52 Vroom. Dover v. Richardson & Boynton Co. Before Justices GARRISON, PARKER and Voorhees. For the plaintiffs, Vreeland, King, Wilson & Lindabury. For the defendant, Willard W. Cutler. The opinion of the court was delivered by PARKER, J. The action is in tort. The first count in the declaration charges in substance that the defendant, having a manufacturing plant at Dover, which was connected by a branch pipe with a main water pipe of the Dover water plant, the flow of plaintiff's water through said branch pipe being prevented by a valve or gate, the defendant, well knowing the premises, without the license or consent of the plaintiff, but contriving and fraudulently intending to deceive, injure and defraud the plaintiff of large quantities of water and the value thereof, ** unlawfully, fraudulently and deceitfully, and without the leave and license of the plaintiff, ordered and commanded its servants, agents and employes to open said valve or gate, and by means thereof obtained and received from the mains and water plant of the plaintiff large quantities of water of the value of $50,000. * The second count is substantially identical except that it charges that the defendant allowed and permitted its servants, agents and employes to open the said valve. And the third count, in similar form, charges that the defendant, by its servants, agents and employes in and about its business, and for its own use and benefit, unlawfully, wrongfully, fraudulently and deceitfully opened the said valve or gate and thereby obtained water, &c. These counts are all traversed, and there are certain special pleas, the purport of which is not necessary for the purposes of the present decision. The jury found a verdict in favor of the plaintiff as for the value of water taken, in the sum of $15,881.20. The conceded facts are that the defendant company has a large manufacturing plant in the town of Dover, on which it has sunk wells and maintains its own pumping apparatus and Dover v. Richardson & Boynton Co. 81 N. J. L. a large stand pipe holding one hundred and thirty-two thousand gallons and being something over one hundred feet in height; that it did own certain other lands with wells thereon, or available for driving of such wells, and conveyed these other lands to the town of Dover; the important consideration of such conveyance being that a connection should be made and maintained between the municipal water works and the private water system of the defendant company by means of a connecting pipe some six inches in diameter with a valve thereon, so that the Dover water could be turned on or off at will; that such valve should be kept habitually closed, but might be opened in case of fire in the defendant's works, and the town water freely used for the purpose of extinguishing such fires without charge. Such being the situation, several witnesses for the plaintiff testified that they had formerly been in the employ of the defendant company as watchmen, laborers, or in similar capacities, and that under the direction of the chief engineer of the company, or his assistant, had, on many occasions, ranging over a period of several years, and when there was no alarm of fire, turned on the valve between the town and the defendant's plant for the purpose of filling the stand pipe; that this was done with more or less regularity throughout the period in question. Another witness, employed in the city's water department, testified that he had observed or suspected the tampering with this valve, contrary to the agreement which formed the consideration for the deed, and had demonstrated, on a number of occasions, that it had been tampered with, by the fact that the wrench or key with which the valve was turned, and which was several feet long and had to be inserted into the ground in order to reach the valve, had been moved from its place, and that he had proved the change in position of this wrench when not in use by making chalk marks on the fence or wall against which it usually was rested; also that he had made marks on the iron plate covering the valve hole, and on the rim in which the plate rested, showing that the plate had been disturbed from its position. 52 Vroom. Dover v. Richardson & Boynton Co. Further evidence bearing on the quantity of water claimed to have been abstracted was given by two civil engineers, one of whom made tests of the amount of water flowing through the town's main on certain days in July, 1908, and again in August, 1909, and which seemed to show a decrease of over one hundred and thirty thousand gallons a day at the latter period. The significance of this testimony rests on the fact that in November, 1908, the defendant company was notified that the municipal authorities believed that it was taking water unlawfully, and that it would be held responsible for the same. Another civil engineer made observations of the condition. of the low service reservoir which was connected with the pipe in question through the town's mains, both before and after the notice, and made computations tending to raise the same inference. With regard to the value of the water, the testimony was substantially that in small quantities its reasonable value was somewhere between two hundred dollars and three hundred dollars per million gallons, and for large quantities, from one hundred and fifty dollars to two hundred dollars a million gallons. The claim made by the plaintiffs' attorney, just before the case went to the jury, was for one hundred and thirty-nine thousand gallons of water for each and every working day between April 5th, 1904, and November 14th, 1908, less the time the factory was not in operation, from one to three weeks each winter and from one to two weeks each summer, being one hundred and ninety-one million one hundred and twenty-five thousand gallons, at $150 a million gallons, or $28,530. The verdict was for somewhat over one-half of this claim. It is first alleged in support of the rule that the court erred in refusing to nonsuit on two grounds, namely, that there was no evidence to justify a finding as to any definite amount of water taken, and that there was no evidence that any water was taken by authority of the defendant corporation. It is obvious that if the first claim be correct, it would not justify a nonsuit, because there unquestionably was evidence that some Dover v. Richardson & Boynton Co. 81 N. J. L. water was taken, and at least a nominal verdict was recoverable. The other point, however, demands more extended consideration. It involves the question as to whether the chief engineer and assistant engineer are to be regarded under the evidence as representing the defendant corporation, so as to make it responsible for their action in directing the opening of the valve if this was the fact; and if, such acts being shown, they are not to be primarily regarded as binding on the corporation, then whether it may be charged with knowledge and ratification of the practice by reason of its frequency and continuity. It seems to be unnecessary to decide the first point, because, under the ruling in Dierkes v. Hauxhurst Land Co., 51 Vroom 369, decided by the Court of Errors and Appeals, the turning on of the water under the orders of these engineers and by these various employes, might legitimately have been found by the jury under the evidence to have been so frequent, so habitual, and extending over such a period of time, as that the defendant corporation would naturally, in the ordinary course of affairs, have become cognizant of it, and have forbidden it, if unauthorized. A nonsuit would therefore have been improper. These considerations also dispose of all but one of the arguments urged by the defendant to support its claim that the court should have directed a verdict for the defendant, and which, with the exception just mentioned, are substantially the same. The excepted reason is that the suit will not lie in favor of the town of Dover because, by the act of 1884, page 44, and which it was claimed was accepted by the citizens of Dover upon a referendum, the right to collect for the value of the water was exclusively vested in the water commissioners provided for by that act. But we cannot assent to the soundness of this proposition, for our reading of the act leads to the conclusion that it was not the intention of the legislature in providing for these water commissioners to create a corporation invested with ownership of the water plant and of the revenue thereof, but simply to create a municipal agency for purposes of convenience in the financing and practical manage 52 Vroom. Dover v. Richardson & Boynton Co. ment of the water plant. It is true that under the terms of this act the water commissioners are to fix the rates and send out and collect the bills therefor, but on the other hand there is no language constituting them a corporation or vesting them with ownership; and, on the contrary, there are provisions which plainly indicate that they are simply an agency; as, for example, the power to issue bonds, not of the water commissioners but of the town, and the further provision (section 14) that in case the receipts are less than the expenditures, the deficiency is to be raised by a tax levied by the town itself. Instead of being empowered to sue for unpaid water rents, the commissioners are empowered, by section 9, in case of delinquencies, to take the same proceedings for collection as the town has by law for collecting the expense of paving sidewalks. And it should be further noted that the present action is not in contract for the collection of water rents, but is in tort for damages for the fraudulent abstraction of water. We think it quite plain, therefore, that the suit was properly brought by the town. Two questions relating to the evidence are presented: First, it is said that the court should not have admitted evidence of defendant's former employes as to turning on the water without showing the scope of their authority. This is answered by the ruling in Dierkes v. Haurhurst Land Co., supra, because if their acts in turning on the water were so frequent and habitual as, under the principle laid down in that case, to justify a jury in inferring knowledge and ratification, the scope of authority was made evident by the acts themselves. Secondly, that the testimony of the two civil engineers as to the difference in the amount of water flowing through the city main before and after the notification of the defendant, was incompetent without other evidence sufficient to show that the excessive flow at the time of the first observations could not be rationally accounted for in other ways. We shall deal further with this question in a moment. For present purposes it is sufficient to say that the evidence objected to was a legitimate link in a chain of proof which, if completed, would make all |