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Ades v. Mayor and Council of Borough of Deal

Decided: January 20, 1976.


For reversal and remandment -- Chief Justice Hughes, Justices Mountain, Sullivan, Pashman, Clifford and Schreiber and Judge Conford. For affirmance -- None.

Per Curiam

As it evolved from complaint through entry of judgment, this case presents the question whether plaintiffs have established a cause of action for injunctive relief to abate flooding against the defendant Monmouth County. Plaintiffs are residential property owners in Deal bordering on Poplar Brook which floods several times a year during heavy rains, causing damage to their properties. Sundry other defendants originally joined, and various crossclaims, have been dismissed at or prior to trial, and no issues pertaining to such dismissals survive. At trial plaintiffs offered no proofs as to money damages and sought only injunctive relief.

The county about 1927 built a bridge on Almyr Avenue in Deal crossing Poplar Brook in a north-south direction, with a rectangular culvert 12 feet wide by 2 1/2 feet deep to permit the brook to pass beneath it. The brook, about 15-20 feet wide at that point, rises in Ocean Township, and flows easterly to the ocean, about 2000 feet east of Almyr Avenue. The injunction issued by the Chancery Division requires the county to propose a plan to the State Water Policy and Supply Council "designed to prevent the flooding [of the brook] which plan will include but not be limited to consideration

of a change in the structure and design of the culvert at Almyr Avenue and a change in the gradient and profile of Poplar Brook from the Norwood Avenue Bridge to Ocean Avenue, and any other steps that are necessary to be done to prevent further flooding of plaintiffs' property". Upon approval of the plan by the Council, the county is directed to effectuate it.

The Appellate Division affirmed on the oral opinion of the trial court. This court granted certification. 68 N.J. 281 (1975).

Norwood Avenue and Ocean Avenue are the major northsouth thoroughfares in Deal west and east, respectively, of Almyr Avenue, and are about 2000 feet apart. It is undisputed that the county does not own or control Poplar Brook either east or west of the Almyr Avenue bridge. The controlling question on this appeal is the matter of the requirement of the injunction that the county effectuate changes in the stream bed of Poplar Brook.

The principal proofs at the trial were presented through engineering witnesses, one Poznak for the plaintiffs and one Barrett for the county, both apparently well qualified as experts. The witnesses were in agreement that the culvert is now inadequate for the accommodation of the volume of water which reaches Almyr Avenue, due to upstream development leading to increased runoff from paved surfaces as well as the construction of drains and sewers. The witnesses differed sharply, however, as to whether the inadequacy of the culvert is the effective cause of the flooding.

Poznak testified that the flooding is due to the fact that, because the culvert opening is too small, "water is bypassing and going around each side of it, causing siltation on the downstream side of the bridge." While Poznak did not explain the contribution of the siltation to the flooding, the county witness Barrett did so.

Barrett testified, in effect, that the flooding at Almyr Avenue is due to the combined effect of inadequate gradient of the stream between Norwood Avenue and Ocean Avenue

and the narrowness of the stream channel. There is no change of grade at all for 400 feet east of the bridge. These factors reduce the velocity of the flow, which in turn causes excessive siltation. The resulting siltation itself reduces flow velocity, aggravating the underlying problem in a circular fashion. These are the effective causes of the flooding at Almyr Avenue. If no more were done than to redesign the culvert to increase the area of the opening, the relief would be only temporary since the inadequate downstream gradient would cause the channel to narrow again, the flow velocity to decrease and the siltation to increase. The difficulty would be compounded by the necessary increase in the height of the culvert opening, as this would require raising the bridge structure and act as a partial dam against the passage of the water over Almyr Avenue at flood times.

Barrett's testimony was not refuted by plaintiffs and obviously impressed the trial judge, indeed to the extent of an implied finding that Barrett was correct in saying that an essential step toward a solution of the problem would be an in-depth study of how the gradient could be improved from Norwood Avenue to Ocean Avenue. From this premise, the court concluded that since it was "obvious that one entity must do the work" and the county was "the logical entity to propose the plan and do the work," the injunction against the county was the appropriate relief to be awarded. The court made no finding that a redesign of the bridge and culvert alone would abate the flooding. The court's only express finding in this regard was that the reasons for the flooding were "basically two-fold;" the increased building, etc. upstream, increasing the water flow, and the silting throughout the ...

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