Mccullough v. Hartpence

• Decision Date: 06 April 1948
• Docket Number: 147/208.
• Citation: 58 A.2d 233
• Parties: McCULLOUGH v. HARTPENCE et al.
• Court: New Jersey Court of Chancery

58 A.2d 233

McCULLOUGH

v.HARTPENCE et al.

147/208.

Court of Chancery of New Jersey.

April 6, 1948.

Suit by Frank McCullough against Lila Hartpence and Russell Hartpence to require defendants to remove an encroachment upon complainant's realty wherein defendants counterclaimed.

Complainant and defendants directed to remove encroachments for which they were respectively responsible

Syllabus by the Court.

1. Under the common law, surface water is regarded as a common enemy which every proprietor is privileged to resist to the best of his ability, provided he does not alter, by artificial means, the natural discharge of the surface water from his land on that of his neighbor, by conducing it into new channels in unusual quantities to or on a particular part or parts of the latter's land, to its injury.

2. The jurisdiction of this court to enjoin a continuous trespass where the injury is irreparable is undoubted.

3. It has been resolved that the existence of an encroachment constitutes an irreparable injury.

4. Upon final hearing equity courts enjoin according to the rights of the parties.

Marvin A. Spaulding, of Trenton, for complainant.

George H. Bohlinger, of Trenton, for defendants.

JAYNE, Vice Chancellor.

As I gather my trial notations and reassemble my thoughts concerning this case to formulate a just decision, a little group of abstractions seems to dart across the field of view. I am reminded that while trivialities probably occupy a large part of every human life, yet to what degree a mere trifle may serve to aggrieve a highly sensitive person is unimaginable. To some, a vagrant hair by its recurrent irritations may agitate more annoyance than an ungentle punch. It must be acknowledged that relatively nothing can in some environments cause much ado.

The adverse parties in the present cause are neighbors, but only in the sense that they are owners of contiguous residential properties situate on Hoffman Avenue in the City of Trenton. In other respects their relations are not apparently in consonance with the biblical exhortation. Leviticus 19-18.

Certain physical conditions, reciprocal in character, existing at the division line in the rear of their premises are the taproots from which this full-grown controversy has acquired its nourishment. It is not unreasonable to conjecture that those conditions, so baneful and pernicious in the estimation of the complainant, might have been entirely eliminated not only in less time than has been devoted to the composition of the pleadings in this suit but probably at less expense.

The Latin phrase ‘de minimis non curat lex’ is expressive of a pragmatical court policy, but it is the traditional propensity of a court of equity to dispense some just and feasible remedy where a right exists. This complainant has preferred to have his day in court.

The proofs disclose that the location of the division line between the lots is not in dispute. First the complainant and then the defendants erected upon the rear of their respective lots a one-story, one-car, cement block garage. The complainant resolved to erect the easterly wall of his structure about 6/100 of a foot from the division line. The defendants constructed the westerly wall of their somewhat more stable tenement about 1/10 of a foot from the line. The walls of each garage as originally erected did not transgress the division line. However, in conformity with modern practice each placed a so-called capstone upon the top of his wall. The capstone upon the defendants' wall is approximately eighteen inches above a like capstone covering the adjacent wall of the complainant's construction. These capstones are about twelve inches in width and have a convex spherical surface. They are about thirty inches in length by twelve inches in width and are designed to overlap at their extremities as they extend along the top of the narrow wall. The body of the capstone is known in the trade as the ‘barrel,’ the point of ingraft is described as the ‘bell.’

Well, what has happened? The complainant has hypothesized that it not only rains but it frequently pours, and that the rain falling upon that six-inch side of the defendants' elevated capstone which slopes toward his property undoubtedly discharges its rainfall upon the capstone of the complainant beneath, where by reason of the counter incline of his own capstone some of it is directed against the defendants' wall, from which some quantity in reasonable probability rebounds against the complainant's wall, thus rendering the latter objectionably moist and damp. Let me pause to divulge that it is not intimated that any of the rain descending upon the roof of either garage is discharged upon the adjacent property, it is therefore the rain water that drains sequaciously in obedience to the law of gravitation from the six-inch reverse sides of the upper and nether capstones that comprises the nucleus of the existing discord between the parties. Naturally, the bill of the complainant confronts the counterclaim of the defendants.

If it were not for the existence of certain additional features of slightly more significance to which I shall presently refer, I would unhesitatingly apply our rule of law relative to the subject of surface waters and dismiss this proceeding. Under the common law, as accepted by our courts, surface water...