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Yonadi v. Homestead Country Homes Inc.

Decided: May 13, 1955.

ANTHONY J. YONADI AND HELEN YONADI, PLAINTIFFS-RESPONDENTS,
v.
HOMESTEAD COUNTRY HOMES, INC., HOMESTEAD SHORE & COUNTRY HOMES, INC., AND BOROUGH OF SPRING LAKE HEIGHTS, DEFENDANTS-APPELLANTS



Clapp, Jayne and Francis. The opinion of the court was delivered by Clapp, S.j.a.d.

Clapp

This appeal has to do with the law of casual surface waters. The principal question presented (to state the case very generally) is whether a person improving a tract of land and constructing and maintaining drains therein is to be charged with liability for a resultant increase in the flow of surface water which runs off the tract upon plaintiffs' lands.

Plaintiffs own a golf course and restaurant located on the south side of Allaire Road, Spring Lake Heights. The tract mentioned, consisting of 40 acres, lying across the road on the north side, had been farming land until 1950, but since then the private corporate defendants, or one of them, have erected on it 169 houses. Generally speaking, the natural drainage of this land is southerly, passing from this tract through ditches and a swale once existing on the property now constituting the golf course, and so eventually to the Atlantic Ocean. There was testimony that the run-off from

improved residential areas, such as the development here with its catch basins and sub-surface drains, is about 3 1/2 times that coming from the more absorbent soil of the farm land formerly here. In times of heavy rain, excess water has produced flood conditions on plaintiffs' property.

The court sitting without a jury gave judgment for the plaintiff against the borough and the two private corporations, awarding damages of $2,500 against all three defendants, and

(a) restraining them from "using or permitting the artificial collection of waters, and from collecting and diverting it thereby on the lands of the plaintiffs, to the harm of the plaintiffs," and

(b) ordering defendants "to accomplish this work" (sic) within 90 days.

These directions do not comply with R.R. 4:67-5. The injunction should specify in reasonable detail and with some precision "this work" so that the defendants may readily know what it is they must "accomplish." See Sun Dial Corp. v. Rideout , 17 N.J. 517, 519 (1955).

But we move on to the substantive issues. The trial court seems to have been of the view that the casting of surface waters, in unusual or substantial quantities, through artificial means, on the land of another, was, without more, unlawful and actionable. This, we think, is error.

The general rule is that neither the diversion nor the altered transmission, repulsion or retention of surface water gives rise to an actionable injury. Generally, therefore, he who improves or alters land is not subjected to liability because of the consequences of his acts upon the flow of surface water. Bowlsby v. Speer , 31 N.J.L. 351 (Sup. Ct. 1865); Town of Union v. Durkes , 38 N.J.L. 21 (Sup. Ct. 1875); Jessup v. Bamford Bros. Silk Mfg. Co. , 66 N.J.L. 641 (E. & A. 1901); McCloskey v. Atlantic City Railroad Company , 70 N.J.L. 20 (Sup. Ct. 1904); Kaufman v. Bergen Turnpike Co. , 71 N.J.L. 33 (Sup. Ct. 1904); Lightcap v. Lehigh Valley R. Co. of New Jersey , 90 N.J.L. 620 (E. & A. 1917); Fitz-Patrick v. Gourley , 104 N.J. Eq. 281 (Ch.

1929); Nathanson v. Wagner , 118 N.J. Eq. 390 (Ch. 1935); Zamelli v. Trost , 132 N.J.L. 388 (Sup. Ct. 1945), affirmed 133 N.J.L. 465 (E. & A. 1945); McCullough v. Hartpence , 141 N.J. Eq. 499 (Ch. 1948); Saco v. Hall , 1 N.J. 377, 381, 383 (1949); Niestat v. Equitable Security Co. , 6 N.J. Super. 148 (App. Div. 1950).

Under this rule it matters not that the flow of water upon plaintiffs' property is much increased or accelerated or its force aggravated. Town of Union v. Durkes , 38 N.J.L. 21 (Sup. Ct. 1875); Miller v. Mayor, etc., of Morristown , 47 N.J. Eq. 62, 65 (Ch. 1890), affirmed 48 N.J. Eq. ...


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