Borough of Westville v. Whitney Home Builders, Inc.

• Decision Date: 13 April 1956
• Docket Number: No. A--732,A--732
• Citation: 40 N.J.Super. 62,122 A.2d 233
• Parties: BOROUGH OF WESTVILLE et al., Plaintiffs-Appellants, v. WHITNEY HOME BUILDERS, Inc., et al., Defendants-Respondents. . Appellate Division
• Court: New Jersey Superior Court — Appellate Division

Page 62

40 N.J.Super. 62

122 A.2d 233

BOROUGH OF WESTVILLE et al., Plaintiffs-Appellants, v. WHITNEY HOME BUILDERS, Inc., et al., Defendants-Respondents.

No. A--732.

Superior Court of New Jersey.

Appellate Division.

Argued Feb. 20, 1956.

Decided April 13, 1956.

W. Louis Bossle, Camden, for plaintiffs-appellants.

Louis B. LeDuc, Camden, for defendants-respondents (George B. Marshall, Walter L. Marshall and Martin F. Caulfield, Woodbury, attorneys).

Before Judges GOLDMANN, FREUND and CONFORD.

The opinion of the court was delivered by

CONFORD, J.A.D.

The plaintiff, Borough of Westville, is a municipality in Gloucester County. It is situated on the outskirts of Camden, near the Delaware River. The Township of Deptford adjoins it on the south. The defendant, Whitney Home Builders, Inc., has been engaged in the construction of a one-family residential development in Deptford, near the Westville line. In connection therewith its principals caused to be incorporated the defendants, Woodbury Terrace Tract Corp., as a sewerage company, under and pursuant to Revised Statutes, Title 48, Public Utilities, chapter 13, N.J.S.A., for the purpose of collecting, treating and disposing of the house sewage of the homes in the development. As required by the statute, the consent of the governing body of Deptford was secured, subject to an irrevocable option to the township to acquire the sewerage system constructed by the sewerage company at a price fixed in the ordinance of consent.

Under plans approved by the State Board of Health in the summer of 1954, the defendant sewerage company has constructed in Deptford, near the Westville boundary, a sewage treatment plant geared to handle and treat the sewage from 300 homes. The plant went into operation the latter part of December 1954. At the time of the trial of this cause in April and May 1955, some 30 homes were being serviced. The gravamen of this action concerns the disposition of the liquid effluent of the treated sewage. It is discharged into a small natural stream or ditch which traverses the property of the defendants and flows thence in a northeasterly direction through Westville somewhat less than a mile and then empties into a pond, which, with part of the ditch, is situated in the borough's principal park. The park land was acquired by the borough by tax foreclosure in 1939. The pond drains over a spillway on its easterly bank into an outlet to the waters of Big Timber Creek, some 1,000 feet away, a tributary of the nearby Delaware.

Both the ditch and the pond originate in natural watercourses fed by surface waters. In 1940 the pond was improved in the course of a federal W.P.A. project for conversion of the foreclosed land into a park. The pond averages two to three feet in depth and is now about 500 feet in length. It has been used for many years by the public for skating in winter and by boys for fishing and, occasionally, wading in summer. Wading in recent years has apparently been infrequent. Since the construction of the park it has been a recreational center of the borough. There are beneches around the pond and basketball and baseball play areas. It is the locale for all public patriotic exercises and the situs of memorials for veterans of both world wars. A newly erected schoolhouse is situated west of the park, near the pond.

The plaintiff borough contends that at times the ditch runs dry. The testimony would seem to indicate that this seldom, if ever, occurs, but that in times of drought the flow is reduced to a trickle. During a dry period in the summer of 1954, the flow near the pond was about 15 inches wide and one inch deep and the pond bed somewhat exposed. When rains are flush, the pond overflows its banks by some 15 to 20 feet.

The plaintiffs named in the complaint, which was filed August 2, 1954, were the borough and the local board of health. They alleged the impending construction of the sewerage system, the proposed discharge of the sewage effluent into the ditch and its consequent flow from the ditch into and through the park pond. The threatened use of the ditch was described as 'deleterious' and plaintiffs charged:

'(a) that they have a right that the surface waters which heretofore have flowed through said ditch shall not be contaminated or polluted by the discharge of the effluent from said proposed sewerage disposal plant; and

'(b) that the discharge of said effluent, if permitted, would create a public nuisance and be productive of a hazard to the public health.'

and demanded judgment of injunction and damages.

On October 20, 1954 the Chancery Division granted a motion dismissing the complaint insofar as it is prosecuted by the local board of health for the reason that the Legislature has vested exclusive control and jurisdiction over sewage disposal plants discharging effluent into any of the waters of the State in the State Board of Health and thereby precluded the authority of a local board of health to seek abatement of such an enterprise as a public nuisance. Borough of Westville v. Whitney Home Builders, 32 N.J.Super. 538, 544, 108 A.2d 660 (Ch.Div.1954), relying upon State Board of Health v. Borough of Vineland, 72 N.J.Eq. 862, 68 A. 110 (E. & A.1907). No objection has been raised to that ruling. As to the complaint of the borough, however, in its guise as a plea by a lower riparian proprietor for restraint against the anticipated perpetration of a private nuisance in and upon the common waters, the defendants' motion for summary judgment was denied. (32 N.J.Super., at page 543, 108 A.2d 660.)

Thereafter a pretrial conference produced a pretrial order, filed February 18, 1955, wherein the remaining count of the complaint is paraphrased as a cause of action by the borough, 'as lower riparian proprietor, to restrain defendants, as upper riparian proprietors, from unreasonably contaminating or polluting, or further unreasonably contaminating or polluting, the waters' of the ditch * * * 'by the discharge of sewage effluent into said ditch.' The order set out defendants' denial that the rights of the plaintiff would be violated by the discharge and their assertion 'that there will be no contamination or polluting of the waters of the ditch which is unreasonable in nature.' The trial of the cause occupied three days and produced testimony running 428 pages of transcript and including some 27 exhibits. There was extensive expert testimony on both sides bearing, Inter alia, upon the nature of the operation of the sewage plant and the condition of the waters of the ditch and pond prior as as well as subsequent to the commencement of the flow of the effluent into the ditch. The trial court concluded that there had been no showing of contamination as it defined the term--'increase of bacteria and organisms,' or of any 'appreciable pollution.' The showing as to prospective 'putrescence' and decay from increased vegetation in the pond was found 'too speculative' to found a claim for relief. The plaintiff's grievance was assessed as one solely 'psychological or esthetic' in nature, and not, as such, the appropriate subject of injunctive relief. Judgment was entered on the merits for defendants.

I.

A preliminary practice question is posed by defendants' renewal of objections, offered by them previously, to the plaintiff's appendix to its brief, on grounds of noncompliance with the requirement of R.R. 1:7--1(f) that there be included in the testimony printed such portions thereof 'which appellant reasonably assumes will be relied upon by respondents in meeting the issues raised.' About one-fifth of the entire testimony is reproduced, but only about one-ninth of that adduced by defendants. Only two exhibits are reproduced, none of them defendants'. A motion by defendants for a more complete appendix before another part of this Division was, we are informed by defendants without contradiction, denied on plaintiff's representation that its case on appeal could be rested on the pleadings and the trial court's decision. It will be apparent before we have concluded this opinion that plaintiff's presentation has not, in fact, been so limited and that we could not be expected to determine an appeal of a cause involving the important public health implications here manifested without an examination of substantially all of the evidence. Plaintiff is in default. Much of the evidence submitted by defendants reasonably requiring inspection for an appraisal of its defenses has been omitted from the plaintiff's appendix. The requirements of the rule leave much to the good faith of appellants if the rule is to operate fairly and serviceably for both court and parties. See De Caro v. De Caro, 13 N.J. 36, 41, 97 A.2d 658, 42 A.L.R.2d 1312 (1953); State v. Schmelz, 17 N.J. 227, 238, 111 A.2d 50 (1955); Feddock v. New Jersey Realty Co., 28 N.J.Super. 400, 401, 101 A.2d 48 (App.Div.1953); Mitchell v. Cavicchia, 29 N.J.Super. 11, 13, 101 A.2d 575 (App.Div.1953); Josefowicz v. Porter, 32 N.J.Super. 585, 108 A.2d 865 (App.Div.1954); State Highway Commissioner v. Union Paving Co., 33 N.J.Super. 85, 89, 109 A.2d 424 (App.Div.1954).

In view of what has been said, however, we have examined the entire transcript and all the exhibits, and our determination is predicated thereon. Defendants are consequently not prejudiced by the shortcomings of the appendix.

II.

Plaintiff purports at the opening of its argument to rely solely for its right to injunctive relief upon the asserted inherent offensiveness and loathesomeness of the sewage effluent, no matter how efficient defendants' treatment plant and relatively free from impurities the effluent, analytically speaking. It urges that the flow into the ditch and pond Ipso facto introduces a self-evident 'noisome substance' into the common watercourse, Worthen & Aldrich v. White Spring Paper Co., 74 N.J.Eq. 647, 654, 70 A. 468 (Ch.1908), affirmed 75 N.J.Eq. 624, 78 A. 1135 (E. & A.1909), this amounting to an...