Ennever v. Borough of Bergenfield

• Decision Date: 14 February 1929
• Docket Number: No. 142.,142.
• Citation: 144 A. 809
• Parties: ENNEVER et ux. v. BOROUGH OF BERGENFIELD et al.
• Court: New Jersey Supreme Court

144 A. 809

ENNEVER et ux.

v. BOROUGH OF BERGENFIELD et al.

No. 142.

Court of Errors and Appeals of New Jersey.

Feb. 14, 1929.

Syllabus by the Court.

Appeal from Supreme Court.

Action by Harry Ennever and wife against the Borough of Bergenfield and others. Judgment for plaintiffs, and defendants appeal. Affirmed.

De Turck & West, of Hackensack, for appellants.

Morrison, Lloyd & Morrison, of Hackensack, for respondents.

BLACK, J. The meritorious question Involved in this appeal is the liability of the defendants municipal corporations to respond in damages for injuries and depreciation to the plaintiffs' property, which consists of a house and several lots, for creating and maintaining what the jury found under the instructions of the trial court to be a nuisance, viz. the defendants constructing and maintaining a joint sewage disposal plant and a joint sewerage system in the vicinity and adjoining the plaintiffs' property, upon the west bank of a small natural stream, which flowed through the lands acquired by the defendants and also through the property of the plaintiffs.

The record, in brief, shows the defendants, in constructing and operating the joint sewage disposal plant, caused the stream of water or brook flowing through the premises to fill with sewage and tilth, causing the water to be contaminated, polluting the stream by nauseating smells and gases, to the special damage of the plaintiffs' property.

The trial court pointed out to the jury the legal distinction between active wrongdoing and negligence. For the latter, the cases in New Jersey are conclusive to the effect that, for mere negligence, there is no liability except under a statute, such as the Bridge Act, making a township or the board of chosen freeholders of a county, when chargeable by law with the erection, etc., liable for negligence, and an action will lie therefor. P. L. 1860, p. 285; 1 Comp. St. 1910 of N. J p. 304, § 9. Waters v. City of Newark, 56 N. J. Law, 361, 28 A. 717, and Hart v. Freeholders, 57 N. J. Law, 90, 29 A. 490, are typical illustrative cases. But, when the injury is the result of active wrongdoing chargeable to the corporation, the municipality is liable to respond for special damages or injuries done. This is so, under a line of well-considered cases in this court, such as Kehoe v. Rutherford, 74 N. J. Law, 659, 65 A. 1046, 122 Am. St. Rep. 411, Jerolaman v. Belleville, 90 N. J. Law, 206, 101 A. 244, and Doran v. City of Asbury Park, 91 N. J. Law, 651, 104 A. 130, applied to artificial drains diverting surface water from its course; Garrison v. Borough of Fort Lee, 92 N. J. Law, 566, 106 A. 381, constructing a sanitary sewer with outlets into its storm water drain, which latter empties into a brook at the head of plaintiffs' pond resulting in its pollution; Olesiewicz v. City of Camden, 100 N. J. Law, 336, 126 A. 317, special damages resulting from the operation of a private, as distinguished from a public, activity.

The trial resulted in a verdict for the plaintiffs for the sum of $3,250. The record shows, although the defendants were performing a public duty in constructing and operating the sewers and the disposal plant, the evidence is plenary, on which the jury could find and did find the defendants were committing an active...