120 A.2d 4 (N.J. 1956)
A small natural stream rose in Francis Corporation’s 42-acre tract lying immediately south of Lake Avenue in Rahway.1 The stream flowed in a northerly direction 1,200 feet across the Francis lands through a seven-foot box culvert under Lake Avenue and emptied into Milton Lake 900 feet north of the avenue.2 It was the natural drainway for the larger 85-acre area south of Lake Avenue that includes the Francis tract.3
Francis stripped its tract and erected 186 small homes thereon in a development known as Duke Estates, Section 2.4 It also built some 14 houses on an adjacent small tract known as Duke Estates, Section 1, lying in another drainage area.5 It constructed a drainage system of streets, pavements, gutters, ditches, culverts and catch basins to serve both developments.6 The system emptied into a corrugated iron pipe laid by Francis below the level of the natural stream bed on its lands.7 The pipe followed the course of the stream bed to the box culvert under Lake Avenue, although deviating at some places.8 The pipe was covered with fill so that all evidence of the natural stream on the tract disappeared.9
The drainage of the original 85 acres was thus augmented by the drainage of some 2½ acres of the Duke Estates, Section 1, and by waters percolating into the joints of the pipe where it lay below the level of the water table of the Francis tract.10 The pipe joints were expressly designed to receive such percolating waters.11 Where the stream passes north of Lake Avenue en route to Milton Lake after leaving the box culvert, it remains largely in its natural state.12 The stream forms the boundary line between the residential tracts of the plaintiffs Armstrong and the defendants Klemp.13 The stream passes through a 36-inch culvert under the Klemp driveway and thence, across lands of the Union County Park Commission, to the Lake.14
The Francis improvement resulted in a constant and materially increased flow in the stream.15 The stream is never dry.16 The water is now discolored and evil smelling and no longer has any fish in it.17 A heavy deposit of silt or muck up to eighteen inches in depth now covers the bottom of the stream.18 After a heavy rainstorm the stream undergoes a remarkable change for several hours.19 All of the upstream rain water that used to be absorbed or held back is now channeled in undiminished volume and at great speed into this stream.20 This causes a flash rise or crest in the stream, with a tremendous volume of water rushing through at an accelerated speed.21 As a result, the stream has flooded on several occasions within the last year, although this was unheard of previously.22 More distressing, however, is the fact that during these flash situations the body of water moving at the speed it does tears into the banks of the brook particularly where the bed may turn or twist.23 At a point even with the plaintiff’s house the stream makes a sharp bend.24 Here the effect of the increased flow of water is most apparent since the bank on plaintiff’s side of the stream has been eaten away to the extent of about ten feet.25 This erosion is now within fifteen feet of the Armstrong septic tank system.26 The eating away of the banks in several places has loosened rocks or boulders which have been rolled downstream by the force of the water.27 Those stones, however, as they rolled through the Klemp culvert cracked and broke the sides and bottom of the culvert.28
After trial the Chancery Division entered a final judgment against Francis.29 The judgment ordered Francis at its expense to proceed with and complete within 60 days the work of piping the rest of the brook from the culvert outlet at Lake Avenue the entire distance to Milton Lake according to a plan prepared by Francis’ engineer and approved by the Armstrongs and the Klemps.30 The Union County Park Commission has given its formal consent to the work on its lands.31 Francis appealed to the Appellate Division, and the Supreme Court of New Jersey certified the appeal on its own motion.32 The Klemps were made parties defendant by Francis’ cross-claim but prevailed thereon and were allowed the same relief as the Armstrongs.33
Whether the damage suffered by the Armstrongs and the Klemps from Francis Corporation's development activities is damnum absque injuria?34
The legal rule is that a landowner altering the flow of surface waters is not absolutely privileged to expel such waters without liability.35 Instead, under the reasonable use rule, a possessor of land is legally privileged to make reasonable use of the land even if the flow of surface waters is altered thereby and causes some harm to others.36 However, the possessor incurs liability when the harmful interference with the flow of surface waters is unreasonable.37 Reasonableness is determined as a question of fact in each case upon consideration of all relevant circumstances, including the amount of harm caused, the foreseeability of the harm which results, the purpose or motive with which the possessor acted, and whether the utility of the possessor's use of the land outweighs the gravity of the harm which results from the alteration of the flow of surface waters.38
No. The facts establish that a small natural stream rose in Francis Corporation’s 42-acre tract lying immediately south of Lake Avenue in Rahway.39 The stream flowed in a northerly direction 1,200 feet across the Francis lands through a seven-foot box culvert under Lake Avenue and emptied into Milton Lake 900 feet north of the avenue. It was the natural drainway for the larger 85-acre area south of Lake Avenue that includes the Francis tract.
Francis stripped its tract and erected 186 small homes thereon in a development known as Duke Estates, Section 2. It also built some 14 houses on an adjacent small tract known as Duke Estates, Section 1, lying in another drainage area. It constructed a drainage system of streets, pavements, gutters, ditches, culverts and catch basins to serve both developments. The system emptied into a corrugated iron pipe laid by Francis below the level of the natural stream bed on its lands. The pipe followed the course of the stream bed to the box culvert under Lake Avenue, although deviating at some places. The pipe was covered with fill so that all evidence of the natural stream on the tract disappeared.
The drainage of the original 85 acres was thus augmented by the drainage of some 2½ acres of the Duke Estates, Section 1, and by waters percolating into the joints of the pipe where it lay below the level of the water table of the Francis tract. The pipe joints were expressly designed to receive such percolating waters. Where the stream passes north of Lake Avenue en route to Milton Lake after leaving the box culvert, it remains largely in its natural state. The stream forms the boundary line between the residential tracts of the plaintiffs Armstrong and the defendants Klemp. The stream passes through a 36-inch culvert under the Klemp driveway and thence, across lands of the Union County Park Commission, to the Lake.
The Francis improvement resulted in a constant and materially increased flow in the stream. The stream is never dry. The water is now discolored and evil smelling and no longer has any fish in it. A heavy deposit of silt or muck up to eighteen inches in depth now covers the bottom of the stream. After a heavy rainstorm the stream undergoes a remarkable change for several hours. All of the upstream rain water that used to be absorbed or held back is now channeled in undiminished volume and at great speed into this stream. This causes a flash rise or crest in the stream, with a tremendous volume of water rushing through at an accelerated speed. As a result, the stream has flooded on several occasions within the last year, although this was unheard of previously. More distressing, however, is the fact that during these flash situations the body of water moving at the speed it does tears into the banks of the brook particularly where the bed may turn or twist. At a point even with the plaintiff’s house the stream makes a sharp bend. Here the effect of the increased flow of water is most apparent since the bank on plaintiff’s side of the stream has been eaten away to the extent of about ten feet. This erosion is now within fifteen feet of the Armstrong septic tank system. The eating away of the banks in several places has loosened rocks or boulders which have been rolled downstream by the force of the water. Those stones, however, as they rolled through the Klemp culvert cracked and broke the sides and bottom of the culvert. These harms were the foreseeable result of Francis's development and drainage alterations.40 Although the housing project serves a social good, the rule requires that the costs of such expulsion of surface waters not be borne entirely by adjoining landowners when the gravity of the harm outweighs the utility in these circumstances.41
The damage is not damnum absque injuria but constitutes actionable unreasonable interference under the reasonable use rule.42
Whether the trial court's factual findings regarding the effects on the downstream properties are against the weight of the evidence?43
No. The trial court's findings describing the constant and materially increased flow, discoloration, silting, flooding, and erosion affecting the Armstrong and Klemp properties are fully and amply supported by competent evidence.46 This includes the testimony of the expert witness for the Armstrongs and the Klemps, which the trial court reasonably credited over the opposing expert opinions offered by Francis.47
The trial court's factual findings are not against the weight of the evidence.48
Whether the admission of evidence concerning an offer of compromise was prejudicial error?49
A trial court's consideration of evidence of an offer of compromise constitutes prejudicial error only if the court actually weighed or relied upon that evidence in reaching its substantive conclusions on liability or relief.50
No. There is nothing in the record to suggest that the trial court weighed the evidence of the offer of compromise in reaching its conclusions.51 The finding that completion of the piping to Milton Lake was the sensible solution is predicated upon the view of what was needful to save the Armstrongs and the Klemps from further harm rather than any reference to the compromise offer.52
The admission of evidence concerning the offer of compromise was not prejudicial error.53
Whether the relief ordering completion of piping work was excessive, improper, or unwarranted?54
Relief granted after trial is excessive, improper, or unwarranted only if it lacks a reasonable basis in the evidence or the trial court's view of the need for permanent remediation of the harm.55
No. The relief ordering Francis at its expense to complete within 60 days the piping of the brook from the culvert outlet at Lake Avenue the entire distance to Milton Lake according to the plan prepared by Francis’ own engineer is reasonable and logical.56 It directly addresses the harm shown by the evidence and employs the very plan reflecting Francis’ own concept of the necessary work, with consent from the Union County Park Commission.57
The relief ordering completion of the piping work was not excessive, improper, or unwarranted.58