Ross v. Mackeney

• Decision Date: 11 November 1889
• Citation: 46 N.J.E. 140,18 A. 685
• Parties: Ross v. MACKENEY.
• Court: New Jersey Court of Chancery

18 A. 685

46 N.J.E. 140

Ross

v. MACKENEY.

Court of Chancery of New Jersey.

Nov. 11, 1889.

(Syllabus by the Court.)

On bill, answer, and proofs.

J. Kearny Rice, for complainant. John S. Voorhees, for defendant.

BIRD, V. C. The allegations are that the complainant is, and has been since August, 1865, the owner of a house and lot of land in the city of New Brunswick, so located that the water which falls thereon during rains, and which collects there from melting snows, and which falls and collects on an adjoining lot of a greater elevation, flows onto and off the lot of complainant, to and onto the lot of the defendant, and from thence to the street; and that the water so falling and collecting has so been wont and accustomed to flow immemorially by an ancient stream or watercourse; and that the defendant obstructed the flow of the said water, thereby causing the water to flow into the dwelling of the complainant, and thereby indicting great damage to the complainant. Relief is sought by an injunction. The defendant, by her answer, admits that the land is so located that surface water will flow as is stated in the bill, but denies that there is, or ever has been, any living stream or any other stream of water whatever flowing across or over the lands of the complainant to and over the lands of the defendant. The proof is that the lands now owned by the complainant and the defendant were once owned as one parcel by the same person, and that the waters which collected on the lot now owned by the complainant flowed over and off from it onto that parcel now owned by the defendant, as they did at the time of the alleged obstruction. Such owner conveyed the premises which the complainant purchased in 1865, retaining the ownership and possession of the lot now owned by the defendant, and at the time he conveyed the complainant's lot the said waters flowed over and therefrom onto the portion he so retained. It is proved, beyond any reasonable doubt, that ever since such severance, as well as long before, the said waters have flowed over and across the lot of the complainant, and to and over the lot of the defendant, as it is alleged they did at the time of the obstruction. Besides the waters from rains and snow aforesaid, all the waters collecting upon the house of the complainant since its election before her purchase have also flowed in the same manner and direction. A portion of the space over which the water (lows on the lot of complainant is covered by bricks, the water flowing over the bricks. If the complainant be in the right, the damage to her dwelling is of that irreparable nature which entitles her to relief by...