Clapp, Jayne and Francis. The opinion of the court was delivered by Clapp, S.j.a.d.
This matter comes before us on a petition by the plaintiffs asking for a recall of our mandate, entered herein on May 13, 1955 pursuant to our opinion, Yonadi v. Homestead Country Homes , 35 N.J. Super. 514. The petition, filed April 27, 1956, rests entirely on Armstrong v. Francis Corp. , 20 N.J. 320, decided January 19, 1956. In both Yonadi and Armstrong the concern of the courts was with the law of casual surface waters; in the latter case the Supreme Court adopted the rule of reasonable use, while in the former case we attempted to follow the common enemy rule.
In brief, the circumstances in Yonadi are these. The plaintiffs own a golf course and restaurant. The defendants are Homestead Country Homes, Inc., Homestead Shore and Country Homes, Inc., and the Borough of Spring Lake Heights. Homestead Shore and Country Homes, Inc., erected 169 homes on a tract of 40 acres that had theretofore been used for farming. From these 40 acres, the surface water drains naturally on to plaintiffs' property; however, according to the testimony, the run-off, as a result of a development such as this, is about 3 1/2 times that coming from the farm land previously there. Homestead Country Homes, Inc., is joined as a defendant because it formerly owned this land. As for the borough, it is made a defendant by reason of the fact -- to put the matter generally -- that in 1952 and 1956 it accepted deeds to streets lying in various parts of the 40 acres (not merely in 28 acres -- the point left open in 35 N.J. Super. , at page 524 has since been cleared up) and has been negligent in maintaining the drains lying in those streets.
When the petition for a recall of the mandate was presented, we called for briefs and argument on certain questions. Since then, some time has been lost because of a prospect, which once offered itself, of a public appropriation of money, designed to remedy the drainage difficulties here. That prospect apparently has fallen through.
Plaintiffs seemed to agree on the oral argument that if their position is granted, the case will doubtless have to be remanded and relitigated in the light of the reasonable use doctrine. Furthermore, plaintiffs expressly conceded that in all fairness defendants should be permitted on such a relitigation to raise questions as to prescriptive rights which they claim to have in several drainage ditches, a swale, a brook, and a pipe, all of which formerly existed on plaintiffs' property. Through these drainage facilities, the surface water running off the 40 acres was at one time carried across the land now held by plaintiffs, and thence over other properties eventually to the sea. The ditches, the swale and the brook were filled in by plaintiffs or their predecessors in title; they interfered with the golf course. As for the pipe, it allegedly was allowed by plaintiffs to get in a state of disrepair and to become broken and filled up. There was uncontradicted testimony that these facilities, had they remained, would have taken care of the surface waters running off the 40 acres currently.
Moreover, if the mandate is to be recalled and the case again remanded with directions with respect to the relitigation, the defendant borough seeks to interpose other defenses, namely, that there was no active wrongdoing on its part and in addition that it should not be charged with its engineer's knowledge of circumstances which he acquired while acting privately as Homestead's engineer. See Driscoll v. Burlington-Bristol Bridge Co. , 8 N.J. 433, 481 (1952); Millhurst Milling & Drying Co. v. Automobile Ins. Co. , 31 N.J. Super. 424, 431 (App. Div. 1954), and cases cited. As we understood the oral argument before us, plaintiffs conceded that it was only fair that the borough be permitted to present such issues as these on the remand.
Plaintiffs also agreed that on such a remand it would abandon any claim it had made against the defendant Homestead Country Homes, Inc. That corporation, in fact, had taken no part in the development. These several concessions deal with points that (except for the responsibility of
Homestead Country Homes, Inc.) seem not to have been brought to the attention of the Chancery Division.
Defendants urge that consideration be given to three other circumstances, heretofore developed at the trial, which go to the question of contributory fault on the part of other developers and of plaintiffs. We mention them, though we need pass neither upon them, nor upon the effect of plaintiffs' contributory fault under the doctrine of reasonable use. First, it is to be noticed that the 40 acres constitute but a part of a single watershed of 250 acres, which drain into plaintiffs' lands; defendants claim that since 1950 (when Homestead started its development) other developments in the same watershed, containing about 100 homes located on 30 acres, have added to the water which has run off on to plaintiffs' lands. Defendants argue that they should be chargeable for only about 4/7ths of the increase in the flow of the water thrown upon plaintiffs' lands by these developments totalling 70 acres. Second, defendants claim that there was a serious drainage problem before Homestead started its development in 1950 and that they should not be chargeable with that. In fact, in 1948 the borough and the county appropriated $7,500 to $10,000 in an endeavor to solve that very problem, but (according to testimony submitted on defendants' behalf) plaintiffs then, quite independently, refused to allow an entry on their property unless one of these public bodies would agree to lay the drain pipes where plaintiffs wanted them to go. Even though the appropriations appear in any case to have been inadequate, nevertheless a part of the problem might then have been worked out, had it not been for plaintiffs' independence at the time. The appropriations lapsed. Third, defendants allege that plaintiffs themselves have contributed to their own problems by "hard-topping" a parking lot of an acre and a half in this watershed. According to the testimony, the water running off this lot, flowing allegedly into plaintiffs' golf course and restaurant, amounts, because of the hardtopping, to nine times that running off the same quantity of land, if it had remained vacant -- that is, the lot gives off
the same amount of water that would have come from 13 vacant acres. If the mandate were to be vacated and the doctrine of reasonable use applied, these matters should all ...