Armstrong v. Francis Corp.

Decision Date16 January 1956
Docket NumberNo. A--63,A--63
Citation59 A.L.R.2d 413,120 A.2d 4,20 N.J. 320
Parties, 59 A.L.R.2d 413 David K. ARMSTRONG and Mary Jane Armstrong, his wife, Plaintiffs-Respondents, v. The FRANCIS CORPORATION, a corporation of the State of New Jersey, Defendant-Appellant, and George O. Klemp and C. Klemp, his wife, Defendants-Respondents.
CourtNew Jersey Supreme Court

Samuel A. Larner, Newark, for appellant (Gruen & Goldstein, Union, attorneys; Samuel A. Larner, Newark, of counsel).

David K. Armstrong, Rahway, for plaintiffs-respondents.

The opinion of the court was delivered by


The Chancery Division, after trial, entered a final judgment against the defendant, the Francis Corporation. Francis appealed to the Appellate Division, and we certified the appeal here on our own motion.

A small natural stream rose in Francis' 42-acre tract, which lies immediately south of Lake Avenue in Rahway. The stream flowed in a northerly direction 1200 feet across the Francis lands through a seven-foot box culvert under Lake Avenue and emptied into Milton Lake, 900 feet north of the avenue. It was the natural drainway for the larger 85-acre area south of Lake Avenue which includes the Francis tract.

Francis stripped its tract and erected 186 small homes thereon in a development known as Duke Estates, Section 2. It also built some 14 houses on an adjacent small tract known as Duke Estates, Section 1, lying in another drainage area. It constructed a drainage system of streets, pavements, gutters, ditches, culverts and catch basins to serve both developments. The system emptied into a corrugated iron pipe laid by Francis below the level of tne natural stream bed on its lands. The pipe followed the course of the stream bed to the box culvert under Lake Avenue, although deviating from the course at some places. The pipe was covered with fill on Francis' tract and all evidence of the natural stream there has disappeared.

The drainage of the original 85 acres was thus augmented not only by the drainage of some 2 1/2 acres of the Duke Estates, Section 1, but also by waters percolating into the joints of the pipe where it lay below the level of the water table of the Francis tract. The pipe joints were expressly designed to receive such percolating waters, and, to the extent that the percolation lowered the level of the water table, the result was to provide a drier terrain more suitable to housing development.

Where the stream passes north of Lake Avenue en route to Milton Lake after leaving the box culvert it remains largely in its natural state and forms the boundary line between the residential tracts of the plaintiffs Armstrong and the defendants Klemp. The Klemps were made parties defendant by Francis' cross-claim but prevailed thereon and were allowed the same relief as the Armstrongs. The stream passes through a 36-inch culvert under the Klemp driveway and thence, across lands of the Union County Park Commission, to the Lake.

The Francis improvement resulted in consequences for the Armstrongs and the Klemps fully described by Judge Sullivan in his oral opinion as follows:

'Now the stream as it emerges from the underground pipe goes under Lake Avenue and then flows past and through the Armstrong and Klemp properties is no longer the 'babbling brook' that Mr. Klemp described. Now there is a constant and materially increased flow in it. The stream is never dry. The water is now discolored and evil smelling and no longer has any fish in it. A heavy deposit of silt or muck up to eighteen inches in depth now covers the bottom of the stream. After a heavy rainstorm the stream undergoes a remarkable change for several hours. All of the upstream rain water that used to be absorbed or held back is now channeled in undiminished volume and at great speed into this stream. This causes a flash rise or crest in the stream, with a tremendous volume of water rushing through at an accelerated speed. As a result, the stream has flooded on several occasions within the last year, although this was unheard of previously. More distressing, however, is the fact that during these flash situations the body of water moving at the speed it does tears into the banks of the brook particularly where the bed may turn or twist. At a point even with the plaintiff's (Armstrong) house the stream makes a sharp bend. Here the effect of the increased flow of water is most apparent since the bank on plaintiff's side of the stream has been eaten away to the extent of about ten feet. This erosion is now within fifteen feet of the Armstrong septic tank system. It is difficult to say where it will stop, where the erosion will stop. The silting has, of course, raised the bed of the stream up to eighteen inches in places and the raising of the stream results in water action against different areas of the bank so that the erosion problem while unpredictable is ominous. The eating away of the banks in several places has loosened rocks or boulders which have been rolled downstream by the force of the water. Those stones, however, as they rolled through the Klemp culvert cracked and broke the sides and bottom of the culvert and the water is now threatening to undermine the entire masonry. There is no doubt but that the defendant's activities have caused all of the condition just related.

'A matter of some concern is that defendant's housing development occupies only about one-half of the area which drains into this brook. At the present time there is a forty acre undeveloped section to the south of the defendant and it is reasonable to assume that it, too, will be improved and built upon at some future time. Defendant's underground trunk sewer was built to accommodate any possible runoff from this tract. If and when that section is developed, Armstrong and Klemp will have that much more erosion, silting and flooding to deal with.'

Judge Sullivan concluded that the Armstrongs and the Klemps were plainly entitled to relief in these circumstances and 'that the only sensible and permanent solution to the problem is to pipe the rest of the brook,' that is, from the culvert outlet at Lake Avenue the entire distance to Milton Lake. A plan for that purpose had been prepared by Francis' engineer and approved by the Armstrongs and the Klemps at a time when efforts were being made to compromise the dispute before the trial. The final judgment orders Francis, at its expense, forthwith to proceed with and complete within 60 days the work detailed on that plan. The Union County Park Commission has given its formal consent to the doing of the work called for by the plan on its lands.

The important legal question raised by the appeal is whether the damage suffered by the Armstrongs and the Klemps is Damnum absque injuria, namely, merely the non-actionable consequences of the privileged expulsion by Francis of waters from its tract as an incident to the improvement thereof. Francis argues, however, that, even if the injuries caused are actionable, Judge Sullivan's findings are against the weight of the evidence, that there was prejudicial error in the admission of evidence dealing with the offer of compromise, and that the relief granted was excessive, improper and unwarranted. We find no merit in any of these contentions.

The findings are fully and amply supported by competent evidence. The controverted questions lie principally in the opposing interpretations of the facts by the expert witnesses, and we are not persuaded that Judge Sullivan should have accepted the opinion of the Francis experts in preference to the opinion of the expert who testified for the Armstrongs and the Klemps. And there is nothing in the record as we read it to suggest that Judge Sullivan weighed the evidence of the offer of compromise in reaching his conclusions. His finding that the completion of the piping to Milton Lake was the sensible thing to do in no wise refers to the compromise offer, and in the context of his oral opinion that finding seems plainly to be predicated upon his view of what was needful to save the Armstrongs and the Klemps from further harm. The prescription in the judgment that the piping plan developed by Francis' own engineer be completed does not point to a contrary conclusion. Having decreed that piping was necessary to afford adequate relief, ordering its accomplishment according to the plan which reflected Francis' own concept of that need was wholly logical. Like considerations also answer Francis' other point that the relief allowed was excessive,--or, at least, point up the absence of any basis for the intrusion of appellate judgment into the question of its reasonableness.

Turning, then, to the basic question for decision, appellant grounds its argument upon the following statement of the Appellate Division in Yonadi v. Homestead Country Homes, 35 N.J.Super. 514, 521, 114 A.2d 564, 567 (1955);

'While the New Jersey cases do not deal with the matter explicitly, we conclude that where surface water is concentrated through a drain or other artificial means and is conducted to some place substantially where it otherwise would have flowed, the defendant will not be liable even though by reason of improvements he has made in the land, the water is brought there in larger quantities and with greater force than would have occurred prior to the improvements. The policies underlying the general rule come to bear here. What reasonably could the upland proprietor or occupant do in the present case with this excess water? Rather than require him to dispose of it--and so perhaps require him to secure the cooperation of a number of lowland properties through which the water must eventually be brought--the burden is cast on each lowland proprietor to protect his own land.'

We might summarily dispose of this point against the appellant upon the ground...

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