For reversal -- Chief Justice Weintraub, Justices Hall, and Mountain, and Judges Conford and Lewis. For affirmance -- None. The opinion of the Court was delivered by Conford, P.J.A.D., Temporarily Assigned.
The Chancery Division awarded plaintiffs damages against the defendant city in the aggregate amount of about $226,000 for injury to real property and for business losses consequent upon periodic flooding over a period of years upon or adjacent to their properties on Frelinghuysen Avenue in Newark, close to the Route 22 overpass. The court also entered a mandatory injunction ordering the city to "eliminate the flooding" by January 1, 1973 (judgment entered June 22, 1971). The Appellate Division affirmed the judgment as against appeals by both the city and one of the plaintiffs (the latter on an issue of damages), and this court granted certification on the city's petition. 62 N.J. 67 (1972). Only issues of liability and remedy are now implicated.
Plaintiffs are corporations owning or leasing industrial or commercial properties. They are all served by the same sewer lines which drain south along Frelinghuysen Avenue -- a north-south main road parallel with and near the western edge of the Newark meadows. Under this street are two
separate conduits -- one a storm sewer carrying surface water, and the other a sanitary sewer carrying diluted but untreated sewage. These pipes combine into a single line known as the Queens Outlet, which begins underneath the intersection of Frelinghuysen Avenue and Queen Street, a point about a block south of plaintiffs' properties. From this point the sewer runs in an easterly direction along Queen Street a short distance to the Newark meadows where the flow, except for a minor portion which is diverted through the South Side Interceptor to the Passaic Valley Sewerage Commission Treatment Plant located at Delancy Avenue, enters an open drainage ditch known as the Queens Ditch. The flow then proceeds through the meadows via a network of open ditches, including the Peripheral Ditch which encircles Newark Airport, and past a series of tide gates into the Elizabeth Channel at Newark Bay. The bay, which is a tributary of New York Harbor, is situated about 2 1/2 or 3 miles east of the Queens Outlet.
Both the South Side Interceptor and the Peripheral Ditch were constructed in the mid-1960's. The former was ordered by the state health authorities in 1954, and the city financed it through a $10,500,000 bond issue. The Port Authority of New York and New Jersey built the Peripheral Ditch as an incident of its enlargement of the Newark Airport. Neither of these projects have materially affected the basic drainage problem of the city which underlies this litigation although the interposition of the Peripheral Ditch has caused an increase in the estimated cost of a solution of the problem. See infra.
Other segments of the storm and sanitary sewers on Frelinghuysen Avenue empty into the common outlet to the bay via the Waverly and Peddie ditches. Altogether, an area of about 5,000 acres or 8 square miles of the city west and northwest of the meadows is served by this storm water and sanitary sewerage system. The record affords no information as to just when this general system of sewerage-drainage was first instituted, but it does indicate that since
that time there has been a great amount of industrial and airport development in and about the meadows which the ditches traverse and considerable urban development in the upland area drained, west of Frelinghuysen Avenue.
There is specific evidence of flooding on Frelinghuysen Avenue occurring six or more times a year since 1961, causing property damage, serious interruption of traffic, and in one instance, loss of life. Plaintiffs introduced evidence of periodic flooding since 1964 of even greater frequency. Engineering reports in evidence, more specifically referred to hereinafter, make it clear that flooding of the general character described antedated 1961 by a long period of time, perhaps decades.
The premises of two of the plaintiffs, Barney's Furniture Warehouse of Newark, Inc., and Kleen-Stik Products, Division of Compac Corporation, were not flooded; these parties suffered business losses due to the inaccessibility of their premises when the surrounding streets were flooded. Louis Hoffman & Sons, Co. and Louis Hoffman & Co. sustained similar damages as a result of the interruption of their business operations when their loading docks were flooded. The building owned by L. & F. Frelinghuysen Corp. was damaged when its foundation was undermined, apparently as a result of the periodic withdrawal of subsurface support by the force generated by flood waters being drawn into the sewer line. Some 15 to 20 other suits against the city based upon the same grievance are said to be pending.
The cause of the flooding was described in a report prepared in 1961 for the city by the engineering firm of Elson T. Killam Associates, Inc. adduced in evidence by plaintiffs. The Killam Report letter of transmittal states:
"It may be pointed out that the basic reason for these difficulties is that the flow upon an upland area of some 5,000 acres (or 8 square miles), extending westerly as far as the Irvington-Newark boundary; northerly to 12th Avenue, and southerly to the Elizabeth boundary, is dumped at the old shore line of the Meadows with a major portion of
this discharge being concentrated in the Peddie Ditch between the intersection of Route 1 and the Pennsylvania Railroad at a point 2 1/2 miles back from Newark Bay.
The main roads along the edge of the old Meadow in this area have low points at Elev. 106.5, or only 3 1/2 feet above mean high tide in Newark Bay; only 2 1/2 feet above monthly high tide; and 1 1/2 feet below recent storm tides.
The difference in level between these streets and high water in Newark Bay, even with normal tides, is not enough to develop sufficient velocity and flow in these long ditches.
The consequent backing up in the ditches causes extensive surcharging of the tributary combined sewers and storm overflows, and with even a moderate amount of rainfall, creates extensive flooding.
The progressive increase in extent, duration and frequency of flooding is due to:
1. Filling of meadowlands with reflected reduction of extensive storage formerly available.
2. Continuous development in the tributary areas with a consequent increase in runoff from impervious surfaces such as streets, ...