The opinion of the court was delivered by
Swayze, J.That an abutting owner has special rights in the sidewalk is settled. State, Agens, v. Mayor, &c., of Newark, 37 N. J. L. 415 (at p. 423). These special rights are what justify an assessment for the cost of a sidewalk not limited to special benefits. That among these rights are the right to maintain a vault (or cellar, if we choose to call it so), we think is established by the common custom. If specific judicial authority is necessary, it may be found in a case much like the. present. Allen v. City of Boston, 159 Mass. 324; 34 N. E. Rep. 519.
Since the plaintiff had the right to maintain a vault, we must assume, in the absence of proof to the contrary, that the vault in question was rightly there. The fact that it had existed for forty years is enough to warrant a finding that the vault was a lawful structure. It has been so held in Yew York, even where the city owned the fee of the streets. Deshong v. City of New York, 176 N. Y. 475; 68 N. E. Rep. 880. The only suggestion against the plaintiff’s right was an offer of an ordinance of the city of Orange. This offer’ was rejected, and we must therefore decide if the ordinance was relevant, It forbids the making or maintenance of any encroachment upon a street. We think that where a vault is *378lawful, as in this state, it cannot, as long at least as it is maintained iii safe and proper condition, be called an encroachment. An encroachment naturally means something that illegally narrows tire street which the municipal authorities may remove. They cannot remove a lawful structure.
That the ordinance was meant only to prevent or abate what might impede public travel is shown by the language of section 2, which forbids the erection or maintenance of any stoop, steps, platform, bay window, cellar door, area, descent into a cellar or basement, post, erection, projection of any kind, obstruction or encumbrance in, over or upon- a street. By no stretch of language can a vault underneath a sidewalk be said .to be in, over or upon a street.
That the city is liable for its acts in attempting to conduct water across an open trench by a pij>e too small to carry it, we think is clear under our cases. It is active wrong-doing, the obstruction of the natural flow of water in the gutter by a pipe which by reason of being too small, operates as a dam, so that the excess water flowed into the trench, and in addition the opening of the trench so that the water from the street was conducted to the hole in the sidewalk and thence flowed naturally into the plaintiff’s cellar.
It is said the plaintiff ought to have seen to it that his cellar wall was so built as to keep out the water. The answer is that he had no reason to apprehend that the defendant would be guilty of a tort. He might, reasonably, expect the city to adopt the necessary safeguards to prevent such wrongs during its construction work. The same argument was made unsuccessfully in Allen v. City of Boston.
The judgment is affirmed, with costs.