On appeal from the Supreme Court.
For the plaintiff-respondent, Samuel S. Sagotsky and Theodore D. Parsons.
For the defendant-appellant, Ward Kremer.
The opinion of the court was delivered by
WALKER, J. The defendant-appellant improved a road in the municipality and in so doing connected four catch basins with a so-called leach basin it built upon the plaintiff-respondent's property with his permission. The leach basin from time to time overflowed and the respondent alleging damage to his property instituted an action which was tried before the Monmouth Circuit of the Supreme Court and resulted in a jury verdict in his favor.
The appellant relying upon Haycock v. Jannarone, 99 N.J.L. 183, and Goodavage v. State Highway Commission, 96 N.J. Eq. 424, contends that the respondent misconceived his remedy, it being by mandamus to compel the municipality to take proceedings to condemn the property claimed to
be damaged. The cases so relied upon can be distinguished from the case at bar and the case of Kehoe v. Borough of Rutherford, 74 N.J.L. 659, is controlling.
A municipality has no right, by artificial drains, to divert surface water from the course it would otherwise take, and cast it, in a body large enough to do substantial injury, on land where, but for such artificial drains, it would not go (Kehoe v. Borough of Rutherford, supra), and the exemption of a municipal corporation from actions by individuals suffering special damage from its neglect to perform or its negligence in performing public duties, whereby a public wrong is done for which an indictment will lie, does not extend to actions where the injury is the result of active wrongdoing (Kehoe v. Borough of Rutherford, supra) and whether or not the appellant was guilty of active wrongdoing was a jury question.
We have examined the other arguments of counsel for the appellant and conclude they are without merit.
For affirmance -- THE CHANCELLOR, CHIEF JUSTICE, TRENCHARD, PARKER, CASE, BODINE, DONGES, HEHER, PERSKIE, PORTER HETFIELD, DEAR, WELLS, ...