Kehoe v. Borough of Rutherford

• Decision Date: 04 March 1907
• Citation: 74 N.J.L. 659,65 A. 1046
• Parties: KEHOE v. BOROUGH OF RUTHERFORD.
• Court: New Jersey Supreme Court

65 A. 1046

74 N.J.L. 659

KEHOE

v. BOROUGH OF RUTHERFORD.

Court of Errors and Appeals of New Jersey.

March 4, 1907.

(Syllabus by the Court.)

Error to Circuit Court, Bergen County.

Action by John Kehoe against the borough of Rutherford. Judgment for defendant, and plaintiff brings error. Reversed.

George P. Rust and Arthur S. Corbin, for plaintiff in error. John M. Bell, for defendant in error.

TRENCHARD, J. This writ of error brings under review a judgment of the Bergen county circuit court in favor of the defendant in error, the defendant below. The action was brought by John Kehoe, the plaintiff below, to recover for injuries resulting to his property from the discharge of surface water thereon by the borough of Rutherford, the defendant below. At the close of the evidence produced by the plaintiff the trial judge directed a nonsuit, and this writ of error raises the question whether, in so doing, there was reversible error.

The evidence before the trial judge, when his direction was given, exhibited the following facts: Rutherford avenue is the dividing line between the borough of Rutherford and Union township. At the northerly corner of Park avenue and Rutherford avenue, in the borough of Rutherford, Bergen county, there was a stone culvert, or sluiceway, which received the surface water flowing down the northerly side of Park avenue, and conveyed it beneath the surface of the street, around the corner, and across Stuyvesant avenue (which intersects Rutherford avenue and Park avenue at this point), and discharged the surface water upon Rutherford avenue at a point opposite, or nearly opposite, the property of the plaintiff, from whence it flowed with great force upon the lands of the plaintiff, and into his houses, barns, sheds, and gardens. Park avenue collected the surface water from more than three miles of territory. The culvert was constructed nine or ten years ago. Previous to that time the greater portion of the surface water flowing down Park avenue had continued on past Rutherford avenue into the lowlands of Union township, and drained through them to the Passaic river. Since the construction of the culvert the water which formerly flowed on Park avenue across Rutherford avenue, and continued to flow on Park avenue beyond Rutherford avenue down into the lowlands of Union township, has been diverted by and now flows through the culvert or flume, around the corner, across Stuyvesant avenue, and is discharged upon the surface of Rutherford avenue with such force and in such large quantities that it flows across the street and upon the lands of the plaintiff, where it does substantial injury. That the culvert was built and maintained by the defendant. To the nonsuit, directed by the trial judge, an exception was...