NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-3835-12T3

NEW JERSEY DEPARTMENT OF

ENVIRONMENTAL PROTECTION,

Plaintiff-Respondent,

v.

ALLOWAY TOWNSHIP and

COUNTY OF SALEM,

Defendants-Respondents/

Cross-Appellants,

and

WILLIAM R. COBB,

Defendant-Appellant/

Cross-Respondent.

_________________________________________________

Submitted October 7, 2014 – Decided

Before Judges Messano, Ostrer and Hayden.

On appeal from the Superior Court of New 

Jersey, Law Division, Salem County, Docket 

No. L-95-08.

Holston, MacDonald, Uzdavinis, Ziegler & 

Lodge, attorneys for appellant/crossrespondent William R. Cobb (William F. 

Ziegler, on the brief).

John G. Hoffman, attorney for 

respondent/cross-appellant Alloway Township.

APPROVED FOR PUBLICATION

January 2, 2015

APPELLATE DIVISION

January 2, 2015
2 A-3835-12T3

Michael M. Mulligan, Salem County Counsel, 

attorney for respondent/cross-appellant 

County of Salem.

John J. Hoffman, Acting Attorney General, 

attorney for respondent State of New Jersey 

Department of Environmental Protection 

(Lewis A. Scheindlin, Assistant Attorney 

General, of counsel; Daniel A. Greenhouse, 

Deputy Attorney General, on the brief).

The opinion of the court was delivered by

MESSANO, P.J.A.D.

In this appeal we are called upon to construe provisions of 

the Safe Dam Act (the "SDA"), N.J.S.A. 58:4-1 to -14, a statute 

enacted upon the Legislature's specific finding "that the 

condition of many dams, lakes, and streams throughout the State 

has been deteriorating at an alarming rate due to a chronic lack 

of maintenance," and "that these conditions have led to the 

collapse of dams, polluted lakes, stream flooding and property 

damage to homes, businesses, lake communities and public 

utilities." N.J.S.A. 58:4-11. The SDA casts a "broad net" of 

liability, New Jersey Department of Environmental Protection v. 

Mercer County Soil Conservation District, 425 N.J. Super. 208, 

221 (Ch. Div. 2009), so that its remedial purpose -- "to protect 

the public from the loss of life and property in the event a dam 

fails, regardless of whether it is privately or publicly owned"

-- is served. Id. at 218.
3 A-3835-12T3

Under the SDA, the Commissioner (the Commissioner) of the 

Department of Environmental Protection (DEP) is vested with 

sweeping regulatory and enforcement powers. See, e.g., N.J.S.A.

58:4-3 (permitting the Commissioner to request surveys and plans 

of dams and reservoirs); N.J.S.A. 58:4-4 (permitting the 

Commissioner to inspect any dam or reservoir); N.J.S.A. 58:4-

5(b), (d) (granting the Commissioner broad remedial powers 

regarding unsafe dams, including the power to enter onto lands 

and remove the dam).

The SDA also imposes significant obligations upon "[a]n 

owner or person having control of a reservoir or dam." N.J.S.A.

58:4-5(a) (emphasis added). Such person must "[i]mplement all 

measures" required by the SDA or its accompanying regulations, 

provide any reports or information requested by DEP, and 

"[i]mplement any action ordered by the Commissioner" to rectify 

unsafe conditions. N.J.S.A. 58:4-5(a)(1)-(3). 

The Commissioner is vested with broad enforcement powers 

whenever the SDA, "or any rule or regulation adopted, or permit 

or order issued pursuant thereto" is violated. N.J.S.A. 58:4-

6(a). The remedies available to the Commissioner are numerous 

and include the right to file a summary civil action seeking 

injunctive relief, costs and civil penalties. N.J.S.A. 58:4-

6(c).
4 A-3835-12T3

In this case, DEP filed a civil enforcement action alleging 

violations of the SDA by defendants William R. Cobb, the County 

of Salem (the County) and Alloway Township (the Township) 

(collectively, defendants).1 At issue was defendants' 

involvement with the Cobb's Mill Dam (the dam), a 288-foot 

earthen structure that forms a private lake, Cobb's Mill Lake, 

in the Township, and along the top of which runs a paved road, 

Cobb's Mill Road.

All parties moved for summary judgment. Chancery Judge 

Anne McDonnell granted DEP summary judgment on its amended 

verified complaint and denied defendants' motions. She entered 

an interlocutory order thereafter, apportioning the costs of 

compliance among the three defendants, sixty-five percent to the 

County, twenty-five percent to Cobb, and ten percent to the 

Township. After carefully considering the specific penalties 

requested by DEP, Judge McDonnell entered judgment in favor of 

DEP and ordered defendants to pay civil penalties totaling 

 

1 Since none of the appellants contest DEP's right to bring the 

action, or its entitlement to the relief accorded by the judge, 

we do not elaborate upon the factual and procedural history that 

preceded the commencement of the enforcement action. 
5 A-3835-12T3

$19,250, apportioned $7312.50 to the County, $7932.50 to Cobb, 

and $4005 to the Township.2

Cobb appeals and argues that the SDA does not apply to him, 

the "mere owner" of the lake bed without any authority to 

"'control, operate or maintain'" the dam in question. He argues 

that the County is solely responsible because it owns the right 

of way in which Cobb's Mill Road is situated. 

In its cross-appeal, the County argues that material 

factual disputes regarding its contacts with and control of the 

dam should have foreclosed summary judgment. In particular, the 

County argues that the judge mistakenly found as a fact that 

title to the public right of way for Cobb's Mill Road vested 

with the County pursuant to a document recorded in the late 19th 

century.

In its cross-appeal, the Township argues that since it 

never "maintained, managed, operated or controlled the 

 

2 All civil penalties under the SDA are deposited in the 

Environmental Services Fund and appropriated to DEP for the 

removal of dams in the state. N.J.S.A. 58:4-6(j); N.J.A.C.

7:20-2.8. In a single sentence in its brief, the County states 

that it "cannot be determined to have the lion's share of 

responsibility for remedial activity or sanctions." It provides 

no legal argument why the judge mistakenly exercised her 

discretion in fixing and apportioning the penalty. An issue 

that is not briefed is deemed waived upon appeal. Fantis Foods 

v. N. River Ins. Co., 322 N.J. Super. 250, 266-67 (App. Div. 

2000); Pressler & Verniero, Current N.J. Court Rules, comment 4 

on R. 2:6-2 (2015).
6 A-3835-12T3

structure," it cannot be responsible for any violations of the 

SDA. The Township further contends that since the County 

installed the structures appurtenant to the roadway, including a 

culvert for spill-off from the lake, the County is solely 

responsible for compliance with the SDA. 

DEP urges us to affirm in all respects the orders entered 

by Judge McDonnell. It argues that because Cobb owns the lake 

and historically maintained the dam, the County owns the "bridge 

and culverts" that are part of the dam, and the Township owns 

and maintains the road, all defendants are responsible for the 

dam structure and any concomitant violations of the SDA.

We have considered these arguments in light of the record 

and applicable legal standards. We affirm.

I.

In reviewing a grant of summary judgment we "'employ the 

same standard . . . that governs the trial court.'" W.J.A. v. 

D.A., 210 N.J. 229, 237 (2012) (quoting Henry v. N.J. Dep't of 

Human Servs., 204 N.J. 320, 330 (2010)). We first determine 

whether the moving party demonstrated there were no genuine 

disputes as to material facts. Atl. Mut. Ins. Co. v. Hillside 

Bottling Co., 387 N.J. Super. 224, 230 (App. Div.), certif. 

denied, 189 N.J. 104 (2006). 

[A] determination whether there exists a 

"genuine issue" of material fact that 
7 A-3835-12T3

precludes summary judgment requires the 

motion judge to consider whether the 

competent evidential materials presented, 

when viewed in the light most favorable to 

the non-moving party, are sufficient to 

permit a rational factfinder to resolve the 

alleged disputed issue in favor of the nonmoving party.

[Brill v. Guardian Life Ins. Co. of Am., 142 

N.J. 520, 540 (1995).]

We confine our review to the same record that existed before the 

motion judge. Ji v. Palmer, 333 N.J. Super. 451, 463-64 (App. 

Div. 2000).

We then decide "whether the motion judge's application of 

the law was correct." Atl. Mut. Ins. Co., supra, 387 N.J. 

Super. at 231. In this regard, "[w]e review the law de novo and 

owe no deference to the trial court . . . if [it has] wrongly 

interpreted a statute." Zabilowicz v. Kelsey, 200 N.J. 507, 512 

(2009) (citing Manalapan Realty, L.P. v. Twp. Comm., 140 N.J.

366, 378 (1995)).

A.

The motion record regarding defendants and their 

involvement with the dam, sometimes described as a bridge in the 

record, and its appurtenant structures was largely undisputed. 

Cobb owns several parcels of land on Cobb's Mill Road, and 

he has held many public offices and appointed positions in the 

municipality and the County. The land has been in his family 
8 A-3835-12T3

since 1705, and Cobb's home and active saw mill are on parcels 

that are adjacent to the dam. During his deposition, Cobb 

testified that he owned the land beneath the dam and all the 

land on both sides of it, as well as all the land surrounding 

Cobb's Mill Lake. Additionally, in a 2000 letter to DEP, Cobb 

said that he was the owner of the dam.

Cobb surmised the dam was built by his ancestor Elisha 

Dilks, sometime in the early 1800s, and the structure was known 

for some time as the Dilks' Mill Dam. A recorded document from 

1876, the import of which was in dispute, set courses for the 

construction of a road over the dam, indicating that at that 

time, the dam was owned by Calvin Dilks, Cobb's relative. A 

document in the record dated September 20, 1923, entitled "Dams 

in New Jersey – Reference Data," lists a business, "Thomas Cobb 

& Sons," as the owner of the dam, and states that the dam was 

rebuilt in 1903 by the County and Calvin Dilks. Cobb testified 

that his business, Cobb's Mill, LLC, is the successor to Thomas 

Cobb & Sons. 

Cobb also testified that he has looked after the dam on an 

almost daily basis, operating the flood gates to control the 

water level in the lake, inspecting for cracks and, on occasion, 

making minor repairs. He mows the grass on both sides of the 

road and the lake-side embankment of the dam. On occasion, Cobb 
9 A-3835-12T3

plows snow from Cobb's Mill Road when the Township is too slow 

in responding.

In his deposition, Alloway Township public works director 

Kenneth McKelvey testified that the Township never maintained 

the dam. McKelvey believed that Cobb was responsible for 

opening and closing the dam's flood gates and "maintaining the 

land around the dam." McKelvey conceded, however, that the 

Township maintained Cobb's Mill Road and routinely patched 

potholes and applied sealant to the roadway. The Township also 

received grant money from the State to repave the road, which it 

last did in 2009. 

Since at least the early twentieth century, the County has 

maintained portions of the dam. In 1923, the County placed "new 

caps and abutment planks on the dam," and then replaced the 

planks with steel pipes in 1932. In 1988, the Board of Chosen 

Freeholders passed a resolution remedying "a potentially 

dangerous situation" at the lake and approving "the installation 

of a . . . [c]ulvert with a new valve type structure [to] 

decrease the potential danger for downstream residents and 

County structures." The resulting structure, known as "Cobb's 

Mill Sluice," was installed about ten years after Cobb was 

forced to cut a trough through Cobb's Mill Road during a flood 

to prevent the road from entirely washing away.
10 A-3835-12T3

As noted, the import of a January 1876 recorded document 

was disputed. The document records an "[a]pplication . . . made 

to the Court by Gerald Hitchner and others more than 10 

Freeholders and residents of the County of Salem who think a 

public road to be necessary in the Township of Upper Alloway 

Creek in said County." The document sets forth a metes and 

bounds description for a proposed road, and reflects a 

recommended "assessment of damages to the . . . owners of the 

land taken for the laying out of the aforesaid road." The 

document further states that those sums would be paid by the 

"inhabitants" of the Township. 

Cobb asserted that the document amounted to the creation of 

a public right-of-way over the dam, and the road, therefore, was 

owned by the County. The County steadfastly maintained that the 

document did not create any public right of way in favor of the 

County, but rather reflected the then-existing practice of 

permitting municipal residents to petition a court to lay a 

public road, thereby making Cobb's Mill Road a municipal, not 

County, road.

B.

After considering oral arguments of the parties on the 

various motions for summary judgment, in a written opinion Judge 

McDonnell concluded that all defendants were "owners or persons
11 A-3835-12T3

in control of a dam or reservoir within the meaning of the 

[SDA]." The judge reasoned:

The County has accepted responsibility for 

the culvert over the years. The Township's 

road and the supporting embankments are the 

sole reason for the existence of the

County's bridge/culvert. Both the County 

and the Township have control of the rightof-way and each has the right to remove 

structures. Because the County and the 

Township have control of the right-of-way 

and the structures within it, each is a 

person in control of the Cobb[']s Mill Dam.

Mr. Cobb has legal and beneficial 

ownership of Cobb[']s Mill Pond. As the 

owner of the lake bed, Mr. Cobb is the owner 

of a reservoir within the meaning of the 

[SDA]. Further, Mr. Cobb has exercised 

control over the embankments and dam over 

the years. Mr. Cobb is an owner and a 

person in control over the dam or reservoir 

within the meaning of the [SDA]. 

[T]he history and legal title of the dam 

itself are irrelevant, as the clear 

legislative purpose of the amendments is to 

cast a broad net of responsibility that 

includes owners and persons in control of a 

dam or reservoir. 

[(Citations omitted).]

After considering further oral arguments regarding the 

penalty to impose and how it should be apportioned, Judge 

McDonnell issued the order for judgment referenced above, 

together with a bench memorandum explaining the apportionment. 

She stayed payment of the penalties pending resolution of this 

appeal.
12 A-3835-12T3

II.

We first consider Cobb's argument that he cannot be 

responsible for violations of the SDA because, although he owned 

the land upon which the dam was situated, as well as the bed of 

the reservoir of water created by the dam, he lacked any control 

over the dam's structure or the roadway and was not responsible 

for maintaining them. Cobb relies primarily upon the Chancery 

Division's decision in Mercer County, supra, 425 N.J. Super. at 

208.

In that case, DEP brought an enforcement action against 

private property owners upon whose lands two publicly-funded 

dams were constructed fifty years earlier, and which were 

subject to easements in favor of public entities providing 

access for maintenance of the dams. Id. at 215-217. DEP argued 

the defendants, as owners of the servient estates, were "owners" 

of the dam for purposes of the SDA. Id. at 217. The Chancery 

judge disagreed.

Interpreting the SDA's use of the phrase "owner or person 

having control of a reservoir or dam," the judge reasoned,

There are two reasonable ways to interpret 

this language. One interpretation is to read 

the word "owner" separate from the phrase 

"person having control," in which case being 

an owner of the land could make you the 

owner of any improvements upon the land even 

if you had no control thereof. While an 

otherwise perfectly acceptable 
13 A-3835-12T3

interpretation under the common law, there 

are plenty of exceptions to which this 

do[es] not hold true, including utilities 

transmission wires, sewer pipes, and 

telephone poles; such items are more often 

than not located in or on private easements, 

but are not considered to be owned by the 

underlying property owner. The second 

possible interpretation, then, is to read 

the words "owner or persons having control" 

together as one phrase, such that either the 

owner who has control or another person 

having control would be responsible for the 

improvements upon real property. This 

construction implies that having control is 

a necessary element of being an "owner" 

under the statute.

[Id. at 220.]

The judge found further support in DEP's own regulation, which 

defines "[o]wner and/or operator" as "any person who owns, 

controls, operates, maintains, manages or proposes to construct 

a dam." N.J.A.C. 7:20-1.2.

The judge then listed four factors to be considered in 

determining whether a person was an "owner" for purposes of the 

SDA:

(1) The nature and extent of any legal title 

to the underlying real property;

(2) Whether the alleged owner constructed or 

participated in the structure's 

construction;

(3) Whether the alleged owner controls, ever 

controlled, or participated in the control 

of the structure to more than a de minimis

extent; and
14 A-3835-12T3

(4) Whether the alleged owner has legal 

authority to exercise control of the 

structure.

[Id. at 223.]

The judge held that the defendants were "not owners or persons 

having control of the subject dams or reservoirs as contemplated 

by the [SDA]," and he dismissed DEP's complaint. Id. at 223.

Cobb argues that application of these four factors to this 

case should have resulted in summary judgment in his favor. We 

need not consider the merits of that argument. We conclude that 

the court in Mercer County erred in construing the terms "owner 

or person having control of a reservoir or dam" as used in the 

SDA. In that limited regard, we respectfully overrule the 

decision.

Our analysis begins by noting that "[i]n statutory 

interpretation, a court's role 'is to determine and effectuate 

the Legislature's intent.'" State ex rel. K.O., 217 N.J. 83, 91 

(2014) (quoting Allen v. V & A Bros., 208 N.J. 114, 127 (2011)). 

The first step in divining legislative intent is to consider the 

statute's plain language, Town of Kearny v. Brandt, 214 N.J. 76, 

98 (2013), which "should be given its ordinary meaning and be 

construed in a common-sense manner." K.O., supra, 217 N.J. at 

91. "[W]e must examine that language sensibly, in the context 

of the overall scheme in which the Legislature intended the 
15 A-3835-12T3

provision to operate[.]" N.J. Dep't of Envtl. Prot. v. Huber, 

213 N.J. 338, 365 (2013). Additionally, we may consider "the 

interpretation and cognate enactments of the agency to which the 

Legislature has entrusted the statute's implementation." Ibid.

 Courts are further guided by "the bedrock assumption that 

the Legislature did not use any unnecessary or meaningless 

language." Jersey Cent. Power & Light Co. v. Melcar Util. Co., 

212 N.J. 576, 587 (2013) (quoting Patel v. N.J. Motor Vehicle 

Comm'n, 200 N.J. 413, 418-19 (2009)) (internal quotation marks 

omitted). We therefore presume that each of the statute's words 

means something and "'is not mere surplusage.'" Ibid. (quoting 

Cast Art Indus. v. KPMG LLP, 209 N.J. 208, 222 (2012)). 

The SDA compels compliance from "[a]n owner or person 

having control of a reservoir or dam." N.J.S.A. 58:4-5(a)

(emphasis added). A common sense reading of this language 

indicates there are four classes of people who are subject to 

the statute: (1) dam owners; (2) reservoir owners; (3) those 

who control the dam; and (4) those who control the reservoir. 

It follows that if a party fits into any one of those
16 A-3835-12T3

categories, the Commissioner may seek enforcement of the SDA 

against that person.3

The Chancery Division's construction of the statute in 

Mercer County implied that, to be brought under the enforcement 

umbrella of the SDA, a person must have more than legal 

ownership of a dam or reservoir. Such person also must have 

constructed or exercised some degree of control over the dam or 

reservoir, or have had the legal authority to exercise control. 

Mercer County, supra, 425 N.J. Super. at 223. The commonsense 

understanding of the word "owner" does not support that 

interpretation. See Black's Law Dictionary 1214 (9th ed. 2009) 

("An owner may have complete property in the thing or may have 

parted with some interests in it (as by granting an easement or 

making a lease)."). Additionally, by interpreting the SDA's use 

of the term "owner" to necessarily include qualities similar to 

that of a "person in control," the court in Mercer County

conflated two separate statutory terms, thereby rendering the 

phrase "owner" surplusage. 

Moreover, even though it chose to use the disjunctive "or,"

the Legislature did not mean that either the "owner" or "the 

person in control," but not both, could be subject to DEP's 

 

3 DEP's regulations define "person" as "any individual, 

proprietorship, partnership, association, corporation, 

municipality, county or public agency." N.J.A.C. 7:20-1.2.
17 A-3835-12T3

enforcement action. See United States v. Woods, __ U.S. __, 134 

S. Ct. 557, 567, 187 L. Ed. 2d 472, 484 (2013) ("[T]he operative 

terms are connected by the conjunction 'or.' While that can 

sometimes introduce an appositive -- a word or phrase that is 

synonymous with what precedes it ('Vienna or Wien,' 'Batman or 

the Caped Crusader') -- its ordinary use is almost always 

disjunctive, that is, the words it connects are to 'be given 

separate meanings.'" (quoting Reiter v. Sonotone Corp., 442 U.S.

330, 339, 99 S. Ct. 2326, 2331, 60 L. Ed. 2d 931, 937 (1979))). 

Rather, the Legislature intended the SDA to have the broadest 

possible remedial application and envisioned enforcement actions 

against multiple responsible parties. See Gallenthin Realty 

Dev., Inc. v. Borough of Paulsboro, 191 N.J. 344, 368 (2007) 

("[I]t has long been settled that the disjunctive 'or' in a 

. . . statute may be construed as the conjunctive 'and' if to do 

so is consistent with the legislative intent." (quoting State v. 

Holland, 132 N.J. Super. 17, 24 (App. Div. 1975))). 

The recent legislative history and language in other parts

of the SDA make this clear. In 2004, for example, Burlington 

County suffered severe flooding after several dams failed. See

39 N.J.R. 4894(a) (Nov. 19, 2007). As a result, DEP concluded 

that it "lacked [the] necessary tools to efficiently enforce the 

provisions of the [SDA]." Ibid. The Legislature subsequently
18 A-3835-12T3

broadened DEP's enforcement powers, noting its proposed 

amendment would "strengthen[] the DEP's authority to take action 

regarding failing and failed dams and to integrate these 

measures with the provisions of the [SDA]." Senate 

Environmental Committee, Statement to S. 1895 (Oct. 18, 2004). 

One of the sections enacted, N.J.S.A. 58:4-5(c), explicitly 

authorizes "allocation of the cost of removal among the liable 

owners or persons having control of the dam or reservoir 

whenever two or more owners or such persons are liable."4

(Emphasis added). 

Finally, our conclusion that the SDA permits enforcement of 

its provisions against both owners and persons in control of 

dams and reservoirs is consistent with DEP's interpretation of 

its authority. See Dep't of Envtl. Prot. and Energy v. Cnty of 

Cumberland, 94 N.J.A.R.2d 111, 119 (Dep't of Envtl. Prot. and 

 

4 We recognize that the Legislature has used similar, albeit 

slightly different language, at various points in the SDA. 

Compare N.J.S.A. 58:4-5(a) ("An owner or person having control 

of a reservoir . . . ." (emphasis added)), with N.J.S.A. 58:4-

6(h) ("Each owner or person having control of a reservoir 

. . . ." (emphasis added)). We are convinced, however, that 

DEP's enforcement powers are not limited to a single "owner or 

person in control" of a dam or reservoir. Such an 

interpretation would be at odds with the remedial purpose of the 

statute. See A.B. v. Div. of Med. Assistance & Health Servs., 

407 N.J. Super. 330, 341 ("[W]hen a literal interpretation of 

individual statutory terms or provisions would lead to results 

inconsistent with the overall purpose of the statute, that 

interpretation should be rejected." (internal quotation marks 

omitted)), certif. denied, 200 N.J. 210 (2009). 
19 A-3835-12T3

Energy) ("By nature of a party's decision to engage in either 

ownership or control of a dam, such party incurs such 

statutorily established liabilities.").

In this case, Judge McDonnell properly found that Cobb was 

within the reach of the SDA's regulatory and enforcement powers. 

He admitted being the owner of the dam, as well as the reservoir 

created by the dam. See N.J.A.C. 7:20-1.2 (defining reservoir 

as "any impoundment or any potential impoundment that will be 

created by a dam, dike or levee"). Moreover, Cobb has 

historically exerted some level of control over the reservoir by 

admittedly operating the spillway. For all these reasons, we 

affirm the grant of summary judgment and the amount of the 

judgment entered against Cobb.

III.

The Township argues that, because it "never maintained, 

managed, operated or controlled the structure . . . [it] cannot 

be held responsible under the [SDA]." We disagree.

DEP's regulations define a "dam" as "any artificial dike, 

levee or other barrier, together with appurtenant works, which 

is constructed for the purpose of impounding water." N.J.A.C.

7:20-1.2 (emphasis added). The word "appurtenant" means 

"[a]nnexed to a more important thing." Black's Law Dictionary

118 (9th ed. 2009). In this case, Cobb's Mill Road is a work 
20 A-3835-12T3

"appurtenant" to the preexisting Cobb's Mill Dam, the entire 

length of which the road traverses. The issue then becomes 

whether the Township's routine work on the road brings it within 

the SDA's regulatory scheme, i.e., is the Township a "person[] 

having control of a reservoir or dam"? 

Although the case is not on all fours, we find persuasive 

the Law Division's decision in Braun v. Twp. of Mantua, 270 N.J. 

Super. 404 (Law Div. 1993). There, the court considered whether 

Mantua Township ("Mantua"), which had removed snow, cleared 

weeds, replaced gravel and generally maintained a road 

traversing a dam, could be compelled to make repairs when the 

dam collapsed due to heavy rains. Id. at 406-08. Recognizing 

that the roadway and dam were "interrelated," the court 

reasoned:

Although the legally required duty of Mantua 

may only encompass a duty to provide safe 

passage for users of the road, that safe 

passage can only be assured if the dam 

itself is secure. The most exhaustive 

efforts by Mantua to maintain and control 

the roadway, which it provides for public 

use and accommodation, would be for naught, 

unless the underpinning of the road, in this 

instance the dam, is also vigilantly and 

safely maintained.

[Id. at 411.]
21 A-3835-12T3

The Court also reasoned that under the SDA, the owners of the 

dam -- owners of the adjoining properties -- were also 

responsible. Id. at 411-12. 

In this case, it is undisputed that the Township regularly 

maintained Cobb's Mill Road, and that the road had been and 

remained an integral part of Cobb's Mill Dam. In maintaining 

the road, the Township exercised some level of control over one 

of the dam's appurtenant structures. We affirm the grant of 

summary judgment against the Township, as well as the amount of 

penalties assessed against it.

The County argues Judge McDonnell erroneously found that 

"it [had taken] title of a public right of way over Cobb's Mill 

Dam . . . in the late 19th Century," and that there were

material factual issues in dispute regarding the County's 

contacts with and historic control of the dam. The argument 

lacks sufficient merit to warrant extensive discussion. R.

2:11-3(e)(1)(E). 

We need not decide whether the disputed 1876 recorded 

instrument created a public right-of-way over the dam in favor 

of the County or the Township. It is undisputed that the County 

assisted in reconstructing the dam in 1923, that it made 

improvements to the dam in 1932, and that in 1988, it installed 

a culvert to "decrease the potential danger for downstream 
22 A-3835-12T3

residents and County structures." These acts alone are 

sufficient to render the County subject to the Commissioner's 

enforcement powers under the SDA as "a person in control" of the 

dam.

Affirmed.