On April 1, 1936, for part of the right of way of Route 6 in Bergen County, the State purchased from the Millbank Realty Corporation a tract of land in the Borough of Lodi. In addition to the property conveyed there was also granted to the State:
"* * * the right to lay, construct, maintain, use, repair, renew and operate sub-surface drains and a concrete headwall on lands of the grantor herein outside the Highway right of way as may be required, substantially at the locations shown on the aforesaid plan;
AND also the right to construct and maintain abutments and wing walls on lands of the grantor herein outside the Highway right of way as may be required for the bridge to be constructed to carry the aforesaid State Highway over a tributary of Saddle River, substantially at the locations shown on the aforesaid plans; * * *."
The plan referred to in the deed was a map showing the location of the center line and right of way lines of the highway, as adopted by the State Highway Commission.
In 1937, Millbank Realty Corporation conveyed to the Springfield Corporation a tract of land bordering the highway on the south, which tract included the plots now owned respectively by the defendants Costa Realty Company and Browns, Incorporated, and which tract was burdened with the easement theretofore granted to the State. Costa Realty Company acquired title to the property in 1943 and Browns, Incorporated, obtained title to its property in 1946.
At the time of the conveyance from the Millbank Realty Corporation to the State, a tributary of Saddle River flowed somewhat erratically through the property now owned by Costa and Browns. This stream had a well-defined channel of varying width. It usually contained water to a depth of two and one-half feet. A drain pipe connected with catch basins on each side of the highway in front of defendants'
property, carried the surface water from the highway to the tributary of Saddle River.
To the rear and south of the Browns and Costa property there is a stretch of low, marshy land. In wet weather the stream would overflow at this point, causing serious inconvenience to persons living in the neighborhood. In 1947, the Borough of Lodi, seeking to remedy the marshy condition, dug a new channel and relocated the stream. Neither before nor after the course of the stream was changed did the borough obtain approval of its action from the State Water Policy Commission.
As a result of the relocation of the stream, the old channel became a dry ditch. Both Costa and Browns proceeded to fill with dirt the portion of the old channel which crossed their respective properties. In the process, Costa completely covered the highway drain pipe with about three feet of dirt at the point where it emptied into the old channel.
In July, 1950, and again in August, floods rendered the highway practically impassable. The Highway Department investigated and discovered that the drain pipe had been blocked. At first efforts to clear the pipe were resisted by the defendant Costa. Later the Highway Department was permitted to uncover the mouth of the drain pipe. In addition, a hole ten feet in length and 15 feet wide was dug. Further excavating was then prevented by the defendant Costa.
As a result of the clearing of the drain pipe the flood condition on the highway was relieved and there has been no recurrence of the floods. But at the end of the drain pipe there now exists a large pool of stagnant water ...