In this action the plaintiff corporations, Henry Clay and Van Leer Manufacturing Corp., owner and lessee, respectively, of a factory building located at 110 Hoboken Avenue in Jersey City, sought injunctive relief and damages from the defendant, the City of Jersey City. Pursuant to R.R. 4:33-2 and with the consent of the parties the issue of liability was first tried by this court.
Plaintiffs sought to compel the defendant municipality to repair an alleged defective sewer main buried underground through a right of way held by the city on plaintiff Henry Clay's property. They further sought to recover damages sustained due to undermining of the factory building
caused by the defective sewer main, alleging that the city was negligent in failing to properly maintain and keep in repair the sewer line.
At the conclusion of the trial of the issue of liability this court filed an opinion finding as a fact that (1) the sewer main owned and maintained by the defendant leaked, (2) the sewage dispersed by pressure from the sewer line caused a washing away and undermining of the soil supporting the factory building, (3) said undermining had caused damage to the factory building, and (4) the negligence of the defendant city in the maintenance of the sewer main had proximately caused such damage.
This court having made said findings, the issues of damages and nature of injunctive relief to which plaintiffs were entitled were then presented to the court through further hearings which have now been concluded.
Upon the resumption of hearings it was apparent that defense counsel was under a misapprehension that this court had determined that plaintiffs were entitled to injunctive relief based on evidence established solely by the preponderance of the evidence. For clarification this opinion therefore will amend and supplement the earlier opinion filed by this court.
In the course of the trial the court at the request of counsel made an inspection of the area involved. At a point where the sewer main was exposed above the ground this court observed sewage flowing through a break in the pipe. From this observation and further testimony this court found that the plaintiffs had established proof by clear and convincing evidence, free from all reasonable doubt , that the sewer main was leaking and was defective and that the dispersal of sewage from the sewer main had caused an undermining of plaintiffs' building.
Upon the resumption of hearings evidence was presented which clearly proved, without contradiction, that the sewer still leaks and discharges sewage which continues to undermine the factory building causing damage to the building.
Accordingly, it is clear that the plaintiffs are entitled to injunctive relief requiring the city to eliminate leakage of sewage from the sewer which is undermining the building.
In addition to injunctive relief plaintiffs are entitled to recover damages caused by the defendant which were the natural and ...