On appeal from the Superior Court, Chancery Division.
For reversal -- Chief Justice Vanderbilt, and Justices Case, Heher, Oliphant, Wachenfeld, Burling and Ackerson. For affirmance -- None. The opinion of the court was delivered by Wachenfeld, J.
The plaintiff seeks to enjoin the further discharge of storm and surface waters upon its property from a storm sewer system constructed and maintained by the City of Newark. An injunction was granted by the Superior Court, Chancery Division, and the defendant's appeal to the Appellate Division is certified here on our own motion.
Prior to 1928, the city collected storm and surface drainage waters from a considerable area in the vicinity of the
point where Newark and the Towns of Irvington and Hillside meet and emptied it through an outlet pipe near the intersection of Chancellor Avenue and Wainright Street. Thence the water travelled across flat and somewhat swampy territory and emptied into two natural brooks which carried it across the plaintiff's land.
In 1928 the city constructed a surface drainage system throughout the area. Streets were laid out and paved, cement gutters constructed and catch basins installed which connect with storm water sewer pipes laid underneath the streets. Use of the old outlet pipe was discontinued and the water was conducted by the storm sewer to a new outlet at the intersection of Fabyan Place and Winans Avenue in Hillside. There the water emptied into a drainage ditch running for a short distance on and along the southerly line of the plaintiff's property.
Before undertaking the project, the city consulted the plaintiff company and outlined the proposed changes. The plaintiff, after considering the project, gave its assent in the following letter, dated April 26, 1928, and signed by its president:
"Referring to your call today, with reference to the proposed location of storm water sewer and outlet, from the property immediately east of ours and proposed to run through Fabyan Place, in a southerly direction to Winans & Paine Avenues, through a portion of Hillside Township and Irvington, -- all as shown on map on file in the Bureau of Sewers, City Hall, Newark, and practically like the tracing sketch submitted today -- this plan has our approval."
Relying on this, the city soon thereafter entered upon the work and expended on it a considerable sum of money. During the construction period, the plaintiff made no complaint about the project or indicated in any way that it was not being completed in accordance with the plans which had been previously submitted to and approved by the company's president. On the contrary, when the operation of the new sewer system resulted in drying up the two drainage ditches which had formerly trisected its land, the plaintiff filled in the beds and made use of the land thus reclaimed.
It was more than 19 years after the completion of the work before the plaintiff expressed any dissatisfaction with it. Then, in March, 1948, it instituted this action by filing a bill in Chancery to enjoin the city "from the further dumping of the storm waters * * * upon the lands of complainant."
Specifically, the plaintiff alleges that the natural drainage ditch on the company's property into which the water from the storm sewer is discharged has been widened and its banks eroded by the greater amount of water diverted into it by the construction of the storm sewer. It claims also, at ...