E. Jersey Water Co. v. Bigelow

• Decision Date: 09 November 1897
• Citation: 60 N.J.L. 201,38 A. 631
• Parties: EAST JERSEY WATER CO. v. BIGELOW et al.
• Court: New Jersey Supreme Court

38 A. 631

60 N.J.L. 201

EAST JERSEY WATER CO.

v. BIGELOW et al.

Court of Errors and Appeals of New Jersey.

Nov. 9, 1897.

(Syllabus by the Court.)

Error to supreme court.

Action by George W. Bigelow and others against the East Jersey Water Company for damages for a diversion of the waters of a stream. There was a judgment for plaintiffs, and, from a judgment of the supreme court affirming the same, defendants bring error. Affirmed.

Joseph Coult, for plaintiffs in error.

John W. Harding, for defendants in error.

LIPPINCOTT, J. The defendants in error are the owners of a tract of land through which a branch of the Pequannock river flows. On this land they maintain a sawmill, which is operated by water power drawn from the river by means of a low dam and a raceway leading to the sawmill. This mill has been uninterruptedly operated by the defendants in error and their father for a period of over 30 years, and their legal right to operate the mill in the manner in which it is operated during this period is not disputed by the plaintiffs in error. This action is for damages for a diversion of the water of the river in such volume, as it has been accustomed to flow, as to interfere with the operation of the mill. This diversion commenced in September, 1891, and it is alleged continued from time to time, covering certain periods, until the commencement of this action, on December 10, 1895. The liability of the plaintiffs in error for injuries arising from the diversion of the water up to May 2, 1892, is conceded, but beyond this date the responsibility is disputed.

The first assignment of error is taken against the admission of evidence to show diversion and injury after this date. The facts, so far as they are involved in the discussion of the question presented, are as follows: The East Jersey Water Company, the plaintiffs in error, on September 24, 1889, entered into a contract with the Newark aqueduct board and the mayor and common council of the city of Newark to furnish a water supply to that city, and to construct such dams, reservoirs, works, and conduits on the Pequannock river and other rivers as might be necessary to render a water supply to the city to the extent of 50,000. 000 gallons daily, to be completed by May 1, 1892. A subsequent and further contract was made on August 1, 1892. These contracts provided that, after the contract was fully performed and completed, the city of Newark might, at its option, by a deed or deeds of conveyance, become the owner absolutely, in its own right, of the water, water rights, dams, reservoirs, and works constructed under the contract, subject, however, to a license to the East Jersey Water Company to divert and use for its own purposes a certain portion of the water in excess of 27,500,000 gallons daily up to the year 1900, and deferring the payment of $2,000,000 of the purchase price until that time, and that, for the purposes of this license and contract, the East Jersey Water Company should, at its own cost and expense, keep and maintain all such dams, reservoirs, and works, and, at the end of the period, deliver the same in good repair to the city of Newark, and that the control of the East Jersey Water Company should then entirely cease and determine. Under these contracts, the plaintiffs in error, in the construction of these dams and reservoirs, interfered with, interrupted, and diverted the usual flow of water of the river. On the 2d day of May, 1892, the East Jersey Water Company conveyed water, water rights, reservoirs, dams, and works to the city of Newark. This deed of conveyance reserves to the water company the right or license until September 24, 1900, to take out of the pipes or conduits at the city of Newark any excess of water over 27,500,000 gallons daily for its own use; and for such purpose, and in consideration therefor, the water company reserved the right and agreed to keep, maintain, and control the dams, conduits, and works. The contracts and this deed of conveyance were offered in evidence by the plaintiffs below. The plaintiffs below then proceeded to produce evidence to show diversion of water to their injury after the date of the delivery of this deed. This was objected to, on the grounds that the city of Newark, by this conveyance, became the owner of the property and works, and that, from that time on, the maintenance and operation of the works were acts of the owner, and that, if any liability existed for any further diversion, it was upon the city of Newark. The learned trial justice admitted the evidence on the ground that by the deed the water company reserved the right, and were licensed and permitted, to maintain the dams and reservoirs which created the nuisance, and were put in control thereof for the purpose of utilizing the excess of water for its own benefit, and liable to the plaintiffs below for any injury that such maintenance and control caused. In the admission of this evidence it is difficult to perceive any error in the learned trial justice. It may be said as a fact, under this deed of conveyance, that the further control and management of the works in the water company was exclusive; but, even if it were not, still the control being to an extent retained would render the water company liable, at least, for such maintenance and control as it actually exercised.

It cannot be contended either in reason or authority that the company were relieved of liability from and after the date and delivery of the deed; for the deed itself, by its own provisions reserving this control, rendered the defendants liable. Besides, in the deed the grantor covenants the right in the grantee to maintain the erection of the waterworks; and the general principle is clear that one who erects a structure or construction which creates a nuisance, and then conveys to another his title, with covenants with the grantee for quiet enjoyment and the right to maintain the erection, is liable for its continuance, upon the ground that, by his relations with the occupier, he affirms the nuisance, and must be regarded in law as continuing it. He is liable for a continuance of the nuisance, if, from the terms of the conveyance, he can fairly be said to affirm or uphold it. The ground upon which the alienor is held liable for a nuisance created by him is that he is the author of the original wrong, and transferring the premises with the original wrong still existing is treated as affirming the continuance of it. Wood, Nuis. (2d Ed.) p. 78, § 73; Gould, Waters (2d Ed.) §§ 387-391, and cases cited. Besides, the right to keep, maintain, and control these dams, reservoirs, and other works was expressly reserved to the water company; and, up to the time that this evidence was offered, there was nothing in the case which in the slightest tended to show that the actual maintenance and control had changed. The person primarily liable for a nuisance is he who actually creates it, whether on his own land or not; and the contracts were admissible to show the liability for construction for the city, and the conveyance clearly was evidence to show continuing control, and the evidence clearly admissible. Where the continuance of the nuisance is expressly provided for, no question can arise as to continuing liability. Blunt v. Aikin, 15 Wend. 521; Waggoner v. Jermaine, 3 Denio, 300; Hanse v. Cowing, J Lans. 288.

Another exception was to the charge of the court upon the same subject of the liability of the water company for injuries inflicted upon the plaintiffs below after May 2, 1892. The evidence on the part of the defendants tended to establish quite clearly that the plaintiffs in error, through their agents and servants, were in actual control of the dams and reservoirs during the whole period for which the claim for damages is made. Both the answers to the formal interrogatories read as evidence and the evidence of the witnesses on the trial tend to establish this fact. The trial court, after referring to these facts, said: "I therefore charge you, if, after the deed to the city of Newark, this defendant remained in control of the Oak Ridge Reservoir, and used it to confine the waters of this branch of the Pequannock, and, in using it, restrained these waters from flowing in their usual and accustomed mode to the plaintiffs' mill, and thereby deprived the plaintiffs' mill of power, it is liable therefor to the plaintiffs." The fact of control by the deed of conveyance, and the admissions in the answers to interrogatories, and...