Yonadi v. Homestead Country Homes, A--33

• Decision Date: 13 May 1955
• Docket Number: No. A--33,A--33
• Citation: 114 A.2d 564,35 N.J.Super. 514
• Parties: Anthony J. YONADI and Helen Yonadi, Plaintiffs-Respondents, v. HOMESTEAD COUNTRY HOMES, Inc., Homestead Shore & Country Homes, Inc., andBorough of Spring Lake Heights, Defendants-Appellants. . Appellate Division
• Court: New Jersey Superior Court — Appellate Division

Page 514

35 N.J.Super. 514

114 A.2d 564

Anthony J. YONADI and Helen Yonadi, Plaintiffs-Respondents, v. HOMESTEAD COUNTRY HOMES, Inc., Homestead Shore & Country Homes, Inc., andBorough of Spring Lake Heights Defendants-Appellants.

No. A--33.

Superior Court of New Jersey Appellate Division.

Argued April 25, 1955.

Decided May 13, 1955.

Robert V. Carton, Asbury Park, argued the cause for defendant-appellant Borough of Spring Lake Heights (Durand, Ivins & Carton, Asbury Park, attorneys).

William J. O'Hagan, Asbury Park, argued the cause for defendants-appellants Homestead Country Homes, Inc., and Homestead Shore & Country Homes, Inc. (Stout & O'Hagan, Asbury Park, attorneys).

Edward F. Juska, Long Branch, argued the cause for plaintiffs-respondents.

Before Judges CLAPP, JAYNE and FRANCIS.

The opinion of the court was delivered by

CLAPP, S.J.A.D.

This appeal has to do with the law of casual surface waters. The principal question presented (to state the case very generally) is whether a person improving a tract of land and constructing and maintaining drains therein is to be charged with liability for a resultant increase in the flow of surface water which runs off the tract upon plaintiffs' lands.

Plaintiffs own a golf course and restaurant located on the south side of Allaire Road, Spring Lake Heights. The tract mentioned, consisting of 40 acres, lying across the road on the north side, had been farming land until 1950, but since then the private corporate defendants, or one of them, have erected on it 169 houses. Generally speaking, the natural drainage of this land is southerly, passing from this tract through ditches and a swale once existing on the property now constituting the golf course, and so eventually to the Atlantic Ocean. There was testimony that the run-off from improved residential areas, such as the development here with its catch basins and sub-surface drains, is about 3 1/2 times that coming from the more absorbent soil of the farm land formerly here. In times of heavy rain, excess water has produced flood conditions on plaintiffs' property.

The court sitting without a jury gave judgment for the plaintiff against the borough and the two private corporations, awarding damages of $2,500 against all three defendants, and

(a) restraining them from 'using or permitting the artificial collection of waters, and from collecting and diverting it thereby on the lands of the plaintiffs, to the harm of the plaintiffs,' and

(b) ordering defendants 'to accomplish this work' (sic) within 90 days.

These directions do not comply with R.R. 4:67--5. The injunction should specify in reasonable detail and with some precision 'this work' so that the defendants may readily know what it is they must 'accomplish.' See Sun Dial Corp. v. Rideout, 17 N.J. 517, 519, 111 A.2d 881 (1955).

But we move on to the substantive issues. The trial court seems to have been of the view that the casting of surface waters, in unusual or substantial quantities, through artificial means, on the land of another, was, without more, unlawful and actionable. This, we think, is error.

The general rule is that neither the diversion nor the altered transmission, repulsion or retention of surface water gives rise to an actionable injury. Generally therefore he who improves or alters land is not subjected to liability because of the consequences of his acts upon the flow of surface water. Bowlsby v. Speer, 31 N.J.L. 351 (Sup.Ct.1865); Town of Union v. Durkes, 38 N.J.L. 21 (Sup.Ct.1875); Jessup v. Bamford Bros. Silk Mfg. Co., 66 N.J.L. 641, 51 A. 147, 58 L.R.A. 329 (E. & A.1901); McCloskey v. Atlantic City Railroad Company, 70 N.J.L. 20, 56 A. 669 (Sup.Ct.1904); Kaufman v. Bergen Turnpike Co., 71 N.J.L. 33, 58 A. 109 (Sup.Ct.1904); Lightcap v. Lehigh Valley R. Co. of New Jersey, 90 N.J.L. 620, 101 A. 187 (E. & A.1917); Fitz-Patrick v. Gourley, 104 N.J.Eq. 281, 145 A. 337 (Ch.1929) ; Nathanson v. Wagner, 118 N.J.Eq. 390, 179 A. 466 (Ch.1935); Zamelli v. Trost, 132 N.J.L. 388, 40 A.2d 783 (Sup.Ct.1945), affirmed 133 N.J.L. 465, 44 A.2d 909 (E. & A.1945); McCullough v. Hartpence, 141 N.J.Eq. 499, 58 A.2d 233 (Ch.1948); Saco v. Hall, 1 N.J. 377, 381, 383, 63 A.2d 887 (1949); Niestat v. Equitable Security Co., 6 N.J.Super. 148, 70 A.2d 529 (App.Div.1950).

Under this rule it matters not that the flow of water upon plaintiffs' property is much increased or accelerated or its force aggravated. Town of Union v. Durkes, 38 N.J.L. 21 (Sup.Ct.1875); Miller v. Mayor, etc., of Morristown, 47 N.J.Eq. 62, 65, 20 A. 61 (Ch.1890), affirmed 48 N.J.Eq. 645, 25 A. 20 (E. & A.1891); Sullivan v. Browning, 67 N.J.Eq. 391, 394, 58 A. 302 (Ch.1904).

In pursuance of this rule, it has been held that, the mere filling in of a tract of land 'to such an extent as to work a change in the topography of the land, and to cause the surface water to run in a southerly, instead of, as formerly, in an easterly course,' is not actionable. Lightcap v. Lehigh Valley R. Co. of New Jersey, 90 N.J.L. 620, 621, 101 A. 187 (E. & A.1917). In accord see Nathanson v. Wagner, 118 N.J.Eq. 390, 395, 179 A. 466 (Ch.1935); Sullivan v. Browning, 67 N.J.Eq. 391, 58 A. 302 (Ch.1904) (but as to the use of bunkers, cf. Kinyon and McClure, Interference with Surface Waters, 24 Minn.L.Rev. 891, 917, 1940); Kaufman v. Bergen Turnpike Co., 71 N.J.L. 33, 58 A. 109 (Sup.Ct.1904); Fitz-Patrick v. Gourley, 104 N.J.Eq. 281, 145 A. 337 (Ch.1929). Cf. Jessup v. Bamford Bros. Silk Mfg. Co., 66 N.J.L. 641, 645, 51 A. 147, 148, 58 L.R.A. 329 (E. & A.1901) stating that the abovestated general rule applies where " a party * * * changes the direction and flow of surface water by * * * changing the level of the soil, so as to turn it off in a new course * * *."

There are or may be a number of exceptions to this rule. Cf. Bowlsby v. Speer, 31 N.J.L. 351, 353 (Sup.Ct.1865); Lulevitch v. Roberts, 98 N.J.Eq. 373, 129 A. 616 (E. & A.1925); Brownsey v. General Printing Ink Corp., 118 N.J.L. 505, 193 A. 824 (Sup.Ct.1937); Kidde Mfg. Co. v. Town of Bloomfield, 28 N.J.Super. 355, 363, 100 A.2d 708 (Law Div.1953). But we need consider only one of them.

This exception arises where a defendant improving or altering land interferes with the flow of surface water, not by making a change in the grade or surface of the land, but by means of drains, ditches or other artificial contrivances for the very purpose of transmitting the water. Under this exception, a defendant renders himself absolutely liable if by means of such an artificial device he causes surface water to be carried in a body large enough to do substantial injury (usually drainage from a large tract) and thereby casts it on plaintiff's lands away from where it otherwise would have flowed. Inhabitants of Township of West Orange v. Field, 37 N.J.Eq. 600 (E. & A.1883), affirming 36 N.J.Eq. 118 (.ch.1882); Soule v. City of Passaic, 47 N.J.Eq. 28, 20 A. 346 (Ch.1890); Fuller v. Township of Belleville, 67 N.J.Eq. 468, 58 A. 176 (Ch.1904); Kehoe v. Borough of Rutherford, 74 N.J.L. 659, 65 A. 1046 (E. & A.1907); Doremus v. Mayor, etc., of City of Paterson, 73 N.J.Eq. 474, 487, 69 A. 225 (Ch.1908); Dohrmann v. Board of Chosen Freeholders of County of Hudson, 84 N.J.L. 689, 87 A. 463 (E. & A.1913); Jerolaman v. Town of Belleville, 90 N.J.L. 206, 101 A. 244 (E. & A.1917); Cassini v. City of Orange, 107 N.J.Eq. 128, 151 A. 871 (Ch.1930); Rooney v. Millstone Township, 121 N.J.L. 624, 3 A.2d 580 (E. & A.1938); Peter Wendel & Sons, Inc., v. City of Newark, 138 N.J.Eq. 69, 46 A.2d 793 (Ch.1946); cf. Gould & Eberhardt, Inc., v. City of Newark, 6 N.J. 240, 243, 78 A.2d 77 (1951)--the facts of this case bring it within this exception; Miller v. Mayor, etc., Morristown, 47 N.J.Eq. 62, 20 A. 61 (Ch.1890), affirmed 48 N.J.Eq. 645, 25 A. 20 (E. & A.1891)--the second branch of the opinion (the facts of the case also bring it within this exception. Note the words, 47 N.J.Eq., at page 64, 20 A., at page 62, referring to water 'carried away from where it would naturally go.' See Jerolaman v. Town of Belleville, 90 N.J.L. 206, 208, 101 A. 244 (E. & A.1917). See, too, the words of Judge Jayne in McCullough v. Hartpence, 141 N.J.Eq. 499, 501, 58 A.2d 233, 234 (Ch.1948), to the effect that the general rule obtains so as to exonerate a proprietor interfering with the flow of surface water--

'provided he does not alter, by artificial means, the natural discharge of the surface water from his land on that of his neighbor, by conducting it Into new channels in unusual quantities to or on a particular part or parts of the latter's land, to its injury' (emphasis added).

Very similar words will be found in Nathanson v. Wagner, 118 N.J.Eq. 390, 393, 179 A. 466 (Ch.1935); Field v. Inhabitants of Township of West Orange, 36 N.J.Eq. 118, 120 (Ch.1882) (in affirming this case, 37 N.J.Eq. 600, supra, the Court of Errors and Appeals did not repeat this language but more explicitly brought the case within the exception stated. The matter is clearly laid out in Field v. Township of West Orange, 46 N.J.Eq. 183, 2 A. 236 (Ch.1885); cf. Kelly v. Dunning, 39 N.J.Eq. 482, 483 (Ch.1885). Cf. the law in other jurisdictions. Kinyon and McClure, 24 Minn.L.Rev. 891, 917, supra; 6A American Law of Property 189 (1954).

But this exception does not apply where the surface water is brought to the locality substantially where it otherwise would have flowed. In such a case we are thrown back upon the general rule. Thus, if through a drain or other artificial means, a defendant effects a concentration in the flow of surface water but brings it to the locality substantially where it otherwise would have flowed, the damage is not actionable. See Jessup v. Bamford Bros. Silk Mfg. Co., 66 N.J.L. 641, 645, 51 A. 147, 149, 58 L.R.A. 329 (E. & A. 1901):

'The surface water flowing * * * over the land of the defendants would, if that land had been left in an unimproved state, have naturally flowed (where in fact it did...