Page:United States Reports, Volume 209.djvu/377

 Argument for Plaintiff in Error. Watson, 15 Fed. Rep. 511; Ward v. Maryland, 12 Wall. 418; Connolly v. Union Sewer Pip Co., 184 U.S. 560. The decision now under review, and the act of 1905, are both attempts to change the common law in order to destroy the vested and contract rights of the plaintiff in error. The Federal court will not follow the state courts in the interpretation of state law where it appears that the state courts have undertaken to change the law in such manner as to destroy contract and vested rights, or 8o as to take property without due process of law. Plaintiff in error is entitled to have its case considered here fully on the merits, as a common law question, unhampere d by any considerations of modern state policy. Ohio Li/e & Black, 418; Mchi9an Central v. Mrick, 107 U.S. 102. The act of 1905 is an attempt to impair the obligation of contracts of the plaintiff in error. The effect of the act is directly to destroy the contracts with consumers in Statefi Island, by requiring the court of chancery to enjoin their fulfillment. Unless, therefore, the contracts were .invalid upon other grounds than hose created by the act of 1905, that act is void, as impairing the obligation of con- tracts, and the decree for an in, junction should be reversed. The waters of running streams in New Jersey are the common property of the riparian landowners. Any riparian owner on a fresh water stream may divert and use as much &ater as he chooses, so long a he does not impair the like right of the owners down the stream without their consent. If he has their consent, he may divert up to the whole flow of the stream. A riparian owner nearest to tide water may divert the whole flow since there are no owners on the stream below him to be injured. It is really a matter of little importance to know who, if any one, owns the water while running 'in the stream, because .the real question is not the ownership of the water while run- ning, but of the right to take it and divert it.

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