83 Pa. Super. 449 | Pa. Super. Ct. | 1924
Argued April 30, 1924.
Sawmill Run is a natural water-course which flows through the City of Pittsburgh for a distance of about three and one-half miles and drains a considerable part of its territory. Many years ago it was adopted by the city as an open sewer: Shaughnessy v. Pittsburgh,
Alleging these facts, as well as the noisome and offensive character of the eroding sewage, the plaintiff filed a bill in equity praying (1) that the city be enjoined from permitting the sewage from said open sewer to encroach upon his property and undermine or flow over or upon the same; and (2) that the city be required to cut a channel through the obstruction within the lines of Wilmerding Street in front of plaintiff's property and return the flow of sewage to its proper course. *452
Defendant filed an answer admitting, in effect, the facts above recited, but denying liability for such erosion and change of course of the stream.
After a hearing in which the facts above stated were established by evidence, the court entered a decree: (1) That the defendant, within sixty days from the date thereof, open a channel for Sawmill Run within the lines of Wilmerding Street in front of plaintiff's land; and (2) that the defendant keep the channel of Sawmill Run in front of plaintiff's land free from obstructions to the ordinary flow of the stream.
Defendant excepted to the decree and the conclusions of law supporting it, and these exceptions having been dismissed, has appealed to this court, and assigned for error the dismissal of said exceptions and the final decree of the court.
We are of opinion that the decree of the court and the conclusions of law, on which it was based, were in accord with the legal principles declared by our Supreme Court and this court.
It was held in Blizzard v. Danville,
In our opinion it makes no material difference whether the obstruction in the sewer permitted by the city results in merely flooding the abutting owner's land, as in the Blizzard case; or in raising the bed of the stream, washing away its banks and overflowing the same, as in the Owens case; or in forming a bar and diverting the flow of the sewer so as to cause it to erode and wash away the banks along plaintiff's land, as in this case. The principle in all three cases is the same. Having adopted the water-course as a part of its sewer system the city must keep its channel, while in use as a sewer within its limits, free of obstruction to the ordinary flow of the stream. The facts in Munn v. Pittsburgh,
We are not concerned, in this appeal, with the question of how much of the damage to his property plaintiff might have avoided by constructing protective cribbing along his bank. That may be material in a suit for damages; it cannot affect his right to require the performance by the city of its legal duty in the premises. *454
The assignments of error are overruled and the decree is affirmed, except that the time for performance is extended to sixty days from the return of the record. Costs to be paid by appellant.