Jessup v. Bamford Bros. Silk Mfg. Co.

• Decision Date: 06 February 1902
• Citation: 51 A. 147,66 N.J.L. 641
• Parties: JESSUP et al. v. BAMFORD BROS. SILK MFG. CO.
• Court: New Jersey Supreme Court

51 A. 147

66 N.J.L. 641

JESSUP et al.

v. BAMFORD BROS. SILK MFG. CO.

Court of Errors and Appeals of New Jersey.

Feb. 6, 1902.

(Syllabus by the Court.)

Error to circuit court, Passaic county.

Action by Annie Jessup and others against the Bamford Bros. Silk Manufacturing Company. Judgment for plaintiffs, and defendant brings error. Reversed.

John B. Humphreys, for plaintiff in error.

Z. M. Ward, for defendants in error.

GUMMERE, J. The plaintiffs in error are the owners of a lot of land fronting on Rip Van Winkle avenue. In the city of Paterson. The lot is located upon the side of a hill, sloping sharply down from its rear line to the avenue. Upon the lot the plaintiffs in error have constructed several buildings, one of which is styled a "dyehouse." This latter building is erected upon the street line, and extends about 150 feet back toward the rear of the lot Owing to the lay of the land, the rear of the building is necessarily upon a higher plane than the front; and, in order to have the floor level, it was necessary to build up the front of the lot to the same plane as that portion thereof upon which the rear of the building rested. This was done by erecting a retaining wall upon the street line, and filling in the land behind the wall with material upon which a solid cement floor was laid. The front of the dyehouse rested upon the top of this retaining wall. In order that the wall should not permanently hold back upon the lot of the defendants the surface water which from time to time flowed down upon them, openings, called "weep holes," were left at different places along the base of the wall, to allow its escape. At one of these weep holes a six-inch drainpipe was inserted, the apparent purpose of which was to enable the surface water to flow more readily through the aperture. On January 1, 1900, the plaintiff Annie Jessup, while passing along upon the sidewalk on Rip Van Winkle avenue, in front of the premises of the defendants, slipped and fell, breaking her arm. Her fall was due to the presence of ice upon the sidewalk, which, however, was not apparent to her, it being concealed by a light fall of snow. This ice lay just in front of the drainpipe opening which has been mentioned, and had formed from the water which discharged through that pipe. The trial judge instructed the jury that "no person had a right to gather together the water on his own property, and throw it upon the sidewalk in a stream, and, if he does so, and thereby renders the street more dangerous or less convenient than otherwise it would be for public travel, then he is responsible for injuries caused thereby." He then told them that if they were satisfied that what the defendants did do increased the danger, and made the street less convenient for public travel, and through that the plaintiff met with her accident, then the defendants are to be held responsible, and should make compensation to Mrs. Jessup and her husband for the loss which they had sustained by reason of the accident. To this instruction there was an exception by the plaintiffs in error.

We think the rule of law laid down by the trial justice was inaccurate, so far as its application to surface water is concerned. In the case of Bowlsby v. Speer, 31 N. J. Law, 351, 86 Am. Dec. 216, the defendant built a stable upon his property, situate on a hillside, the effect of which was to divert the flow of the surface water from its natural course, and throw it upon the land of the plaintiff, where it had not previously flowed. The plaintiff sued to recover the damage suffered from the discharge of this water upon his property. It was held by the supreme court that, notwithstanding the plaintiff had suffered from the act of the defendant, it was damnum absque injuria; the court declaring that, as a general proposition, "neither the retention, diversion, repulsion, nor altered transmission of surface water is an actionable injury, even though damage ensues"; and adding, by way of demonstration of the soundness of the principle laid down: "If the right to run in its natural channels was annexed to surface water as a legal incident, the difficulties would be infinite indeed. Unless the land should be left idle, it would be impossible to enforce the right in its rigor; for it is obvious every house that is built and every furrow that is made in a field is a disturbance of such right. If. such a doctrine prevailed, every acclivity would be and remain a watershed, and most low ground become reservoirs." The same question again came before the supreme court in the case of Durkes v. Town of Union, 38 N. J. Law, 21, and the doctrine of Bowlsby v. Speer was affirmed in the later decision; Chief Justice Beasley saying that Lord Tenterden had forcibly expressed the legal idea when he declared that "surface water was the common enemy, which every proprietor may fight and get rid of as best he may." Afterward, in the case of Inhabitants of West Orange Tp. v. Field, 37 N. J. Eq. 600, 45 Am. St. Rep. 670, the question of how extensive the right to divert the flow of surface water was came before this court for its consideration, and the cases above cited were referred to with approval by Mr. Justice Van Syckel in delivering the opinion. In that case the municipality was about to put into effect a scheme to collect the surface water over a large district, carry it away by means of artificial ducts or sewers from where it would otherwise be discharged, and pour it in mass upon the lands of an individual owner. It was held by this court that, although the principle established by the earlier decisions would warrant the diversion of the flow of surface water by the public authorities, so far as that diversion was merely incidental to and occasioned by the making or alteration of street grades it was not so broad as to justify the municipality in carrying Into effect its proposed scheme; the court saying that, if the doctrine was as broad as was claimed by the municipality, there would be nothing to prevent it from constructing sewers by which the concentrated surface water of the entire town would be cast upon the premises of any proprietor that might arbitrarily be selected to bear the burden. The distinction pointed out in the West Orange Case is obvious. The inapplicability of the principle underlying its decision to the case under consideration is equally apparent. Perhaps the leading case upon the subject of the diversion of surface...