On appeal from the Superior Court, Law Division, Sussex County.
Pressler, Muir, Jr., and Kestin. The opinion of the court was delivered by Muir, Jr., J.A.D.
We hold on this appeal the trial court mistakenly exercised its discretion when it denied plaintiffs' application for a mandatory injunction to abate or rectify a continuing nuisance created by defendant's disposal of storm water runoff onto plaintiffs' property. The trial court denied the application after a jury found defendant created a continuing nuisance and did not have exemption from liability under the Tort Claims Act. N.J.S.A. 59:2-3 (no exemption based on allocation of resources exists where the conduct is palpably unreasonable).
The jury heard evidence that indicated defendant, since a 1947 modification to a drainage system, has discharged storm water through an eighteen-inch outfall pipe into a drainage ditch between the property of plaintiffs Thomas and Mathilde Sheppard and the property of plaintiffs Paul and Anne Baldassano. The ditch ends at Culver Lake, on which the plaintiffs' properties front. Prior to 1947, the discharge came from two ten-inch pipes that drained a smaller area. Over the years
changes have been made to the storm water collection system, which now covers an area variously described as between forty-eight and one hundred acres. The defendant modified the system in 1980, adding a new catch basin and almost three-hundred feet of pipe in place of a natural drainage ditch. In 1984 it installed another catch basin directly across the street from plaintiffs' properties.
The 1947 storm drainage system enhanced, concentrated, and sped up the flow of the storm water into the drainage ditch. Each modification thereafter has had similar additive effects. Those changes have been causing flooding of plaintiffs' summer cottage properties. Plaintiffs continuously sought relief from defendant. From the 1947 improvement through the 1980's, plaintiffs requested the defendant abate the storm water discharge. At one point, plaintiff Thomas Sheppard, a civil engineer, offered an alternative design to divert the water elsewhere. On all occasions the defendant, through its elected officials, rebuffed plaintiffs' requests. The evidence reflected circumstances from which the jury could have concluded defendant unreasonably enhanced, accelerated, and concentrated storm water discharge onto the plaintiffs' properties through the eighteen-inch outfall pipe. See Armstrong v. Francis Corp., 20 N.J. 320, 329, 120 A.2d 4 (1956); Gould & Eberhardt, Inc. v. City of Newark, 6 N.J. 240, 243, 78 A.2d 77 (1951); Hopler v. Morris Hills Reg. Dist., 45 N.J. Super. 409, 414, 133 A.2d 336 (App.Div.1957), all of which collectively stand for the proposition that lower land property owners have rights to relief for the unreasonable discharge onto their properties of storm water by others, including local governmental agencies, and that storm water engendered by hurricanes or other inordinately heavy rainfalls is reasonably foreseeable in assessing the unreasonableness of the conduct of the dischargers. The evidence also reflected the storm water discharge constituted a nuisance in that it unreasonably interfered with plaintiffs' use and enjoyment of their summer lakeshore properties. See Sans v. Ramsey Golf & Country Club, Inc., 29 N.J. 438, 449, 149
A.2d 599 (1959). The jury found defendant's conduct constituted a continuing nuisance -- a finding not at issue on this appeal.
Nonetheless, the jury found the plaintiffs failed to prove the continuing nuisance proximately caused any of the damages claimed. Plaintiffs essentially limited their damage claims to deterioration of the footings of, and the effect thereof on, the Baldassanos' summer cottage. In light of other evidence which suggested other causes for the deterioration, the jury, during its deliberation, raised a question whether it could determine liability, find no damages, and then "require the plaintiff and defendant to enter into an agreement to alleviate the overflow of the drainage ditch." That question may have been engendered by the refusal of the trial court, on defendant's request, to charge the jury on nominal damages. See Gray v. Serruto Builders, Inc., 110 N.J. Super. 297, 315-17, 265 A.2d 404 (Ch.Div.1970) (nominal damages will be presumed with the encroachment of an established right). The trial court, in response to the jury question, told the jury to resolve only the nuisance issue and that it would determine all issues of equitable relief.
Despite the jury finding of a continuing nuisance, the trial court rejected plaintiffs' ensuing application for injunctive relief. The court based its denial on the absence of a damage award and the fact that the only proposal for alleviating the nuisance presented by plaintiffs would simply shift the burden to someone else. The ruling and its reasoning overlooked both the appropriate criteria for evaluating whether an injunction should issue and the reasonable solution suggested by the jury's question during deliberation.
Permanent injunctive relief is an appropriate remedy to abate a continuing nuisance. See Sans v. Ramsey Golf & Country Club, Inc., supra; Rose v. Chaikin, 187 N.J. Super. 210, 453 A.2d 1378 (Ch.Div.1982). Whether such relief should be granted is normally left to the sound discretion of the ...