Ackerman, J.c.c. (temporarily assigned).
[115 NJSuper Page 550] On February 26, 1971 defendant Hackensack Water Company moved before
this court for an order allowing it to file a counterclaim. The counterclaim embodied three counts and, by order dated April 6, 1971, this court permitted defendant to file and serve a counterclaim as to the first and second counts and reserved decision upon defendant's motion with respect to the third count, which embraced allegations sounding in trespass. Plaintiff has alleged that the third count of defendant's proposed counterclaim is frivolous and fails to set forth a cause of action.
The question presented to the court may briefly be stated as follows: Whether the holder of an easement may maintain an action sounding in trespass for damage to water pipes allegedly within said easement.
In resolving the present dispute between the parties as to the efficacy of the cause of action set forth in the third count this court is governed by certain well-established principles of law set forth by our Supreme Court in Rappaport v. Nichols , 31 N.J. 188 (1954):
In dealing with the legal sufficiency of a complaint, plaintiff is entitled to a liberal interpretation of its contents and to the benefits of all of his allegations and most favorable inferences which may reasonably be drawn from them. [at 188]
The foregoing principles would logically apply to an attack upon the legal sufficiency of a counterclaim. The court is, in the final analysis, charged with the responsibility of searching the counterclaim in depth and with liberality to ascertain whether the fundament of a cause of action may be gleaned from the statement of a claim. See Di Cristofaro v. Laurel Grove Memorial Park , 43 N.J. Super. 244 (App. Div. 1957).
The concept of trespass comprehends in its broadest sense any misfeasance or offense which damages another's person, health, reputation or property. See 52 Am. Jur., Trespass , § 2. This broad definition has been refined by various jurisdictions with respect to trespass to realty, which is grounded upon a disturbance of possession, and trespass as to personalty, which encompasses an interference, however slight,
with the enjoyment by another of his personal property. See 52 Am Jur., Trespass , §§ 10, 11.
A dichotomy has been clearly drawn between the rights of an easement holder to sue for interference with his easement and the right of an easement holder to sue for damage to the personal property within the easement (e.g. , water pipes). In Osborne v. Butcher , 26 N.J.L. 308 (Sup. Ct. 1857), and Goldman v. Beach Front Realty Co. , 83 N.J.L. 97 (Sup. Ct. 1912), it was determined that trespass could not be maintained for an interference with a right of way. The ratio decidendi for said decisions was set forth in Osborne:
The gravamen is the obstruction of a by-road, and thereby depriving the plaintiff of its use. The obstructing and blocking up of the road may have been direct, immediate, willful, and forcible, but that was not to, or upon the land of the plaintiff or to his possession; it was not direct and immediate to him. The injury to him was the depriving him of the use of the by-road by reason of such obstruction. It was indirect and consequential, and therefore the subject of an action on the case, and not of trespass. [26 N.J.L. at 309-310]
Although the distinctions between the old common law writs have been disregarded (Miller v. Greenwich Tp. , 62 N.J.L. 771 (E. & A. 1898)), our courts still recognize that the action of trespass is a possessory action. See Balinski v. A. Capone & Sons , 1 N.J. Super. 215 (App. Div. 1949). As ...