McGeehan, Jayne and Wm. J. Brennan, Jr. The opinion of the court was delivered by Wm. J. Brennan, Jr., J.A.D.
[11 NJSuper Page 306] The judgment in plaintiff's favor, entered upon a jury verdict after a new trial as
to damages only, must be reversed. The trial court erred in granting plaintiff's motion for a new trial as to damages only as it does not sufficiently appear the error committed as to damages by the first jury was so limited as clearly to make the issue of damages separable from the issue of liability; rather, in the circumstances of the case, the first verdict manifests an improper compromise on the basic issue of liability.
Plaintiff sued defendants in the Middlesex County Court alleging that defendants in May, 1948, blocked the downstream end of a culvert causing the water to back up and overflow on plaintiff's lands with the result that the foundation walls and footings of a building being constructed by plaintiff were caused to sink, crack and break up and his lands generally to be flooded. The defendants freely admitted at the trial that they blocked the culvert but justified their action as necessary to abate a nuisance allegedly caused by plaintiff's suffering large quantities of household sewage, unsanitary and contaminated water and water containing large quantities of deleterious, wholly or partially decayed matter and substances deleterious to the health and well being of defendants and members of their families, to flow out of plaintiff's property into the culvert and upon defendant's land. They and their wives counterclaimed for personal injuries allegedly suffered as a consequence of plaintiff's alleged wrong.
Plaintiff and defendants live on opposite sides of Oak Tree Road, Raritan Township. The culvert crosses underneath the road. Plaintiff started in the spring or summer of 1947 to build a dwelling, not for his own use, but to rent, at the northwest corner of Dark Lane. He did most of the work himself, aided by members of his family. The building was partially completed when he stopped work in the fall of 1947 because of the onset of winter. Defendants blocked the culvert in May, 1948, and it is at that time, according to plaintiff, the foundation of the partially built house was damaged by the water which he alleged backed up on his lands and entered the cellar through a drain pipe.
Defendants' proofs sharply controverted plaintiff's claim that the damage to the foundation was caused by water backing
up from the choked culvert. Defendants' evidence tended to show that the elevation of plaintiff's lands above the culvert made the backing up of the water upon his land a physical impossibility and that the damage was in fact attributable to the building of the foundation as a "homemade" job by plaintiff and his son in a poor manner upon marshy land unsuited for the purpose, causing it to settle and crack sometime before May, 1948. Defendants' evidence was that from the time the excavation work began there was water in the excavation constantly or at frequent intervals, that its bottom was muddy and so soft that many months before May, 1948, the bulldozer used in the excavating became mired in the mud in the excavation and at another time became mired so deeply when filling in the earth around the house that it could not be removed by its own power, that the plaintiff sometime in the spring of 1948, before the blocking of the culvert in May, was required to make use of an electric pump to pump out the water in the excavation.
We do not have the benefit in the appellants' appendix of all the testimony at the first trial. The respective factual contentions of the parties on the question of liability, which we have summarized, can, however, be discerned in the record before us.
The only testimony at the first trial as to the amount of damages to the foundation was that offered on plaintiff's behalf by an engineer and surveyor. He described the condition of the foundation as he observed it in September, 1949, and stated his opinion that the cost of removing and replacing the foundation was $1,850, saying that the whole foundation would have to be removed and the house shored up while a new foundation was built. There were no proofs on defendants' behalf to contradict this expert's evidence either as to the necessity for complete replacement of the foundation or as to the estimated cost of doing the work.
The jury deliberated for several hours after being given the case at about 11:30 o'clock on the morning of the day the trial ended, and returned to the courtroom about 3:30 o'clock in the afternoon and advised the trial judge they could not
agree. The trial judge directed that they deliberate for another half hour, or until 4:00 o'clock and report again. The jury returned at five minutes after four and announced a verdict in plaintiff's favor in the amount of $625 and a ...