Kieenan v. Jersey City

• Decision Date: 27 February 1888
• Citation: 13 A. 170,50 N.J.L. 246
• Parties: KIEENAN v. JERSEY CITY.
• Court: New Jersey Supreme Court

13 A. 170

50 N.J.L. 246

KIEENAN

v. JERSEY CITY.

Supreme Court of New Jersey.

February 27, 1888.

(Syllabus by the Court.)

Case certified from circuit court, Hudson county; before Justice KNAPP.

"The plaintiff offered evidence tending to show the following facts: The defendant, by regular proceedings tinder its charter, graded Montgomery street, from Jersey City heights, by a cut through the rock on the brow of the hill, and by a filling between retaining walls, over the meadow, down a steep incline, to the low lands, and constructed a main sewer therein for the drainage of the heights. Another street, called "Cornelison Avenue," ran along the foot of the hill, and was bridged over by the Montgomery-Street sewer and roadway. The plaintiff owns lots on Cornelison avenue, lying on the level of that street and below the level of the sewer in Montgomery street. The sewer broke, through negligent construction, a short distance below the bridge, and the sewage flowed through the retaining walls upon vacant lots of other owners, and thence a distance of about 100 feet to the land of plaintiff claimed to be damaged in this suit. This happened a few months after the sewer was constructed, and about 1872. During that year the street commissioner, an officer having charge of streets and sewers for the defendant, without express authority, built a box drain from the break in said sewer across said vacant lots and to the middle of plaintiff's land, and then dug an open ditch through plaintiff's land to an adjoining creek. This has received the flow of sewage down to a short time before the commencement of this suit. The box drain decayed, and at times the land has been flooded with the flow. The residents of the heights have continued to use the sewer, and the flow of sewage has increased by reason of new connections made from time to time under authority of the city, to accommodate the increased population. In 1872 the plaintiff was mortgagee, and acquired title before closure about 1881. On this state of facts the following questions are raised: (1) Can a land-owner recover, against a municipal corporation, damages sustained by him by the flooding of his land with sewage from a break in a sewer lawfully constructed by said corporation in a public highway, under authority of its charter, where the break was occasioned by negligence in the construction of the sewer? (2) Can such land-owner so recover such damages for the continuance of the injury beyond a reasonable time for repairing the sewer and for the increased flow resulting from new connections, even if he cannot recover for the original injury? (3) Can such land-owner so recover such damages, in either case above stated, where the street commissioner, an officer having charge of the streets and sewers for said corporation, of his own motion conducted the sewage from the break in the sewer to and on the plaintiff's land? (4) Can a mortgagee recover for damages to his mortgage interest in the causes above stated, respectively?

"The foregoing questions are made and stated as presenting a case of doubt and difficulty, and are hereby certified to the supreme court for its advisory opinion. M. M. KNAPP, Justice."

Gilbert Collins, for plaintiff. R. B. Seymour, for defendant.

BEASLEY, C. J. From the statement of facts prefacing this opinion it will be perceived that the first question submitted to this court for its advice relates to the legal basis of the action. Will a suit lie against a municipality for damage done to land adjacent to a public sewer, by water escaping therefrom, by reason of a break in such sewer, occurring through faulty construction, and because the same was not kept in proper repair? The general subject thus introduced is not a novel one to the courts of this state. As long ago as the year 1840, in the case of Freeholders of Sussex v. Strader, 18 N. J. Law, 108, it was declared, in the language of the opinion, "that where a corporate body, whether of a municipal or a private character, owes a specific duty to an individual, an action will lie for a breach or neglect of that duty, whenever such breach or neglect has occasioned an injury to that individual; but if such corporation owe a duty to the public, a neglect to perform it, although every individual comprising that public is injured, some more and some less, yet they can have no private remedy at the common law." The plaintiff in this reported case had sustained damage in consequence of his horses turning off from the abutment of a county bridge, which was imperfectly constructed, being without railings or parapets. It was admitted that the defendants were in default in their...