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Westville v. Whitney Home Builders, Inc. - 40 N.J. Super. 62, 122 A.2d 233 (Super. Ct. App. Div. 1956)

Rule:

N.J. Rev. Stat. § 58:12-3 expressly requires State Department of Health approval of any sewage treatment plant from which the effluent is to flow into any of the waters of the state. It is common knowledge that effluent from a sewage treatment plant must have an outlet in running waters. It is significant that N.J. Rev. Stat. § 58:10-5, which prohibits the discharge into any fresh water (defined as water which may be used for human consumption) of sewage, excremental matter, domestic refuse or other polluting matter, expressly excepts from its proscription the "effluent or other matter" discharged from a sewage disposal or treatment plant approved by the State Department of Health. Moreover, N.J. Rev. Stat. § 58:10-10 deals with the regulation and approval by the Department of sewage disposal or treatment plants whose effluent is discharged into "any of the potable waters of this state." Each of these enactments gives the Department the right to bring legal action for penalties and injunctions to enforce its control.

Facts:

Plaintiff Borough of Westville adjoined the Township of Deptford. Defendant Whitney Home Builders ("Whitney") was constructing a residential neighborhood in Deptford, and as part of the project, Whitney's affiliated sewage company, defendant Woodbury Terrace Tract Corp., built a treatment plant for the sewage generated by the residences in the neighborhood. The liquid effluent of the treated sewage ultimately flowed through Westville and emptied into a pond located within Westville's principal park. Westville filed an action against defendants in New Jersey state court alleging the effluent was inherently offensive and interfered with its rights as a lower riparian owner. Westville sough injunctive relief as a lower riparian proprietor for restraint against a private nuisance in common waters; it sought money damages as well. The trial court rendered judgment for defendants and denied Westville injunctive relief, finding that Westville's grievance was one solely "psychological or aesthetic" in nature, and not, as such, the appropriate subject of injunctive relief. Westville appealed.

Issue:

Was the effluent inherently offensive and interfered with Westville's rights as a lower riparian owner?

Answer:

No.

Conclusion:

The appellate division held that Westville had the right to sue as a riparian proprietor. However, the court affirmed the trial court's decision. The court held that Westville could not rely on the inherent offensiveness of sewage effluent, no matter how well treated and free of impurities. The court applied a rule based on reasonable use of water by riparian owners. The court noted that the evidence in the record was that the effluent did not contain harmful bacteria or other pollutants and was not particularly odorous. The court held that discharge of sewage effluent into a stream was not a per se unreasonable use and that Westville had not proven any unreasonableness. The court noted that should Whitney's future operation of the sewage plant unreasonably affect use of the park, nothing in the p[resent case would preclude future relief for Westville.

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