Goldmann, Freund and Conford. The opinion of the court was delivered by Freund, J.A.D.
This is an action in trespass between adjoining landowners in Mays Landing, the plaintiff claiming that the defendants entered upon his land in 1955 and with a bulldozer and other equipment widened and deepened a small ditch or stream, known as Dry Run, and destroyed a footbridge. The plaintiff's proofs show that the ditch or stream was enlarged from a former width of two or three feet, and a water depth of about one foot, to a width of 15 to 18 feet across the bottom and 20 to 25 feet across the top, with a water depth of from two to three feet. It was also shown that in widening the ditch the trees and vegetation along the bank were uprooted, pushed and tipped over the bank, and the side banks had been "piled up pretty high." Additionally, it was shown that in places the stream did not precisely follow the course of the former bed.
Defendant Girard Colasurdo testified that defendants have 800 acres of cranberry bogs under cultivation and that while nine months of the year the bogs are under water, it is necessary occasionally to clean the bogs by opening the dam gate, and the accumulated water is also released at the start of the production season. The cranberry bogs are located upstream and when the bog waters are released they flow through the Dry Run which crosses plaintiff's property. This practice has been followed by the Colasurdo family for
some 50 years. Colasurdo also testified that the stream had been cleaned out with dynamite "around 20 years ago" and "that would be roughly 1937." He said that he had not viewed the stream in "more recent years since 1937." When asked who authorized the stream to be cleaned in 1955, he said that no doubt his father did and while he did not think a bulldozer was used, he said "I think we done him a favor to clean it out."
Henry W. Denmead testified on behalf of the defendants that he lives in Mays Landing, and his first knowledge of the stream as it crosses the Grammas property was about the year 1907. If he remembered correctly, he said, the stream in 1907 would vary from 8 to 10 feet (in width), and that a year prior to the trial (1956) he viewed the stream and judged it was about 12 to 15 feet. Other witnesses for the defendants testified to varying dimensions of the stream, as well as to its location across the rear of plaintiff's property. The defendants on this appeal in effect concede that they cleaned out the stream running through plaintiff's property preparatory to releasing the waters in their cranberry bogs, but deny liability for the act of trespass.
Prior to the trial judge's charge to the jury, the defendants submitted four requests to charge which the judge refused to charge on the ground "that they were not supported by any evidence." The first three requests were as follows:
"1. If you find that the waters from the land now owned by the Colasurdo's have naturally drained through this water course over the Grammas land, and have done so for as many years as man can remember, and the Colasurdo's or those persons owning the land before them have, as long as can be remembered, drained their lands by this water course over the land now owned by Grammas, then the Colasurdo's have an easement over the land of Grammas which is entitled to protection of the law and which Grammas must respect. Earl v. De Hart , 12 N.J. Eq. 280 (E. & A. 1856); Kearns v. [Town of] Bloomfield , 101 N.J. Eq. 462 (Chancery 1927).
2. If you find that the water from the lands now owned by Colasurdo's has drained across the land owned by Grammas for as long as man can remember, then the Colasurdo's have the legal right to compel Grammas to remove any obstructions placed upon his land which would obstruct the natural flow of such water.
Kearns v. [Town of] Bloomfield , 101 N.J. Eq. 402 (Chancery 1927).
3. If you find that the waters from the Colasurdo's land drained across the land now owned by Grammas and that there was an obstruction or obstructions to the natural drainage which would, if not remedied, have caused a flooding of the Colasurdo's land, then 1 charge you that Grammas would not have the legal right to prevent the Colasurdo's from going on his land to remove the obstruction. Kearns v. [Town of] Bloomfield , 101 N.J. Eq. 402 (Chancery 1927)."
After the judge concluded the charge, the defendants' attorney requested him to "charge the law relating to an easement by prescription." The judge stated that he had sufficiently charged on that point and would not comment further as to it. No objections to the ...