 
 they ranged between 500 and 700 and only four 
 times did they fall below 100. 
 
 So much for Dr. McLaughlin's results at the 
 gate house. Let us look at his results at the Hos- 
 pital. It must be remembered that, owing to a 
 lack of other data, we are obliged to compare the 
 bacteria found at the hospital with those found at 
 the exit of the filter. To make a fair comparison 
 we should compare the water at the tap in Jersey 
 City with the filtered water at the tap — say in 
 Bayonne. If the water is additionally purified by 
 passing through pipes, as it appears to be, then the 
 filtered water at Bayonne would make a better 
 shywing than the same water at Little Falls. Here 
 too Dr. McLaughlin gives us an average and this 
 average, from June, 1904, to December, 1906, (in 
 elusive) is 175 bacteria. This is more than Dr. 
 
 Leal thinks ought to be allowed to pass through 
 the filter. But when we come to analyze Dr. Me- 
 
70 
 
 Laughlin’s figures for individual days we find this 
 that in 1894 out of forty-five tests, the bacterial 
 count was, on twenty-two occasions, 300 or over ; 
 on ten occasions, 600, or over ; once, 1,000 ; once 
 1,700 and once 3,700. In this year, however, as I 
 have already said, the reservoir was still 
 under construction. In 1905, there were 
 
 forty-one tests. The result was that on twelve 
 occasions the bacteria amounted to, or ex- 
 jq ceeded, 300 ; on one occasion, they amounted to 
 750, and on two occasions to 1300. In 1906, in 
 fifty-one tests there were only fifteen occasions 
 when the count exceeded 100 ; four when it ex- 
 ceeded 200 ; once it was 325 ; once 375, and once 
 400, to which we ought to add Prof. Winslow’s 
 150, 200 and 300 on December 26th ; in the Jersey 
 City reservoir ; 200, 400, 600 and 650 on December 
 27th; 600, 700, 1,000, 1,200 on March 19, 1907 ; 500, 
 700, 800, 900 on March 20, 1907. From such a 
 small number of data in 1907 we would scarcely 
 be warranted in drawing any conclusion, except 
 this : either that conditions were unusually favor- 
 able in 1906, or that the water at the tap was better 
 than the water as it was delivered into the small 
 reservoirs, for Prof. Winslow’s results show that 
 for two days in March, 1907, the water contained 
 considerably more bacteria than it had contained 
 at any time in 1906. 
 
 The general result is that taking the best year 
 3 q in seventeen instances (counting Prof. Winslow’s 
 eight analyses as only two because made on only 
 two days) the number of bacteria exceeded at the 
 tap what Dr. Leal thought was not a satisfactory 
 number even at the exist of the filter. 
 
 The bacteria do not necessarily come from the 
 intestine of either man or beast. The b. coli do. 
 
 I do not find any table that indicates the number 
 of b. coli present after the water has been filtered. 
 We will, therefore, have to judge of these by a 
 different rule. I do not understand that the 
 
71 
 
 Water Company’s experts quarrel with the rule 
 stated by Mr. Whipple. That rule is this:— “ If 
 the water regularly shows the presence of b. coli 
 in ten cubic centimeters and not in one cubic cen- 
 timeter it may be safe for use. If it contains b. 
 coli in’one cubic centimeter and. not in one-tenth 
 cubic centimeter it may be considered as of doubt- 
 ful quality. If it contains b. coli in one-tenth but 
 not in one-hundredths cubic centimeter it may be 
 considered to be too much polluted to be safely ^ 
 used. If it contains b. coli in one-hundredths 
 cubic centimeter the water is quite certain to be 
 seriously polluted.” 
 
 Now, testing the water by this rule we have the 
 following results derived from Dr. McLaughlin’s 
 tables : In 1904, on three occasions b. coli were 
 found at the Christ Hospital tap both in one c. c. 
 and in 10 c. c., and on eight occasions in 10 c. c. 
 
 In 1905, b. coli were found twice, both in one c. 
 c. and 10 c. c. and twenty-four times in 10 c. c. 
 
 In 1906, b. coli were found four times both in 1 c. 
 c. and in 10 c. c. and thirty-two times in 10 c. c. 
 
 This result is rather noteworthy. It shows that 
 while the number of bacteria was smaller in 1906 
 than it was in 1904, the number of b. coli was 
 greater, on the whole, in 1905 than it was in 1904, 
 and greater in 1906 than it was in 1905. B. coli, 
 as I understand the evidence, are more indicative 
 of undesirable pollution than are bacteria. 
 
 The conclusion from this evidence would be, 30 
 that applying the Whipple rule in 1904, the water 
 was of doubtful quality seven per cent, of the 
 time ; in 1905, five per cent, of the time, and 1906 
 eight per cent. This, in days, would be, in 1904, 
 twenty-five and one-half days, in 1905, eighteen 
 days, and in 1906, twenty-nine days, or, if we in- 
 clude Prof. Winslow’s analysis, thirty-one days. 
 
 I now come to the opinion evidence, and, first, 
 the evidence of Dr. Johnson. He and Dr. Mc- 
 Laughlin made, independently, analyses of the 
 
72 
 
 water at the tap in Christ Hospital on March 28th 
 and 29th, 1907. His tests showed the presence in 
 one cubic centimeter of bacteria whose numbers 
 in the different tests varied from 240 and 300 in 
 one c. c. to 220 in one-half of one c. c. 
 
 It is rather singular that he is not called upon 
 to say whether he regards this number as satis- 
 factory, but he is referred to Mr. Whipple’s rule 
 and says that Dr. McLaughlin’s results show water 
 within Mr. Whipple’s standard. He, too, evidently 
 10 has in mind averages , for he could not assert that 
 according to Mr. Whipple’s rule, as Mr. Whipple 
 himself interprets it, water is good which contains 
 b. coli in one c. c. 
 
 Then he is asked to compare the average effi- 
 ciency of the Boonton reservoir with the average 
 efficiency of the filter plants at Little Falls, Wash- 
 ington, Albany, &c., and he says it compares very 
 favorably with the results obtained in those works. 
 Here, again, we have the same fallacy. What we 
 20 want to know is, not about the averages, but 
 whether the reservoir can be depended upon, in all 
 seasons of the year, to provide pure and whole- 
 some water. If the filter works uniformly furnish 
 such water and the reservoir does not, then even 
 though the reservoir may for the greater part of 
 the time give better results than the filter, if at 
 some times it gives unsatisfactory results, then it 
 is not as efficient or as safe a purifying agency as 
 the filter is. Dr. Johnson gives his evidence 
 lucidly and carefully and I fail to find in any state- 
 ment that he makes anything at variance with 
 what is said by defendants’ experts. Thus, he is 
 asked to express his opinion whether it would ever 
 be possible for an epidemic of typhoid fever, due 
 to the water supply, to break out in Jersey City ; 
 and this is his answer : “ If there is a complete 
 
 or even approximately complete displacement of 
 the water in the Boonton reservoir and no direct 
 current from the Rockaway river to the outlet of the 
 
73 
 
 Boonton dam, I think it is extremely improbable 
 that an epidemic would ever occur in Jersey 
 City due to the water supply from the Boonton 
 roservoir.” Every witness in the cause admits that 
 if the water in the reservoir stays there long 
 enough, it will become purified. Dr. Johnson's evi- 
 dence presupposes that Jt does. He expressly says 
 that the river water is unfit to drink. He gives some 
 figures in reference to the three reservoirs which 
 supply Washington, D. C. The water passes sue- ^ 
 cessively through all of them and is then filtered. 
 
 He says that the period of storage in the first two 
 is from one to two days each and in the third from 
 two to four days. In the first, the percentage of 
 removal is seventy per cent. In the first and sec- 
 ond together, eighty-six per cent. In all three, in 
 a period of from four to eight days, ninety-three 
 per cent. Then he is asked the question, are any of 
 these places (Washington, Lawrence, &c.) compar- 
 able with that of Boonton for efficiency of storage 
 and his answer is, no, sir. Here, too, he assumes, for ^0 
 he necessarily must assume, that it takes longer 
 than eight days for the water to pass from the 
 river to the dam, for if it did not, then, on his own 
 figures, assuming that the river water was not 
 much diluted, the efficiency would be, or might be, 
 only ninety-three per cent and no one pretends 
 that this would indicate satisfactory work. Final- 
 ly, counsel asks this question : “Now, Mr. John- 
 son, what have you to say as to the result showing 
 an average at the tap of bacteria to be only 239 per 
 c. c., what have you to say as to the quality of 
 that ? ” He replies, “ I consider it a very good re- 
 sult. ” Here, again we have averages. If his at- 
 tention had been directed to the results obtained 
 by Professor Winslow in March, 1907, in the Jer- 
 sey City reservoirs, viz., 1,000 and 1,200 bacteria 
 and b. coli present in one cubic centimeter in one 
 sample, and one-tenth of one cubic centimeter in 
 another, the whole trend of his evidence shows 
 
74 
 
 that he would have expressed, as to that water, a' 
 different opinion. 
 
 Then we have the testimony of Mr. Hering. 
 He says that the results of Dr. McLaughlin's re- 
 ports show that the quality of the water as now 
 (that is, at the time he testified) delivered to Jer- 
 sey City is of good quality — safe and potable. 
 This is a stronger statement than Dr. Johnson's. 
 Unfortunately, he does not state the reasons upon 
 which this opinion is based. As he does not quar- 
 rel with the figures given by the other witnesses 
 as to the length of time during which sedimenta- 
 tion must continue in order to eliminate pollution, 
 I suppose that his opinion is founded upon the as- 
 sumption that the water has time to purify itself. 
 He subsequently stated, as I have already said, 
 that he would not undertake to say how many 
 days it would take the water, under freshet condi- 
 tions, to flow across the reservoir. 
 
 Mr. Edloe Harrison also testifies on this subject. 
 ^ His testimony is based upon the results of Dr. Mc- 
 Laughlin's analyses. He says, “ The fact is that 
 this reservoir is reducing the bacteria to as great 
 an extent as the most improved modern filters. He 
 must, of course, be referring to averages. He 
 thinks that a reservoir which works automatically 
 is superior to a filter plant because filtration de- 
 pends upon human agency, and if the work be not 
 intelligently performed, the water will run 
 gq through, without being adequately purified. He 
 says that in his reading he has not met with an 
 instance in which infection has taken place from a 
 large storage reservoir ; and that the published 
 reports as to other cities show the water coming 
 from the Boonton reservoir to be better than that 
 of other cities. Undoubtedly, it is much better 
 than the water of a large number of the cities of 
 this country. The argument would be stronger if 
 it were not for the fact that it appears very 
 clearly that the water of these cities is polluted* 
 
75 
 
 and that where cities having a polluted water sup- 
 ply have adopted proper precautions the death rate 
 has been greatly reduced. In the case in hand 
 Jersey City bargained, not for water less polluted 
 than that of some other cities, but for pure and 
 wholesome water. There is considerable force in 
 the suggestion that a system which works auto- 
 matically is better than one which depends upon 
 human agency, but this, of course, presupposes 
 that the automatic system is doing effective work. ^ 
 If it is not, then it must be supplemented by human 
 agencies. The very point is whether the auto- 
 matic system here under examination is producing 
 uniformly good results, or whether, to ensure 
 them, sedimentation must not be supplemented by 
 something else. But to this phase of the contro- 
 versy Mr. Harrison's attention was not particu- 
 larly directed. Prof. Sedgwick says that the 
 serious objection to a reservoir such as the Boon- 
 ton reservoir, as compared with a filter, is that if 
 it works badly, as he believes this one does from 
 time to time, there is nothing that can be done 
 easily, or conveniently, or quickly, to remedy the 
 trouble, whereas in a filter rightly supervised 
 changes can be made to correct any defects which 
 may be discovered. He considers a reservoir like 
 the Boonton far inferior as a sanitary safeguard 
 or purifying mechanism, to a filter. 
 
 Referring to Mr. Harrison’s evidence, Mr. Kuch- 
 ling says, “ I do not believe that Mr. Harrison’s 30 
 statement is correct for the reason that he does 
 not consider the posibility of a freshet or a high 
 wind or the action of the reservoir when covered 
 with ice, in times of freshet. He also ignores en- 
 tirely the demonstration of the existence of per- 
 sistent and marked currents in the reservoir as 
 shown by the float experiments, and also by the 
 number of bacteria in the river and at the upper 
 gate house, and at the tap in Jersey City. He also 
 stated that he knew of no case of typhoid fever 
 
76 
 
 produced by the use of water from a large storage 
 reservoir, whereas we have the fact that there was 
 at Scranton, Pa., a very serious epidemic of ty- 
 phoid fever last December and January from the 
 use of infected water from a very large storage 
 reservoir.” 
 
 Dr. Herold, the president of the Newark Board 
 of Health, also testifies on behalf of the Water 
 Company. He is asked a hypothetical question, 
 ^ based upon the capacity of the river and of the 
 reservoir, and expresses the opinion that he re- 
 gards the works as affording a safe method of 
 purification. He says that Dr. McLaughlin's re- 
 port shows the water to be of good quality and the 
 water supply safe. But on cross examination it is 
 evident that he thinks there must be time for 
 sedimentation. He says it would be better if the 
 water were given one hundred days to settle, but 
 that the minimum limit would be fifteen or 
 twenty days— time enough, as he says, for the de- 
 ^ struction of pathogenic germs. These, he thinks, 
 would die in that period. He is not a bacteriolo- 
 gist, and if he thinks that pathogenic germs will 
 perish in twenty days he disagrees with the bac- 
 teriologists on both sides. If pathogenic germs 
 were not present he thinks perhaps the water 
 could be used in twenty-four hours. His testimony 
 rests upon the assumption that the water does not 
 pass from the river to the gate house in less than 
 2Q fifteen or twenty days. 
 
 Dr. Leal expresses the opinion that the water 
 delivered to Jersey City is pure and wholesome be- 
 cause, in addition to the argument from averages, 
 it appears that the death rate shows that during 
 the past three years there has been no infection, and 
 so does Dr. McLaughlin. The argument from the 
 death rate seems to me to be the strongest that the 
 Water Supply Company advances. But inasmuch as 
 there has been no epidemic of water borne diseases 
 in the watershed, and few cases of typhoid fever, 
 
77 
 
 one of the two testified to, at a distance from the 
 river, and the other properly cared for, the argu- 
 ment derived from an absence of epidemic in Jer- 
 sey City is somewhat weakened. The reservoir as 
 a safe instrumentality of purification has not been 
 put to the test. Indeed, one of the controverted 
 questions in the case is whether an apparently 
 slight increase in the death rate is not attribut- 
 able, at least, to one of those cases, they being 
 nearly concident in point of time. ^ 
 
 There is nothing in Mr. Sherrerd’s evidence 
 that throws additional light upon the contro- 
 verted points. He merely says that no one denies 
 that long time storage tends to improve the qual- 
 ity of the water and is an effective way of im- 
 proving it. He also says that some tables pre- 
 pared by Dr. McLaughlin, which he had seen but 
 which are not identified, indicate a low bacterial 
 count and show a water of uniform quality with, 
 as a rule, less than 100 bacteria per c. c. What 
 the tables produced in evidence show has already 
 been considered. Such of his evidence as is based 
 upon tables, if any, not put in evidence, cannot be 
 regarded as satisfactory proof. 
 
 I now come to the testimony given on behalf of 
 complainants. Mr. Whipple says that his tests 
 show that the water as delivered to Jersey City is, 
 to some extent, contaminated but in a lesser degree 
 than it is in the river ; that, judging from all he 
 knows of the situation, it is not at all times pure 30 
 and wholesome. Of all the experts in the case, with 
 the exception of Dr. Leal, Mr. Whipple made 
 the most exhaustive examination of the condi- 
 tions surrounding the supply. He visited all parts 
 of the watershed and advised as to the abatement 
 of many of the sources of pollution. 
 
 Prof. Winslow is another witness. He says : 
 
 “ From my analyses (made in December, 1906, and 
 March, 1907) of the water entering the reservoirs 
 
78 
 
 at Jersey City (the two small ones on Jersey City 
 Heights) from my knowledge of the watershed 
 of the Rockaway River, and from my previous 
 experience in water analyses and in the study of 
 watersheds, I conclude that the water at the inlet 
 of the reservoirs (i. e. in Jersey City) at the time 
 at which I examined it varied considerably in 
 quality ; that at times it showed no evidence of 
 pollution, but that at other times it showed dis- 
 tinct and conclusive evidence of pollution. At 
 certain of those times it was not pure and whole- 
 some * * * free from pollution dele- 
 
 terious for drinking and domestic purposes. I 
 base that opinion first on the presence of an ex- 
 cessive number of bacteria on gelatine, which 
 probably indicates the presence of sewage pollu- 
 tion, and second on the presence of large numbers 
 of colon bacilli, which, in my judgment and under 
 the circumstances, indicated with certainty the 
 presence of excreta in the water. * * * 
 
 In my examination I found, for example, in the 
 afternoon of December 26th, that there were less 
 than 200 bacteria per cubic centimeter, and I got 
 b. coli from neither reservoir at one cubic centi- 
 meter, and I believe that the water at that moment 
 was of good quality. But on the morning of 
 March 20th, I got more bacteria and I found b. 
 coli in both reservoirs in one-tenth of a cubic cen- 
 timeter, which was conclusive evidence to my 
 2 Q mind that at that time there was pollution in the 
 water.” 
 
 This evidence strongly illustrates the danger of 
 resorting to averages. Neither Dr. Leal nor Dr. 
 McLaughlin nor Dr. Johnson would pretend, as- 
 suming Prof. Winslow’s analyses to have been 
 accurately made, and there is absolutely no attack 
 made either upon his methods or his competency, 
 that those of his analyses which showed 700 
 bacteria (in other instances 1,000 and 1,200) and b. 
 
79 
 
 coli present in one-tenth of a cubic centimeter 
 indicated water of good quality. Hence the 
 necessity of taking refuge in averages. 
 
 Professor Sedgwick made no analyses himself. 
 
 His attention was directed to those of Dr. Mc- 
 Laughlin. He is asked to express his opinion upon 
 their result. He says, “I don’t feel competent 
 from these alone to give a positive opinion as to 
 the quality of the water at all times and in all 
 seasons, because I do not think there are enough of ^ 
 them ; but so far as they go, they show that a 
 good deal of the time the water was in fair sani- 
 tary condition. The number of bacteria at large 
 are frequently larger than is desirable in a good 
 water supply and the occasional occurrence of 
 baccillus coli in one cubic centimeter is to be 
 regarded as throwing suspicion on the water, 
 although a single analysis does not necessarily 
 condemn a water. But to return to what I said at 
 the beginning of my answer, I do not feel that 
 these are either frequent enough or numerous 
 enough to enable one to speak with certainty as to 
 the good quality of the water and as far as they go 
 they seem to me rather to throw suspicion on the 
 quality of the water.” This is his inference 
 drawn from the McLaughlin analysis alone. Then 
 he goes on to say that he would rely upon four 
 things in order to determine the quality of water. 
 
 “ First, upon the state of the watershed, in order 
 to see whether the water is, or is not contaminated ; 39 
 
 second, upon a consideration of any means of puri- 
 fication, partial or complete, to which it may be 
 subjected before reaching the consumer ; third, 
 upon its sanitary effect upon the people using it ; 
 fourth, upon analytical data. “ I believe that an 
 opinion as to the quality of the water ought to be 
 founded upon all these data taken together. ” He 
 then states that he considers the water as it flows 
 into the Boonton reservoir to be at times highly 
 impure and unwholesome. After testifying that 
 
he had seen and examined the Whipple report as 
 well as the McLaughlin and Winslow analyses, he 
 is asked this question : 
 
 Q. “ From all those data and from your own 
 knowledge of the watershed and from the typhoid 
 records, what do you say as to the water as de- 
 livered at that point (the end of the aqueduct at 
 Jersey City) being at all times pure and whole- 
 some ?” 
 
 IQ A. “ Taking into account my knowledge of condi- 
 tions on the watershed of the Boonton reservoir 
 and of the analytical results obtained at various 
 points on the system and in Jersey City, as well as 
 the records of deaths from typhoid fever, I believe 
 that the water as delivered into the reservoirs at 
 Jersey City is not at all times pure and wholesome, 
 but sometimes deleterious for drinking and do- 
 mestic purposes.” 
 
 After stating that he has studied the subject 
 9 q of sedimentation and of the efficiency of the 
 Boonton reservoir as a sedimentation basin he 
 says, “ Taking into consideration the contours of 
 the reservoir bottom as shown on the map of Mr. 
 Ferris (the City Engineer) and also taking into 
 consideration the float experiments, the distance 
 from the mouth of the Rockaway river to the out- 
 let and my general knowledge of the behavior of 
 water in reservoirs, I have no doubt that at times 
 impure water may be carried from the mouth of 
 30 the Rockaway river where it empties into the 
 Boonton reservoir to the reservoir in Jersey City. ” 
 
 Mr. Kiuchling is another expert witness. He 
 says he does not regard the Boonton reservoir as 
 a reliable and efficient purifying mechanism ; that 
 its efficiency will be greatly reduced in times of 
 freshet accompanied by winds tending to accel- 
 erate the motion of the water from the mouth of 
 the river -toward the dam and gate house ; that it 
 will be less efficient when fifty millions of gallons 
 
81 
 
 are drawn out than it is now when thirty-five or 
 thirty-six millions are being drawn, and that in 
 times of drought and consequent low water fol- 
 lowed by freshet its efficiency would be at its 
 minimum. 
 
 Such is the evidence of the principal witnesses 
 on the question whether the contractor has com- 
 plied with his contract obligation to so construct 
 the works that “ they shall be delivered to Jersey 
 City as a completed operating plant, free from pol- ^ 
 lution ” and “ so prepared as to prevent all con- 
 tamination from any source ” of “ the pure and 
 wholesome water ” to be furnished. I think the 
 weight of the evidence is that while much has been 
 done toward securing the end in view, the works 
 are not yet “ so prepared as to prevent all contami- 
 nation from any source.” 
 
 What, then, is the position of Jersey City? 
 Notwithstanding its contention on this branch of 
 the case, it asks a specific performance of the con- 
 tract. While its allegation is that “ the defend- 
 ants cannot convey and deliver to your orator a 
 completed operating plant free from pollution be- 
 cause polluted matter passes into the water supply 
 from the following places * * * d. from 
 
 the Hibernian mines, e. from the Hibernian vil- 
 lage * * j. from the Town of Dover,” 
 
 and that “no intercepting sewer has been built at 
 Boonton and no sewage disposal plant has been 
 built at Dover,” yet the relief that it prays is, that g^ 
 defendants may be decreed to convey, on payment 
 of such part of the consideration contracted for as 
 this Court may ascertain to be due. It is quite 
 within the power of the Court to decree perform- 
 ance with an abatement in the price for that part 
 of the thing bargained for which the vendor is 
 unable to convey, and so its prayer is not inconsist- 
 ent with its allegations. 
 
 The purification of the water could be effected 
 by means of a filter plant. To construct it and to 
 
82 
 
 convey the filtered water to Jersey City, at the 
 head contracted for, would involve great expense. 
 It would have been so important a part of the 
 scheme that had it been contemplated, it would, 
 naturally, have been mentioned in the agreement. 
 The bill does not pray for any deduction grounded 
 upon its absence. It may, therefore, be dismissed 
 from consideration unless the evidence shows that 
 it is indispensably necessary to a complete per- 
 formance of defendants' contract obligation. I do 
 not think it does. Some of the pollution com- 
 plained of has been stopped. A very considerable 
 improvement in the case of the Lyondale Print 
 Works and of Mount Tabor has taken place. Con- 
 ditions have been improved at Dover and Hibernia 
 and in the factories on the Cooper-Lord estate at 
 Boonton. The position of these factories in the 
 gorge, at and below the falls of the Rockaway, is 
 unfortunate, but the City contracted in full view 
 of the situation and is not in a position to complain 
 ^ of it. It is a situation that will call for constant 
 vigilance in the future. 
 
 DOVER. 
 
 Dover and Hibernia seem to present the greatest 
 difficulties. There is this provision in the cohtract 
 “ Eighth. It is further understood and agreed that 
 all sewers and sewage disposal works constructed 
 0 q or arranged for by the contractor to prevent pollu- 
 tion or to carry off pollution existing in the water- 
 shed shall, under said specification and plans, be 
 so constructed and arranged for by him that in the 
 event of the purchase of the water supply -and 
 plant by Jersey City under any of the options 
 aforesaid, the operation and maintenance of such 
 sewers and sewage disposal works for the purposes 
 aforesaid shall not be a charge upon or expense to 
 Jersey City." This clause is so worded that there 
 is no express agreement to build sewage disposal 
 
83 
 
 works, but under the provisions of the first para- 
 graph which provide that the contractor shall so 
 construct and maintain the works that the water 
 delivered therefrom shall be pure and wholesome 
 and that if such works and supply are purchased 
 they shall be delivered to the City “ as a completed 
 operating plant free from pollution as aforesaid.” 
 
 I think it is clear that the Company must con- 
 struct disposal works if they are necessary to in- 
 sure the purity of the water supply. It cannot be ^ 
 said of them, as it can be of a filter plant, that 
 they were not within the contemplation of the 
 parties. They are expressly mentioned in the con- 
 tract itself as works that may have to be built. 
 
 There can be no doubt, under the evidence, that 
 it was represented to officials of the City that such 
 works would be constructed. Mr. Ringle, one of 
 the Board of Finance, says that during the pro- 
 gress of the negotiations he and other members of 
 the Board of Finance and of the Board of Street 
 and Water Commissioners went to Dover on a tour 
 of inspection, and that they were informed by 
 Flynn’s agent that if the contract was awarded to 
 him they were going to build sewers and sewage 
 disposal works at Dover. Mr. Hoos, then Mayor 
 of the City, testifies to the same effect. Mr, Mid- 
 lige, a member of the bar and at that time a mem- 
 ber of the Board of Finance, says that he stated to 
 Mr. Edwards, Flynn’s counsel, and to Mr. Connolly 
 that under no circumstances would he, as a mem- 30 
 ber of the Board, vote for a contract that did not 
 provide in an absolutely complete measure for 
 the pollution that would arise in the towns 
 of Dover and Powerville and through that section 
 of country from which the supply would be taken, 
 and that Mr. Edwards and Mr. Connelly both 
 stated that a sewage disposal works was to be con- 
 structed and cared for by the towns that lay 
 within its territory. Mr. Nolan says that on one 
 of his tours, as a member of the Street and Water 
 
84 
 
 Board, he was told that “ there would be a disposal 
 works at Dover carried on a level plain outside of 
 Dover and the solids to be used for manure and 
 the liquid to be run into the river clear and pure.” 
 While these extracts from the evidence shows that 
 no definite plan had then been agreed upon or 
 even matured, they, at least, indicate that disposal 
 works of some sort were promised. The evidence, 
 of course, does not extend the .contract obligation, 
 IQ but it certainly shows that the clause was inserted 
 after due consideration and at a time when the 
 contractor himself thought that the works would 
 have to be built. 
 
 Many witnesses were called on both sides to 
 show the condition of affairs in Dover. While the 
 trial was progressing the diligence of the city's 
 witnesses led to the discovery of several cesspools 
 and polluted drains which discharged their con- 
 tents into the river. Where the proof was clear, 
 the evil was corrected by the agents of the Water 
 Company. Much of the evidence has, for this 
 reason, become unimportant except in so far as it 
 shows the extreme difficulty of adequately protect- 
 ing the river as it flows through Dover, under ex- 
 isting conditions. There are no sewers there. Each 
 house is provided with a cesspool. Many of these 
 cesspools are built up with boulder stones, unce- 
 mented. The contents leach into the surrounding 
 soil which is, in large part, a low gravelly plain, 
 3Q characterized by Mr. Jenkins as glacial and easily 
 permeable with water. The gravel goes down to a 
 depth of ten feet or more until it strikes a hard 
 pan “ made up very thickly with gravel and bould- 
 ers.” In this gravel the water rises and falls 
 as the river rises and falls. Mr. Sickley, a 
 contractor, says he has noticed this rise and 
 fall 700 feet from the river. He says, more- 
 over, that the cesspools that he built clean them- 
 selves. Some of the land is flooded in times of 
 freshet. There are drains in different parts of the 
 
85 
 
 town, generally covered, which occupy the sites of 
 ancient brooks and still receive some of their 
 waters. 
 
 Now one of the controverted questions in the 
 cause is as to the extent to which, and under what 
 circumstances, water is purified by flowing through 
 soil. It is agreed that sand is a better purifier 
 than coarse gravel. In a situation such as exists 
 at Dover, Prof. Winslow says it would be a miracle 
 if some of the foecal matter did not reach the 
 river. In the case of a much closer grained soil 
 than that in Dover, Mr. Kiuchling says that the 
 New York State Board of Health requires cess- 
 pools to be maintained at a distance of at least 
 fifty feet from the stream. In this soil he thinks 
 they should not be permitted at less than a distance 
 of one hundred feet. He says there are a number 
 of cases on record where the public water supply 
 has caused an epidemic of typhoid due to infected 
 matter passing through permeable soil. Prof. 
 Sedgwick says that fifty feet is the distance de- 
 manded by the State Board of Health of Massa- 
 chusetts in the case of all streams which 
 there contribute to a water supply. Many 
 cesspools in Dover are less than this dis- 
 tance from the stream. Considering the sit- 
 uation' I should say that with the exercise 
 of even unusual vigilance it would be practically 
 impossible to keep all the sewage of Dover out of 
 the river. Not only will it percolate through the 
 coarse gravel or be carried to the river over low- 
 lying land in times of flood, but there will be a 
 constant temptation to get rid of it by means of 
 secret drain connections. If proof of this were 
 needed it would be found in the testimony already 
 alluded to relating to the discovery of pipes con- 
 necting cesspools with the river or with drains 
 leading into it, and this, after Dr. Leal had 
 been exerting all his vigilance to stop it, for sev- 
 eral years. The report of Mr. Whipple shows that 
 
 10 
 
 
 20 
 
 30 
 
 i 
 
86 
 
 in the water above Dover he found an average of 
 1825 bacteria, while in the water below he found 
 an average of 29,614. Of course, much of this may 
 have been street wash. 
 
 The construction of a disposal works would re- 
 quire the co-operation of the municipality of 
 Dover. Neither the Water Company nor Jersey 
 City itself would have the right to enter upon its 
 streets and lay pipes therein. Much less would 
 ^ they have authority to compel the householders to 
 connect their closets and cesspools with those 
 pipes. But it does not appear that the Water 
 Company has sought the co-operation of Dover in 
 this matter. On the conirary, their position now 
 is that such a work is not necessary. I am unable 
 to concur in this view, unless such works would 
 do more harm than good. 
 
 This brings me to defendants' next contention. 
 They say that to concentrate the sewage of Dover 
 Q and to discharge it into the river at a single point, 
 ^ only partially purified, would result in a greater 
 amount of pollution than now exists. Their 
 position is this. As matters now stand, each house 
 has its own cesspool. The fluid matters which find 
 their way out of the cesspool are quickly purified 
 by the natural soil acting as a filter. Very little, 
 either by occassional surface inundation in times 
 of freshet or by percolation, finds its way into the 
 the river. If any water coming from the cess- 
 30 pools reaches the stream, it has become purified on 
 its passage thither. Consequently the pollution, 
 if any, thereby resulting is less than that that 
 would result from the discharge of partly purified 
 water coming from sewage disposal works. 
 
 Dr. Johnson, on behalf of the Company, thus 
 testifies on this subject : 
 
 “Q. In your opinion would the building of 
 sewers in unsewered towns such as Dover in such a 
 watershed effectually prevent pollution or infec- 
 t/on of the water ? 
 
87 
 
 “A. That would depend on the point of discharge. 
 
 “Q. Supposing they discharged above the reser- 
 voir ? 
 
 “A. Then it would most certainly not prevent 
 pollution. On the other hand, it would increase 
 the danger, because of the concentration of the 
 polluting matter at one point.” 
 
 It will be noticed that Dr. Johnson is asked 
 only whether the present system would not be 
 preferable to one which would cast the entire ^ 
 sewage of Dover, unpurified, into the stream be- 
 low the town. There could be but one answer to 
 such a question. It is significant that counsel for 
 the Company did not see fit to ask this witness as 
 to the effect of a sewage disposal works, although 
 he was an expert on the subject. 
 
 Dr. Leal expresses an opiniom upon the very 
 question in the following words : “ In my opinion 
 there would be more danger of infection of the 
 water supply with the sewage system and purifica- 
 tion ’plant than under present conditions, for this ^ 
 reason: There is a certain amount — I believe the 
 principal pollution today of the Rockaway River 
 comes from the streets of towns, country roads 
 and manured fields. * * * You are 
 
 going to have that just the same if you have 
 your sewage system because no sane man today 
 would put in the combined system. * * * 
 
 To the best of my knowledge and belief today there 
 is no direct foecal pollution of the river, that 
 is, I don't believe there is any pipe carrying 
 foecal matter, or I don't believe any foecal 
 matter gets into the Rockaway river unless some- 
 body uses the banks, which cannot be prevented , 
 and the only possible foecal matter which can get 
 into the river today is either through percolation 
 or through flowing over the ground. Now that is 
 a very small proportion of the total foecal sewage 
 of Dover — a very small proportion. * 
 
* Now, you are going to bring in all this mat- 
 ter all together to one point, that is, you are going 
 to connect houses which cannot pollute the river 
 or its tributaries, bring their sewage right to one 
 point and you are going to keep it all there. You 
 are going to purify it. Well, if you purify it up 
 to 95 per cent, you are doing pretty well and you 
 will be lucky to get that. It will be nearer ninety. 
 That means that there is ten per cent that goes 
 into the river. Now, I believe that ten percent, is 
 a great deal more than goes into the river today. 
 I don't believe that there is one or a half per cent, 
 that goes into the river today." 
 
 Now, this is a very strong presentation of the 
 case. If the premises were well founded it would 
 be difficult to resist Dr. Leal's conclusion. I am 
 inclined to think that Dr. Leal takes too favorable 
 a view of the conditions prevailing in Dover. He 
 overlooks, or rather does not give sufficient weight 
 to, the consideration that people sometimes neglect 
 to empty their cesspools when full; that they 
 dump their contents in places where they ought 
 not to; that freshets may occur in this low valley 
 which will overflow the cesspools in parts of the 
 town; that the soil being a coarse gravel is easily 
 permeable by water; that there will be a constant 
 temptation to connect, secretly, the closets and 
 cesspools with the covered drains that carry off the 
 surface water, and that even with vigilant outside 
 supervision the agents of Jersey City will not be 
 allowed to enter private dwellings and other build- 
 ings merely with a view to secure evidence. In 
 theory, resort may be had to the injunction process 
 of this court. In practice, this resort would, per- 
 haps be ineffective, because of the difficulty and 
 delay in obtaining proof such as the court could 
 act upon. 
 
 Dr. Herold in a qualified way agrees with Dr. 
 Leal. He says, with a 'properly supervised system , 
 
89 
 
 privies would be less likely to pollute the water 
 supply than a disposal works. He says, however, 
 that sewage disposal works are satisfactory where 
 the soil is proper and that the percentage of puri- 
 fication ordinarily obtained by these works is not 
 over ninety per cent. Then he indicates what he 
 means by a properly supervised system. “ I mean 
 that it must be policed and there must be some 
 one to go over the shed at all times and see that 
 there are no privy vaults that are flowing — no cess- 
 pools that are overflowing, and the condition of the 10 
 property on the banks of the river must be kept 
 free of polluting organic material.” If Dover 
 itself were being supplied with the water for 
 drinking purposes and its citizens, therefore, in- 
 terested in having their supply pure, it is easy to 
 suppose that effective ordinances would be passed 
 to regulate the use of cesspools, drains and sewers, 
 and that its police and health agents would be vig- 
 ilant in enforcing them, and that they would 
 have the good will of the entire community in do- 20 
 ing so. 
 
 This, I imagine, is the sort of supervision that 
 Dr. Herold would think necessary. It can hardly 
 be supposed that the agents of a distant munici- 
 pality, particuarly if they should perform their 
 duties with any degree of vigor, would stand on a 
 similar vantage ground. Friction and even hostility 
 would be the natural results of any attempted 
 interference by one municipality with the internal 
 arrangements of another. “A properly supervised 
 system ,” to use Dr. Herold’s words, could hardly 
 be expected. 
 
 On the other hand, the complainant’s experts 
 say that within a very few years sewer pollution 
 works have been so far perfected that the polluted 
 water passing through them is or may be so com- 
 pletely purified that it can even be drunk with im- 
 punity. Prof. Winslow says, “ Practice in sewage 
 disposal has reached such a stage in the last few 
 
90 
 
 years that we can obtain any result that we 
 choose. If it is desired to produce an effluent 
 organically pure, but not purified from bacteria, 
 that can be done chiefly. If, on the other hand, it 
 is designed to produce an effluent of such a qual- 
 ity that it can be turned into a drinking water 
 supply with impunity that can also be done. ” 
 
 Prof. Sedgwick testifies that he observed some 
 evidences of attention to privies but no arrange- 
 ments for cemented ones carefully emptied by 
 those in charge of the water supply , such as are 
 found on the Metropolitan Water Supply of Bos- 
 ton, nor any placards forbidding the pollution of 
 the stream. He says further, “ I did not observe 
 any sewage disposal plant such as in my judgment 
 ought to exist in the city of Dover, if the water 
 of the Rockaway river is to be used as a source of 
 supply for the Boonton reservoir. * * * 
 
 I believe that the sewage disposal plant is vastly 
 preferable (‘ to the situation as it there is ’) and 
 that it would be a much safer arrrangement.” 
 
 Mr. Kuichling says that it is possible to pre- 
 vent substantially the Dover contamination from 
 entering the Rockaway, and he estimates the 
 cost of a sewage disposal works at $105,000. 
 
 Taking into account all the testimony, it seems 
 to resolve itself into a matter of expense. The 
 purification effected by the disposal works to 
 which Dr. Leal referred was, no doubt, partial. 
 
 2 Q There is nothing in the case to throw doubt upon 
 the evidence of Professor Winslow to the effect 
 that if the proper methods be adopted the water 
 can be purified to such an extent as to render 
 the effluent harmless. Naturally, the Company 
 does not wish to incur this expense, but if it be 
 necessary, in order to conform to the terms of 
 their contract to furnish pure and wholesome 
 water, the matter of expense is, from a legal 
 standpoint, irrelevant. I think that the weight of 
 the evidence is that the river, as it passes through 
 
91 
 
 Dover, is very considerably polluted ; that freshets 
 may increase the danger and that a properly con- 
 structed disposal works, properly managed, would 
 be a considerable safeguard. It is no answer to 
 this to assert that the works might be carelessly 
 managed and that the risk of pollution would then 
 be greater. If it can be assumed that in a matter 
 so vital to the health of the City there would be 
 mismanagement • of the works, the same assump- 
 tion would have to be made in reference to the 
 supervision of Dover by Jersey City officials under 
 present conditions. Such an assumption would be 
 fatal to Dr. Leaks contention, for he admits that 
 the situation, as it is today, is one requiring cease- 
 less vigilance. Only because of that vigilance, 
 which he says is now being exercised by himself and 
 his subordinates, is the water supply, in his esti- 
 mation, safe. Assuming that the same degree of 
 vigilance would be exercised by the City with ref- 
 erence to its disposal works, that is now being ex- 
 ercised by the Water Company, whose manage- 
 ment is itself the subject of criticism by Prof. Sedg- 
 wick in the extract from his testimony that I have 
 before quoted, then I think the weight of the evi- 
 dence shows that disposal works would afford 
 added protection. If I had thought that the evidence 
 did not sppport that view, I should have been 
 forced to the conclusion that a filter plant should 
 be provided in order to satisfy the paramount con- 
 tract obligation to furnish pure and wholesome 30 
 water. 
 
 HIBERNIA. 
 
 I now come to Hibernia. Here, too, I think 
 conditions are unsatisfactory. The hamlet is thus 
 described by Mr. Kiuchling: “ The village or set- 
 tlement of Hibernia is essentially a mining camp. 
 
 It contains numerous small houses occupied by the 
 miners and there are about 1,200 to 1,500 people 
 
92 
 
 there. Of that number, from 1,000 to 1,200 work 
 under ground in the mines during the day. While 
 they are underground their wastes mingle with 
 the mine drainage water which is pumped to the 
 surface and flows into the brook that runs through 
 this little settlement or village. This village is in 
 a narrow valley with steep hillsides. These houses 
 are not of a high class of construction. They have, 
 many of them, privies adjacent to runways for 
 water— what would be called a water course or 
 depression in the ground not containing running 
 water. Some are only running brooks and 
 rivulets. Pig pens and hen coops and stable 
 yards generally are located so that the drainage 
 flows off readily. The water in the Hibernia 
 brook is discolored and visibly and palpably pol- 
 luted, both from what surface water there is as 
 well as from the mine drainage. One of the mines 
 delivers water that is as discolored and opaque as 
 almost any city sewage. From another, the water 
 comes out clear. In this latter case the water is 
 used for condensing the steam of the mine en- 
 gine, the hoisting engine at the surface. In the 
 other case it cannot be so used because it is too 
 dirty for that purpose. I am informed by the 
 superintendent at the time, access to the same 
 having been refused, that there are no sanitary 
 conveniences for the miners underground/' 
 
 The brook here spoken of flows into Beaver 
 3 Q Brook which flows into the river just below Rock- 
 away village, at a point about eight miles above the 
 reservoir, if measured along the stream, or about 
 four miles and a half in an air line. 
 
 The description of the village as above given is 
 not controverted. The defendants called Mr. 
 Munson, the mine superintendent. He admits 
 that there is a moderate descent from all the 
 houses toward the brook. Of the surface, he says 
 “ it is a rather rocky surface, in fact." The privy 
 vaults are formed by digging down in the soil 
 
93 
 
 which, in the valley, is loose stone. He says that 
 at the suggestion of Dr. Leal and Dr. Herold and 
 by the direction of the mine owners he took down 
 an old mining house and that where the vaults 
 were filled, or nearly so, they dug new ones, built 
 of loose stone, uncemented ; that as to the mines 
 themselves, the men use as a substitute for privies 
 old abandoned levels, and that if the men are 
 known to go elsewhere they are discharged. He 
 also says the men drink the mine water and that 
 he has never known of a case of typhoid fever 
 there. Commenting on the condition of affairs. 
 
 Dr. Leal says that the superintendent described 
 the conditions exactly ; that he would only state 
 that there is no direct contamination of the^brook ; 
 that where the privies were too near they 
 were moved back (he does not say how far), and 
 that some of the houses have been pulled down. 
 
 He adds, “ I regard it in as good a condition as it is 
 possible to get such a place. It is only a mining- 
 camp and there is no pollution. The only pollu- ^0 
 tion that there can be is by washing over the sur- 
 face.” Being asked why, if an epidemic should 
 break out, the germs would not be washed over 
 the surface down into the brook and from thence 
 into the reservoir, he says, “that is possible. 
 
 And it is possible of any place in the water- 
 shed, or any single house in the watershed. 
 
 I would state that a case of typhoid fever has 
 never been known in Hibernia and that the privy ^ 
 vaults are in fair condition, so that even if there 
 was a case or two, or three, there would be no 
 practical danger. Such a thing is not likely to 
 happen, but the possibility cannot be denied for a 
 moment.” As to this, Mr. Whipple says, “ If a 
 case of typhoid fever should occur and the dis- 
 charge of the basins enter the privy, it would be 
 somewhat surprising if, through the agency of 
 flies, the infection was not transferred to some 
 other house or some other patients, or some other 
 
94 
 
 of the population there, and it would be a very easy 
 matter for a severe epidemic to sweep through 
 such a settlement as there exists. The conditions 
 would be somewhat analagous to the conditions in 
 some of the military camps of our soldiers during 
 the Spanish war where typhoid fever did break 
 
 OUt.” 
 
 Now, taking into consideration the class of per- 
 sons inhabiting this camp ; their utter ignorance 
 q of sanitary rules, the absence of police and sani- 
 tary supervision, the lay of the land and the char- 
 acter of the soil through or over which polluted 
 liquids might flow into the brook, and the admit- 
 ted fact that the waters of the brook are to some 
 extent polluted at all times, it seems to me plain 
 that if even a slight epidemic of water borne dis- 
 ease should break out and some of the germs of 
 disease be, as they would be likely to be, washed 
 into the brook, they would quickly reach the river 
 and then it would be merely a question of condi- 
 20 tions in the reservoir whether they would or would 
 not settle or die before they passed into the efflu- 
 ent pipes at the gate house. 
 
 As I have said before, Jersey City is entitled 
 under its contract to an efficient mechanism for 
 purifying the water and there is no contrivance in 
 the mechanism as constructed to guard against the 
 dangers of Hibernia brook. Kiuchling estimates 
 that the total cost of pollution works, including a 
 2 q capital sum which at five per cent, would produce 
 $900 a year for operating expenses, would be 
 $46,000. 
 
 MOUNT TABOR. 
 
 Mount Tabor is a summer camping ground. It 
 lies about a mile and a quarter south of the river. 
 There is a brook rising to the north of the hamlet 
 which flows into it. Here Mr. Whipple found 
 sanitary conditions very much better than they 
 
were in Hibernia. No sewer system, but on the 
 other hand, “ no open privies, or only a few.” 
 These as I understand it do not drain naturally 
 into the brook. The specific complaint, as appears 
 from the testimony of Mr. Kuichling, is that the 
 contents of the cesspools when emptied are 
 dumped upon or near manure heaps within a 
 hundred feet or less of a water course or ditch, 
 which finds its way into the brook. Dr. Herold says 
 that there is no possibility of foecal matter getting 
 into the stream, which is 400 feet away ; that the 
 course of the polluted water is away from it and 
 that under existing conditions he cannot conceive 
 of contamination or menace of contamination 
 from this source. It appears to me that on the 
 evidence nothing appears but the risk which is in- 
 curred from taking a water supply from a densely 
 populated watershed and which Jersey City as- 
 sumed when she entered into the contract. The 
 situation, too, is such that it is easily controllable. 
 
 BOONTON DRAIN. 
 
 The next question that I shall consider is the 
 Boonton intercepting sewer or drain. It is agreed 
 on both sides that such a drain or sewer is neces- 
 sary. Boonton is built on the steep sides of a hill 
 which to the west slopes toward the river. The de- 
 fendants say that they have provided an open 
 drain on the property of the Morris Canal and Bank- 
 ing Company. It is at present unnecessary to re- 
 view the evidence bearing upon the question 
 whether it is sufficient. It seems to be admitted 
 that the Water Company has nothing but a license 
 to maintain it and it does not appear that this li- 
 cense is irrevocable. Until a better title is shown, 
 I think that the Company has not discharged its 
 obligation. 
 
9G 
 
 THE RAG MILL AT POWERVILLE. 
 
 There is a considerable amount of evidence re- 
 lating to this mill. It lies from one and a half to 
 two miles above the reservoir and formerly dis- 
 charged a large amount of wastage into the stream 
 of such a character as to attract to it especial 
 notice. The bill charges that the defendants are 
 under contract to “ eliminate ” it. The defendants 
 deny any such obligation and say that it is no 
 lb longer a nuisance. 
 
 First, as to the legal question. It appears that 
 the officials of Jersey City had during their tours 
 of inspection seen this mill and that they thought 
 it very objectionable. Prior to the signing of the 
 contract of February 28, 1899 , Mr. Edwards, who 
 was acting as counsel for the contractor, addressed 
 this letter to the Mayor: “ Jersey City, Jan’y 6, 
 1899. Hon. Edward Hoos, Mayor, Jersey City. 
 My Dear Sir. When the sewer inspection was 
 20 made of the Rockaway watershed under the 
 pending proposal to my client Patrick H. Flynn to 
 furnish a new water supply to Jersey City, atten- 
 tion was called by his engineers to the rag factory 
 at Powerville as among the possible sources of 
 pollution. You were then told that it was the 
 intention of the contractor to remove the same, 
 although no specific mention had been made of 
 this place in the specification or the proposal. I 
 beg to assure you that such removal has always 
 been contemplated in our plans and that if the 
 contract is awarded to him such removal must 
 take place. Yours respectfully, Wm. D. Edwards, 
 P. H. Flynn.” 
 
 The letter as originally written was signed only 
 by Mr. Edwards but when the contract was ready 
 for signature Mayor Hoos refused to sign it unless 
 Flynn also signed the letter. This, after some 
 little demur, he did and then Hoos signed the con- 
 tract. The Water Company’s position is that the 
 
97 
 
 letter not being a part of the formal contract is 
 not binding upon it. There is other testimony 
 upon upon the subject but I shall here only refer 
 to that of Mr. William H. Corbin, which is the most 
 favorable to the defendants' contention. He 
 says that in a conversation between representatives 
 of the City and of the Water Company, shortly 
 before the Water Company undertook Flynn's 
 obligations, reference was made (inter alia) to Mr. 
 Edwards’ promise to remove the rag mill 
 and that Mr. Gardner, the president of 
 the Company, said that he had examined the 
 written contracts and specifications with great 
 care and had made estimates upon them and if the 
 parties he represented were to undertake the work 
 at all, it would be on the basis of those written 
 contracts and if there were any other understand- 
 ings outside of those contracts by anybody he 
 would have nothing to do with them and the nego- 
 tiations might as well stop because those he repre- 
 sented would not undertake any contracts modi- 
 fied in any such way. To this Mr. Record, repre- 
 senting the city, replied that of course was so, and 
 if the Security Company and the East Jersey Water 
 Company came in they would, of course, be held to 
 what the written contracts required and the city 
 would not accept (require ?) anything else. He says 
 the subject dropped there and nobody again re- 
 ferred to the matter. 
 
 In this conversation the reference was not alone 30 
 to the rag mill but also to disposal works and 
 other subjects on which the parties even then 
 seen to have differed. I will assume that it was 
 understood by both sides that the Water Company, 
 if it undertook the work, would be bound by the 
 written contract and by that only. What, then, 
 was the written contract ? It is elementary that a 
 - contract may be contained in more than one writ- 
 ing. If several papers are executed at the same 
 
98 
 
 time as parts of one transaction, they, together, 
 constitute the contract. 
 
 The formal contract expressly declares that its 
 provisions shall bind the assigns of Flynn and that 
 the specifications shall, and proposals are made 
 part of it. The specifications contain this clause : 
 “The advertisement, the specifications, the ac- 
 cepted proposals and all maps, plans and drawings 
 accompanying, attached to or described therein, 
 the specific contract and the contractor’s bond are 
 to be considered essential portions of the complete 
 contract.” Now it seems to me that the undertak- 
 ing contained in the Edwards-Ftynn letter was a 
 proposal of Flynn accepted by the City and there- 
 fore one of the accepted proposals mentioned in 
 the above clause. It conclusively appears from 
 Mr. Corbin’s testimony that the Water Company 
 had notice of it. As it was agreed on all hands 
 that the writings were to be regarded as declaring 
 the extent of the Company’s liability and as this 
 20 was one of them it bound the Company just as any 
 other writing did. 
 
 But this does not solve the question presented. 
 The evidence shows that acting under the sug- 
 gestion of Dr. Leal, who told them that they 
 were throwing away that which could be utilized, 
 the proprietors of the mill stopped pouring their 
 waste into the river. It is no longer a menace in 
 any other sense than any factory along the river 
 2 Q bank having wastage to deal with is. There is 
 always a possibility that the desire to get rid of it 
 in the easiest and cheapest way, or carelessness or 
 disobedience of orders may result fn pollution. 
 But there is no law that forbids the establishment 
 of factories along streams used for a water 
 supply. If the rag mill is now objectionable, 
 so are the factories along the river bank in 
 Dover, Rockaway and Boonton. The agreement 
 contained in the letter is to “ remove ” the 
 mill. It is possible that the Water Company could 
 
99 
 
 purchase it at such a price as the owners might 
 see fit to ask for it, but it may be doubted whether 
 it could be condemned as a whole if it could not be 
 shown to be a nuisance. I have no doubt that Jer- 
 sey City may condemn a strip of land along the 
 river banks for the purpose of preserving the pur- 
 ity of its water supply. I think it could condemn 
 a strip of suitable width for the purpose of guard- 
 ing that supply, without any proof of present 
 nuisance, but I should doubt whether it could con- 
 demn a factory property in its entirety extending 
 back a considerable distance from the stream 
 merely because it was a factory property situate 
 on the river. 
 
 Assuming, then, that the letter of the promise 
 has been broken, what is the consequence? The 
 removal of the mill was stipulated for that the 
 purity of the supply might be conserved. If the 
 City gets a supply free from the pollution caused 
 by the operation of the works in an objectionable 
 way, the substantial object has been attained ; the ^0 
 abatement of the nuisance has been effected. 
 Even if the owners should consent to sell, they 
 might take the money, establish themselves any- 
 where else along the river and continue the same 
 business in the same way that they are now con- 
 ducting it. Jersey City would be powerless to 
 object unless they should begin to pollute it again. 
 According to his promise, Flynn was obliged to 
 remove the factory. Suppose he purchased it, ^ 
 there is nothing in the contract that would have 
 obliged him to convey it to the City. Why, then, 
 should the City have the price or value of this fac- 
 tory deducted from the price of the works? I am 
 of the opinion that relief in respect of this should 
 be denied. 
 
 I have now reviewed the principal sources of 
 pollution mentioned in the bill. I do not think it 
 necessary to notice in detail any of the others. 
 
 The evidence does not satisfy me that they are at 
 
100 
 
 present polluting the stream. If they shall do so 
 in the future they may be enjoined on the very 
 salutary principle established in State Board of 
 Health v. Diamond Paper Mills, 18 Dick., Ill ; on 
 App., 19 Dick., 793 ; a case which decides that the 
 prohibition is against putting any polluting mat- 
 ter into any stream or tributary which furnishes a 
 water supply at any point whatever above the 
 point at which the supply is taken, and without 
 any reference to the question whether the stream 
 appears to be or is in fact polluted at the point of 
 intake. 
 
 I may add that I am very strongly impressed 
 with the conviction that, in view of the conditions 
 prevailing on this populated watershed, Jersey 
 City ought, at the earliest opportunity, to secure 
 as much of the river banks as possible in those 
 districts where the population is still inconsid- 
 erable and the land cheap. 
 
 20 WATCHUNG TUNNEL. 
 
 I shall now consider some objections of a differ- 
 ent character. The Watchung tunnel is thus re- 
 ferred to in the bill : The defendants cannot con- 
 vey the works as provided in the contract “ be- 
 cause in constructing a tunnel through the 
 Watchung Mountain the defendants adopted a 
 method of construction which was cheaper than 
 that required by the contract. That your orator 
 
 30 is entitled to an abatement of the consideration of 
 the contract to the extent of the amount saved by 
 the defendants in constructing their tunnel in a 
 manner different from that required by the con- 
 tract.” In what this difference consists the bill 
 does not state. In the testimony, however, it is 
 said to lie in the fact that the contractor has furn- 
 nished a gravel and not a concrete bottom. To the 
 bottom thus provided two objections are made, viz.: 
 (1) that because of the added friction the flow oi 
 
101 
 
 water is slightly less, and (2) that it is harder to 
 clean. Both of these objections are substantial, if 
 valid. The question, then, is whether the bottom, 
 as constructed, conforms to the contract. The 
 specification reads as follows : “ where the tunnel 
 is in rock, if the bottom consists in sound and solid 
 rock, it may be levelled up and smoothed and made 
 uniform throughout with Rosendale cement con- 
 crete, surfaced with a layer two inches thick of 
 Portland cement mortar. Where the tunnel is ^ 
 in earth or unsound rock, a brick invert six- 
 teen inches thick shall be laid at the bottom 
 If it shall be necessary in order to secure a firm 
 foundation, the invert shall be laid upon a bed of 
 concrete.” If this were the only provision on the 
 subject I should say that having regard to the em- 
 ployment of the word ‘ may ’ in the first part of 
 clause, and the word ‘ shall ’ in the latter part, it 
 was open to the contractor to resort to any per- 
 missible mode of tunnel construction where sound 
 and solid rock was encountered, subject, however, 
 to the limitation found in the paragraph headed 
 “ Inspection”: “Any workmanship or material 
 not mentioned or described, which may be neces- 
 sary to make the works constructed complete 
 and in all respects of the best quality and effic- 
 iency shall be furnished and performed by the 
 contractor as fully and thoroughly as if the full 
 details and specifications therefor had been given 
 therein.” Now, as to the method of construction ^0 
 adopted. Mr. Kuichling says that in no water 
 works conduit that he knows of is there a gravel 
 bottom. Without, apparently, denying the state- 
 ment in this form, Mr. Gardner says that the job 
 is as good and serviceable a one as if it had been 
 built with a concrete bottom and Mr. Waldo Smith 
 says that it (I suppose he refers to the invert) 
 has been done in a proper way and that it is a 
 good engineering structure. Mr. Hering does not 
 express any opinion. From this testimony, I 
 
102 
 
 should infer that in the absence of contract stipu- 
 lations to the contrary, the mode of construc- 
 tion actually adopted was, from an engineering 
 standpoint, permissible. I should doubt whether 
 it was “ of the best quality and efficiency.” But 
 there are two other clauses which bear upon the 
 matter. First, the last part of the section that re- 
 lates to tunnels : “ Care shall be taken to leave the 
 interior surface of the tunnel smooth and free 
 from projections ; ” and, second, the clause of 
 plan No. 1, contained in the proposals : “ Thence 
 through Watchung Mountain by a tunnel, brick 
 lined , having an inside diameter equal to 6.85 
 feet.” All three clauses must be read together. 
 So reading them we have this : “ The tunnel is to 
 be brick lined, but where the bottom consists of 
 sound and solid rock it may be levelled up and 
 smoothed and made uniform throughout with 
 Rosendale cement and Portland cement mortar. 
 In any case, care shall be taken to leave the in- 
 20 terior surface smooth and free from projections.” 
 Now it seems to me that it is perfectly plain, in 
 view of these provisions, that the only permissible 
 departure from a brick lining throughout is, under 
 the conditions named, a substitution of cement 
 and mortar. A gravel construction is excluded. 
 
 But it is argued that the tunnel furnished is as 
 good and serviceable as a tunnel of brick or 
 cement. The evidence is that because of the an- 
 ticipated increase in friction, the horizontal and 
 vertical diameters of the tunnel were enlarged two 
 or three inches. The weight of the evidence 
 (which is conflicting on this point) seems to be 
 that this allowance is sufficient, but assuming that 
 the tunnel as built will allow of the passage of 
 seventy millions of gallons, in the manner stip- 
 ulated, viz., so that “ the upper surface of the 
 water shall be one foot from the top of the arch, ” 
 the defendants are still met by the difficulty that 
 they have not performed their contract according 
 
103 
 
 to its terms and that this mode of construction will 
 make it more difficult and expensive to clean the 
 bottom and free it from such vegetable and animal 
 growths as are often, if not always, found in tun- 
 nels used for a similar purpose. The objection is 
 not fanciful and the City did not acquiesce in the 
 mode of construction adopted ; on the contrary, as 
 soon as the Company had submitted its amended 
 plan to Mr. Ferris, as by the contract it was re- 
 quired to do, he, under date of January 16, 1904, 
 wrote to Mr. Harrison, the company’s engineer, 
 stating that he rejected the modified plans as not 
 conforming to the specifications “ inasmuch as the 
 surface of the invert you propose will not be 
 smooth and free from projections.” Notwith- 
 standing this rejection, the company went on in 
 their own way. 
 
 Mr. Gardner testifies that they could not lay the 
 cement because of the volume of water flowing- 
 through the bottom. By this statement he can 
 mean only that they could not do it without going 
 to the additional expense of putting in an under 
 drain. But if this were necessary in order to en- 
 able the Company to perform the contract accord- 
 ing to its terms, they would be obliged to make 
 such an under drain. 
 
 The City has elected to take the works. The 
 case, therefore, comes within the rule laid down 
 in Bozarth v. Dudley, 15 Vr., 304, and Feeny v. 
 Bardsley, 37 Vr., 240. In this last case, Justice 30 
 Van Syckle, speaking for the Court of Errors, 
 approved the following direction : “ If the con- 
 
 tractor has substantially performed his contract, 
 even though he has failed to do so in some minor 
 particulars, he is entitled to recover the contract 
 price, less what will be a fair allowance to the 
 owner to make good the defects in the performance 
 of the contract.” This rule seems applicable to 
 the case in hand. The evidence is that the differ- 
 
104 
 
 enee between the cost of a concrete bottom and a 
 gravel one is $18,500. 
 
 DAM NO. 1. 
 
 The City's next contention is that the main dam, 
 while properly constructed to retain a supply of 
 fifty millions of gallons for the requisite number 
 of days, has not been constructed in such a way as 
 that, by simply building on top of it, it may be 
 10 raised so as to provide for a supply of seventy 
 millions. 
 
 The defendants' contention is that the contract 
 does not oblige it to do anything more than con- 
 struct a dam which shall hold back the fifty mil- 
 lion gallons supply. It appears to me that the de- 
 fendants' contention, in this respect, is correct. 
 
 The specifications contain this clause : “ Bidders 
 must also state a price for which the City can 
 buy and own the water works of the capacity of 
 20 fifty (50) million gallons daily, together with the 
 water supply, water rights, lands, reservoir sites, 
 rights of way and all assessments necessary to 
 fulfill the requirements of this specification and to 
 the extent of seventy (70) million gallons daily." 
 In compliance with this specification, the proposal 
 was as follows : “ For the water works and all 
 
 appurtenances thereof necessary to fulfill the re- 
 quirements of these specifications to the extent 
 of fifty million gallons of water daily, together 
 30 with ihe water supply, water rights, lands, reser- 
 voir sites*, rights of way and all assessments neces- 
 sary to fulfill the requirements of these specifi- 
 cations and to the extent of seventy million gal- 
 lons of water daily forever, which purchase can 
 be made by the City when the water works are 
 completed and accepted hereunder, provided the 
 City shall give notice of its intention to purchase 
 within one year after the date of contract," &c. 
 
105 
 
 In these two clauses a very sharp distinction is 
 drawn between the works necessary to provide a 
 supply of fifty millions of gallons and the water 
 supply, water rights, lands, sites, &c., necessary to 
 enable the possessor, at some period in the future, 
 to enlarge the supply to seventy millions. Coun- 
 sel has not been able to point to a single clause in 
 any of the writings which go to make up the con- 
 tract, which requires that in the construction of 
 the dam, work must be done, not for the purpose ^ 
 of providing a fifty million gallon supply, but 
 for the purpose of partially providing" for a sev- 
 enty million gallon one. Failing to find* any such 
 provision in the writings, the City falls back upon 
 a correspondence between Mr. Ferris, City en- 
 gineer, and Mr. Harrison, the Company’s engi- 
 neer, relative to the Parsippany Dyke — a distinct 
 structure in another part of the reservoir— the 
 result of which was that the company agreed to 
 the City’s position in relation to that structure. 
 
 A perusal of Mr. Ferris’ letter, found on page 
 157, shows that the situation in regard 
 to the dyke differed considerably from that 
 at the dam. Mr. Ferris shows that the 
 dyke could not have been raised to the 70 million 
 gallon level if constructed as Mr. Harrison was 
 then proposing to construct it. The core wall 
 would then have been in the wrong place and if 
 an additional dyke with another core wall were to 
 be constructed, the new work, in view of the 3Q 
 necessary excavations, would have imperiled the 
 safety of the original dyke. Such, at least, was 
 Mr. Ferris’ contention. Now it may well be that 
 the contractor was obliged to so construct the 
 res^voir intended in the first instance for a 50 
 million gallon supply, that the structure could, 
 without imperiling that supply, be adapted to a 70 
 million supply. At all events, Mr. Ferris’ repre- 
 sentations on this head were so positive and so 
 
106 
 
 plausible that the Water Company gave in to 
 them. But these considerations do not apply to 
 the face of the dam. It is the opinion of all the 
 engineers that that face may be thickened and 
 strengthened on its lower or outer side with- 
 out at all interfering with the work of 
 the reservoir. Mr. Kuichling himself testi- 
 fies as follows : “ I will say, to thicken the 
 
 dam as built to an equivalent strength that 
 ^ it would have to be, if built originally to the 
 greater additional thickness, would require more 
 masonry and it might possibly be done with a little 
 more than the same masonry, but at very much 
 larger additional cost, because the union between the 
 old and new masonry must be made in expensive 
 manner, therefore there would be a question of the 
 value of the additional work as compared with the 
 additional masonry. ” I need not multiply quo- 
 tations, for this is the statement of the City's ex- 
 pert. The increased cost is perfectly irrelevant if 
 the contract itself did not require more than a dam 
 capable of containing the fifty million gallon sup- 
 ply. The only clause in all the writings to which 
 counsel has been able to point is that which 
 relates to raising the dam in the event that 
 the City should, during the term of the contract, 
 notify the contractor to increase the capacity of 
 his works. This notification was never given. 
 On the contrary, the City elected to purchase. 
 3Q Consequently, the clause has no relevancy to the 
 present discussion even if it could be constructed 
 to mean that the contractor was merely to put his 
 material nowhere else than on top of the present 
 dam, a construction that not only seems to be inad- 
 missible in itself, but was never contended for by 
 Mr. Ferris, so far as the dam is concerned. 
 
 There is besides absolutely nothing in the con- 
 tract which indicates that the City, if it wished to 
 increase the supply, might not think it better to 
 
107 
 
 censtruct an independent reservoir, for example, 
 in the Longwood Valley, or in some other locality 
 above Dover where the water would be less ex- 
 posed to contamination. The construction of two 
 or more reservoirs is not only usual in the case of 
 a large city, but commendable. The contract it- 
 self contemplates the possibility of such a thing. 
 From whatever point of view the matter is con- 
 sidered, there is absolutely nothing that suggests 
 an obligation to do more than provide a dam suit- ^ 
 able for a fifty million gallon supply. 
 
 THE MORRIS CANAL AND BANKING CO. 
 
 I shall not attempt under this head to do any- 
 thing more than outline the objection to the title 
 of the Jersey City Water Supply Company founded 
 upon the claim of the Morris Canal Company, of 
 a prior right to the flow of the Rockaway above 
 Boonton. .The city takes a position with regard to 
 this claim which seems to be quite inconsistent with ^0 
 its status as party complainant praying for a 
 specific performance. It seeks in the same breath 
 to have the contract performed and repudiated. 
 
 Briefly outlined, the facts are these : By the 
 original contract of February 28, 1899, Flynn con- 
 tracted to give “ the whole flow of the Rockaway 
 river having a watershed and gatering grounds of 
 122J square miles.” On April 24, 1901, Messrs. 
 Corbin & Corbin addressed a letter to the Jersey 
 City Boards in which they stated that the Canal 
 Company had the first right to use the waters of 
 the river and that Jersey City could obtain from 
 the watershed, “only such waters as remain after 
 the needs of the canal are supplied, such needs 
 being necessarily variable fram year to year." 
 
 In view of this claim, Flynn having (with others) 
 failed to secure legislative consent to the aband- 
 onment of the Morris canal, procured an act of 
 Legislature, approved March 22, 1902, (p. 1. 416) 
 
108 
 
 in which it was provided that it should be lawful 
 for the Board having charge of the water supply 
 and the Board having charge of the finances of any 
 municipality to modify by resolution the terms of 
 any contract heretofore or hereafter made by such 
 municipality for the construction and purchase 
 of a new water supply “as to area of the water 
 shed or the proportion of the flow of any river or 
 stream tributary thereto, or the capacity of the 
 storage reservoirs thereof, whenever, in the judg- 
 ment of said Boards, such modifications are needed 
 to ensure the construction of the works, * * 
 
 provided such modification shall not relieve the 
 contractor or his sureties from furnishing and 
 delivering to the municipality the quantity and 
 quality of water required by the original contract.” 
 
 Pursuant to this act, the coirtract of July 8, 1901, 
 was made between the City, Flynn and the Water 
 Supply Company. It recites the claim of the 
 Morris Canal and provides (inter alia) that in case, 
 20 upon the completion and acceptance of the works, 
 the claims of the Morris Canal Company and its 
 lessee shall not have been released or extinguished 
 it shall be entitled to retain out of the purchase 
 prize of $7,595,000, the sum of $500,000, until the 
 happening of one of three events, (1) a decision of 
 the highest court of New Jersey adverse to the 
 claim ; (2) the delivery of a valid release from the 
 Canal Company ; (3) the abandonment under legis- 
 oq lative sanction of the portion of the canal lying be- 
 tween Dover and Montville, and the surrender of 
 its right to divert. This supplemental contract 
 and two others dated March 31, 1902, conferred 
 valuable rights upon Jersey City and under them 
 and under the original contract, so far as it re- 
 mained unmodified, the Water Company, taking 
 an assignment from Flynn, went on and con- 
 structed the works. 
 
 The City now contends that the contract of 
 July 8, 1901, was not warranted by the act of 
 
109 
 
 March 22, 1901, and that (a) in the language of the 
 bill, the defendants cannot convey the whole of 
 said works, (b) because the defendants have not 
 acquired the rights of the Morris Canal to divert 
 water from the water supply about the reservoir 
 at Boonton — that company claiming v to have a 
 right to divert such water to such an extent as 
 will prevent the defendants from furnishing the 
 amount of water required by the contract. 
 
 While the City is not, apparently, satisfied with ^ 
 the contract deduction of $500,000, it wants speci- 
 fic performance with an undefined and, I think, I 
 may add, an unascertainable, additional deduction 
 from the contract price on account of the Canal 
 Company’s claim, — which, however, both it and 
 the Water Company dispute. 
 
 There is such a thing in equity as a deduction 
 from the price stipulated, because of the inability 
 of the vendor to give all that he has contracted to 
 give, but here the claim is that this Court shall, in 
 the absence of mistake, the parties having con- 
 tracted exactly as they intended to contract, first, 
 change the contract to the disadvantage of the 
 Water Company, and then in its changed form 
 compel them to perform it. If the Water Company 
 was seeking to compel the City to take the works, 
 Jersey City could set up the illegality of the 
 contract (if it was illegal) for the purpose of 
 defeating the suit. It is not entirely obvious why 
 the supplemental agreement is not authorized by 3Q 
 the terms of the act, but even if it be not Jersey 
 City, as a complainant, is hardly in a position to 
 demand the specific performance of an agreement 
 which it, in part, repudiates. If it may repudiate, 
 it necessarily puts itself out of court. It is quite 
 beyond the power of any court to compel parties 
 specifically to perform on terms what they have 
 never agreed to perform. The case is all the 
 stronger for the reason what the agreement of 
 July 8, 1901, was as to the Jersey City Water Co. 
 
the original agreement, by which it first became 
 bound. 
 
 I shall now notice very briefly one or two minor 
 objections. 
 
 As to the steel pipes : it is sufficient to say that 
 the contract does not provide for pipes seventy- 
 six inches in diameter. It provides a formula ac- 
 cording to which their carrying capacity shall be 
 determined. When the site of the reservoir was 
 changed and a greater head obtained it was possi- 
 ble within the terms of the contract to reduce 
 their size. 
 
 As to the riparian owners below the reservoir, 
 their rights are inconsiderable and most of them 
 have been obtained. It is admitted that what re- 
 mains must be acquired. 
 
 The question of seepage under the Parsippany 
 Dyke has been settled. 
 
 I think in view of the provisions of the fence 
 act, the Water Company should make an allow- 
 ance equal to one-half the cost of fencing. 
 
 I have now noticed all the questions raised by 
 the bill. If any others have been raised by the 
 briefs, they are in themselves comparatively in- 
 significant and not within the issues contained in 
 the pleadings. 
 

 
 
 
 
 
 
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