Goldmann, Foley and Collester. The opinion of the court was delivered by Foley, J.A.D.
Plaintiff appeals from a judgment entered in the Law Division upon a jury verdict in favor of defendant. The single question involved is whether the court erred in its charge in respects hereinafter noted.
Plaintiff was the owner of acreage in the Borough of Matawan. The municipality was engaged in a project which involved the laying of a sewer line over plaintiff's property. Defendant corporation is a construction company which had been engaged by the municipality to install the sewer. The individual defendant is a principal of that company. For the purposes of this opinion the company and the individual will be referred to as "defendant."
In the course of executing its contract with the borough, defendant cleared the easement which the borough acquired over plaintiff's lands for the sewer installation, in order that an engineering firm engaged by the borough might place
grade stakes therein. In the course of this work defendant cut a wide swath through plaintiff's property and at places markedly altered the grade of the land.
In order to bring into focus plaintiff's contention on this appeal it is necessary for us to briefly review the pleadings and pretrial order and to advert to pertinent testimony given in the trial.
Plaintiff's complaint sounded in trespass. Inter alia he alleged:
"5. The defendants by themselves, their agents and servants entered into and upon the lands of the plaintiff destroyed the tree growth gave the wood away, ruined the root structure of trees and bushes which were holding up the embankment, cut the embankment with bulldozers and removed hundreds of cubic yards of dirt, cut thru a portion of the balance of the property uprooting and destroying trees.
6. All the above was done without the permission of the plaintiff and much of the damage was done even outside the area over which the Borough of Matawan was asking an easement."*fn1
Defendant's answer denied the quoted allegations of the complaint.
The factual contentions of plaintiff, revealed by the pretrial order, were essentially a reiteration of the allegations of the complaint. Defendant's contentions in pertinent part were:
"3. Deft states that plf gave him permission to proceed on his land for the purpose of installing certain sewers in accordance with work done for Boro of Matawan, and that plf was aware at all times that this work was being done in accordance with a right-of-way given by him to Boro of Matawan. Furthermore, that the deft did ...