Consol. Safety Pin Co. v. Town of Montclair

• Decision Date: 13 January 1928
• Citation: 139 A. 909
• Parties: CONSOLIDATED SAFETY PIN CO. v. TOWN OF MONTCLAIR et al.
• Court: New Jersey Court of Chancery

139 A. 909

CONSOLIDATED SAFETY PIN CO.

v. TOWN OF MONTCLAIR et al.

Court of Chancery of New Jersey.

Jan. 13, 1928.

(Syllabus by the Court.)

Suit by the Consolidated Safety Pin Company against the Town of Montclair and others, in which defendants filed a counterclaim. Bill and counterclaim dismissed.

Lum, Tamblyn & Colyer, of Newark, for complainant.

Harold Bouton, of Montclair, for defendants.

BACKES, Vice Chancellor. Tony's Brook, a natural water course, has its source, and several branch sources, in the northwesterly section of Montclair, and runs, generally, southeasterly through the town, and thence through Glen Ridge and Bloomfield, where it enters Second river, which empties into the Passaic. The natural drainage of all surface water of the town is southerly towards the brook, and all street grading, with the single exception involved in this litigation, conforms to the natural slope. Twentythree drains of the town's underground surface water drainage system empties into the brook. As a part of the system the town constructed the "new Pine street" drain in 1924. This discharges into the "old Pine street" drain, which empties into the brook. The old drain runs north on Pine street and serves an area of about 80 acres in the easterly section of the town on the Glen Ridge boundary line. The new drain, an extension of the old one, runs northerly on Pine street to Walnut, westerly to Grove, northerly to Chestnut, and westerly to Christopher, and is designed to accommodate an area of approximately 70 acres lying partly on the Glen Ridge boundary and northerly of the section served by the old drain. The complainant owns and operates a factory in the low lands through which Tony's Brook flows, more than a mile down stream from Montclair. It has been there since 1891. In freshet seasons and during unusual downpours the brook overflows its banks and into the factory, interrupting operation and causing damage. The flooding is incidental to the location.

It is not objected that the artificial drainage into the brook by Montclair is burdensome, although it does, in some degree, contribute to the freshets. The flooding would happen were the drainage natural. The complaint is that surface water in the area tapped by the new drain has been, at least since 1903, diverted eastwardly from its natural southerly course by the laying out and grading of Oxford street from Grove street eastwardly to the Glen Ridge line, and that this artificial flow into the streets of Glen Ridge cannot now be lawfully reverted to its natural course, gathered in the new drain, and deposited in the brook, to the injury of the complainant. The complainant relies on Jerolaman v. Belleville, 90 N. J. Law, 206, 101 A. 244. In that case the plaintiff's plant was located on a natural water course. The town had regraded the hill top part of Jerolaman street, and its streets below suffered from storm water. To relieve the situation the flow down the hill was turned into the natural water course, by banking, and a covered drain, so that during a storm the plaintiff's premises were flooded by the diversion, and from back waters due to choking up of the drain and he sued the town for the damage. The Court of Appeals held, in effect, the law to be that a lower owner must submit, at his peril, to the flow of storm water diverted from its natural channels by lawful grading, but that turning the newly created flow into his premises by artificial means, to his damage, is actionable, just as would be the casting of a natural flow by artificial means; and that upon that issue it is immaterial that in years past the storm water reached his premises by the natural route, for, in the newly created circumstances, he need not apprehend nor guard against the approach of the common enemy except from the point to which it...