Armstrong v. Francis Corporation

Supreme Court of New Jersey · 1956 · Property

120 A.2d 4 (1956)

Updated July 23, 2026

Propertysurface watersdrainagenuisance/tort-like land-use liabilitysurface watercommon enemy rulecivil law rulereasonable use

Facts

A natural stream drained an 85-acre area, including Francis Corporation's 42-acre tract south of Lake Avenue in Rahway. Francis developed its tract into a housing project, installed streets and a drainage system, and routed runoff through an underground pipe laid along the former stream bed to the Lake Avenue culvert, eliminating visible evidence of the natural stream on its land. The system increased the water discharged north of Lake Avenue by channeling runoff more rapidly, adding some water from another drainage area, and collecting percolating groundwater through pipe joints designed for that purpose. As the water then crossed the Armstrong and Klemp properties in a mostly natural channel, it caused constant increased flow, foul and silty conditions, flash flooding, bank erosion, and damage to the Klemp culvert.

Issue

Whether a land developer is absolutely privileged to concentrate and discharge surface waters into a natural drainway as an incident of improving its land, even when the discharge materially increases flow and causes substantial downstream harm. More specifically, the court had to decide whether New Jersey should continue to treat such harm as non-actionable under a broad common-enemy approach or instead apply a reasonable use standard.

Rule

A possessor of land may make a reasonable use of the land even though that use alters the flow of surface waters and causes some harm to others, but incurs liability when the harmful interference with the flow of surface waters is unreasonable. Reasonableness is a fact question determined from all relevant circumstances, including the amount of harm caused, the foreseeability of the harm, the purpose or motive of the actor, and whether the utility of the use outweighs the gravity of the harm.

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One of 10 multiple-choice questions for this case. Pick an answer to see why.

In Columbus, Ohio, Meadow Crest Builders cleared and paved a 30-acre tract for a townhouse project. Its new drains collected stormwater and released it into an existing swale that crossed Lena Ortiz’s backyard, causing repeated bank sloughing and several washouts after ordinary storms that had not previously caused damage.

If Lena sues for the drainage damage, which is the strongest argument against the builder’s claim that it is automatically privileged because the water was discharged into a natural swale?

Explanation. The governing rule is reasonable use. A possessor may alter surface water flow in improving land, but incurs liability when the harmful interference is unreasonable under all the circumstances. The majority rejected an absolute privilege based solely on the fact that the water was sent to a place it otherwise would have flowed.