| N.J. | Feb 15, 1894
The opinion of the court was delivered by
The courts of this state have said in conclusive form that the neglect of a municipal corporation to perform or its negligence in the performance of a public duty imposed on it by law, is a public wrong to be remedied by indictment, and cannot constitute the basis of a civil action by an individual who has suffered particular damage by reason of such neglect. Strader v. Sussex, 3 Harr. 108 ; Cooley v. Essex, 3 Dutcher 415; Livermore v. Camden, 5 Id. 245; Callahan v. Morris, 1 Vroom 161; Livermore v. Camden, 2 Id. 507; Pray v. Jersey City, 3 Id. 394; Union v. Durkis, 9 Id. 21 ; Marvin Safe Co. v. Ward, 17 Id. 19; Condict v. Jersey City, Id. 157; Little v. Dusenbury, Id. 614, 636; Wild v. Paterson, 18 Id. 406, 411; Varrath v. Hoboken, 20 Id. 285.
The doctrine of these cases is that where the public has been wronged there is but one redress, viz., the public remedy by indictment. Where, however, such public misfeasance has resulted not in the creation of a public nuisance for which an indictment would lie, but solely in the infliction of a private injury to the property of an individual, the remedy therefor is by a civil action by the party damnified. Jersey City v. Kiernan, 21 Vroom 246.
It follows that, in any given case of special damage, the •question as to the right of civil action is narrowed down to •the inquiry whether such damage is or is not part of a public wrong for which an indictment would lie.
An examination of the statement of facts certified shows that the sewer maintained by the defendants on Kinney street was not at all times of sufficient capacity to vent the water that reached it through the transverse sewers, and that in consequence of this neglect the public highway upon which the {plaintiff abutted was overflowed. It is evident, therefore,
This being so, there is, upon the authorities above cited, no-private right of action in the plaintiff.
The circumstance that the plaintiff gave notice to the municipal authorities of the condition of the sewer and of its injury to her property, cannot affect the question. Where an-exclusively private nuisance has resulted from this sort of official negligence, the public authorities may still owe no duty to an individual until they have been notified by him of the condition injurious to his private rights. In such case the efficacy of the notice is not to change a public into a private injury, but is merely to put the public authorities in-wrong, if, with knowledge of the misfeasance of their agents,, they permit the private nuisance to continue beyond the time reasonably necessary for its removal. Jersey City v. Kiernan, supra.
But where the private injury is not exclusive of a public-nuisance, notification is of no avail to the individual.
The Circuit Court should be advised that, in the case before-it, a public nuisance was occasioned by flooding the highway,, for which an indictment would lie, and that so long as this is-the situation' it is the only remedy, and that a notice by the landowner injured does not make the malfeasance actionable-by civil suit. -,