Grammas v. Colasurdo
| Decision Date | 03 February 1958 |
| Docket Number | No. A--722,A--722 |
| Parties | Louis J. GRAMMAS, Plaintiff-Respondent, v. Prosper A. COLASURDO, and Lewis J. Colasurdo, Girard A. Colasurdo and Charles A. Colasurdo, Executors of the Estate of Anthony Colasurdo, deceased, t/a Colasurdo Cranberry Plantation, Defendants-Appellants. . Appellate Division |
| Court | New Jersey Superior Court — Appellate Division |
William S. Zink, Camden, for defendants-appellants (Bleakly, Stockwell & Zink, Camden, attorneys).
John R. Armstrong, Atlantic City, for plaintiff-respondent (Kirkman, Mulligan & Harris, Atlantic City, attorneys).
Before Judges GOLDMANN, FREUND and CONFORD.
The opinion of the court was delivered by
FREUND, J.A.D.
This is an action in trespass between adjoining landowners in Mays Landing, the plaintiff claiming that the defendants entered upon his land in 1955 and with a bulldozer and other equipment widened and deepened a small ditch or stream, known as Dry Run, and destroyed a footbridge. The plaintiff's proofs show that the ditch or stream was enlarged from a former width of two or three feet, and a water depth of about one foot, to a width of 15 to 18 feet across the bottom and 20 to 25 feet across the top, with a water depth of from two to three feet. It was also shown that in widening the ditch the trees and vegetation along the bank were uprooted, pushed and tipped over the bank, and the side banks had been 'piled up pretty high.' Additionally, it was shown that in places the stream did not precisely follow the course of the former bed.
Defendant Girard Colasurdo testified that defendants have 800 acres of cranberry bogs under cultivation and that while nine months of the year the bogs are under water, it is necessary occasionally to clean the bogs by opening the dam gate, and the accumulated water is also released at the start of the production season. The cranberry bogs are located upstream and when the bog waters are released they flow through the Dry Run which crosses plaintiff's property. This practice has been followed by the Colasurdo family for some 50 years. Colasurdo also testified that the stream had been cleaned out with dynamite 'around 20 years ago' and 'that would be roughly 1937.' He said that he had not viewed the stream in 'more recent years since 1937.' When asked who authorized the stream to be cleaned in 1955, he said that no doubt his father did and while he did not think a bulldozer was used, he said 'I think we done him a favor to clean it out.'
Henry W. Denmead testified on behalf of the defendants that he lives in Mays Landing, and his first knowledge of the stream as it crosses the Grammas property was about the year 1907. If he remembered correctly, he said, the stream in 1907 would vary from 8 to 10 feet (in width), and that a year prior to the trial (1956) he viewed the stream and judged it was about 12 to 15 feet. Other witnesses for the defendants testified to varying dimensions of the stream, as well as to its location across the rear of plaintiff's property. The defendants on this appeal in effect concede that they cleaned out the stream running through plaintiff's property preparatory to releasing the waters in their cranberry bogs, but deny liability for the act of trespass.
Prior to the trial judge's charge to the jury, the defendants submitted four requests to charge which the judge refused to charge on the ground 'that they were not supported by any evidence.' The first three requests were as follows:
'1. If you find that the waters from the land now owned by the Colasurdo's have naturally drained through this water course over the Grammas land, and have done so for as many years as man can remember, and the Colasurdo's or those persons owning the land before them have, as long as can be remembered, drained their lands by this water course over the land now owned by Grammas, then the Colasurdo's have an easement over the land of Grammas which is entitled to protection of the law and which Grammas must respect. Earl v. De Hart, 12 N.J.Eq. 280 (E. & A.1856); Kearns v. (Town of) Bloomfield, 101 N.J.Eq. 462 (138 A. 386) (Chancery 1927).
'2. If you find that the water from the lands now owned by Colasurdo's has drained across the land owned by Grammas for as long as man can remember, then the Colasurdo's have the legal right to compel Grammas to remove any obstructions placed upon his land which would obstruct the natural flow of such water.
Kearns v. (Town of) Bloomfield, 101 N.J.Eq. 402 (138 A. 386) (Chancery 1927).
.'
After the judge concluded the charge, the defendants' attorney requested him to 'charge the law relating to an easement by prescription.' The judge stated that he had sufficiently charged on that point and would not comment further as to it. No objections to the refusal to charge any of the requests were made by defendants' counsel.
The jury returned a verdict for the plaintiff in the amount of $2,500. Defendants moved for a new trial and the judge in denying the motion stated '* * * there is sufficient evidence from which the jury could find the defendants liable.' Defendants appeal from the judgment and the denial of their motion for a new trial. Specifically, they argue on this appeal the failure of the trial judge to charge the jury as requested in writing and the request to charge made orally at the conclusion of the charge to the jury.
Preliminarily, the record contains no objection by defendants' attorney to the charge or the failure to charge the written or oral requests, let alone a statement of reasons why the court should charge as requested. R.R. 4:52--1 expressly provides that 'No party may urge as error any portion of the charge or omission therefrom unless he objects thereto before the jury retires to consider its verdict, stating distinctly the matter to which he objects and the grounds of the objection.' Ordinarily, the failure to register an objection will preclude the raising of argument directed to these issues on appeal. R.R. 4:52--1; Kargman v. Carlo, 85 N.J.L. 632, 638, 90 A. 292 (E. & A.1913); J. B. Wolfe, Inc. v. Salkind, 3 N.J. 312, 70 A.2d 72, 13 A.L.R.2d 1214 (1949); Peter W. Kero, Inc. v. Terminal Construction Corp., 6 N.J. 361, 371, 78 A.2d 814 (1951); Lertch v. McLean, 18 N.J. 68, 73, 74, 112 A.2d 735 (1955); Nusser v United Parcel Service of N.Y., Inc., 3 N.J.Super. 64, 70, 65 A.2d 549 (App.Div.1949).
Moreover, the pretrial order does not set forth any basis for the defendants' requests to charge. Paragraph 3 of the order states the defendants' factual contentions as follows:
Additionally, paragraph 7 of the pretrial order expressly states the legal issues to be tried are: 'Trespass to property and damages.'
The defendants' factual contention does not specifically purport to suggest, nor do defendants by their answer claim as a defense, an easement by prescription; further, the quoted paragraph of the pretrial order does not sufficiently raise the defense of a natural watercourse with the right of the upland owner to flow the water from his land into the watercourse and within its banks on the plaintiff's property. The factual contention would seem at best to suggest the defense of a right of way by license or permission.
Ordinarily, the issues now claimed by the defendants to be involved, not having been stated in the pretrial order, it would not have been appropriate to submit them to a jury; Per contra, however, if the issues were 'tried by consent or without the objection of the parties.' R.R. 4:15--2. If the defendants intended at the trial to claim a defense not stated in the pretrial order, it would have been appropriate to make application to amend. R.R. 4:15--2 allows wide latitude to permit appropriate amendments to conform the pleadings to the proofs. The question is whether the parties squarely recognized the issue of prescription or of a natural watercourse as having been raised and tried. Binder v. Green, 8 N.J.Super. 88, 93, 73 A.2d 357 (App.Div.1950); Barber v. Hohl, 40 N.J.Super. 526, 533, 123 A.2d 785 (App.Div.1956); 3 Moore's Federal Practice (2d ed.1948), § 15.13, p. 847.
In support of the issue now being raised of an easement by prescription, the defendants rely upon the opening statement of their attorney to the jury, as follows: 'We will show you that the stream has been used for many years for this purpose,' and again, 'We have what is known as a prescriptive right to use it as the upper tenant on the stream,' and what defendants did was 'to clean out the stream so that it would carry the amount of water it had carried previously in evacuating the water from the bog.' Apparently, the plaintiff's attorney recognized an issue of some unstated kind of right in the defendants, for at the conclusion of the plaintiff's case he said, 'There is some claim which will be an affirmative defense in reference to * * * water rights, the property rights,' when he reserved the right to call rebuttal witnesses.
We are of the opinion that defendants' attorney's opening to the jury, plaintiff's anticipation of the defense,...
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