On appeal from the Superior Court of New Jersey, Law Division, Cumberland County.
Approved for Publication March 21, 1995
Before Judges Havey, Brochin and Cuff. The opinion of the court was delivered by Brochin, J.A.D.
The opinion of the court was delivered by: Brochin
Plaintiffs own and farm property in Vineland, New Jersey. *fn1 Their crops and farmland have been damaged by flooding which, they claim, was caused by the improper siting and construction of a public high school across the street from their property. They instituted the present action to obtain compensation for the damage.
The defendants who are parties to this appeal are the Vineland Board of Education, Glenn A. Kahley, Art Anderson, Inc., and the City of Vineland. Plaintiffs allege that the Board of Education is liable to compensate them for the damage to their crops and farmland because it owns and operates the high school; Mr. Kahley, because he was the architect who designed and sited the school building; Art Anderson, Inc., because it was the general contractor who built it; and the City of Vineland, *fn2 because the measures which it took to deal with the runoff from the school property made the flooding worse.
The Law Division granted defendants' motion for summary judgment, dismissing plaintiffs' claims against each of the defendants on the ground that every claim was barred by a statute of limitations, a statute of repose, or the notice provisions of the Tort Claims Act. Plaintiffs have appealed, and our review requires us to consider how each of these statutes affects plaintiffs' claims.
Plaintiffs assert both tort claims and claims for inverse condemnation against the Vineland Board of Education and the City of Vineland. Plaintiffs allege that the Board, by constructing its school building at a location and in a manner which caused flooding to their farmland, was maintaining a nuisance and committing a trespass or other negligent tort, or had "taken" their property by the exercise of its power of eminent domain. They also contend that the City acted tortiously or is liable for a "taking" because it failed to install proper drainage facilities underor along a street abutting their property, thereby exacerbating the flooding.
The motion Judge ruled, and we agree, that, pursuant to the Tort Claims Act, N.J.S.A. 59:8-7, -8, filing a notice of claim within ninety days and commencing suit within two years after the "accrual" of plaintiffs' cause of action was a prerequisite to their maintaining any of their nuisance, trespass or other tort claims against the Vineland Board of Education and the City of Vineland. See N.J.S.A. 59:1-2; Polyard v. Terry, 160 N.J. Super. 497, 506, 390 A.2d 653 (App. Div. 1978), aff'd. o.b., 79 N.J. 547 (1979); Birchwood Lakes Colony Club v. Medford Lakes, 90 N.J. 582, 449 A.2d 472 (1982). Plaintiffs' claims are also subject to N.J.S.A. 2A:14-1, which requires "every action at law for trespass to real property [and] for any tortious injury to real . . . property . . ." to be "commenced within 6 years next after the cause of any such action shall have accrued." See Rosenau v. City of New Brunswick and Gamon Meter Co., 51 N.J. 130, 137-40, 238 A.2d 169 (1968)(cause of action for negligent injury to real property is governed by N.J.S.A. 2A:14-1 and, subject to discovery principle, accrues when injury occurs).
Compliance with the Tort Claims Act was not a prerequisite to plaintiffs' pursuing their claims for inverse condemnation. See Estate of McGrath v. North Jersey Dist. Water Supply Comm'n, 224 N.J. Super. 563, 570, 540 A.2d 1350 (Law Div. 1986); cf. Lloyd v. Borough of Stone Harbor, 179 N.J. Super. 496, 512, 432 A.2d 572 (Ch. Div. 1981). However, plaintiffs' claims of inverse condemnation are subject to the six-year statute of limitations, N.J.S.A. 2A:14-1. See Morey v. Essex County, 94 N.J.L. 427, 430, 110 A. 905 (E.& A. 1920); Harisadan v. East Orange, 187 N.J. Super. 65, 70, 453 A.2d 888 (App. Div. 1982); Blazer Corporation v. N.J. Sports and Exposition Authority, 195 N.J. Super. 542, 552-553, 480 A.2d 953 (L. Div. 1984), aff'd on other grounds, 199 N.J. Super. 107, 488 A.2d 1025 (App. Div. 1985). See also Charles C. Marvel, Annotation, Inverse Condemnation -- Limitations, 26 A.L.R.4th 68 (1983).
Plaintiffs served their notice of claim on the Vineland Board of Education on June 11, 1990. Plaintiffs concede that their causes of action against the Board accrued long before April 19, 1990 -- the date ninety days before service of their notice on the Board -- and that the conditions which caused the flooding had been rectified by May 1990. Consequently, the notice requirement of the Tort Claims Act, N.J.S.A. 59:8-7, -8, barred any of plaintiffs' claims against the Vineland Board of Education based on nuisance or other tort, with one possible exception. The record submitted to us does not exclude the possibility that plaintiffs' crops or farmlands were damaged by flooding between April 19, 1990 and the elimination of the cause of the flooding in May 1990. A separate cause of action accrued with each incursion of floodwater. Morey v. Essex County, 94 N.J.L. 427, 430, 110 A. 905 (E. & A. 1920); Delaware & Raritan Canal Co. v. Lee, 22 N.J.L. 243, 251 (Sup. Ct. 1849); Delaware & Raritan Canal Co. v. Wright, 21 N.J.L. 469, 470 (Sup. Ct. 1848). Therefore, no time bar precludes plaintiffs from a tort recovery for damage sustained between April 19, 1990 and rectification of the flooding condition in May 1990.
Plaintiffs served their notice of claim on the City of Vineland on August 24, 1987, and filed their complaint on July 18, 1990. The time bar limiting plaintiffs' nuisance, trespass and other tort claims against the City is established by N.J.S.A. 59:8-8b ("The claimant shall be forever barred from recovering against a public entity if . . . b. Two years have elapsed since the accrual of the claim . . . .") See Tower Marine, Inc. v. City of New Brunswick, 175 N.J. Super. 526, 420 A.2d 1029 (Ch. Div. 1980). Since plaintiffs served their notice of claim on the City on August 24, 1987, they must have "discovered" those claims before that date. Their claims for damages therefore began to accrue no later than August 24, 1987. Consequently, since they filed their complaint July 18, 1990, their only nuisance, trespass or other tort claims against the City which are not barred by the two-year period of limitations of the Tort Claims Act, N.J.S.A. 59:8-8, are claims for damage, if any, sustained between July 18, 1988 and May 1990. See Roseneau v. New Brunswick, supra (subject to discovery rule, tort claim accrues when injury occurs).
As previously mentioned, N.J.S.A. 2A:14-1 required plaintiffs to institute their inverse condemnation action within six years after the accrual of their claims, but those claims continued to accrue as long as the Board's conduct caused the plaintiffs' property to be subject to continual flooding. See Morey v. Essex County, supra; Harisadan v. East Orange, supra. Cf. Delaware & Raritan Canal Co. v. Lee, supra, 22 N.J.L. at 251; Delaware & Raritan Canal Co. v. Wright, supra, 21 N.J.L. at 470. Because the motion Judge dismissed plaintiffs' claims solely on the ground that they were time barred, we will assume that, as plaintiffs allege, the actions of the Board and of the City constituted temporary "takings *fn3" On that assumption, plaintiffs would be entitled to recover for injuries amounting to takings which their property sustained after July 18, 1984. They allege that they suffered injury to their crops and farmland beginning after 1985 or 1986. Consequently, we do not have to consider whether the record establishes that the accrual of their cause of action was postponed until a later discovery.
Plaintiffs' claims against Glenn A. Kahley, the architect for the school building, and Art Anderson, Inc., the general contractor, allege only that these defendants were negligent in preparing the plans for the building and supervising its construction. Both of those defendants rely on N.J.S.A. 2A:14-1; Art Anderson, Inc. also relies on N.J.S.A. 2A:14-1.1 *fn4 Unless the running of the period of limitations established by N.J.S.A. 2A:14-1 was tolled by the discovery principle, that statute bars plaintiffs' claims for injuries sustained before July 19, 1984. We conclude that N.J.S.A. 2A:14-1 was not tolled because plaintiffs Thomas and Mario Russo testified that they knew more than six years before the commencement of ...