Crosby v. City of E. Orange

• Decision Date: 02 July 1913
• Citation: 87 A. 341,84 N.J.L. 708
• Parties: CROSBY v. CITY OF EAST ORANGE.
• Court: New Jersey Supreme Court

87 A. 341

84 N.J.L. 708

CROSBY

v. CITY OF EAST ORANGE.

Court of Errors and Appeals of New Jersey.

July 2, 1913.

(Syllabus by the Court.)

Appeal from Supreme Court.

Action by William E. Crosby against the City of East Orange. From judgment for plaintiff, defendant appeals. Reversed.

Jerome D. Gedney, of East Orange, and Edward M. Colie, of Newark, for appellant.

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

BERGEN, J. The plaintiff is the owner of a tract of land on which there are two wells of water and through which flows a small stream called Bear brook. The defendant, owning property in the vicinity of plaintiff's land, caused wells to be sunk, from which it pumped subterranean water and disposed of it for commercial purposes. The plaintiff, claiming the abstraction of such water deprived his land of flowing and subterranean water to such an extent that the diminution in quantity of the natural supply thereof so affected his land as to cause a serious injury to him, brought his action and obtained a judgment, from which defendant appeals. The errors which, in our opinion, require a reversal of this judgment relate to rulings on the admission of testimony, the first of which is the opinion testimony by one not properly qualified.

The plaintiff called as a witness Edna Dickinson, and she was asked the following question: "Q. Now, will you give us your best judgment as to the difference in rentable or usable value per year of the Crosby property, assuming on the one baud that there was an abundant supply of water in what is known as the shop well, and also in what is known as the house well, and that Bear brook flowed with a fair supply of water, except for a short time in very dry seasons; and on the other hand assuming that there is no water in the house well, and no water in the shop well, at various times in each year, and that Bear brook, the brook adjoining the property, or going through it, goes dry, or practically dry, early in the season, and stays dry several mouths." This hypothetical question assumes that the facts therein stated had been proven, an assumption not now necessary to question, and manifestly called for an opinion based upon the assumed facts. This question was objected to because, among other reasons, the witness was not qualified to give an opinion as to the difference in rental value of plaintiff's property under the different conditions assumed in the question. The trial court overruled the objection and permitted the witness to answer the question. Her qualifications to give this opinion were that she was 24 years of age and had been engaged in the real estate business (that is, selling and renting property) for about two years; that land rented more readily when it was supplied with water, and on one occasion when a proposed lessee, in deciding which of two properties he would lease, one without a water supply and one with, selected the property which had water on it There is nothing in this to indicate that the witness had any special...