Mayor v. Waters

• Citation: 28 A. 717,56 N.J.L. 361
• Parties: MAYOR, ETC., OF CITY OF NEWARK v. WATERS.
• Decision Date: 24 February 1894
• Court: United States State Supreme Court (New Jersey)

28 A. 717

56 N.J.L. 361

MAYOR, ETC., OF CITY OF NEWARK

v. WATERS.

Supreme Court of New Jersey.

Feb. 24, 1894.

(Syllabus by the Court.)

Case certified from circuit court, Essex county, for advisory opinion.

Action by Annie M. Waters against the mayor and common council of the city of Newark to recover damages resulting from the overflow of a sewer on plaintiff's land. Heard on case certified for an opinion. Judgment for defendant.

The other facts fully appear in the following statement by GARRISON, J.:

This case was tried by the court below without a jury.

The plaintiff offered evidence tending to show the following facts:

The plaintiff, in the year 1875, was the owner of property on the corner of Kinney and Halsey streets, in the city of Newark. A sewer built by the defendant ran through Kinney street passed the plaintiff's property, and terminated at tide water.

There was a manhole in the street at the intersection of Kinney and Halsey streets, opposite plaintiff's property, and also a sewer basin at each of the four corners of the two streets. The sewer drained a portion of the city on a hill to the west of the plaintiff's property. Another sewer ran through Halsey street from the north, and emptied into the Kinney street sewer at that corner. In that year a connection from another sewer was made into the Kinney sewer above where it passed the plaintiff's property, causing an increased amount of sewage to flow through it and another sewer was built through Halsey street from the south, that drained into the Kinney street sewer at the intersection of said streets. Before these new connections were made, the Kinney street sewer had sufficient capacity to carry off all the drainage that flowed into it. After these connections were made, on account of the increased amount of sewage, and because the water coming from the Halsey street sewer encountered, and to some extent dammed up, the flow of the Kinney street sewer, the said Kinney street sewer did not have sufficient capacity at all times to carry off the drainage that flowed into it. As a result, whenever there was a heavy rain, the water backed up from the sewer, and flowed out of the said manhole and sewer basin, ran across the sidewalk in front of the plaintiff's property, and ran into the windows of plaintiff's houses, and damaged the houses and caused loss of rents. The plaintiff then notified the street commissioner of Newark, an officer having charge of the streets and sewers of said city, and also the common council of said city, of the condition of said sewer, and requested that it be put in proper condition. This was not done, and the sewage continued to overflow plaintiff's property, from time to time, down to the time of bringing suit.

On this state of facts the following questions are raised: (1) Can a landowner recover from a city damages caused by new sewer connections being made by the corporation with a sewer lawfully constructed in a public street, when such connections necessarily caused the sewage to flow out of said sewer through a manhole and sewer basins in the street on which plaintiff's property abuts, and flow across the sidewalk and over her property? (2) Can such landowner recover such damages for the continuance of such flow of sewage beyond a reasonable time for putting the sewer in a proper condition, when the city has been notified of the condition of the sewer and the said injury, and requested to remedy it?

The foregoing questions are made and stated as presenting a case of doubt and difficulty, and are hereby certified to the supreme court for its advisory...