On appeal from Superior Court, Law Division, certified to this court on its own motion.
For affirmance -- Chief Justice Vanderbilt, and Justices Oliphant, Wachenfeld, Burling, Jacobs and Brennan. For reversal -- Justice Heher. The opinion of the court was delivered by William J. Brennan, Jr., J.
The collapse of a stone wall forming the east side of Toney's Brook on plaintiff's property, and damage to one of plaintiff's buildings, resulted from the erosion of the gravel and silt bed of the stream which allowed the seepage of water under and behind the wall. Plaintiff sues the defendant municipalities, charging that when each built high smooth masonry walls along the sides of the brook above and below plaintiff's lands, and lowered and then paved the bed of the stream with a reinforced smooth concrete floor, but did not include in those improvements that segment of the stream which is on plaintiff's lands, the resultant increased velocity of the flow of waters passing plaintiff's property through the brook eroded the gravel and silt bottom there and caused the damage. Among other defenses, the municipalities contend that the erosion was due, not to increased velocity of flow attributable to their improvements, but to the faster flow caused by the action of the plaintiff in removing a stabilizing element in the stream within its lands by the levelling of a dam in the brook midway of its property, the removal of stones and boulders upstream of the dam, the cutting down of a corner of a curved concrete wall in the west bank at the dam site and the removal of a tree back of that wall. After trial without a jury, the trial judge entered judgment for the defendants. The judge found that, although the defendants were negligent in making their improvements, plaintiff's action contributed to the erosion of the bed and undermining of the wall. 28 N.J. Super. 355 (Law Div. 1954). We certified plaintiff's appeal to the Appellate Division on our own motion.
The trial judge's opinion considers the facts fully and they will not be re-stated here except where necessary to the determination of the appeal. We should note, however, that, by order entered October 19, 1954, the trial judge directed the following changes to be made in his reported opinion: the figure "550" in line 16 at 28 N.J. Super. 357 was changed to "135"; the word "condition" in the quotation
from Mr. Finley's report at line 14, page 359, was changed to "distance"; the year "1947" in line 30 at page 360 was deleted; and the year "1947" in line 33 of page 360 was changed to "1952."
Toney's Brook, about three miles long, rises in Montclair and flows south through Glen Ridge into Bloomfield where it joins the Second River which empties into the Passaic River. Plaintiff's lands, upon which it carries on a manufacturing business, are immediately south of the Bloomfield-Glen Ridge boundary line. With the exception of a small piece in Glen Ridge with a frontage of 27 feet along the west bank of the Brook, all of plaintiff's lands are in Bloomfield. The Clark Street Bridge in Glen Ridge crosses the stream about 300 feet above plaintiff's lands.
Flooding of areas bordering Toney's Brook has been a chronic problem for decades. Almost 90% of the area drained by the brook lies in Montclair, but topographically, according to Mr. Shanklin of the State Division of Water Policy and Supply, Glen Ridge and Bloomfield, which lie in the "low flood plane," are forced to bear the brunt of the waters descending from the "deep gorge upstream." The local problem is part of a greater problem involving some eight Essex County municipalities along the Second River and its tributaries. From its nature, the greater problem would best be solved by some master improvement plan. This has not been possible, however, within a framework of laws which, significantly for the purposes of this case, leaves local aspects of the problem to be dealt with locally. In 1938, following a widespread and particularly disastrous flood in Essex County, an engineering committee was constituted by a conference of officials of the State Water Policy Commission, the County of Essex and the eight affected municipalities to study the overall problem and recommend a master plan for its solution. Excerpts from the report of that committee point up the obstacle to such a plan:
"Since all construction work along or across streams must have the approval of the State Water Policy Commission, Engineer-in-Charge H. T. Critchlow [of the Commission] submitted a complete
report, accompanied by a progress map of all such work to date. However, Mr. Critchlow called attention to the facts that, while much effort was made to consider the problem as a whole when a design was prepared and improved, it must be borne in mind that each design [submitted, for example, by a municipality for some local project] was made for a specific problem requiring immediate solution, and that lack of time prevented adequate consideration to attain a comprehensive plan.
"* * * during intervening years, numerous floods have made it obligatory upon the municipalities and other agencies to make improvements in order to protect their respective properties. Since no comprehensive plan had been formulated and each authority was working within the limits of its own appropriations this protection, of necessity, had to be provided by means of channel improvement." (Emphasis supplied)
The municipal improvements to which plaintiff attributes its damage were channel improvements. The Glen Ridge improvement sped the stream through a 20 foot wide stone and concrete channel, and Bloomfield below matched Glen Ridge with an identical construction to get the stream past its limits and into the Second River beyond. But each stopped its improvement short of plaintiff's land. Bloomfield stopped about 110 feet south. The Glen Ridge paving, to the north, stopped about 160 feet above a constriction in the stream near plaintiff's footbridge. The segment intervening between the two improvements has neither a paved bottom nor a uniform width. After the stream leaves the Glen Ridge pavement, which ends some 50 feet past the Clark Street Bridge, the west bank of the Brook is in its natural state and the Brook substantially wider for a short distance; it then narrows in width to but 15 feet at a point in Bloomfield on plaintiff's lands between stone and concrete walls upon which rests plaintiff's footbridge at the northerly end of its property. Through plaintiff's lands the sides are concrete walls or timber grillage but the width is irregular and widest at the dam site previously mentioned. The dam was constructed across the brook in 1913 by plaintiff's predecessor in title, Consolidated Safety Pin Company. The dam originally was 16 feet wide, but before 1915 the banks on each side of it were recessed with curved concrete walls.
Between those walls and the original dam abutments gates eight feet wide were placed, so hinged at the bottom that they could be made to lie flat downstream in the bed to allow faster flow of flood waters. In 1942, following a serious flood of its property and the neighborhood surrounding Clark Street Bridge, plaintiff tore down the gates and the dam superstructure, leveled the abutments of the dam and a portion of the curved west wall to the then level of the stream bed, removed a tree from behind that west wall and closed the recess in the east curved wall with a new concrete wall across its base, using as fill behind the new wall some 30 to 40 tons of rocks and boulders removed from the stream bed upstream of the sill of the dam which was left in place.
None will gainsay the engineering opinion that the ideal situation would be to conform the bed and side walls of this segment of the brook to the side walls and pavements of the municipal improvements above and below it. Indeed, one of the principal items of damage sought by the plaintiff is a sum sufficient to defray the cost of such a conformation. But, so far as defendant Glen Ridge is concerned, the question immediately arises, what obligation, indeed what authority, did the borough have to spend its municipal revenues to extend its improvement across its boundary along lands lying entirely in Bloomfield? What it did do was of course done pursuant to statutory authority, N.J.S.A. 40:56-1(i), (m), (n) and (o), and with prior approval by the State Water Policy Commission as required by N.J.S.A. 58:1-26 (see also N.J.S.A. 13:1 B -50); but nothing in either statute obliged Glen Ridge to make an improvement beyond its territorial limits. The Glen Ridge improvement was started around 1934-1935 when the masonry walls were built; the paving came later and was completed in 1940. The trial judge ...