67 N.J. Eq. 468 | New York Court of Chancery | 1904
The complainant is the owner of a tract of land in the township of Belleville, in the county of Essex, lying east of Linden avenue and north of Joralemon street, which he has caused to be laid out in lots upon a map, showing a proposed street fifty feet in width, designated thereon as Essex street, the southerly line of which commences three hundred feet northerly from the north line of Joralemon'street, and runs from Linden avenue easterly to Washington street, nearly all of the lots adjoining Essex street having frontage on that street. One lot on the southeast corner of Linden avenue and Essex street has been sold-by the complainant, and in the deed of conveyance is described as adjoining Essex street. No other lots appear to have been sold from the tract, nor does it appear that the
It appears in the bill of complaint, and the -affidavits verifying the same, that about twenty years ago the township of Belleville began to open and grade a number of streets to the south and west of the complainant’s property and on higher ground, and has since continued the making of such improvements; that the streets running north and south so opened are Washington street, to the east of the complainant’s land, and Linden avenue- and Ilornblower avenue to the west, the latter streets being on much higher ground than the complainant’s property; that another street so opened and running east and west, intersecting the three last streets named, is Joralemon street. It further appears that previous to the opening of these streets there was a well-defined depression in the earth, following generally the course of Essex street, which received such of the surface water falling on the higher lands as would, by the 'natural configuration of the land, drain into it, and when so received flowed along the depression through what is now Essex street to a point about eight hundred feet westerly of Washington street, where it emptied into a stream, which at that point had its rise in a living spring. After these improvements were made most' of 'the surface water 'col
As this case now appears, it is the intention of the defendants to gather together large quantities of surface water which have been forced out of their natural channels by the necessary improvement of the locality into Joralemon street, along which it now flows, and to carry it by artificial means to, and empty it upon, the complainant’s property, a proceeding which I conceive to be contrary to his rights. I am satisfied that the discharging of this water into Essex street will overflow and injure lands of the complainant not within the lines of Essex street, and that even if they have the right, because of complainant’s dedication of 'Essex street, to consider it as a public highway, with the power to grade or improve, that right will not permit the carrying out of a scheme for the collection and diversion of surface water in such a manner as to certainly cast it upon lands of an adjacent owner. Field v. West Orange, 36 N. J. Eq. (9 Stew.) 118; Scule v. Passaic, 47 N. J. Eq. (2 Dick.) 28. I also find that, as this ease now stands, no such acceptance of Essex street by the public authorities has been shown as will justify them in using the lands within the street limits as a receptacle for sur