Opinion
08-31-1899
JOHNSON v. BOROUGH OF BELMAR.
S. A. Patterson, for complainant. Halsted H. Wainwright for defendant.
Application for preliminary injunction by Robert S. Johnson against the borough of Belmar. Granted.
S. A. Patterson, for complainant.
Halsted H. Wainwright for defendant.
EMERY, V. C. The board of health of the borough, under the act of February 22, 1888, c. 56 (2 Gen. St. p. 1642), have the right to regulate the plumbing of buildings, and to require plans to be submitted for their inspection and approval. Where a plan has been submitted by an owner to the board, and the plan so submitted has been approved, either as submitted or with alterations, the owner, if he proceeds with the work, must conform to the plans as approved. If the owner desire to question either the failure to approve his plans or the conditions as unreasonable, he must do so by appeal to the courts before proceeding with the work. Otherwise, he is bound in justice, as well as by the ordinance of the board of health, to follow the plans as approved. Morford v. Board (Sup. Ct; 1898) 61 N. J. Law, 386, 390, 39 Atl. 706, citing Health Department v. Lalor, 38 Hun, 542. The answer does not set up that the owner's plans were not approved, or that he is not following the plans which were approved originally, but claims the right to cut off the water supply solely because of the failure of the owner to comply with the ordinances of the board of health in relation to open plumbing. For violation of the ordinances of the board of health, the owner is by the statute made subject to penalties on prosecution of the board of health; but the board of health have no authority, under the statute, either to control directly the turning on the water for permanent use, or to cut off the water when once so turned on, by reason of violation of their ordinances. Such control would subject the owner to an additional penalty.
The control of the public water supply, and the sole right to turn on water and to cut it off, is in the borough council; and in the absence of any regulation by the borough council itself that water shall not be turned on until a certificate from the board of health has been obtained that the plumbing conforms to their ordinances or plans, or that it shall be cut off after it has been turned on by reason of failure to comply with the ordinances of the board of health, the borough council has no right to cut off the water supply from an owner by reason of this failure. Its right to cut off the water must depend upon its own reasonable regulations in this respect. Morford v. Board, supra; Dayton v. Quigley (Runyon, C; 1878) 29 N. J. Eq. 77; Coe v. Railway Co. (1879) 30 N. J. Eq. 440; Red Star Line S. S. Co. v. Mayor, etc., of Jersey City (Sup. Ct.; 1883) 45 N. J. Law, 246, 250.
Complainant's conduct in originally interfering by force with the supply, as shown by defendant's affidavits, might be ground for refusing a preliminary injunction, if this forcible connection of the water supply still continued at the filing of the bill; but the defendant having now resumed control of the supply, and complainant having now applied to the court for a declaration as to his rights while the water is cut off, the existing rights of complainant should be determined without being prejudiced by his former forcible action. Complainant, as a taxpayer and owner of lands in the borough, is entitled to the common benefit of the water supply, for which he, in common with other owners, is taxed, unless the defendant who has the control of the supply, shows good cause for depriving him of this common right. In the absence of any regulation by defendant authorizing the cutting off the supply, as a penalty for violating the ordinances of the board of health relating to the open plumbing, and in the absence of any claim that the work as constructed is a nuisance, the complainant is entitled to the use of the water. The only effective method of protecting a right of this character (that of the reasonable enjoyment and comfort of a home for himself or ten ants whom he may desire to obtain) Is by the equitable relief of Injunction (Hart v. Leonard, 42 N. J. Eq. 416, 420, 7 Atl. 865); andwhere the issue appears to be one of law, as to the rights of the parties, which is fully presented on the preliminary application, and no sufficient reason appears for delaying decision on the question until final hearing, a preliminary injunction may be granted (Dayton v. Quigley, supra; Coe v. Railway Co., supra). An injunction pending the hearing will therefore be granted as to the unoccupied house, upon condition that complainant pay or tender the water rent. No costs will be allowed on the application.