Borough Of Westville v. Whitney Home Builders, Inc.

122 A.2d 233 (1956)

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Nature of the Case

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Facts

P owns a public park containing a pond, and people use the pond for recreational purposes. Whitney (D) has been engaged in the construction of a residential development. D incorporated Woodbury Terrace Tract Corp., as a sewerage company, for the purpose of collecting, treating and disposing of the house sewage of the homes in the development. A sewage treatment plant geared to handle and treat the sewage from 300 homes was constructed. The liquid effluent of the treated sewage empties into a pond which, with part of the ditch, is situated in P’s principal park. Both the ditch and the pond originate in natural watercourses fed by surface waters. The pond averages two to three feet in depth and is now about 500 feet in length. It has been used for many years by the public for skating in winter and by boys for fishing and, occasionally, wading in summer. Since the construction of the park, it has been a recreational center of D. There are benches around the pond and basketball and baseball play areas. It is the locale for all public patriotic exercises and the situs of memorials for veterans of both world wars. A newly erected schoolhouse is situated west of the park, near the pond. The effluent is fit for drinking or swimming, and there is no odor. P filed for an injunction to stop the effluent. Tests made April 7, 1955, after three months of operation of the plant, showed a bacteria count for the effluent vastly lower than for the water at various locations in the stream and pond, and this was also true as to the B coli index. The trial court denied it, and P appealed.