On appeal from the Superior Court of New Jersey, Law Division, Burlington County, at 172 N.J. Super. 489 (1980).
Fritz, Polow and Joelson. The opinion of the court was delivered by Polow, J.A.D.
Plaintiffs seek compensatory and punitive damages against defendant municipality, its elected officials, certain of its employees, the municipal engineer and others for destruction of their single-family dwelling and other losses incidental thereto. They assert that they were compelled to abandon their home when they were deprived of their deep well water supply, allegedly the result of construction of two new municipal wells which drew from the same underground reservoir. For purposes of a summary judgment motion, it was stipulated that although plaintiffs could have restored their water supply by extending the depth of their well at a cost of between $750 and $1,700, they lacked sufficient funds to do so. Hence, the well was not deepened and due to lack of water plaintiffs left their dwelling in or about January 1973. Subsequently, the abandoned residence suffered substantial losses by reason of theft of personal property and vandalism despite plaintiffs' efforts to provide protection and periodic inspections. The stipulation fixes a value of the premises in question "in 1972 at $23,500, with water, and $22,000 in January 1973, without water . . . ." Land value is stipulated at $5,000. In their complaint plaintiffs claim damages for negligence in the construction and operation of the municipal wells, they assert a second count for negligent failure to act after due notification of the difficulties and, in the third count, they allege a condemnation of their property without just compensation.
Although the municipality and its codefendants contest the allegation that the new municipal wells interfered with plaintiffs' water supply, nevertheless, for the purposes of defendants' summary judgment motion only, such interference was assumed. The trial judge, in a reported opinion, granted summary judgment
for defendants, ruling that there had been no "taking," that defendants were immune under the New Jersey Tort Claims Act, N.J.S.A. 59:1-1 et seq. , and that the action of the municipality did not violate plaintiffs' rights under the Civil Rights Act, 42 U.S.C.A. § 1983. 172 N.J. Super. 489 (Law Div.1980).
We affirm dismissal of the causes of action based upon negligence and based upon alleged civil rights violations, substantially for the reasons stated by the trial judge. We conclude that the subsequent decision of our Supreme Court in Costa v. Josey , 83 N.J. 49 (1980), has no impact on the outcome here since the concept of municipal immunity for exercise of judgment or discretion in the design and construction of public works or improvements remains intact. The only additional assertion of fact by plaintiffs here beyond improper design and construction, which we can discern in analyzing the entire record is the suggestion that the municipality was guilty of negligence in failing to advance for plaintiffs the $700 or $900 cost projected during oral argument in the trial court, to deepen their well. It has been taken for granted throughout that such an extension of the depth of the well would have restored the water supply and prevented the alleged consequential damage. We conclude that neither failure to advance the funds nor failure to deepen the well for plaintiffs amounts to an act of negligence from which the compensatory damages claimed are foreseeable consequences.
We also affirm the summary judgment dismissing the third count of the complaint alleging a "taking" of private property without just compensation. However, we do so without consideration of the substantive issues addressed by the trial judge which we find are not appropriate for resolution in this case. See DeRose v. Byrne , 139 N.J. Super. 132 (App.Div.1976).
In such a case we should not and do not undertake to decide, by that which constitutes an advisory opinion more than anything else, the far-reaching issues and important policy questions inherent in the litigation. Oxfeld v. New Jersey State Bd. of Ed. , 68 N.J. 301 (1975); Sente v. Clifton Mayor and Coun. , 66 N.J. 204 (1974). [at 134]
We are fully satisfied that the taking issue is moot and was moot when decided by the trial judge because plaintiffs had already received, by settlement with one defendant, more than they could have recovered had they been entirely successful in their claim. On March 27, 1978, more than 1 1/2 years before the decision of the trial judge, plaintiffs settled with defendant Layne-New York Co., Inc., the well-driller employed by the municipality. A stipulation of dismissal was executed and filed in consideration of payment to plaintiffs of $1,850.
Since we agree with the trial judge's assessment of the limited measure of damages recoverable if there had been a taking, we conclude that no recovery beyond the $1,850 paid in settlement could have been realized. If there had been a taking, plaintiffs would be limited to the traditional measure of damages, i.e. , either (1) the value of property actually taken, plus diminution in value of the remainder, as of the date of taking, or (2) the difference between the value of the entire property before the taking and value of the remainder after the taking. South Orange v. Alden Corp. , 71 N.J. 362, 367 (1976); Washington Mkt. Enterprises v. Trenton , 68 N.J. 107, 117 (1975); State v. Cooper Alloy Corp. , 136 N.J. Super. 560, 567-568 (App.Div.1975). Hence, we conclude that had there been a taking, damages would not be recoverable beyond the diminution of the value of the property at the time of the taking computed by deducting its value immediately after the taking, without water, from its value immediately before the taking, with water. South Orange v. Alden Corp., supra; Washington Mkt. Enterprises v. Trenton, supra; Middlesex Cty. v. Clearwater Village, Inc. , 163 N.J. Super. 166, 174, 175 (App.Div.1978), certif. den. 79 N.J. 483 (1979). "The measure of damages does not include any special damages suffered through frustration of the owner's plans." 4A Nichols, Eminent Domain (3 ed. 1975), § 14.241(4). See Middlesex Cty. v. Clearwater Village, Inc., supra , 163 N.J. Super. at 177.
Here, the stipulated maximum cost of extending the well to restore the water supply to the premises ...