Argument for Plaintiff in Error. 209 U.S. water of the State into any other State is not unconstitutional either as depriving riparian owners of their property without due process of law, as impairing the obligation of contracts made by them for furnishing such water to persons without the State, as an interference with interstate commerce, or as denying equal privileges and immunities to citizens of other States. 70 N. J. Eq. 695, affirmed. THE facts are stated in the opinion. Mr. Gilbert Collins and Mr. Richard V. Lindabury for plaintiff in error: The act of 1905 is an attempt to control interstate commerce, and cannot be sustained under the police power. As is established by principle and authority, the court must examine the reasonableness of a claim to support a state statute regulating commerce, under the guise of an exercise of the police power. The act of 1905, as applied to the Passaic, is without any justification in the needs of the inhabitants of the State. Water when reduced to possession is a commodity, which may be sold, like any other. Syracuse v. Stacey, 169 N. Y. 231, 245; Suburban Water Co. v. Harrison, 72 N. J. L. 194. When a statute, interfering with interstate commerce, is founded on the police power of the State, the question always arises whether the act goes beyond the necessity for its exercise. This question is judicial. The reasonableness of the statute is an element of the inquiry whether it encroaches upon the national authority. Railroad Co. v. Husen, 95 U. S. 473; Lake Shore Railroad Co. v. Ohio, 173 U. S. 285, 300; Lochner v. New York, 198 U. S. 45; Mugler v. Kansas, 123 U. S. 623, 661; Brimmer v. Rebman, 138 U. S. 78; Scott v. Donald, 165 U. S. 58; Indiana v. Indiana &c. Oil, Gas & Mining Co., 120 Indiana, 575; S. C., 6 L. R. A. 579; Benedict v. Columbus Construction Co., 50 N. J. Eq. 23, 38. The act is void because it denies equal privileges to citizens of another State. Minnesota v. Barber, 136 U. S. 313; In re 209 U.S. Argument for Plaintiff in Error. Watson, 15 Fed. Rep. 511; Ward v. Maryland, 12 Wall. 418; Connolly v. Union Sewer Pipe 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 courts 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 so 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, unhampered by any considerations of modern state policy. Ohio Life & Trust Co. v. Debolt, 16 How. 416, 432; Chicago v. Robbins, 2 Black, 418; Michigan Central v. Myrick, 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 Staten Island, by requiring the court of chancery to enjoin their fulfillment. Unless, therefore, the contracts were invalid upon other grounds than those created by the act of 1905, that act is void, as impairing the obligation of contracts, and the decree for an injunction 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 water as he chooses, so long as 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 running, but of the right to take it and divert it. Argument for Defendant in Error. 209 U. 8. Running water is incapable of ownership, and neither the State nor the riparian owners have any title in it until it is appropriated. Sweet v. Syracuse, 129 N. Y. 316, 335; City of Syracuse v. Stacey, 169 N. Y. 235, 245; Society v. Morris Canal, 1 N. J. Eq. (Saxton) 157, 189; Cobb v. Davenport, 32 N. J. Law, 369; Attorney General v. Del. & Bound Brook R., 27 N. J. Eq. 631; Higgins v. Flemington Water Co., 36 N. J. Eq. 538, 543; Albright v. Cortwright, 64 N. J. L. 330, 337; Simmons v. Paterson, 60 N. J. Eq. 385, 389; Doremus v. City of Paterson, 65 N. J. Eq. 711, 713. Mr. Robert H. McCarter, Attorney General of the State of New Jersey, for defendant in error: The State, as a lower owner, is entitled to preserve the integrity of the stream so that it will come to it unimpaired in quantity. Attorney General v. Delaware & Bound Brook R. R. Co., 12 C. E. Gr. (27 N. J. Eq.) 631; Attorney General v. Jamaica Pond Aqueduct Corporation, 133 Massachusetts, 361; Coosaw Mining Co. v. South Carolina, 144 U. S. 550, and cases there cited; Story's Eq. Jur., §§ 922, 923; Kerr on Injunctions, 262; 1 Joyce on Injunctions, 120; Missouri v. Illinois et al., 180 U. S. 208, 243. The State, without regard to its lower proprietorship, is entitled to an injunction as successor to the crown and as representative of the public; and this, too, notwithstanding the provisions of the Federal Constitution relied upon by the appellant. The State has a supervisory interest and property in the waters that lie or flow in it, entitling and requiring it, as the representative of the public, to preserve the same, and that this right and duty have been inherited from the King of England. Hargrave's Law Tracts, chap. 2; Smith v. Rochester, 92 N. Y. 463, 477 and cases cited; Farnham on Waters, §§ 133, 138, 138a, 140a and 141; Connecticut River Lumber Co. v. Alcott Falls Co., 65 N. H. 290; S. C., 21 Atl. Rep. 1090; State. v. Ohio Oil Co., 150 Indiana, 21; S. C., 49 N. E. Rep. 809; Ohio Oil Co. v. Indiana, 177 U. S. 190; Kansas v. Colorado, 185 U. S. 125; Georgia v. Tennessee Copper Co., 206 U. S. 226, 237. The law under consideration was passed as an exercise of the police power of the State, and as such is consequently free from any of the constitutional objections that are here raised against it. Jones v. Brim, 165 U. S. 180; P. R. R. v. Hughes, 191 U. S. 477; Field v. Barber Asphalt Co., 194 U. S. 623; Cleveland &c. Co. v. Illinois, 177 U. S. 514; Cook v. Marshall County, 196 U. S. 261, 272. MR. JUSTICE HOLMES delivered the opinion of the court. This is an information, alleging that the defendant (the plaintiff in error), under a contract with the City of Bayonne in New Jersey, has laid mains in that city for the purpose of carrying water to Staten Island in the State of New York. By other contracts it is to get the water from the Passaic River, at Little Falls, where the East Jersey Water Company has a large plant by which the water is withdrawn. On May 11, 1905, the State of New Jersey, reciting the need of preserving the fresh water of the State for the health and prosperity of the citizens, enacted that "It shall be unlawful for any person or corporation to transport or carry, through pipes, conduits, ditches or canals, the waters of any fresh water lake, pond, brook, creek, river or stream of this State into any other State, for use therein." By a second section a proceeding like the present was authorized, in order to enforce the act. Laws of 1905, c. 238, p. 461. After the passage of this statute the defendant made a contract with the City of New York to furnish a supply of water adequate for the Borough of Richmond, and of not less than three million gallons a day. Thereupon this information was brought, praying that, pursuant to the above act and otherwise, the defendant might be enjoined from carrying the waters of the Passaic River out of the State. There are allegations as to the amount of water and the probVOL. CCIX-23 able future demand upon which the parties are not wholly agreed, but the essential facts are not denied. The defendant sets up that the statute, if applicable to it, is contrary to the Constitution of the United States, that it impairs the obligation of contracts, takes property without due process of law, interferes with commerce between New Jersey and New York, denies the privileges of citizens of New Jersey to citizens of other States, and denies to them the equal protection of the laws. An injunction was issued by the Chancellor, 70 N. J. Eq. 525, the decree was affirmed by the Court of Errors and Appeals, 70 N. J. Eq. 695, and the case then was brought here. The courts below assumed or decided and we shall assume that the defendant represents the rights of a riparian proprietor, and on the other hand, that it represents no special chartered powers that give it greater rights than those. On these assumptions the Court of Errors and Appeals pointed out that a riparian proprietor has no right to divert waters for more than a reasonable distance from the body of the stream or for other than the well-known ordinary uses, and that for any purpose anywhere he is narrowly limited in amount. It went on to infer that his only right in the body of the stream is to have the flow continue, and that there is a residuum of public ownership in the State. It reinforced the State's rights by the State's title to the bed of the stream where flowed by the tide, and concluded from the foregoing and other considerations that, as against the rights of riparian owners merely as such, the State was warranted in prohibiting the acquisition of the title to water on a larger scale. We will not say that the considerations that we have stated do not warrant the conclusion reached; and we shall not attempt to revise the opinion of the local court upon the local law, if, for the purpose of decision, we accept the argument of the plaintiff in error that it is open to revision when constitutional rights are set up. Neither shall we consider whether such a statute as the one before us might not be upheld, even if the lower riparian proprietors collectively were the absolute |