Paolicelli v. Wojciechowski

• Decision Date: 15 January 1975
• Parties: Vincent E. PAOLICELLI, et al., Plaintiffs-Appellants, v. Joseph R. WOJCIECHOWSKI, Defendant-Respondent.
• Court: New Jersey Superior Court — Appellate Division

Page 274

132 N.J.Super. 274

333 A.2d 532

Vincent E. PAOLICELLI, et al., Plaintiffs-Appellants, v. Joseph R. WOJCIECHOWSKI, Defendant-Respondent.

Superior Court of New Jersey,

Appellate Division.

Submitted Dec. 17, 1974.

Decided Jan. 15, 1975.

Blumberg, Rosenberg, Mullen & Blackman, Manville, for plaintiffs-appellants (William F. Mullen, Manvile, on the brief).

Arthur L. Alexander, Washington, for defendant-respondent (Richard D. Fifield, Washington, on the brief).

Before Judges CARTON, CRANE and KOLE.

PER CURIAM.

Plaintiffs, by this action, sought various forms of relief against defendant, an adjoining landowner, contending that defendant's creation of a pond on his land resulted in a trespass and an unreasonable overflow of water on their land. They claim that the waters of the pond were retained by an earth embankment and resulted in the overflow, either by release from a pipe or otherwise; that in constructing the pond there was a trespass on plaintiffs' land through use of plaintiffs' top soil and other dirt to construct the embankment; that the pond constitutes a nuisance, and that it was erected in violation of the municipal ordinance since no building permit was obtained therefor. A mandatory injunction directing removal of the pond and restoration of the lands of plaintiffs and defendant to their natural state was requested. Compensatory and punitive damages were also demanded.

The trial judge denied the injunction and compensatory damages but rendered a judgment for $2,500 punitive damages. Both parties appeal.

Our review of the proofs satisfies us that the injunction was properly denied, since the remedy at law, damages, was adequate under the circumstances. Accordingly, we affirm that part of the judgment essentially for the reasons given by the trial court. Further, as the judge held, the question of whether there was a violation of the ordinance need not be decided, for we conclude that the judge correctly determined that the harm done to plaintiffs by reason of any such violation may be compensated for adequately in damages.

However, we find that the judge erred in not awarding compensatory damages and in granting punitive damages. Our consideration of the evidence and the law convinces us that his determinations in both respects were so mistaken as to create a clearly unjust result. Hence, we make our own independent findings and determinations as to these issues. Neither of them, in our view, necessarily involve matters of credibility or the trial judge's 'feel' of the case. See State v. Johnson, 42 N.J. 146, 161--162, 199 A.2d 809 (1964); Rova Farms Resort v. Investors Ins. Co., 65 N.J. 474, 483--484, 323 A.2d 495 (1974).

The judge properly found a causal relationship between the construction of the pond and the water damage to plaintiffs' land. But he erred when it found that such damage was not measurable. There was adequate evidence justifying a compensatory damage award.

We need not determine whether a cause of that damage was (1) the pipe which casts water from the pond onto plaintiffs' land; (2) the change effected by the pond's banks in the flow of water from the road so as to divert more of it to such land than before its erection, or (3) both of these factors. The court below determined that (2) was the causative element. In any event, we find that the testimony of plaintiffs' experts, Burns, Burd and Bowser, as to the extent of the damage to plaintiffs' property causally related to defendant's dereliction, enables us to make a fair and reasonable estimate thereof and that substantial reliance thereon would produce a just result.

In a case such as this plaintiffs do not have the difficult burden, imposed by the court below, to show the extent to which the wet condition of their land resulted from the pond, as compared with the degree of its wetness at and beyond its boundary with defendant's land before construction of the pond.

Where, as here, it is certain that damage has resulted, mere uncertainty as to the amount will not preclude recovery. Evidence affording a basis for estimating damages with some reasonable degree of certainty is sufficient to support an award of compensatory damages. Tessmar v. Grosner, 23 N.J. 193, 128 A.2d 467 (1957). If it is impossible to distinguish between the damage arising from the actionable injury and that caused by another or natural conditions, the court should attempt to make the best estimate possible under the circumstances as a basis for the damages to be allowed. Jenkins v. Pennsylvania R.R. Co., 67 N.J.L. 331, 51 A. 704 (E. & A. 1902); Betenbaugh v. Princeton Hospital, 50 N.J. 390, 235 A.2d 889 (1967). See also, Dziedzic v. St. John's Cleaners & Shirt Launderers, Inc., 53 N.J. 157, 249 A.2d 382 (1968); Fosgate v. Corona, 66 N.J. 268, 330 A.2d 355 (1974); 525 Main Corp. v. Eagle Roofing Co., 34 N.J. 251, 168 A.2d 33 (1961). This the trial judge failed to do.

There was conflicting evidence as to the amount of damage caused by the pond. Nevertheless, there were sufficient proofs upon which to predicate a reasonable estimate and finding of compensatory damages. The judge found that defendant had committed a tort against plaintiffs' land compensable in damages. Under these circumstances plaintiffs should not be without a remedy of that kind. See Armstrong v. Francis Corp., 20 N.J. 320, 120 A.2d 4 (1956).

The proofs support the conclusion that plaintiffs' property fronting Bickel Road may be useable as building plots, but as a result of flooding from the pond and the resulting wetness at least one such plot has been lost. additionally, even if this flooding condition is rectified in the manner hereafter discussed, suggested by plaintiffs' expert Burns, there will be probable future damage to plaintiffs' lands, including this plot, resulting from the erection of the pond.

Burd estimated that the lot adjacent to the pond, if buildable, would be worth at least $8,000. The marshy wetness, however, resulting from the pond devalued it to $2,000. The lot next to it, because of its proximity to the low marshy land, a breeding place for mosquitos, he said, was worth $6,000 instead of $8,000. We are satisfied that at present the claimed partial $2,000 loss of a second buildable lot is not substantiated by the proofs. The evidence as to the depreciation of the first lot to $2,000 is in a sense speculative, since it requires the obtaining of a municipally approved subdivision by plaintiffs. However, the damage to plaintiffs' land is sufficiently certain so that is is reasonably clear that in no event could that lot be used for building purposes in its present state even if such approval were obtainable. ...