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.

NOT FOR PUBLICATION WITHOUT THE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.
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A-4804-17T4

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 
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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.
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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
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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 
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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. 
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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]. 
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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 
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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 
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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-OFWAY 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. 
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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 
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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.