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Borough of Westville v. Whitney Home Builders Inc.

Decided: April 13, 1956.

BOROUGH OF WESTVILLE, ET AL., PLAINTIFFS-APPELLANTS,
v.
WHITNEY HOME BUILDERS, INC., ET AL., DEFENDANTS-RESPONDENTS



Goldmann, Freund and Conford. The opinion of the court was delivered by Conford, J.A.D.

Conford

[40 NJSuper Page 65] The plaintiff, Borough of Westville, is a municipality in Gloucester County. It is situated on the outskirts of Camden, near the Delaware River. The

Township of Deptford adjoins it on the south. The defendant, Whitney Home Builders, Inc., has been engaged in the construction of a one-family residential development in Deptford, near the Westville line. In connection therewith its principals caused to be incorporated the defendant, Woodbury Terrace Tract Corp., as a sewerage company, under and pursuant to Revised Statutes, Title 48, Public Utilities, chapter 13, for the purpose of collecting, treating and disposing of the house sewage of the homes in the development. As required by the statute, the consent of the governing body of Deptford was secured, subject to an irrevocable option to the township to acquire the sewerage system constructed by the sewerage company at a price fixed in the ordinance of consent.

Under plans approved by the State Board of Health in the summer of 1954, the defendant sewerage company has constructed in Deptford, near the Westville boundary, a sewage treatment plant geared to handle and treat the sewage from 300 homes. The plant went into operation the latter part of December 1954. At the time of the trial of this cause in April and May 1955, some 30 homes were being serviced. The gravamen of this action concerns the disposition of the liquid effluent of the treated sewage. It is discharged into a small natural stream or ditch which traverses the property of the defendants and flows thence in a northeasterly direction through Westville somewhat less than a mile and then empties into a pond, which, with part of the ditch, is situated in the borough's principal park. The park land was acquired by the borough by tax foreclosure in 1939. The pond drains over a spillway on its easterly bank into an outlet to the waters of Big Timber Creek, some 1,000 feet away, a tributary of the nearby Delaware.

Both the ditch and the pond originate in natural watercourses fed by surface waters. In 1940 the pond was improved in the course of a federal W.P.A. project for conversion of the foreclosed land into a park. The pond averages two to three feet in depth and is now about 500 feet in length. It has been used for many years by the public for

skating in winter and by boys for fishing and, occasionally, wading in summer. Wading in recent years has apparently been infrequent. Since the construction of the park it has been a recreational center of the borough. There are benches around the pond and basketball and baseball play areas. It is the locale for all public patriotic exercises and the situs of memorials for veterans of both world wars. A newly erected schoolhouse is situated west of the park, near the pond.

The plaintiff borough contends that at times the ditch runs dry. The testimony would seem to indicate that this seldom, if ever, occurs, but that in times of drought the flow is reduced to a trickle. During a dry period in the summer of 1954, the flow near the pond was about 15 inches wide and one inch deep and the pond bed somewhat exposed. When rains are flush, the pond overflows its banks by some 15 to 20 feet.

The plaintiffs named in the complaint, which was filed August 2, 1954, were the borough and the local board of health. They alleged the impending construction of the sewerage system, the proposed discharge of the sewage effluent into the ditch and its consequent flow from the ditch into and through the park pond. The threatened use of the ditch was described as "deleterious" and plaintiffs charged:

"(a) that they have a right that the surface waters which heretofore have flowed through said ditch shall not be contaminated or polluted by the discharge of the effluent from said proposed sewerage disposal plant; and

(b) that the discharge of said effluent, if permitted, would create a public nuisance and be productive of a hazard to the public health."

and demanded judgment of injunction and damages.

On October 20, 1954 the Chancery Division granted a motion dismissing the complaint insofar as it is prosecuted by the local board of health for the reason that the Legislature has vested exclusive control and jurisdiction over sewage disposal plants discharging effluent into any of the waters of the State in the State Board of Health and thereby precluded the authority of a local board of health to seek abatement

of such an enterprise as a public nuisance. Borough of Westville v. Whitney Home Builders , 32 N.J. Super. 538, 544 (Ch. Div. 1954), relying upon State Board of Health v. Borough of Vineland , 72 N.J. Eq. 862 (E. & A. 1907). No objection has been raised to that ruling. As to the complaint of the borough, however, in its guise as a plea by a lower riparian proprietor for restraint against the anticipated perpetration of a private nuisance in and upon the common waters, the defendants' motion for summary judgment was denied. (32 N.J. Super. , at page 543).

Thereafter a pretrial conference produced a pretrial order, filed February 18, 1955, wherein the remaining count of the complaint is paraphrased as a cause of action by the borough, "as lower riparian proprietor, to restrain defendants, as upper riparian proprietors, from unreasonably contaminating or polluting, or further unreasonably contaminating or polluting, the waters" of the ditch * * * "by the discharge of sewage effluent into said ditch." The order set out defendants' denial that the rights of the plaintiff would be violated by the discharge and their assertion "that there will be no contamination or polluting of the waters of the ditch which is unreasonable in nature." The trial of the cause occupied three days and produced testimony running 428 pages of transcript and including some 26 exhibits. There was extensive expert testimony on both sides bearing, inter alia , upon the nature of the operation of the sewage plant and the condition of the waters of the ditch and pond prior as well as subsequent to the commencement of the flow of the effluent into the ditch. The trial court concluded that there had been no showing of contamination as it defined the term -- "increase of bacteria and organisms," or of any "appreciable pollution." The showing as to prospective "putrescence" and decay from increased vegetation in the pond was found "too speculative" to found a claim for relief. The plaintiff's grievance was assessed as one solely "psychological or esthetic" in nature, and not, as such, the appropriate subject of injunctive relief. Judgment was entered on the merits for defendants.

I.

A preliminary practice question is posed by defendants' renewal of objections, offered by them previously, to the plaintiff's appendix to its brief, on grounds of noncompliance with the requirement of R.R. 1:7-1(f) that there be included in the testimony printed such portions thereof "which appellant reasonably assumes will be relied upon by respondents in meeting the issues raised." About one-fifth of the entire testimony is reproduced, but only about one-ninth of that adduced by defendants. Only two exhibits are reproduced, none of them defendants'. A motion by defendants for a more complete appendix before another part of this Division was, we are informed by defendants without contradiction, denied on plaintiff's representation that its case on appeal could be rested on the pleadings and the trial court's decision. It will be apparent before we have concluded this opinion that plaintiff's presentation has not, in fact, been so limited and that we could not be expected to determine an appeal of a cause involving the important public health implications here manifested without an examination of substantially all of the evidence. Plaintiff is in default. Much of the evidence submitted by defendants reasonably requiring inspection for an appraisal of its defenses has been omitted from the plaintiff's appendix. The requirements of the rule leave much to the good faith of appellants if the rule is to operate fairly and serviceably for both court and parties. See De Caro v. De Caro , 13 N.J. 36, 41 (1953); State v. Schmelz , 17 N.J. 227, 238 (1955); Feddock v. New Jersey Realty Co. , 28 N.J. Super. 400, 401 (App. Div. 1953); Mitchell v. Cavicchia , 29 N.J. Super. 11, 13 (App. Div. 1953); Josefowicz v. Porter , 32 N.J. Super. 585 (App. Div. 1954); State Highway Commissioner v. Union Paving Co. , 33 N.J. Super. 85, 89 (App. Div. 1954).

In view of what has been said, however, we have examined the entire transcript and all the exhibits, and our determination

is predicated thereon. Defendants are consequently not prejudiced by the shortcomings of the appendix.

II.

Plaintiff purports at the opening of its argument to rely solely for its right to injunctive relief upon the asserted inherent offensiveness and loathesomeness of the sewage effluent, no matter how efficient defendants' treatment plant and relatively free from impurities the effluent, analytically speaking. It urges that the flow into the ditch and pond ipso facto introduces a self-evident "noisome substance" into the common watercourse, Worthen & Aldrich v. White Spring Paper Co. , 74 N.J. Eq. 647, 654 (Ch. 1908), affirmed 75 N.J. Eq. 624 (E. & A. 1909), this amounting to an invasion of its property rights in its status as a riparian owner, which entitles it to relief without regard to the existence of damages in any other sense. It distinguishes its position from that of a complainant against a private nuisance not involving breach of property rights, from whom a showing of particular damages might be required as a prerequisite to injunctive relief. As to the theoretical merits of this position, we shall have comment hereinafter. We presently note that plaintiff's proofs and argument actually go beyond the simple position just stated. It offered proof and argument at trial and here bearing upon the health hazard assertedly constituted by the possible introduction of disease-bearing bacteria and viruses into the ditch and pond; and purporting to establish the prospect of increased vegetation and algae in the pond and consequent odors, elements implying more than mere psychological damage. It is, moreover, our own view that the evidence bearing upon the operation of the plant and as to the condition of the watercourses requires consideration upon this appeal as significant background both in relation to the contention as to the allegedly inherent offensiveness of the effluent and to an application of sound principles as to legal rights and obligations of riparian proprietors on a common watercourse. We thus proceed to a close look at the facts which emerge from the proofs.

The plant of the defendant sewerage company here involved is known as a Griffith-Hays contact aeration sewage treatment system. At the time of the trial its service of 30 homes involved the handling of eight to ten thousand gallons of sewage per day. As noted, it is designed for a maximum of 300 homes. The raw sewage is pumped into the plant by electric motor and then it proceeds into a primary settling unit where it settles for two and one-half hours. The effluent then goes into the first of two aeration sections wherein electric blowers oxygenize it with air and thereby lower its biochemical oxygen demand (B.O.D.). Intermediate the aeration processes is a second settling section. During settling and aeration a further stabilization phase takes place by exposure of the sewage to biochemical activity on asbestos plates. This does not reach full efficiency until after the plant has been in operation several months. The sludge from the settled solids goes to a drying bed and is disposed of as fertilizer. The final settling is concomitant with heavy chlorination. Chlorine is a powerful disinfectant. From raw sewage to the stabilized, chlorinated effluent which is discharged into the ditch, the treatment process occupies a space of eight and one-half hours. Defendants' experts describe the end-product effluent as theoretically fit to drink or swim in (although they would personally do neither, for "psychological" reasons).

The defendants' testimony was that sewage treatment plants are generally designed on the basis that the solids, organic and inorganic, in raw public sewage average 200 parts per million of volume. The plant here involved is designed to reduce the organic substances by at least 85%, and the sanitary engineer who installed it, Lanning, testified other plants of that design had attained 90-95%. By comparison, the "Incodel" standard for sewage effluent allowed into the potable waters of the Delaware River is 85%, as measured by biochemical oxygen demand. "Incodel" is the four-state compact for ...


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