Rooney v. Township of Millstone

Supreme Court of New Jersey

Rooney v. Township of Millstone

3 A.2d 580, 121 N.J.L. 624, 1939 N.J. LEXIS 292

CourtSupreme Court of New Jersey

DecidedJanuary 13, 1939

StatusPublished

Cited by1 cases

This text of 3 A.2d 580 (Rooney v. Township of Millstone) is published on Counsel Stack Legal Research, covering Supreme Court of New Jersey primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Rooney v. Township of Millstone, 3 A.2d 580, 121 N.J.L. 624, 1939 N.J. LEXIS 292 (N.J. 1939).

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Opinion

The opinion of the court was delivered by

Walker, J.

The defendant-appellant improved a road in the municipality and in so doing connected four catch basins with a so-called leach basin it built upon the plaintiff-respondent’s property with his permission. The leach basin from time to time overflowed and the respondent alleging damage to his property instituted an action which was tried before the Monmouth Circuit of the Supreme Court and resulted in a jury verdict in his favor.

The appellant retying upon Haycock v. Jannarone, 99 N. J. L. 183, and Goodavage v. State Highway Commission, 96 N. J. Eq. 424, contends that the respondent misconceived his remedy, it being by mandamus to compel the municipality to take proceedings to condemn the property claimed to be *625 damaged. The eases so relied upon can he distinguished from the case at bar and the case of Kehoe v. Borough of Rutherford, 74 N. J. L. 659, is controlling.

A municipality has no right, by artificial drains, to divert surface water from the course it would otherwise take, and east it, in a body large enough to do substantial injury, on land where, but for such artificial drains, it would not go (Kehoe v. Borough of Rutherford, supra), and the exemption of a municipal corporation from actions by individuals suffering special damage from its neglect to perform or its negligence in performing public duties, whereby a public wrong is done for which an indictment will lie, does not extend to actions where the injury is the result of active wrongdoing (Kehoe v. Borough of Rutherford, supra) and whether or not the appellant was guilty of active wrongdoing was a jury question.

"We have examined the other arguments of counsel for the appellant and conclude they are without merit.

Judgment affirmed.

For affirmance — The Chancellor, Chief Justice, Trenchard, Parker, Case, Bodine, Donges, Heher, Perskie, Porter, Hetfield, Dear, Wells, WolfsKeil, Rafferty, Walker, JJ. 16.

For reversal — None.

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The opinion of the court was delivered by

Walker, J.

The defendant-appellant improved a road in the municipality and in so doing connected four catch basins with a so-called leach basin it built upon the plaintiff-respondent’s property with his permission. The leach basin from time to time overflowed and the respondent alleging damage to his property instituted an action which was tried before the Monmouth Circuit of the Supreme Court and resulted in a jury verdict in his favor.

The appellant retying upon Haycock v. Jannarone, 99 N. J. L. 183, and Goodavage v. State Highway Commission, 96 N. J. Eq. 424, contends that the respondent misconceived his remedy, it being by mandamus to compel the municipality to take proceedings to condemn the property claimed to be *625 damaged. The eases so relied upon can he distinguished from the case at bar and the case of Kehoe v. Borough of Rutherford, 74 N. J. L. 659, is controlling.

A municipality has no right, by artificial drains, to divert surface water from the course it would otherwise take, and east it, in a body large enough to do substantial injury, on land where, but for such artificial drains, it would not go (Kehoe v. Borough of Rutherford, supra), and the exemption of a municipal corporation from actions by individuals suffering special damage from its neglect to perform or its negligence in performing public duties, whereby a public wrong is done for which an indictment will lie, does not extend to actions where the injury is the result of active wrongdoing (Kehoe v. Borough of Rutherford, supra) and whether or not the appellant was guilty of active wrongdoing was a jury question.

"We have examined the other arguments of counsel for the appellant and conclude they are without merit.

Judgment affirmed.

For affirmance — The Chancellor, Chief Justice, Trenchard, Parker, Case, Bodine, Donges, Heher, Perskie, Porter, Hetfield, Dear, Wells, WolfsKeil, Rafferty, Walker, JJ. 16.

For reversal — None.

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3 A.2d 580, 121 N.J.L. 624, 1939 N.J. LEXIS 292, Counsel Stack Legal Research, https://law.counselstack.com/opinion/rooney-v-township-of-millstone-nj-1939.

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