Board of Ed. of Borough of Manasquan v. State Dept. of Transp.
| Decision Date | 20 January 1976 |
| Citation | 69 N.J. 92,351 A.2d 17 |
| Parties | BOARD OF EDUCATION OF the BOROUGH OF MANASQUAN et al., Plaintiffs-Respondents, v. The STATE of New Jersey DEPARTMENT OF TRANSPORTATION, Defendant-Respondent, and The New York and Long Branch Railroad Company, Defendant-Appellant. |
| Court | New Jersey Supreme Court |
Laurence M. McHeffey, Oakhurst, for defendant-appellant (Hanlon, Amdur & Hanlon, Oakhurst, attorneys, Richard A. Amdur, Oakhurst, of counsel, Laurence M. McHeffey, on the brief).
John D. Wooley, Manasquan, for plaintiffs-respondents.
The opinion of the Court was delivered by
CONFORD, P.J.A.D., Temporarily Assigned.
The principal question on this appeal is whether a railroad which piped a natural watercourse under its embankment when the tracks were laid many years ago is subject to injunction on the complaint of upstream owners for flooding attributable to the fact that the pipe will no longer accommodate the volume of water which now flows through the watercourse. That volume has increased substantially because of upstream housing and commercial development over the past 25 years. The Law Division granted a mandatory injunction calling for the widening of the passageway under the railroad embankment, and the Appellate Division affirmed on the trial court's oral opinion. We granted certification, 67 N.J. 92, 335 A.2d 45 (1975), and we now affirm.
Separate actions were brought by plaintiffs Board of Education of the Borough of Manasquan and Borough of Manasquan against The New York and Long Branch Railroad ('Railroad') and the State Department of Transportation for injunctions to abate a nuisance. The actions were consolidated and heard by Judge Lane sitting without a jury.
Stockton Lake Brook is a natural stream which flows easterly for 2.6 miles from its source west of Route 35 in Wall Township through the northwest portion of the Borough of Manasquan into Stockton Lake, an arm of the Manasquan River. The watershed area drained by the brook contains 735 acres in Wall Township, Manasquan Borough, and Sea Girt.
The plaintiff Board of Education maintains an elementary school and an adjoining school playground along the northern bank of the brook. Across Broad Street to the west is Manasquan High School. The brook flows through the high school property and thence easterly through a brick 5 by 4 foot culvert under Broad Street and between natural banks along the southerly edge of the elementary school playground. Four hundred feet east of Broad Street it passes under a gravel driveway bridge connecting the school yard with another street to the south by means of a 36-inch diameter pipe.
Immediately east of the school property the brook passes under State Highway Route 71 by means of a 10 by 6 foot box culvert. The defendant State Department of Transportation installed the culvert in 1971 with the approval of the Division of Water Resources when the highway was renovated. A bulkhead or dam was placed across the downstream outlet of the culvert, so as to prevent a wash-out of the nearby railroad embankment in times of flood, with a hole 30 inches in diameter to allow the water to pass through at the pre-1971 level.
After passing under Route 71, the brook flows through a low swampy area heavily covered with brush for about 75 feet to the right-of-way of the defendant railroad. At this point the railroad traverses a large embankment under which the brook waters pass through a 24-inch diameter cast iron pipe. All surface drainage from the 735--acre watershed area must funnel through this pipe. The pipe was there in 1920 and was probably installed before 1900.
Three or four times each year during periods of heavy rainfall the brook overflows its banks and floods the elementary school playground. The flooding began at least 11 years ago and typically covers two-thirds of the school yard to depths of up to 5 feet, leaving a residue of mud and debris which makes the playground unusable for several days. The overflow also floods the home economics and band room in the basement of the high school across the street.
The school board's drainage engineer, qualified as an expert, testified that the immediate cause of the flooding is the railroad's 24-inch pipe, which backs up the stream all the way to the school yard. The 24-inch pipe is 'inadequate' to accommodate the surface drainage from the watershed area. As distinguished from the area west of the pipe, there is no flooding east of the pipe. The witness was of the opinion that if the Route 71 bulkhead were removed but the railroad culvert not improved it would reduce the flooding on the school playground to the extent that it is caused by debris build-up in the dam, but it would not significantly alleviate the general flooding problem.
Several recent developments in the watershed area upstream have contributed to the increase of the runoff, rendering the railroad drainage pipe inadequate. Since 1954 two shopping centers, an apartment building and a small housing development have been built in Wall Township, and another 20-house development was erected in Manasquan.
The flooding is hazardous to the safety of the school children and other passers-by, who could fall and be swept into the 8-foot deep water surrounding the Route 71 culvert at flood times. The president of the school board testified that the flooding interfered with the operation of the school playground. It would certainly hinder the construction of a proposed new school addition on the old playground area.
The expert engineer concluded there was no other way to divert the drainage than to enlarge the opening under the railroad embankment, possibly by jacking additional pipes underneath. He testified that the railroad drainage facility should have at least the same 'hydraulic characteristics' as the Route 71 culvert, with a 60-square foot opening, to adequately accommodate the water flow. Once the railroad drainage facility was improved, the dam in the highway culvert could be removed without damaging the railroad embankment. No opposition expert proof was offered by the railroad.
The judgment entered by Judge Lane called for the railroad to propose a plan for approval by the State Division of Water Resources to construct a drainage facility having the same hydraulic characteristics as the Route 71 culvert. Upon approval, and completion of construction by the railroad, the State Department of Transportation was ordered to remove the temporary dam from the Route 71 culvert.
This court's decision in Armstrong v. Francis Corp., 20 N.J. 320, 120 A.2d 4 (1956), resolved conflicting currents in prior New Jersey cases as to the law governing the liability of the landowner who alters the flow of surface waters with resulting material harm to other landowners. Previously New Jersey had followed variations of the 'common enemy' rule, which, with exceptions designed to cope with particularly offensive kinds of interference with normal flow, permitted every owner to get rid of undesirable water in whatever fashion he chose, whatever the effect on others. The then state of the law was well-delineated in the Appellate Division decision of Yonadi v. Homestead Country Homes, 35 N.J.Super. 514, 517--521, 114 A.2d 564 (1955). The summary of the law in Yonadi stressed the dominance of property law principles, with the emphasis on uniformity, Stare decisis, and predictability of rights and obligations characteristic of property law. Id. at 520, 521, 524, 114 A.2d 564.
Armstrong repudiated the property law approach of Yonadi and the older cases in favor of the concept of reasonable use, 20 N.J. at 329, 120 A.2d 4, governed by tort rather than property law notions, 20 N.J. at 326, 120 A.2d 4. See Hanks, The Law of Water in New Jersey, 22 Rutgers L. Rev. 621, 705--711 (1968); Restatement of Torts (1939) § 833, Comment, Illustrations 1 and 2, pp. 270--271. Justice Brennan stated in Armstrong (20 N.J. at 330, 120 A.2d at 10):
The rule of reasonableness has the particular virtue of flexibility. The issue of reasonableness or unreasonableness becomes a question of fact to be determined in each case upon a consideration of all the relevant circumstances, including such factors as the amount of harm caused, the foreseeability of the harm which results, the purpose or motive with which the possessor acted, and all other relevant matter.
A balancing of the factors noted, plus such other considerations as may bear upon the reasonableness of requiring the railroad to remedy the harmful situation before us, produces accord with Judge Lane's determination. It may readily be conceded that the railroad acted reasonably in the first instance in constructing a 24-inch passageway for a country...
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