98 N.J. Eq. 373 | N.J. | 1925
This is an appeal from an order of the court of chancery, granting a preliminary injunction. Complainants, a husband and wife, own a twenty-six-acre farm in Delaware township, Camden county. It is bounded on two sides by embankments, one of which was constructed for the laying out of Chapel avenue, and the other is an embankment of the Pennsylvania Railroad Company. The slope of the ground, consequently the natural drainage of the surface water, on this farm is from east to west. In November, 1922, complainants *374 sold to the defendant a triangular tract constituting the easterly and higher portion of the farm. The latter commenced the improvement of his parcel by the erection of dwelling-houses thereon. For more convenient access to these houses a road was built along the three-hundred-yard boundary between the land sold to the defendant and that remaining in the ownership of the complainants. The fill necessary to the construction of this road acted as a dam, and impounded such surface water as the topography of the ground would otherwise have caused to flow onto complainants' farm. To release this water, and so prevent a washout of the road, the defendant inserted two terra-cotta drain pipes in the fill. The measurements of these pipes do not appear from the record.
It is complainants' contention that before the erection of the fill and the installation of the drain pipes, the rain water flowing from one parcel to the other disappeared through natural seepage. At the present time, however, the increased flow of water is flooding their land and making it unfit for cultivation or pasturage. In this situation the court below enjoined defendant from using the aforesaid drain pipes or in any other way causing the surface water to be drained upon the ground of the complainants, "except as it used theretofore or anciently to flow."
This, we think, to have been error. The general rules of law governing the ordering of a preliminary injunction are too long and too well settled to require any restatement or elaboration at this time. They are reiterated, and the opinion of Chief-Justice Beasley, speaking for this court in Citizens Coach Co. v.Camden Horse Railway Co.,
The proofs do not indicate that any district other than the defendant's tract has been drained. The averment, with regard to used water from the houses, is so couched as to have reference entirely to future probabilities. There has been, then, no increase in the whole volume of water flowing upon complainant's land. Nor is there any showing that there has been a change in the direction of the surface water. Further, the defendant, in his answer, states his willingness to add to the two original drain pipes by installing a "greater number."
It is true, of course, that the use of any artificial channels, such as the drains, in the case at bar, prevents the natural spread of the surface water and disturbs the uniformity of its flow. To the extent, then, that it is so gathered, its velocity and volume at any particular place is increased. Equally, such acceleration and unusual quantity may be too great to permit the absorbent qualities of the soil to dispose of the water by seepage at such place. We have seen that the defendant has offered to indefinitely increase the number of drain pipes. It seems clear, therefore, that the affirmance of the order involvesex necessitate a holding that any concentration of the natural flow of surface waters in artificial channels — if accompanied by the necessary irreparable injury — presents a case for injunctive relief. There seems to be some color in our cases for such a ruling. We are not, however, prepared to make it upon a bill for a preliminary injunction.
The law of surface waters is largely arbitrary and free from decisive principles. 27 R.C.L. § 68 et seq. Three distinct doctrines in respect to the problem presented by the case at bar seem to obtain and to have found support in the decided cases. That adopted from the Roman and civil law creates a servitude between adjoining proprietors, by which the lower proprietor is bound to receive the waters which naturally flow from the estate above, and, in turn, the upper proprietor must not prevent such waters from reaching his neighbor below in the usual manner.Pardessus Traite des Servitudes 86, pp. 119, 120; Pinkstaff v.Steffy,
The cases above cited indicate clearly that this court has given its sanction to Chief-Justice Beasley's original declaration of the "common enemy" doctrine (Jessup v. BamfordBros., supra), at any rate so far as it applies to the turning back of water by the lower proprietor (Bowlsby v. Speer,
The order of the court of chancery granting a preliminary injunction is reversed.
For affirmance — KALISCH, KATZENBACH, VAN BUSKIRK, KAYS, JJ. 4.
For reversal — THE CHIEF-JUSTICE, TRENCHARD, PARKER, MINTURN, BLACK, CAMPBELL, LLOYD, WHITE, GARDNER, CLARK, McGLENNON, JJ. 11.
