Opinion
03-31-1890
SLACK v. LAWRENCE TP.
John Sykes, for complainant. H. H. Hamill, for defendant.
On bill for injunction.
John Sykes, for complainant. H. H. Hamill, for defendant.
BIRD, V. C. The injunction asked for in this case is to restrain the township authorities from conducting the water which is collected upon one highway along the same toanother, and along that other to the lands of the complainant, and discharging them from the latter highway onto the lands of the complainant. The former road runs north and south; the latter, east and west. The complainant owns lands adjoining the former, and also other lands adjoining the latter. The waters which collect and flow into and upon the former road flow therefrom because of the inclination of the land upon the lands of the complainant adjoining the former highway. The township authorities have undertaken to conduct these waters from the course which they would so naturally take along the said highway first named to the other highway, a distance of over 500 feet, by inserting along the side of the highway, drain tile, and thence conducting the same over 500 feet along the said other highway, and discharging said waters on the said other lands of the complainant. Between the place where the said waters so flow by the inclination of the earth across the road first aforesaid to the lands of the complainant first mentioned, and where the said roads intersect, there is a natural elevation of the earth so great as to make it necessary to sink the said tiling beneath the surface, or to open an unusually deep trench in order to secure the flow of the water to the said road so running east and west. In my judgment, it is inequitable for the defendants to do this. It is unreasonable to divert the water from its natural and accustomed flow, even though it be only surface water, and to force it in another direction for a considerable distance upon other lands. In so doing the quantity is necessarily increased, and to that extent the damage to the complainant increased. Conceding that the defendants have the authority, they must in every such case make a reasonable exercise of it. But it would appear that the township authorities had no right to impose such a burden upon the complainant. The act of the legislature under which they claim protection has been declared by the supreme court to be unconstitutional. In the case of Ward v. Peck, 49 N. J. Law, 42, 6 Atl. Rep. 806, Chief Justice BEASLEY says: "That portion of the forty-filth section of the general road act which authorizes the overseer to enter upon private property, and cut and make a drain, is void, as being inconsistent with the constitutional provisions that declares that private property cannot he taken for public purposes without compensation." The defendant's counsel insists that this court has not jurisdiction. A similar case (West Orange v. Field, 37 N. J. Eq. 600) was before the court of errors and appeals on appeal from a decree rendered in the court of chancery, but no such question was raised, or, if raised, not considered by the court. It is not to be supposed that if this court had not jurisdiction that the court of last resort would have allowed so important a principle to have passed unnoticed, especially when it is apparent that it gave very full consideration to the case. The principle which moves a court of equity to act in order to prevent a multiplicity of suits is, surely, enough to sustain this bill; for whenever there should be sufficient rain-fall or melting of snow to cause the water to flow through the projected channel onto the lands of the complainant along the said road running east and west, a fresh cause of action would arise. An injunction will be allowed, according to the prayer of the bill. The complainant is entitled to costs.