On appeal from a judgment of the Middlesex Circuit Court.
For the appellant, John C. Stockel.
For the respondent, Heston N. Potts.
Before Brogan, Chief Justice, and Justices Case and Heher.
The opinion of the court was delivered by
HEHER, J. On September 30th, 1937, plaintiff fell on the sidewalk fronting the building designated as No. 229 Raritan Avenue, in Highland Park; and she sued to recover damages for the ensuing injury on the hypothesis that the causative agent was a nuisance created or suffered by the defendant
landowner's predecessor in title in the subsidence of a section of the concrete surface between one and a half and two inches below the normal pavement level due to basic structural insufficiency. The jury found for the plaintiff; and defendant appeals from the consequent judgment. Error is now predicated on the denial of defendant's motions for a nonsuit and a directed verdict on grounds presently to be considered.
The building was erected in 1925 by defendant's immediate predecessor in title, one Brennan. He devoted one of the two first floor stores to the hardware business, and had the Standard Oil Company install in the adjacent sidewalk two subsurface gasoline storage tanks and service pumps for the conduct of a filling station. A concrete pavement was then laid; and there is no evidence whatever of a structural defect therein. The equipment remained the property of the Oil Company; and in 1930, at the instance of Brennan, the Oil Company removed one of the tanks and the attached pump and relaid the pavement at that point. In 1934, this particular business failed; and the Oil Company, again at Brennan's request, repossessed the second tank and pump and resurfaced the sidewalk as before. Brennan did not himself participate in the work incident to the removal of the chattels. He testified that, after the replacement, he inspected the work and the pavement was "level as far as" he could "remember." He did not "remember seeing any holes in it." And he had forgotten whether the "unlevel condition came about" during his "occupancy of the property." But evidence was adduced from another witness -- an employee of the operator of a drug business in the abutting store premises -- that from July 15th, 1934, to May 1st, 1940, "the condition of the sidewalk" was "the same." Later in the same year, 1934, Brennan lost the lands through foreclosure of a mortgage lien, and defendant had succeeded to and held the title when the mishap occurred. It was in evidence that the settlement of the pavement was due to a structural deficiency arising from the Oil Company's omission to provide an adequate base for the relaid concrete slab after the removal of the second tank and pump -- one that conformed to standard construction.
The first point made on the brief is that there was an utter lack of proof that "the alleged nuisance was caused by any wrongdoing on the part of the defendant or its predecessor in title."
More specifically, it is said that a stranger to the title, i.e., the Oil Company, was the author of the nuisance, in that the faulty construction was the consequence of its failure "to use cinders or the right quantity thereof;" that the Oil Company "did not remove the storage tank under the sidewalk at the request" of defendant "after Brennan went out of business;" that "it had a perfect legal right" to remove the tank; that it was not defendant's "predecessor in title;" that "there is not an iota of proof that a nuisance was actually created that could be seen and recognized when the work of relaying was finished;" and that Brennan did not participate in the creation of the alleged nuisance, nor did he adopt it. The case of Starr v. Adelphia Holding Corp., 124 N.J.L. 521, is deemed controlling. We do not think so.
It was fairly deducible from the proofs that the particular equipment was removed by the Oil Company at the instance of the landowner, express or implied. The tanks and pumps were installed under a contract for their mutual benefit and advantage, embodying a provision for their removal and the replacement of the sidewalk by the Oil Company upon the discontinuance of the business. It is the settled rule that he who creates a nuisance in a public highway, or participates in the creation or maintenance thereof, is liable therefor, even though it ensues from work done by an independent contractor. And it follows that there liability for such creation or participation arises where, as here, there is a community of interest and concert of action respecting the matter eventuating in the nuisance. There is, of course, a ...