Jerolamon v. Town of Belleville

• Decision Date: 18 June 1917
• Docket Number: No. 159.,159.
• Citation: 101 A. 244,90 N.J.Law 206
• Parties: JEROLAMON v. TOWN OF BELLEVILLE.
• Court: New Jersey Supreme Court

101 A. 244

90 N.J.Law 206

JEROLAMON

v. TOWN OF BELLEVILLE.

No. 159.

Court of Errors and Appeals of New Jersey.

June 18, 1917.

(Syllabus by the Court.)

Appeal from Circuit Court, Essex County.

Action by Theodore Jerolamon against the Town of Belleville. Judgment for plaintiff, and defendant appeals. Affirmed.

Harold A. Miller, of Newark, for appellant. Pitney, Hardin & Skinner, of Newark, for appellee.

PARKER, J. The suit was for overflowing plaintiff's lands by water, and the complaint, in two counts, alleged two different dates when such overflow occurred. The jury found for plaintiff in the sums of $179.18 on the first count, and $2,935.66 on the second count.

Plaintiff was the owner and occupier of a coal and lumber yard on the northwest corner of Cortlandt and Jerolaman streets in Belleville. Jerolaman street runs substantially east and west. One block west of Cortlandt street, and running parallel with it, is the Paterson & Newark branch of the Erie Railroad. A block further west, up a sharp grade, is Washington avenue, an important highway between Newark and Paterson. Next west of Washington avenue, and still further up the hill, is Linden avenue. North of Jerolaman street, and east of Linden avenue was a spring, whose overflow ran generally slightly south of east, always to the north of Jerolaman street, passing under Washington avenue down the hill, under the railroad through a culvert, and across plaintiff's lands to the corner of Jerolaman and Cortlandt streets and so to the Passaic river. Previous to the occurrences giving rise to the suit, the town had adopted a general plan of regrading, which involved, among other things, the elimination of a "hump" in Jerolaman street above Washington avenue, which had retarded the flow of water down the hill; and these changes, as claimed by plaintiff, led to the flooding of Jerolaman street in heavy rains, which resulted in cutting gullies and carrying away of soil, so that the town undertook to prevent this by banking the east side of Washington avenue, which prevented the water from running down Jerolaman street and, as plaintiff claimed, turned it in large measure into the natural water course already described.

The case presented under the first count was that in the storm conditions of November 11, 1911, this artificial diversion caused an overflow of plaintiff's land, whereby he was damaged. The second count, as amended, rested on the same acts of defendant in diverting the water, and in addition charged that early in 1912 the town connected the natural water course with a covered drain just east of plaintiff's premises, and put catch-bars across the opening, so that in March, 1912, during storm conditions, the excessive volume of diverted water flooded plaintiff's premises as before, and in addition the opening of the covered drain became blocked by debris caught by the bars, and the water backed up on plaintiff's premises.

1. There was a motion to nonsuit on each count, and it is now urged that there should at least have been a nonsuit as to the first count. For this the case of Miller v. Morristown, 47 N. J. Eq. 62, 20 Atl. 61, affirmed in this court in 48 N. J. Eq. 645, 25 Atl. 20, is relied on as the leading authority. The argument proceeds on the assumption that plaintiff's evidence showed nothing more than a regrading of streets and diversion of water consequent thereon. If this were true, defendant's point would be well taken under the first branch of the Miller Case; but the evidence tends to show in addition, and the jury evidently found, that water flowing down Jerolaman street had been intentionally diverted therefrom by special provision for that purpose and thrown on plaintiff's land. This was a very different thing from mere regrading, and brought the case...