                                NOT FOR PUBLICATION WITHOUT THE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-0943-19T4

RICHARD LAFFERTY and
PAMELA LAFFERTY, and
RICHARD LAFFERTY and
PAMELA LAFFERTY, as
TRUSTEES OF THE RICHARD
LAFFERTY LIVING TRUST
DATED DECEMBER 8, 2008
with a 50% interest, and PAMELA
LAFFERTY and RICHARD
LAFFERTY as TRUSTEES OF
THE PAMELA LAFFERTY
REVOCABLE LIVING TRUST
DATED DECEMBER 8, 2008 with
a 50% interest, as tenants in common,

          Plaintiffs-Respondents,

v.

JULIAN ANTEBI and HILARY
A. BURKE,

          Defendants-Appellants,

and

GREG FONTAINE, d/b/a A&E
CONSTRUCTION and MAPLE
TREE FARM LANDSCAPING,
INC.,

     Defendants.
_____________________________

             Argued December 9, 2019 – Decided February 21, 2020

             Before Judges Sumners, Geiger and Natali.

             On appeal from an interlocutory order of the Superior
             Court of New Jersey, Law Division, Mercer County,
             Docket No. L-0452-10.

             Robert E. Levy argued the cause for appellants
             (Scarinci & Hollenbeck, LLC, attorneys; Robert E.
             Levy, of counsel and on the briefs; Rachel E. Simon, on
             the briefs).

             W. John Weir, II, argued the cause for respondents
             (Weir Attorneys, attorneys; W. John Weir, II, of
             counsel and on the briefs; George Herbert Flammer, Jr.,
             on the briefs).

PER CURIAM

        On leave granted, defendants Julian Antebi and Hilary Burke appeal from

five Law Division orders in this protracted litigation between adjoining

landowners involving claims of nuisance and trespass caused by water runoff.

More specifically, they seek reversal of: (1) a March 29, 2016 order requiring

defendants to produce a plan by a licensed engineer that will eliminate all

drainage and runoff of water onto property owned by plaintiffs Richard Lafferty,

Pamela Lafferty, and a related Living Trust, from specified sources; (2) a March

                                                                        A-0943-19T4
                                        2
24, 2017 order granting plaintiffs interim relief requiring defendants to fill in a

swale1 in their backyard within forty-five days, disconnect all downspouts from

piping that directs water to the area of a sump pump discharge, and move the

current sump pump discharge location to a point within ten feet of the current

sump pump discharge; (3) an August 9, 2019 order requiring defendants to

excavate soil profile pits and conduct soil permeability testing within twenty

days in the area in which storm water infiltration is proposed, have their expert

prepare a report of his or her findings and recommendations, and requiring

plaintiffs to set forth any written objections to defendants' corrective plan within

ten days of receipt; (4) a September 27, 2019 order denying reconsideration of

the August 9, 2019 order and other relief; and (5) an October 4, 2019 order

denying a stay of the August 9, 2019 and September 27, 2019 orders.

                                         I.

      This case arises out of a dispute between neighbors who own adjacent

residential properties in the Borough of Pennington. In August 2011, plaintiffs

filed a seven-count amended complaint, averring that defendants increased


1
  "A swale is a linear topographic depression, either naturally occurring or of
human construction, which . . . convey[s] surface water runoff from the
surrounding upland areas." In re Freshwater Wetlands Gen. Permits, 372 N.J.
Super. 578, 587 n.6 (App. Div. 2004).


                                                                            A-0943-19T4
                                         3
drainage and water runoff onto plaintiffs property as a result of the addition and

improvements defendants constructed in 2005, causing a nuisance and trespass

to plaintiffs' real property. 2 In response, defendants denied the allegations and

filed counterclaims for nuisance and trespass to real property, alleging that

plaintiffs altered the natural flow of drainage and water runoff, causing flooding

and damage to defendants' property. The counterclaims were premised upon

plaintiffs' May 2006 and October 2009 alterations to their land. Defendants

claimed that plaintiffs' "un-engineered attempts to prevent water from crossing

over their property caused defendants' property to be the basin in which all of

the neighborhood storm water collects, without an exit."

      The trial court conducted an eight-day bench trial in September 2015, with

the issues limited to plaintiffs' and defendants' claims of trespass and nuisance .

Both parties presented expert engineering testimony.

      After the parties rested, the court directed them to submit proposed

findings of fact and conclusions of law. The court entered an October 8, 2015

order directing defendants to produce all records of municipal approvals for the

addition to their home. Intervening motion practice delayed the trial court's


2
   In their amended complaint, plaintiffs also asserted claims for invasion of
privacy, slander, and intentional infliction of emotional distress. Those claims,
and the claims against the other defendants, were resolved prior to trial.
                                                                           A-0943-19T4
                                        4
decision. On March 4, 2016, the judge conducted a site inspection of the parties'

properties.

      Ultimately, the court issued a March 29, 2016 order (the No Water order)

and twenty-page opinion. The court made the following findings of fact. A

140-foot long storm water easement in favor of the Borough, located on 12 Abey

Drive, parallels the property line with plaintiffs' property. A concrete culvert

that is a component of the Borough's storm water system, is located on 12 Abey

Drive approximately forty feet from plaintiffs' property.

      After observing water on their property near its border with defendants'

property in September 1986, plaintiffs contacted Borough officials who sent the

Borough's engineer to examine the property. The engineer discovered that the

water build-up resulted from a sump pump on defendants' property.

      In 1987, plaintiffs built a sixty-five-foot long planter constructed of wood

and railway ties near the property line, with the intent to divert water away from

their property. In 1991, plaintiffs extended the planter forty-five feet towards

the rear of their property. The extension included subsurface drainage pipes

designed to collect water and discharge it near the edge of the concrete culvert.

      In 1997, plaintiffs constructed an addition onto their home and diverted

drainage pipelines to more directly carry the water to the concrete culvert.


                                                                          A-0943-19T4
                                        5
Plaintiffs averred that their addition complied with all building codes and zoning

ordinances. Plaintiffs acknowledged that from 1991 to 2005, the planter and

subsurface drainage pipes worked satisfactorily, removing the water emanating

from defendants' sump pump.

      During the summer of 2005, defendants built an addition onto the rear of

their home.    As a result of the construction and subsequent landscaping,

defendants made the following changes to their property: (1) the sump pump

discharge was relocated to approximately twelve feet from the parties' property

line and further to the rear of defendants' property; (2) defendants connected the

leaders and gutters on the new addition to PVC pipes that discharged water at

the same place as the sump pump, increasing water runoff; (3) a swale was

excavated on the upside of defendants' property that flowed into a PVC pipe that

discharged water at the same place as the relocated sump pump; (4) another

swale was excavated along the rear of defendants' property that collected water

from 18 Abey Drive and channeled it to the rear of plaintiffs' property beyond

the end of the planter; and (5) defendants spread the excavated dirt, increasing

the slope of their property towards plaintiffs' property.

      In May 2006, plaintiffs installed a twelve-foot long PVC ground drain

approximately four feet from parties' property line, which was connected to the


                                                                          A-0943-19T4
                                        6
existing piping, to limit flooding on their property. Railway ties were installed

behind the ground drain. Finally, in October 2009, plaintiffs elevated part of

their front yard approximately twelve inches to divert water away from their

property to the street.

      The court noted that plaintiffs' expert, Gary Gartenberg, testified that

construction of the swale on the upside of defendants' property , along with

connecting it and the roof leaders and gutters to the underground drainage

system, discharged excess water at the relocated sump pump discharge point,

significantly increasing runoff. Water drainage through the swale also increased

drainage and runoff, creating a flooding problem on plaintiffs' property. The

work done by defendants in 2005 affected the natural flow of water, increased

the runoff, and concentrated the discharge at two points—the end of the swale

and the relocated sump pump discharge.

      Gartenberg opined that all the 2005 site improvements made by

defendants should be removed and defendants' property should be restored to its

prior condition to remediate the flooding on plaintiffs' property. This included

removal of the underground piping, ground drains, swales, and excavated soil

from defendants' property.




                                                                         A-0943-19T4
                                       7
      The court noted that defendants' expert, Walter Wysowaty, testified that

the increase in the impervious surface area caused a negligible increase storm

water runoff. He confirmed that plaintiffs' property is the low point in the

neighborhood and that water that runs across the property discharges into the

drainage ditch and concrete culvert.

      The trial court concluded that plaintiffs proved a prima facie case of

trespass to real property and nuisance entitling them to equitable relief. In

reaching that determination, the court found plaintiffs demonstrated that

defendants made the changes to their property in the course of adding an addition

in September 2005 that increased drainage and runoff of storm water onto

plaintiffs' property. These changes included:

            (1) Relocating the discharge point of the sump pump
            and thereby increasing the drainage and water runoff
            onto [p]laintiffs' property;

            (2) Connecting new and pre-existing ground drains and
            roof leaders to the sump pump, which increased
            drainage and water runoff onto [p]laintiffs' property;

            (3) Creating swales to direct the flow of drainage and
            water runoff which increased the amount of drainage
            and water runoff onto [p]laintiffs' property;

            (4) Re-grading their land thereby increasing the slope
            of their property and increasing drainage and water
            runoff onto [p]laintiffs' property; and


                                                                         A-0943-19T4
                                       8
            (5) Increasing the impervious surface area of the roof
            drainage, which increased drainage and water runoff
            onto [p]laintiffs' property.

      The court concluded:

                   By increasing the amount of drainage and water
            runoff onto [p]laintiffs' property, defendants have
            engaged in a pattern of continuing trespass from
            September 2005 to the present time, which has limited
            [p]laintiffs' right to quiet enjoyment of their property.
            The court also finds [d]efendants['] actions contributed
            to the increased flow of drainage and water runoff onto
            [p]laintiffs' property, which resulted in an unreasonable
            interference with their land.

      Regarding defendants' counterclaims, the court found:

            Defendants have not put forth a prima facie case of
            trespass to real property and/or nuisance. Therefore the
            [c]ourt cannot grant equitable relief to [d]efendants at
            this time. Defendants have not quantified the amount
            of water originating from adjoining properties. The
            [c]ourt notes that [d]efendants acknowledged at trial
            that they made the above-mentioned changes to their
            property, which increased the amount of drainage
            and/or water runoff onto [p]laintiffs' property.

      The trial court ordered defendants to produce a detailed plan prepared by

a licensed engineer that "will eliminate all drainage and runoff of water onto the

[p]laintiffs' property" caused by defendants' 2005 modifications to their

property.




                                                                          A-0943-19T4
                                        9
      On May 24, 2016, the court appointed engineer Steven J. Morris, P.E.,

R.S., as a neutral expert to review the plans prepared by the parties' respective

engineering experts to remedy the flooding problem. Morris analyzed the plans,

met with the parties, and visited the site on December 9, 2016. On March 15,

2017, Morris issued his report to the court. Relevant here, the report stated:

            Given the historic and current topography in the
            vicinity of the subject properties, [i]t is not reasonable
            or practical to eliminate all storm water flow from 16
            Abey to 14 Abey. However, steps must be taken to
            prevent [i]ncreased volume, [i]ntensity and/or
            concentration of storm water flow from 16 Abey to 14
            Abey.

Morris reiterated this point during his testimony:

            I think it's important to understand that for a long
            history water has flowed across the site, across 16 on
            14. It will still continue to do that. And for everything
            to work properly it's important that the owners on 14
            don't change the topography, build more walls, do
            anything that's going to inhibit that water flow. So the
            water can continue to flow as it always did, across 14
            and – [o]ff 16, across 14 and into the regional system,
            which is the culvert and the swale to the northeast.

Because the flow of water could not be completely eliminated, Morris opined:

            The Storm Water Management Plan For 16 Abey Drive,
            . . . prepared by Hopewell Valley Engineering, PC
            appears to reasonably accomplish the requirement to
            eliminate increased flow rate of storm water runoff
            discharging from the property of 16 Abey onto the
            property of 14 Abey which results from the house

                                                                         A-0943-19T4
                                       10
               addition and site modifications made at 16 Abey in
               September 2005.

Morris testified that Hopewell Valley Engineering, PC (Hopewell), had a two-

part plan to remedy the flooding. First, Hopewell sought to install an "Aquablox

water system," a water "detention system,"

               which is essentially a big box in the ground that will
               collect the storm water, hold it there until that water can
               be either leached into the ground, or in the event of
               severe rains will allow some of that water to overflow
               and discharge down-slope towards 14 [Abey Drive] or
               onto 14 [Abey Drive].

Second, Hopewell intended to divert water collected by a "side swale"

defendants created in 2005 while constructing the addition to their home, to the

"back of [defendants'] property, then let it flow towards the plaintiffs'" property.

The swale that Hopewell proposed to construct would "move that water that

comes from 18 Abey Drive into the side swale to the back of [defendants']

property" and then towards plaintiffs', where it would eventually transition to

the culvert.

      Soil permeability tests were also performed on defendants' property.

According to Morris:

               The soil permeability data upon which the system has
               been designed is based upon two (2) sample locations,
               Log 1 and Log 3. The reported permeability rates for
               each are Log 1 — 0.3 [inches per hour] and Log 3 —

                                                                             A-0943-19T4
                                          11
            0.2 [inches per hour]. The system is located at Log 2
            where no permeability data is provided. The design
            appears to assume that the higher permeability rate will
            also be found at Log 2. If this is not the case, the system
            will not perform as intended. I suggest that one of the
            following steps to be taken to improve the likelihood of
            successful operation of the system:

            (1) Relocate the system to Log 1 location.

            (2) Field verify the permeability of the soils at the
            proposed location of the system. If necessary, increase
            the depth of excavation at that location to achieve the
            required permeability.

            (3) Resize the system using the more conservative
            permeability based upon Log 3 — 0.2 [inches per hour].

      On March 24, 2017, the trial court granted plaintiffs' motion for interim

relief and further ordered that within forty-five days defendants:

            shall fill in the [side] swale in the backyard created in
            2005 by filling with topsoil to a height which shall be
            equal with the immediately surrounding area and shall
            seed the new topsoil and cover with straw so as to
            prevent erosion; . . . that defendants shall disconnect all
            downspouts from piping which directs water to the area
            of the current sump pump discharge and shall insure
            that ground water from the existing underground piping
            no longer enters the pipes; . . . [and] that defendants
            shall move the current sump pump discharge location
            to a point within [ten] feet of where the pipe exits the
            foundation of the house and shall run the pipe to
            daylight.

Defendants complied with this order.


                                                                          A-0943-19T4
                                       12
      Subsequently, plaintiffs built an "un-engineered" wall near the parties'

property line. According to a certification by Hopewell's president, Russell M.

Smith, P.E., P.P., he

            observed that in July and August, 2018 plaintiffs made
            modifications to their property which in my
            professional opinion now substantially inhibits the
            natural flow of surface stormwater flow from 16 Abey
            Drive to 14 Abey Drive. In addition, the unilateral
            changes to plaintiffs' property may have caused the
            plans under review to be obsolete and moot, especially
            since the [d]efendants have, pursuant to an interim
            Order, filled in and removed the rear swale,
            disconnected the downspouts and changed the exit
            point of the sump pump discharge.

      At this point, defendants advocated for Hopewell's plan to remedy the

flooding while the plaintiffs advocated for a plan by Trenton Engineering

Company, Inc. (Trenton Engineering). During a March 12, 2019 hearing, Smith

testified that Hopewell's plan was to first install an Aquablox system that would

be able to hold the extra storm water created by defendants' addition to their

home and sustain a one-hundred-year-storm, draining in seventy-seven hours

after the occurrence. Hopewell also proposed adding a swale, "designed to carry

the water down the western side of [defendants'] house . . . across to the east

towards the back of their property." Then the proposed swale would "direct[]

all of the water that would come across . . . towards the back of [plaintiffs']


                                                                         A-0943-19T4
                                      13
property." Smith concurred with Morris' suggestion to move the Aquablox

system to Log 1 and agreed that no permeability test was performed at Log 2.

        Plaintiffs argued that the Hopewell plan was inadequate to comply with

the No Water order; to counter Smith's testimony they retained consulting soil

expert Steve Dadio. His testimony focused on the three soil tests performed on

defendants' property. Dadio recommended further soil testing be performed to

determine whether the Aquablox system could work on plaintiffs' property. In

his opinion, it would be better to manage the soils "on the entirety of

[defendants'] property." This included characterizing the different soil layers,

conducting permeability tests, collecting soil samples for topsoil fertility

analysis, and doing soil bulk density measurements, all to create a hydraulic

profile showing "where the different infiltration rates and the different depths

are."

        Joe Mester, P.E., P.L.S., of Trenton Engineering, testified that the plan he

prepared for plaintiffs, was a "two[-]tier system." First, he designed a swale

running along the southerly line that would catch all of the water from the south

and divert it to the front and, if possible, have the captured water flow onto the

front yard and then run to the street. Second, Mester proposed a small pump

chamber at the southern end of defendants' property that would pump the water


                                                                            A-0943-19T4
                                        14
into the proposed swale, which would also divert that water to the front yard.

However, without further soil testing, he did not know whether the pump

chamber could be smaller, could go deeper, and would have better infiltration.

As a result, Mester agreed with Dadio that further soil testing should be done on

defendants' property.

      Mester further testified that his design was meant to comply with the No

Water order. He criticized Hopewell's plan because "it was not designed to

implement the [No-Water] order," meaning it did not "prevent all . . . storm

water from going from [defendants'] property to [plaintiffs'] property."

      Conversely, Smith "strongly disagreed" with Trenton Engineering's plan.

He found the plan "directly contradict[ed] the natural patterns of drainage in this

area. It essentially turns [defendants'] property into a neighborhood storm water

basin and it disturbs the entire property and does not address the 2005 addition."

      In a subsequent August 9, 2019 order, the trial court directed "that soil

profile pits and permeability testing shall be conducted in the area in which

storm water infiltration is proposed within twenty (20) days of the en try of this

[o]rder." It further directed

            that upon completion of the soil testing, the soil
            professional shall prepare a report for the [c]ourt
            detailing his or her findings and further
            recommendations for soil remediation so as to provide

                                                                           A-0943-19T4
                                       15
            sufficient permeability such that an appropriate final
            plan can be implemented to eliminate drainage and
            runoff from 16 Abey Drive onto 14 Abey Drive as per
            the [c]ourt's prior [o]rder. The [d]efendants must
            include all drainage of the water runoff from the swell.

The court concluded there was no other way it could proceed, stating:

                  There is clearly an issue regarding an
            underground hanging water table. 3         Unless it is
            determined and measurements are taken by the
            appropriate engineers and experts, the plan which is
            proposed may not be complete because the -- some of
            the calculations may change and require modifications,
            corrections and/or changes to the plan to remediate this
            matter.

      Defendants moved for reconsideration.        They also sought an order

directing: (1) Hopewell to inspect plaintiffs' land modifications made in the

summer of 2018; and (2) plaintiffs to provide any report created by Hopewell

and their inspection of those modifications. On September 27, 2019, the court

denied all of defendants' requests. Finally, on October 4, 2019, the court denied

defendants' motion to stay the August 9 and September 27 orders.




3
  A hanging or perched water table occurs when there is an impermeable layer
of rock or sediment above the primary water table but beneath the surface of the
ground. Perched water is groundwater in a saturated zone separated from the
main water table by the impermeable layer. Webster's Third New International
Dictionary, 1675 (1971).
                                                                         A-0943-19T4
                                      16
      We granted defendants' emergent motion for leave to appeal, to stay the

trial court's order, and to supplement the record.

      On appeal, defendants argue: (1) the No Water order and its progeny are

legally invalid; (2) plaintiffs do not contest that the "reasonable use doctrine"

governs this dispute; and (3) defendants' request to use the municipal culvert is

reasonable.

                                        II.

                                        A.

      Our review of the factual findings made by the trial court following a non-

jury trial is limited. State v. Frank, 445 N.J. Super. 98, 105 (App. Div. 2016)

(citing State v. Locurto, 157 N.J. 463, 470-71 (1999)). "[W]e do not weigh the

evidence, assess the credibility of witnesses, or make conclusions about the

evidence." Mountain Hill, LLC v. Twp. of Middletown, 399 N.J. Super. 486,

498 (App. Div. 2008) (quoting State v. Barone, 147 N.J. 599, 615 (1997)). Nor

do we "disturb the factual findings and legal conclusions of the trial judge unless

we are convinced that they are so manifestly unsupported by or inconsistent with

the competent, relevant and reasonably credible evidence as to offend the

interests of justice[.]" Seidman v. Clifton Sav. Bank, S.L.A., 205 N.J. 150, 169




                                                                           A-0943-19T4
                                       17
(2011) (alteration in original) (quoting In re Tr. Created By Agreement Dated

Dec. 20, 1961, ex rel. Johnson, 194 N.J. 276, 284 (2008)).

      Our task is to determine whether "there is substantial evidence in support

of the trial judge's findings and conclusions." Rova Farms Resort, Inc. v. Inv'r

Ins. Co. of Am., 65 N.J. 474, 484 (1974) (citation omitted); accord In re Tr.

Created By Agreement, 194 N.J. at 284.         Legal conclusions, however, are

reviewed de novo.     State v. Ghandi, 201 N.J. 161, 176 (2010); see also

Manalapan Realty, LP v. Twp. Comm. of Manalapan, 140 N.J. 366, 378 (1995)

(we owe no deference to a trial court's "interpretation of the law and the legal

consequences that flow from established facts").

                                       B.

      In deciding whether the record supports the trial court's determination that

defendant is liable on nuisance and trespass theories, we are guided by

established case law and the Restatement (Second) of Torts, (Am. Law Inst.

1979) (Restatement). See Perez v. Wyeth Labs., Inc., 161 N.J. 1, 14-15 (1999)

(recognizing the complementary role of the Restatements of law with common

law); see also Ross v. Lowitz, 222 N.J. 494, 506, 510 (2013) ("[o]ur courts have

adopted the standard of Restatement section 822 to assess liability for private




                                                                          A-0943-19T4
                                      18
nuisance" and "also apply the Restatement's standard of liability where a

plaintiff pursues a trespass claim").

      "Trespass and private nuisance are alike in that each is a field of tort

liability rather than a single type of tortious conduct. In each, liability may arise

from an intentional or an unintentional invasion." Restatement § 821D cmt. d.

Further, "the flooding of the plaintiff's land, which is a trespass, is also a

nuisance if it is repeated or of long duration." Id. at cmt. e.

      Our Supreme Court recently discussed liability for trespass and nuisance

caused by flooding. In Ross, the plaintiffs asserted claims for private nuisance

and trespass when heating oil leaked onto their residential property from a

storage tank located on their neighbor's residential property. 222 N.J. at 497.

The Court began its analysis of plaintiff's nuisance claim with the general rule

set forth in section 822 of the Restatement 4:

             One is subject to liability for a private nuisance if, but
             only if, his conduct is a legal cause of an invasion of
             another's interest in the private use and enjoyment of
             land, and the invasion is either

             (a) intentional and unreasonable, or

             (b) unintentional and otherwise actionable under the
             rules controlling liability for negligent or reckless

4
  Section 822 has not been changed by the Restatement (Third) of Torts (Am.
Law Inst. 2005). Ross, 222 N.J. at 505 n.7.
                                                                             A-0943-19T4
                                        19
            conduct, or for abnormally dangerous conditions or
            activities.

            [Id. at 505.]

      As the Ross Court explained, "an 'intentional but reasonable' or 'entirely

accidental' invasion does not trigger liability under a private nuisance theory."

Id. at 506 (quoting Restatement § 822 cmt. a). Rather, a claim of private

nuisance is predicated on the "unreasonable interference with the use and

enjoyment" of another's land. Id. at 505 (citations omitted); Smith v. Jersey

Cent. Power & Light Co., 421 N.J. Super. 374, 389 (App. Div. 2011). Thus, "an

actor is [not] liable for accidental interferences with the use and enjoyment of

land but only for such interferences as are intentional and unreasonable or result

from negligent, reckless or abnormally dangerous conduct." Ross, 222 N.J. at

506–07 (quoting Restatement § 822 cmt. b); see also Birchwood Lakes Colony

Club, Inc. v. Medford Lakes, 90 N.J. 582, 591-92 (1982).

      Regarding intent, section 822 of the Restatement refers to section 825,

which defines an intentional invasion of property as one where the actor "(a)

acts for the purpose of causing it, or (b) knows that it is resulting or is

substantially certain to result from his conduct." However, comment (d) to

section 825 of the Restatement explains that "the first invasion resulting from

the actor's conduct may be either intentional or unintentional; but when the

                                                                          A-0943-19T4
                                       20
conduct is continued after the actor knows that the invasion is resulting from it,

further invasions are intentional." See Smith, 421 N.J. Super. at 389 (same); see

also Restatement § 8A cmt. a ("intent" as used in the Restatement "has reference

to the consequences of an act rather than the act itself").

      Here, although the trial court cited section 822 of the Restatement, it did

not explicitly state whether defendants' conduct was "intentional and

unreasonable" under subsection (a), or "unintentional" and "negligent" or

"reckless" under subsection (b). Instead, it found that by increasing drainage

and runoff onto plaintiffs' property, defendants "engaged in a pattern of

continuing trespass from September 2005 to the present time, which has limited

[p]laintiffs' right to quiet enjoyment of their property" and "resulted in an

unreasonable interference with their land."

      It appears the trial record supports a finding that defendants' initial surface

water "invasion" of plaintiffs' property was unintentional. Accordingly, the

issue of defendants' liability could turn on their conduct after they were made

aware of the resulting impact. See Restatement § 825 cmt. d.

      The trial court is also required to determine whether defendants' actions

were reasonable.     In Armstrong v. Francis Corp., the Court declared its

adherence to the "reasonable use rule," and elicited the following factors for


                                                                             A-0943-19T4
                                        21
court's to consider: "the amount of harm caused, the foreseeability of the harm

which results, the purpose or motive with which the possessor acted, and all

other relevant matter." 20 N.J. 320, 329-30 (1956). The court should also

address section 826 of the Restatement, which provides:

            An intentional invasion of another's interest in the use
            and enjoyment of land is unreasonable if

            (a) the gravity of the harm outweighs the utility of the
            actor's conduct, or

            (b) the harm caused by the conduct is serious and the
            financial burden of compensating for this and similar
            harm to others would not make the continuation of the
            conduct not feasible.

      Further, Rule 1:7-4(a) requires a trial court to "find the facts and state its

conclusions of law thereon in all actions tried without a jury." Such findings

are of "critical importance" to "both the trial and appellate process." Pressler &

Verniero, Current N.J. Court Rules, cmt. 1 on R. 1:7-4(a) (2020). The trial court

must also generally state its credibility findings even where they "may not be

susceptible to articulation in detail." Ibid. (citing Locurto, 157 N.J. at 474).

      In rendering its decision, the trial court did not assess the credibility of

the experts or other witnesses or determine the relative weight to be given to

their respective testimony and reports. Absent such findings, we are effectively



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prevented from determining whether "there is substantial evidence in support of

the trial judge's findings and conclusions." Rova Farms, 65 N.J. at 484.

      We further note that the trial court did not discuss the report or testimony

of the court appointed engineering expert, Morris. His report concluded that

given the past and present topography of the subject properties and surrounding

vicinity, "[i]t is not reasonable or practical to eliminate all storm water flow

from 16 Abey [Drive] to 14 Abey [Drive]." During his testimony, Morris noted

that historically, water had flowed across 16 Abey Drive onto 14 Abey Drive

and would continue to do so. He opined that "for everything to work properly

it's important that [plaintiffs] don't change the topography, build more walls, do

anything that's going to inhibit that water flow" so that "the water can continue

to flow as it always did, . . . [o]ff 16 [Abey Drive], across 14 [Abey Drive] and

into the regional system, which is the culvert and the swale to the northeast. "

Morris concluded that the Storm Water Management Plan for defendants'

property prepared by Hopewell Valley Engineering "appears to reasonably

accomplish the requirement to eliminate increased flow rate of storm water

runoff discharging from [defendants'] property . . . onto [plaintiffs'] property . .

. which results from the house addition and site modifications made at 16 Abey

[Drive] in September 2005."


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      Morris' report and testimony indicate that the requirements imposed by

the No Water order are unachievable and the goals of the order unrealistic. Our

ability to review the No Water order and subsequent orders is severely hampered

by the failure to evaluate and give appropriate weight to Morris' report and

testimony.

      From this record we are unable to determine whether the trial court's

findings and conclusions of law are supported by substantial credible evidence

in the record. Further, we cannot discern whether defendants' conduct was either

intentional and unreasonable or unintentional and negligent or reckless. Nor are

we the trier of fact, which is normally entrusted to make such assessments . See

e.g., Hitesman v. Bridgeway, Inc., 218 N.J. 8, 31 (2014).           We are thus

constrained to reverse the trial court's orders and remand this matter.

      On remand, the trial court shall make credibility findings and determine

the appropriate weight to be given to the testimony of the witnesses and the

experts' opinions.    The court shall also determine the intentionality of

defendants' conduct as defined in section 825 of the Restatement. The court

shall then apply the factors set forth in Armstrong and section 826 of the

Restatement to determine reasonableness under the "reasonable use" test. In




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doing so, the court should also balance the utility of defendants' conduct with

the resulting harm to plaintiff. Armstrong, 20 N.J. at 330; Restatement § 825.

      On remand, the trial court shall also reevaluate the dismissal of

defendants' counterclaims based on its findings.       This reevaluation should

include addressing defendants' trespass to the property and nuisance claims

pertaining to plaintiffs' 2018 modifications to their property.

      Reversed and remanded. We do not retain jurisdiction.




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