
    JOHN ZAMELLI, PLAINTIFF-APPELLANT, v. FRANK TROST, DEFENDANT-RESPONDENT.
    Argued May 15, 1945
    Decided November 29, 1945.
    For the appellant, A. Leon Kohlreiler (Archibald Kreiger, of counsel).
    For the respondent, Veter Ilofstra.
    
   Per Curiam.

The judgment under review herein should be affirmed, for the reasons expressed in the opinion delivered by Mr. Justice Colie in the Supreme Court.

Hbher, J.

(Dissenting.) Tt would seem to be elemental justice that one who maliciously gathers surface water on his land and discharges the accumulation upon his neighbor’s premises, not legitimately to serve his own interest in the use and enjoyment of his lands, to which the diversion is merely an incident, but solely to cause injury to his neighbor, is guilty of an unjustifiable invasion of his neighbor’s correlative right to the use and enjoyment of his lands, and is liable in damages if substantial harm ensues to his neighbor. Such I conceive to be a principle well grounded both in moral philosophy and in jurisprudence. Vide Field v. West Orange, 36 N. J. Eq. 118; affirmed,, 37 Id. 600; Cassini v. Orange, 107 Id. 128. The cases of Bowlsby v. Speer, 31 N. J. L. 351, and Jessup v. Bamford Bros. Co., 66 Id. 641, are plainly not in conflict with this principle.

Here, the trial judge found that defendant, by “the several acts which caused the unnatural overflow into” plaintiff’s lands, sought “to wreak vengeance” upon plaintiff, and “acted spitefully and maliciously.” There was evidence tending to sustain this finding o£ malice, and. its worth was a question exclusively within the province of the trier of the facts. The finding is accordingly conclusive on error. B. 8. 2:32-202.

Since I entertain the view that defendant suffered no harm from the other rulings complained of, I vote to reverse the judgment of the Supreme Court and to affirm the judgment of the District Court.

Mr. Justice Case, Mr. Justice Perskie and Judge Rafferty join in this opinion.

For affirmance — The Chancellor, Chief Justice, Bodine, Donges, Wells, ¡Dill, Preund, JJ. 7.

For reversal — Case, Heher, Perskie,. Rafferty, JJ. 4.  