Gaulkin, Foley and Lewis.
[84 NJSuper Page 392] Plaintiffs Annie E. Schuschel and Carl Schuschel appeal from the judgment in favor of the Borough of Hasbrouck Heights; the borough cross-appeals from the judgments in favor of plaintiffs, the County of Bergen and New Jersey State Highway Commissioner Dwight G. Palmer. There were other parties to the proceedings below, and judgments in their favor, but no appeal has been taken by any party from those judgments.
The trial judge reported in his opinion that "After this three to four day trial, an authorized inspection of the locus in question was made by this court * * *." After this case was argued before us we, too, concluded that we would be able to understand the evidence better if we viewed the premises, and this we did with the consent and in the company of counsel for all parties.
We have reviewed the testimony and the exhibits and find ourselves in agreement with the conclusions reached by Judge Pashman relating to the issues between plaintiffs, the borough and the County of Bergen, and we affirm those judgments for the reasons stated by him.
The borough's third-party complaint against State Highway Commissioner Dwight G. Palmer was dismissed before trial on the ground of sovereign immunity, and the borough appeals from that dismissal.
The third-party complaint against Commissioner Palmer alleged that "State highway route 17 is a part of the highway system" under his jurisdiction, and:
"6 R.S. 27:7-18 & 21 and other statutes of the State of New Jersey place upon the said Dwight G. Palmer, New Jersey State Highway Commissioner the ministerial duty to maintain the drainage necessary incidental to the operation of the State Highway System.
7. Pursuant to such statutory authority, the said Dwight G. Palmer, New Jersey State Highway Commissioner has closed the said West Riser Ditch and diverted the flow of the water in the lowlands between Williams Avenue and Franklin Avenue to and through a series of culverts designed and intended to carry said flow of water under Route 17 from the westerly side thereof to the easterly side thereof but said acts in respect to the West Riser Ditch have been improperly done and the culverts under the said Route 17 are insufficient in design, depth, size and construction and have been improperly repaired and cleaned so that the flow of water has become clogged and stagnated.
8. The acts of the said Dwight G. Palmer, New Jersey State Highway Commissioner constitute an encroachment upon a public easement and have resulted in a public and common nuisance which continues to exist at the present time.
9. The acts of the said Dwight G. Palmer further comprise violations of Chapter 1 of Title 58 of the Revised States of New Jersey."
The borough demanded judgment:
"a. Restraining and enjoining the State of New Jersey Highway Commissioner, his agents and servants from continuing to maintain a public nuisance and for violating ...