Goldmann, Freund and Conford. The opinion of the court was delivered by Freund, J.A.D.
This is an appeal by defendant, an upland property owner, from a judgment of the Law Division of this court, sitting without a jury, in the amount of $1,375, awarded to plaintiff, a lowland property owner, for damages sustained when the foundation wall of his home collapsed from the force of surface waters during the hurricane "Connie."
The defendant, in the spring of 1954, constructed an athletic field on a 10- or 11-acre tract to the northeast of plaintiff's premises, separated from it by a wooded area 150 feet wide. Prior to the athletic field construction the tract had naturally sloped downwardly toward the intervening wood lot, and continued in its down-slope toward the plaintiff's
premises. In the construction, however, soil was taken from the tract's higher end and used to fill in the lower end, thus leveling it except for a slight rise in the center with a tapering off toward the sides for the drainage of surface waters. Additionally, for adequate drainage of the surface water over the westerly half of the athletic field there was installed a system of five catch basins, connected by means of a series of pipes to a drainage outlet where the water discharges into a riprap of rubble stone to retard its flow. This outlet is about 25 feet higher in elevation than plaintiff's house and approximately 300 feet from it.
On August 13, 1955, more than one year subsequent to the leveling of the athletic field and the installation of the drainage system, hurricane "Connie" struck with all its fury and plaintiff's foundation wall crumbled -- so he testified -- from the waters rushing from defendant's drainage outlet. According to his testimony, he was awakened at 4:00 in the early morning to find that the "whole rear of the house was all pushed in" and "the cellar was full of mud and water" and he saw "a steady stream of water * * * just like a small brook." When he followed the water to its source he found it was coming out of the drainage outlet on defendant's property and he then worked until 6:00 or 7:00 in the morning to build a barrier which temporarily diverted the flow of water away from his house. He testified that the water was not from natural drainage, but exclusively from the drainage outlet; and that it passed over a ditch which had been dug prior to the mishap as the consequence of a complaint by him that water was flowing toward his property. The ditch, he testified, had gradually "filled up with silt, sand and mud" during previous rainstorms. He admitted, however, that prior to this mishap there had been "no water to come up close to the house."
Mr. Waer, a mason contractor, and plaintiff's brother-in-law, testified that plaintiff's basement wall had been constructed with eight-inch blocks and was "a very safe wall." However, although he was at plaintiff's premises 15 to 30 minutes after the mishap, when asked whether he could
see where the water was coming from, he testified "Just out of the woods."
The testimony given on defendant's behalf was that the intercepting ditch was not dug because of a complaint but to lay a wall footing for a fence; that after the hurricane there was no evidence of erosion which would indicate that water had passed over this 20 inch deep ditch rather than along it and away from the plaintiffs premises; and that the ditch was not filled with silt at the place plaintiff claimed.
Mr. Burris, an engineer, testified that the flow-off of water from the field in its present state is no different from that which occurred in its original natural state. This testimony was later modified somewhat to the effect that there is "no appreciable increase of run-off" but a concentration of it at the drainage outlet. He also testified that, in his opinion, the wall collapse was not occasioned by surface water drainage from the athletic field, but subsurface pressure which had built up because of the percolation of rain waters into the clay soil that surrounds plaintiff's house; that this pressure could have been alleviated and the damage averted by a drain pipe around the base of its foundation; and lastly, that if the water had been entering the plaintiff's basement at the rate claimed it would have filled within an hour.
The defendants argue three grounds for reversal: (1) that plaintiff failed to establish that the alleged negligence was the proximate cause of his injury; (2) that the trial court erred in failing to consider the hurricane "Connie" to be an extraordinary act of nature not reasonably to be guarded against -- more familiarly put, "an act of God"; and (3) that the trial court's conclusions were not supported by the evidence. The latter ground merely restates the contentions previously made and will not be treated separately.
The litigants agree that the present case is controlled by the principles of law set forth and reconsidered at length in two recent cases of Yonadi v. Homestead Country Homes , 35 N.J. Super. 514 (App. Div. 1955), on petition for recall of mandate, 42 N.J. Super. 521 (App. Div. ...