The opinion of the court was delivered by
The meritorious question involved in this appeal is the liability of the defendants, municipal сorporations, to respond in damages for injuries and depreciation to the plaintiffs property, which consists of a house and several lots, for creating аnd maintaining, what the jury found under the instructions of the trial court to be a nuisance, viz., the defеndants constructing and maintaining a joint sewage disposal plant and a joint sewerage system in the vicinity and adjoining the plaintiffs’ property, upon the west bank of a small natural stream, which flowed through the lands acquired by the defendants, and, also, through the prоperty of the plaintiffs.
The record in brief shows the defendants in constructing and opеrating the joint sewage disposal plant caused the *420 stream of water or broоk flowing through the premises to fill with sewage and filth causing the water to be contaminated, polluting the stream by nauseating smells and gases to the special damage of the plaintiffs’ property.
The trial court pointed out to the jury the legal distinction between active wrong-doing and negligence, for the latter, the cases in New Jersey аre conclusive to the effect, that for mere negligence there is no liability except under a statute, such as the Bridge act, making a township or the board of сhosen freeholders of a county, when chargeable by law with the erection, &e., liable for negligence and an action will lie therefor. Pamph. L. 1860, p. 285; 1 Comp. Stat., p. 304, § 9; Waters v. Mayor and City of Newark, 56 N. J. L. 361; Hart v. Freeholders, 57 Id. 90, аre typical illustrative eases. But when the injury is the result of active wrong-doing chargeаble to the corporation, the municipality is liable to respond for special damages or injuries done. This is so, under a line of well considered cases in this cоurt, such as Kehoe v. Rutherford, 74 Id. 659; Jerolaman v. Belleville, 90 Id. 206; Doran v. City of Asbury Park, 91 Id. 651, applied to artificial drains diverting surface water from its course. Garrison v. Borough of Fort Lee, 92 Id. 566. Constructing a sanitary sewer with outlets into its storm water drain, which latter empties into a brook аt the head of plaintiff’s pond resulting in its pollution. Olesiewicz v. Gity of Camden, 100 Id. 336. Special damages resulting from the operation of a private, as distinguished from a public activity.
The trial resulted in a vеrdict for the plaintiffs for the sum of $3,250. The record shows, although the defendants were performing a public duty in constructing and operating the sewers and the disposal plant, thе evidence is plenary on which the jury could find and did find the defendants were committing an аctive wrong thereby causing special damage to the plaintiffs’ property. Exеmption of municipal corporations, under the cases above cited, dоes not extend to actions when the injury is the result of active wrong-doing. This disposes of the meritorious question involved in the cases and grounds of appeal numbers one аnd two; a refusal by the trial *421 court to nonsuit the plaintiffs or direct a verdict in favor of thе defendants.
The only other question argued is, the admission in evidence of the testimony оf a real estate agent, Irene I. Gilmore, on the question of the value of the rеal estate and the depreciation in value of the plaintiffs’ property, as a result of the construction of the sewage disposal plant. This is alleged as error in grounds of appeal Nos. 3, 4, 5, 6, 7 and 8; a refusal to strike out the testimony of Irene I. Gilmore are not argued. It was not prejudicial error to permit the witness Irene I. Gilmore to answer the questions as to value and depreciation of the property as stated above. The cases applying the test, qualifying a witness to testify, as an expert giving values of real estate will be found collected in the case of Ross v. Commissioners of Palisades Interstate Park, 90 N. J. L. 461. Other illustrative cases since the Ross ease are Robinson v. Borough of Edgewater, 98 Id. 205; In re Morris, &c., Dredging Co., 96 Id. 248, 254; Ridgewood Co. v. North Jersey District Water Supply Commission, ante, p. 165.
The testimony shows that the witness Irene I. Gilmore was a real estate broker for seven years. The field of her operations had been in Bergen county, particularly in Bergеn-field and Dumont. She had bought and sold properties in the neighborhood of and similar to the plaintiffs’ property. She had sold $200,000 worth of property within six blocks of the. sewage disposal plant, before it was in operation, and “quite a little” in the same areа after the plant was running. She qualified, as an expert, as to values of propеrties in that vicinity, under our cases above cited.
Binding no error in the record the judgment оf the Supreme Court is, therefore, affirmed.
For affirmance — The Chancellor, Chief Justice, TrenCHARD, KALISCH, BLACK, KaTZENBACH, CAMPBELL, LLOYD, Van Buskiek, Kays, Hetfield, Dear, JJ. 12.
For reversal — None.