For affirmance -- Chief Justice Hughes, Justices Mountain, Sullivan, Pashman, Clifford and Schreiber and Judge Conford. For reversal -- None. The opinion of the Court was delivered by Conford, P.J.A.D., Temporarily Assigned.
[69 NJ Page 93] The principal question on this appeal is whether a railroad which
piped a natural watercourse under its embankment when the tracks were laid many years ago is subject to injunction on the complaint of upstream owners for flooding attributable to the fact that the pipe will no longer accommodate the volume of water which now flows through the watercourse. That volume has increased substantially because of upstream housing and commercial development over the past 25 years. The Law Division granted a mandatory injunction calling for the widening of the passageway under the railroad embankment, and the Appellate Division affirmed on the trial court's oral opinion. We granted certification, 67 N.J. 92 (1975), and we now affirm.
Separate actions were brought by plaintiffs Board of Education of the Borough of Manasquan and Borough of Manasquan against The New York and Long Branch Railroad ("Railroad") and the State Department of Transportation for injunctions to abate a nuisance. The actions were consolidated and heard by Judge Lane sitting without a jury.
Stockton Lake Brook is a natural stream which flows easterly for 2.6 miles from its source west of Route 35 in Wall Township through the northwest portion of the Borough of Manasquan into Stockton Lake, an arm of the Manasquan River. The watershed area drained by the brook contains 735 acres in Wall Township, Manasquan Borough, and Sea Girt.
The plaintiff Board of Education maintains an elementary school and an adjoining school playground along the northern bank of the brook. Across Broad Street to the west is Manasquan High School. The brook flows through the high school property and thence easterly through a brick 5 by 4 foot culvert under Broad Street and between natural banks along the southerly edge of the elementary school playground. Four hundred feet east of Broad Street it passes under a gravel driveway bridge connecting the school yard with another street to the south by means of a 36-inch diameter pipe.
Immediately east of the school property the brook passes under State Highway Route 71 by means of a 10 by 6 foot box culvert. The defendant State Department of Transportation installed the culvert in 1971 with the approval of the Division of Water Resources when the highway was renovated. A bulkhead or dam was placed across the downstream outlet of the culvert, so as to prevent a wash-out of the nearby railroad embankment in times of flood, with a hole 30 inches in diameter to allow the water to pass through at the pre-1971 level.
After passing under Route 71, the brook flows through a low swampy area heavily covered with brush for about 75 feet to the right-of-way of the defendant railroad. At this point the railroad traverses a large embankment under which the brook waters pass through a 24-inch diameter cast iron pipe. All surface drainage from the 735-acre watershed area must funnel through this pipe. The pipe was there in 1920 and was probably installed before 1900.
Three or four times each year during periods of heavy rainfall the brook overflows its banks and floods the elementary school playground. The flooding began at least 11 years ago and typically covers two-thirds of the school yard to depths of up to 5 feet, leaving a residue of mud and debris which makes the playground unusable for several days. The overflow also floods the home economics and band room in the basement of the high school across the street.
The school board's drainage engineer, qualified as an expert, testified that the immediate cause of the flooding is the railroad's 24-inch pipe, which backs up the stream all the way to the school yard. The 24-inch pipe is "inadequate" to accommodate the surface drainage from the watershed area. As distinguished from the area west of the pipe, there is no flooding east of the pipe. The witness was of the opinion that if the Route 71 bulkhead were removed but the railroad culvert not improved it would reduce the flooding on the school playground to the extent that it is caused by debris
build-up in the dam, but it would not significantly alleviate the ...