                                  NOT FOR PUBLICATION WITHOUT THE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
