Miller v. Mayor
| Decision Date | 30 June 1890 |
| Citation | 20 A. 61,47 N.J.E. 62 |
| Parties | MILLER et al. v. MAYOR, ETC., OF MORRISTOWN. |
| Court | New Jersey Court of Chancery |
(Syllabus by the Court.)
Hearing on bill by George MacCulloch Miller and others against the Mayor, etc., of Morristown.
Edward Q. Keasbey, for complainants. George W. Forsyth, for defendants.
The complainants seek, by this suit, to have the defendants enjoined from unlawfully discharging surface water on their land. They own a tract of land located on the easterly side of MacCulloch avenue, which has a frontage on that street of 230 feet, and extends back about 450 feet. The land is improved. There is a large mansion and other buildings on it. The surface of the tract is uneven. There is a depression in the northern part of it, nearly 10 feet below the surface on the southerly side, and about 8 feet below the surface on its northerly side. The width of the bottom of the depression, measured from the foot of the slope at the south to the foot of the slope at the north, is between 60 and 70 feet, and the depression extends the whole depth of the tract, from the street to its rear line. Prior to the improvement of MacCulloch avenue and the adjacent streets by grading and guttering, the proofs show that the course which the surface water, flowing along the easterly side of MacCulloch avenue, from both north and south, naturally took, when it reached the depression, was to pass from the street onto the complainants' land; and it there, in consequence of the bottom of the depression being nearly level, spread itself out over the surface, without washing or breaking the land, or causing injury or annoyance of any kind. The bottom of the depression was unbroken by a water-way of any kind. Part of it was in sod, and another part was used as a garden. A wagon road, leading from the mansion to the barn in the rear, ran across it; and a corncrib, with a chicken-house beneath, stood in it where its surface was lowest. The water flowing along the westerly side of the avenue flowed off on land lying on that side. None of it discharged itself on land of the complainants, except in rare instances, when unusual floods occurred; and, at such times, that which flowed over mingled itself with that flowing along the easterly side, and the whole volume then passed off on the complainant's land, and then spread itself out, without breaking the surface or doing other damage This was the condition of the complainants' land, and the natural course of the surface water, prior to the doing of the acts which the complainants say have-resulted in a violation of their constitutional rights, and against the consequences of which they ask protection.
The defendants some years ago improved MacCulloch avenue and several of the adjacent streets by grading and guttering. Their power to make such improvements is not disputed. But the complainants say that in this instance the defendants so exercised their power as to inflict two continuous and irreparable injuries on their land: First, they say that the defendants so graded the streets they improved as that the surface water from a larger area is carried away from where it would naturally go, and made to flow to their land, and there discharge itself. The special grievance here complained of is that by the scheme of drainage adopted by the defendants the quantity of water which would naturally discharge itself on the complainant's land has been very largely increased. And, in the second place, they say that the defendants have so arranged the discharge of the water carried to their land by the street gutters as to cause the water to make an open channel for itself through their land, and that by this means an easement for the benefit of the public has been fastened on their land, for which no compensation has been made; in other words, that the defendants have appropriated their land to the use of the public without either making compensation, or providing that compensation shall be made.
The law pertinent to the first ground of injury alleged by the complainants is well settled in this state. No responsibility attaches for damage done by the diversion of surface water by the public authorities where the diversion is merely incidental to and occasioned by the making or...
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