Garrison v. Borough of Ft. Lee

• Decision Date: 03 March 1919
• Citation: 106 A. 381
• Parties: GARRISON v. BOROUGH OF FT. LEE.
• Court: New Jersey Supreme Court

106 A. 381

GARRISON

v. BOROUGH OF FT. LEE.

Court of Errors and Appeals of New Jersey.

March 3, 1919.

(Syllabus by the Court.)

Appeal from Supreme Court.

Action by Samuel B. Garrison against the Borough of Ft. Lee. Verdict and judgment for plaintiff, and defendant appeals. Affirmed.

William J. Morrison, Jr., of Ridgefleld Park, for appellant.

William B. Gourley, of Paterson, for respondent.

TRENCHARD, J. Samuel B. Garrison brought this action against the borough of Ft. Lee to recover damages sustained by reason of the pollution of his fresh-water ice pond, by sewage from the borough, to such a degree as to render the ice unfit for use. The trial, at the Bergen circuit, resulted in a verdict for the plaintiff, and the defendant appeals from the consequent judgment.

We are of the opinion that the judgment must be affirmed. We think there is no merit in the first point, which is that a verdict should have been directed in favor of the defendant, "because an action will not lie against a municipality in a case of this nature." It appears that the plaintiff's pond was polluted because of sewage discharged from a sanitary sewer into a storm-water drain (both of which had been constructed by the defendant), and thence into Crystal brook, which fed the plaintiff's pond. This was admitted, or at least was undisputed.

The contention of the defendant is that at most the evidence disclosed that the—

"Plaintiff's damage resulted from negligence on the part of the borough in performing its duty to keep the sewer in repair or proper operation."

Of course, if that, and that only, appeared, the case would call for the application of the rule that an action will not lie in behalf of an individual who has sustained special damage from the neglect of a public corporation to perform a public duty. Pray v. Jersey City, 32 N. J. law, 394; Kehoe v. Rutherford, 74 N. J. Law, 659, 65 Atl. 1046, 122 Am. St. Rep. 411. No doubt the jury might have so found the facts if they had seen fit; but it was also open to the jury to find from the evidence that the plaintiff's injury was the result of active wrongdoing in the construction and use of the sewer, and the rule is that the exemption of a municipal corporation from actions by individuals suffering special damage from its neglect to perform or its negligence in performing public duties, whereby a public wrong is done, for which an indictment will lie, does not extend to actions where the injury is the result of active wrongdoing chargeable to the corporation. Kehoe v. Rutherford, 74 N. J. Law, 659, 65 Atl. 1046, 122 Am. St. Rep. 411. Whatever else the evidence in the present case justified the jury in finding, it amply justified them in finding, if they saw fit, that the defendant designedly built and constructed its sanitary sewer, with many outlets into its storm-water drain, which latter emptied into the brook at...