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Johnson v. County of Essex

Decided: April 30, 1987.


Villanueva, J.s.c.


[223 NJSuper Page 242] This is a complaint by a downstream land owner against two public entities for damages and inverse condemnation, alleging

that the county and municipality permitted upstream development and designed, installed and maintained drainage pipes and roads that have caused the drainage pipe running under plaintiff's property to deteriorate and disintegrate, thereby causing settlement of part of her property.

The issues in this non-jury trial are (1) whether the defendant public entities have plan or design immunity pursuant to the Tort Claims Act, N.J.S.A. 59:4-6; (2) whether the Township has immunity under N.J.S.A. 59:2-5 when issuing permits, licenses and approvals for upstream development; (3) whether both public entities have immunity under N.J.S.A. 59:2-3(a) when exercising discretion vested in the entities; (4) whether both public entities have immunity under N.J.S.A. 59:4-2 because their action or failure to take action was not palpably unreasonable, and (5) whether plaintiff has a right to inverse condemnation.

The court holds that both public entities have immunity and the actions they took to protect against the condition or failed to take were not palpably unreasonable. Therefore, plaintiff has failed to show any right to inverse condemnation.


The North Wyoming Avenue extension in South Orange was constructed in 1913 after the map of the extension was approved by the Essex County Engineer and Essex County Board of Freeholders on March 13, 1913. During the construction on North Wyoming Avenue at the subject site (before any house was erected thereon), the County constructed a 48-inch, triangular-shaped, cast iron "sperry" culvert in an established watercourse.

The downstream end of the culvert extended 26 feet east of the present easterly line of the County right-of-way. In 1922 the County installed 12 feet of 36-inch reinforced concrete pipe on the downstream end of the culvert and graded the sidewalk area. The stream at this end was an open channel running

downstream easterly of the County construction. Any piping of this stream downstream was done by others.

After plans were prepared for a house on the subject property by William E. Lehman, architect, dated July 9, 1928, a 36-inch concrete pipe was installed across and under the subject property. This pipe was installed before the house was built by a predecessor in title of plaintiff because the house could not have been built beforehand.


For hundreds of years, surface waters have flowed easterly from the Newstead area of South Orange and the adjacent area of West Orange in the manner of the top of a "Y", merging into one stream, Mountain House Brook, just west of North Wyoming Avenue, and then proceeding down to a branch of the East Rahway River at the bottom of the hill. The natural water courses which run into the River predate all construction in the area.

The upland drainage area was developed in a manner similar to the plaintiff's property, but mostly afterwards. The Township did not install the original drainage piping around Blanchard Road, which is upland west of plaintiff's property. A Mr. Barkhorn later bought all of Blanchard's interest in that property and developed it. Houses were built on the Blanchard property in 1920 and 1924, and the Robinson Atlas, dated 1928, in the Township Engineer's office shows Blanchard Road. There was nothing unusual about the drainage system installed in the Blanchard Road area. When Blanchard Road and Crest Circle became in poor condition, the street areas were deeded to the Township, and the streets became part of the Township road reconstruction. Because the drainage systems were in poor condition, in disrepair and undersized by today's standards, they were repaired by the Township with new inlets and catch basins being modernized, all of which was approved by the governing body.

There was also new road and piping installed by a developer of Newstead North, which was extended later by a property owner, all done in accordance with plans approved by the Township in the late 1940's.

Plaintiff concedes there was nothing unreasonable or improper about how prior owners installed the roads, drainage pipes, and catch basins.

An expert produced by the plaintiff, using a county map, indicated the extent of the upland watershed and the amount of piping. This map shows that (a) approximately 58% of the drainage pipes were installed by property owners in South Orange after all necessary approvals by Township officials; (b) approximately 40% of the drainage pipes were installed by property owners in West Orange or by the Township of West Orange, but (c) less than 2% of the piping in the watershed was installed by the Township of South Orange Village itself, one pipe just west of North Wyoming Avenue.

The Township does not own any piping on or under North Wyoming Avenue, a County road.


Plaintiff, Juanita Johnson, is the owner of property at 398 North Wyoming Avenue, which she purchased in 1966. A large English Tudor house with a three-car attached garage was built on the property some time after 1928. This property is almost level, although it has a slight decline towards the rear. Obviously, the developer of the property a long time ago changed the elevation because there is a retaining wall approximately 20 feet high running along the rear of the property. Plaintiff first became aware of a problem on her property about four years ago, when she noticed indentations in the ground, i.e., surface holes and depressions as large as eight inches in diameter. The affected area is about five feet from the side of her house near the garage area. She later noticed the holes getting deeper. Plaintiff's son went into one of the holes, and it was almost as

deep as his entire body. Plaintiff believed that a small car could fit into one of the holes.

It was not until the plaintiff called the Township, or (as she said) maybe the County, that she was told that there was a pipe exiting through the rear of her property. Plaintiff was never previously advised that a pipe was going through or under her property.

The Township has consistently told the plaintiff that wherever the problem exists, it is not on the property of the Township. The County came out on two occasions about three years ago and dumped two truck loads of dirt and rock on plaintiff's property to fill the holes.

Plaintiff is also having trouble with the hedges and the underground water sprinklers on her property.

When the garage floor sank 10 to 12 inches about two years ago, plaintiff had a new floor installed.


Stanley Lacz, a licensed architect, engineer and planner testified for the plaintiff based primarily upon his examination of County and Township maps and two examinations of the site in June 1985. He observed a hole about 50 feet from the sidewalk, about 20 feet north of plaintiff's garage. The erosion or hole on plaintiff's premises is 72 feet east of the easterly line of the County right-of-way or 35 feet beyond any County construction.

At the westerly side of the plaintiff's property is a culvert, which allows water to flow from the westerly side of North Wyoming Avenue to the easterly side and then under the plaintiff's property, where the water flows in a general southeasterly direction underground in a pipe, which Mr. Lacz testified was reinforced concrete, since he had observed it, to a retaining wall at the rear of plaintiff's property. There the storm water is deposited into an open stream bed. Along the path between the easterly side of North Wyoming Avenue and

the plaintiff's easterly property line are large potholes or subsidences in the grade.

Mr. Lacz observed the following problems:

1) At the bottom of the pipe, a channel has been cut out from erosion on the soils and aggregates against the pipe. At some locations, the pipe is worn right through to the subsoil below, creating pools within the pipe floor. Some are 3 feet long by 18 inches wide;

2) Many sections of the pipe have the top portions which have longitudinal cracks with openings as ...

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