On appeal from Superior Court, Chancery Division, certified to this court on its own motion.
For affirmance -- Chief Justice Vanderbilt, and Justices Heher, Wachenfeld, Burling, Jacobs and Brennan. For reversal -- None. The opinion of the court was delivered by William J. Brennan, Jr., J.
The Chancery Division, after trial, entered a final judgment against the defendant, the Francis Corporation. Francis appealed to the Appellate Division, and we certified the appeal here on our own motion.
A small natural stream rose in Francis' 42-acre tract, which lies immediately south of Lake Avenue in Rahway. The stream flowed in an northerly direction 1,200 feet across the Francis lands through a seven-foot box culvert under Lake Avenue and emptied into Milton Lake, 900 feet north of the avenue. It was the natural drainway for the larger 85-acre area south of Lake Avenue which includes the Francis tract.
Francis stripped its tract and erected 186 small homes thereon in a development known as Duke Estates, Section 2. It also built some 14 houses on an adjacent small tract known as Duke Estates, Section 1, lying in another drainage area. It constructed a drainage system of streets, pavements, gutters, ditches, culverts and catch basins to serve both developments. The system emptied into a corrugated iron pipe laid by Francis below the level of the natural stream bed on its lands. The pipe followed the course of the stream bed to the box culvert under Lake Avenue, although deviating from the course at some places. The pipe was covered
with fill on Francis' tract and all evidence of the natural stream there has disappeared.
The drainage of the original 85 acres was thus augmented not only by the drainage of some 2 1/2 acres of the Duke Estates, Section 1, but also by waters percolating into the joints of the pipe where it lay below the level of the water table of the Francis tract. The pipe joints were expressly designed to receive such percolating waters, and, to the extent that the percolation lowered the level of the water table, the result was to provide a drier terrain more suitable to housing development.
Where the stream passes north of Lake Avenue en route to Milton Lake after leaving the box culvert it remains largely in its natural state and forms the boundary line between the residential tracts of the plaintiffs Armstrong and the defendants Klemp. The Klemps were made parties defendant by Francis' cross-claim but prevailed thereon and were allowed the same relief as the Armstrongs. The stream passes through a 36-inch culvert under the Klemp driveway and thence, across lands of the Union County Park Commission, to the Lake.
The Francis improvement resulted in consequences for the Armstrongs and the Klemps fully described by Judge Sullivan in his oral opinion as follows:
"Now the stream as it emerges from the underground pipe goes under Lake Avenue and then flows past and through the Armstrong and Klemp properties is no longer the 'babbling brook' that Mr. Klemp described. Now there is a constant and materially increased flow in it. The stream is never dry. The water is now discolored and evil smelling and no longer has any fish in it. A heavy deposit of silt or muck up to eighteen inches in depth now covers the bottom of the stream. After a heavy rainstorm the stream undergoes a remarkable change for several hours. All of the upstream rain water that used to be absorbed or held back is now channeled in undiminished volume and at great speed into this stream. This causes a flash rise or crest in the stream, with a tremendous volume of water rushing through at an accelerated speed. As a result, the stream has flooded on several occasions within the last year, although this was unheard of previously. More distressing, however, is the fact that during these flash situations the body of water moving at the speed it does tears into the banks of the brook particularly
where the bed may turn or twist. At a point even with the plaintiff's [Armstrong] house the stream makes a sharp bend. Here the effect of the increased flow of water is most apparent since the bank on plaintiff's side of the stream has been eaten away to the extent of about ten feet. This erosion is now within fifteen feet of the Armstrong septic tank system. It is difficult to say where it will stop, where the erosion will stop. The silting has, of course, raised the bed of the stream up to eighteen inches in places and the raising of the stream results in water action against different areas of the bank so that the erosion problem while unpredictable is ominous. The eating away of the banks in several places has loosened rocks or boulders which have been rolled downstream by the force of the water. Those stones, however, as they rolled through the Klemp culvert ...