ROSE TAYLOR VS. THE TOWNSHIP OF EWING (L-0098-15, MERCER COUNTY AND STATEWIDE) ( 2020 )

NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
This opinion shall not "constitute precedent or be binding upon any court." Although it is posted on the internet, this
opinion is binding only on the parties in the case and its use in other cases is limited. R. 1:36-3.
SUPERIOR COURT OF NEW JERSEY
APPELLATE DIVISION
DOCKET NO. A-4804-17T4
ROSE TAYLOR,
Plaintiff-Appellant,
v.
THE TOWNSHIP OF EWING,
a municipal corporation of the
State of New Jersey,
Defendant-Respondent,
and
MICHAEL MILAZZO, DAWN
MILAZZO, ROBERT SCOTT,
HOK-FAN SCOTT,
MARGARET STAHLIN, ROSALIE
TULAMELLO, KEVIN HOARN,
US BANK, NA, AS LEGAL TITLE
TRUSTEE FOR TRUMAN 2013 SC4
TITLE TRUST,
Defendants.
_______________________________
Argued October 10, 2019 – Decided August 7, 2020
Before Judges Nugent, Suter and DeAlmeida.
On appeal from the Superior Court of New Jersey, Law
Division, Mercer County, Docket No. L-0098-15.
George T. Dougherty argued the cause for appellant
(Katz & Dougherty, LLC, attorneys; George T.
Dougherty, of counsel and on the briefs).
Ryan Patrick Kennedy argued the cause for respondent
Township of Ewing (Stevens & Lee, PA, attorneys;
Ryan Patrick Kennedy, of counsel and on the brief;
Michael A. Cedrone, on the brief).
PER CURIAM
Plaintiff, Rose Taylor, appeals the summary judgment dismissal of her
complaint, which alleged defendant Township of Ewing failed to abate a
nuisance caused by surface water runoff that she alleges has rendered her home
uninhabitable. Because plaintiff developed no evidence on the summary
judgment motion record that creates a genuinely disputed issue of material fact
as to the Township's liability, we affirm.
In 1973, plaintiff and her late husband purchased their property on
Windybush Way in Ewing Township. Their lot was part of a subdivision
described as the "Briarwood Subdivision" on the plat filed with the County
Clerk. Their lot is currently designated as Block 571, Lot 16, on the Township's
tax map. The lot is located at the bottom of a hill in what has been described as
"bowl-shaped typography" surrounded on three sides by neighboring upland
A-4804-17T4
2
properties on lots 8, 9, 10, 15, and 17. In her complaint, plaintiff alleged that in
2009, thirty-six years after purchasing the lot, she began experiencing water
runoff and soil erosion that damaged her home's foundation and rendered the
home uninhabitable.
According to a survey conducted in 1976, two easements are plotted over
plaintiff's property. The first, a sewer easement, is owned and maintained by
the Ewing Lawrence Sewerage Authority. The second, an underground or
"subsurface" drainage easement, consisting of a catch basin and culvert pipe, is
owned and maintained by the Township. The culvert pipe runs from a storm
drain inlet on a nearby street, Tina Drive, across Block 571, Lots 10, 11, 12, and
16, Lot 16 being plaintiff's property. The culvert pipe leads to a storm basin on
Windybush Way and to a catch basin near the bottom of the bowl-shaped
topography in plaintiff's backyard.
The survey also shows that a surface-level drainage easement is located
on the property of upland neighbors fronting Mountainview Road. The
Township claims not to own this easement.1 The parties dispute the ownership
and maintenance of this easement.
1
The maps provided in the record are unclear and difficult to read. The parties
agree the surface easement exists.
A-4804-17T4
3
Between 2009 and 2014, upon plaintiff's request, multiple Township
representatives inspected the property and ultimately reconstructed the storm
drain inlet. The Township also inspected the properties of two upland neighbors
but found no evidence of interference or increased storm water runoff.
In 2015, plaintiff filed a complaint against the Township seeking, among
other things, injunctive relief to "restore its surface water collecting facility
situated on plaintiff's land, to a functioning state and to protect it against further
deterioration by reason of excessive water runoff." Plaintiff alleged that though
much of the damaging surface water entering her property fell outside the
Township's subsurface easement boundary, if the Township properly maintained
the area, it "would abate a considerable amount of water intrusion." In
subsequent amended complaints, plaintiff reiterated her claim the water trespass
was a "nuisance" on her property and she claimed the Township was liable under
the New Jersey Tort Claims Act (TCA), N.J.S.A. 59:1-1 to 12-3, for failing to
fix a "dangerous condition of public property." N.J.S.A. 59:4-2.
During discovery, plaintiff hired two engineering experts. They gave
similar opinions. One has since died. The other has opined that according to a
1973 drainage map the water runoff design had included "swales" to direct the
surface water to the proper inlet destination. The swales on the upslope property
A-4804-17T4
4
were now "absent." The expert found this was the direct cause of the water
overflow to unintended parts of plaintiff's property. Although the expert
determined the damage to plaintiff 's home was caused by surface water rather
than ground water, he concluded the Township's failure to abate the uncontrolled
water discharge onto her property led to increased hydrostatic pressure against
the foundation of the home causing severe structural damage. Specifically, the
expert reported:
It is my observation that the surface water runoff
pattern remains unchanged and that the opinions stated
in my February 6, 2017 certification letter still hold
true.
Specifically, surface water runoff from the
neighboring properties continues to be directed onto
[plaintiff's] back and side yards. This surface water is
coming from the three neighboring properties to the
rear of [plaintiff's] property that slope and drain toward
her property. The three adjoining properties [are] . . .
tax map lots 8, 9 and 10 on block 571 respectively[].
Each of these properties slope from Mountainview
Road down toward the rear property line of [plaintiff's]
property, and toward the property lines of her neighbors
....
During my March 31, 2017 inspection, I observed
that the stormwater runoff from the Mountainview
properties continues to flow directly over the property
lines onto each of the downslope Windybush Way
properties. This is due to the absence of the swales that
are shown on the 1973 Briarwood Drainage Plan and on
A-4804-17T4
5
the deed of . . . Lot 9[], and as reported by [another]
engineer . . . .
I have also reviewed the reports and findings of
Robert Weatherford, P.E., and they agree with my own
findings and conclusions. The water infiltration, wall
cracking, and wall failure of [plaintiff's] foundation
walls was caused by excessive water and soil pressure
bearing against these walls.
The piezometric monitoring that was performed
and recorded by Mr. Weatherford showed that the local
water table does not rise above the elevation of the
basement slab. Therefore, the water infiltration
through the foundation walls, and the failure of the
walls, was caused [sic] not caused by ground water, but
instead surface water.
In summary, I agree with Mr. Weatherford's
conclusions that, to a reasonable degree of engineering
probability, that the increasing amounts of impervious
surfaces added to the Mountainview properties and the
missing swales caused a surface water runoff problem
that should have been addressed by Ewing Township in
a timely manner.
The Township's expert agreed the damage to plaintiff's home was caused
by surface water but believed the Township had properly maintained its
subsurface easements. The expert also noted that though the water runoff did
not flow to the intended inlet in plaintiff's yard, there was no evidence that
plaintiff, as a consequence of living at the bottom of a slope, had ever attempted
to mitigate the damages by re-grading her property or maintaining the swales.
A-4804-17T4
6
The Township filed a motion for summary judgment. Addressing the
Township's liability for failure to maintain the surface drainage easement, the
court found the Township had no duty to maintain the easement or swales
thereon because it never "accepted" the easement. As the Township had never
accepted an easement on the surface, but the maps showed an easement did in
fact exist, the court concluded plaintiff, as the benefiting estate, was the
dominant estate who had the obligation to maintain it:
In terms of the nature and scope of the easement,
the [map] says, well, you can't plant anything in it other
than grass. All right. And as is already stated, the
owner of the easement has the obligation to maintain it,
who owns it.
If it's an easement without owner, then it doesn't
seem to me that it's an easement at all. Here, the
Township says they don't want it. [Plaintiff] says she
doesn't want it. There's nobody else in the world who
would want it.
....
This easement goes along the back yard of the
property, not accessible to the public. Can't say it's for
the public use or that it was ever applied for public use.
If you accept the argument that the reason for these
drainage easements was to have swales so that they
would funnel the water to the catch basin where the
grate is on the ground surface to be able to carry away
the water, well, the benefit of having that would be the
property owner downhill, which is [plaintiff].
A-4804-17T4
7
It's to her benefit or the property's benefit, if she
-- if not the general public. So if she's the one who's
the beneficiary of having these swales, then it's very
easy to say that if she's a beneficiary estate, then she's
the dominant estate.
And she would have the . . . obligation to
maintain it. . . .
The court also rejected plaintiff's nuisance theory:
Here, it's been argued that it's a nuisance because
the grading of the properties makes it so the water runs
across her property. But without there being some
construct like a water pipe or a swale that all of a
sudden directed it there without her consent, then there
isn't any nuisance by way of an ordinance.
The swale, of course, was supposed to funnel
water onto her property, because that's where the catch
basin was, but that's the way the property was built.
That's the way the easements were on the property. So
she must have consented to those swales. So the fact of
those swales would not have been a nuisance.
The court found there were no genuine issues of material fact in dispute
and granted the Township's summary judgment motion. Plaintiff appealed from
the ensuing order.
Plaintiff presents the following argument points for our consideration:
POINT I
MOTION JUDGE COMMITTED PLAIN ERROR BY
AFFIRMING RESPONDENT EWING TOWNSHIP'S
RESTRICTIVE INTERPRETATION OF ITS WATER
A-4804-17T4
8
NUISANCE ORDINANCE TO APPLY ONLY TO
WATER DELIVERED ACROSS PROPERTY LINES
BY PIPE OR SWALE AND NOT TO PROHIBIT
WATER OVERFLOWING [FROM] DEFECTIVE
STORM WATER DRAINAGE SWALES ONTO
ADJACENT PROPERTIES.
POINT II
NEITHER THE LAW DIVISION'S IN LIMINE
RULING AS TO THE MEANING OF EWING'S
NUISANCE ORDINANCE NOR ITS SUMMARY
JUDGMENT THAT EWING DOES NOT OWN THE
SURFACE DRAINAGE EASEMENT,
EXONERATES EWING FROM ITS COMMON LAW
LIABILITY TO PLAINTIFF FOR ITS FAILURE TO
ABATE AN ACTIVE, DAMAGING COMMON LAW
WATER NUISANCE CAUSED OR CONTRIBUTED
TO BY EWING'S NEGLIGENT MAINTENANCE
AND REPAIR OF ITS ADMITTED SUBSURFACE
DRAINAGE SYSTEM AND FOR ITS FAILURE TO
REQUIRE THIRD PARTIES (IF NOT ITSELF) TO
RESTORE THE COMPROMI[S]ED SURFACE
DRAINAGE SWALE AND ITS CONNECTION TO
THE CATCH BASIN ALLOWING ITS
SUBSURFACE SYSTEM TO FUNCTION.
THEREFORE THE LAW DIVISION COMMITTED
REVERSIBLE ERROR BY GRANTING SUMMARY
JUDGMENT DISMISSING PLAINTIFF'S
COMPLAINT WITHOUT A PLENARY HEARING
AS TO THE MANY DISPUTED MATERIAL FACTS
AND WITHOUT SETTING FORTH THE FACTS
AND LAW WHICH JUSTIFIED DOING SO.
POINT III
MOTION COURT COMMITTED REVERSIBLE
ERROR BY ENTERTAINING AND GRANTING
A-4804-17T4
9
EWING TOWNSHIP'S MOTION FOR SUMMARY
JUDGMENT DESPITE CLEARLY IDENTIFIED
CONTESTED ISSUES OF MATERIAL FACTS
BEARING ON THE COURT'S DECISION AS TO
WHETHER THE BRIARWOOD SURFACE
EASEMENTS WERE AN INTEGRAL PART OF A
SINGLE SYSTEM RATHER THAN TWO
SEPARATE SYSTEMS AND WHETHER EWING
EVER HAD AN ACTUAL DEED OF DEDICATION,
AND WHETHER EWING WAS NEGLIGENT IN ITS
MANAGEMENT OF THE SUBSURFACE SYSTEM
AND IN ITS RECONSTRUCTION.
POINT IV
APPELLATE DIVISION SHOULD EXERCISE ITS
ORIGINAL JURISDICTION AUTHORITY TO
REMEDY THE FAILURE OF THE RESPONDENT
TO CALL TO THE MOTION JUDGE'S ATTENTION
ORDINANCE §215-62A (10) (a) BY WHICH EWING
TOWNSHIP WAS PROVIDED THE RIGHTS-OF-
WAY OVER BRIARWOOD'S SURFACE AND
SUBSURFACE STORM DRAIN EASEMENTS AND
ITS REASONS FOR NOT WITHDRAWING OR
EXPLAINING WHY SAID PROVISION IS NOT
PERTINENT TO DETERMINING THE OWNERSHIP
OF THE BRIARWOOD DRAINAGE EASEMENT
RIGHTS OF WAY.
We affirm, substantially for the reasons expressed by the trial court
concerning the easements for the swales on the upslope properties. We add the
following brief comments.
A public entity's liability for a nuisance "is recognized [as a dangerous
condition of property] under the [TCA]." Russo Farms v. Bd. of Educ., 144 N.J.
A-4804-17T4
10
84, 98 (1996) (first alteration in original) (quoting Birchwood Lakes Colony
Club, Inc. v. Borough of Medford Lakes, 90 N.J. 582, 593 (1982)). The
controlling statute, N.J.S.A. 59:4-2, sets forth the elements a plaintiff must
establish to hold a public entity liable for a "dangerous condition" of "its"
property. The TCA defines "public property" as "real or personal property
owned or controlled by the public entity, but does not include easements,
encroachments and other property that are located on the property of the public
entity but are not owned or controlled by the public entity." N.J.S.A. 59:4 -1.
"[R]egulatory control is insufficient to establish control within the
meaning of N.J.S.A. 59:4-1c." Posey ex rel. Posey v. Bordentown Sewerage
Auth., 171 N.J. 172, 183 (2002). Rather, "possessory control consistent with
property law is necessary." Ibid. The element of "possessory control is satisfied
where a public entity treats private property as its own by using it for public
purposes." Id. at 184. In Posey, the Court held that because an "alleged
integrated storm-water drainage system reasonably could be found to exist[,]"
the purpose of which "was to remove excess water from public property," a goal
"allegedly . . . achieved by directing the water onto private property[,]" resulting
in the creation of a dangerous condition on the private property, the public entity
A-4804-17T4
11
could be held liable for damages proximately caused by the dangerous condition.
Id. at 185.
Plaintiff's efforts to bring the facts of the case before us within the
precepts of Posey is unavailing. The swales plaintiff's expert identified as the
cause of plaintiff's problems were not on public property. The facts plaintiff
developed on the motion record, even when construed in a manner most
favorable to her, Brill v. Guardian Life Ins. Co. of Am., 142 N.J. 520, 540
(1995), do not support an inference the swales were part of the Township's
integrated surface water drainage system, the purpose of the swales was to divert
excess water from public property, or that excess water diverted from public
property was discharged onto plaintiff's property. Summary judgment was
appropriate. Ibid.
Plaintiff's remaining arguments are without sufficient merit to warrant
further discussion. R. 2:11-3(e)(1)(E).
Affirmed.
A-4804-17T4
12