175 A. 422 | Pa. | 1934
The borough appeals from an order dismissing exceptions to the report of viewers. The amended petition for their appointment averred that the borough raised the grade, inter alia, of an alley "parallel with Fourteenth Street . . . . . . and being along the northern boundary of the said Borough," thereby obstructing the flow of water in such manner as to leave it on a tract of land in which petitioner owned a number of lots, some as far as 600 feet from borough line, and all outside the borough limits. A number of exceptions were filed to the report of the viewers. We need only refer to one — that it appears by the report that the injury complained of was damnum absque injuria.
Prior to filing the petition for viewers, the appellee had sought redress for the same damage by an action of trespass, in which, after hearing his evidence, a nonsuit was entered, on the ground that he had shown no *573
cause of action. That conclusion was affirmed without discussion: Kunkle v. Ford City Borough,
In support of its position that the court, as matter of law, should have held that the report of the viewers on its face shows there is no liability, several reasons are now presented, among them, first, that the damage is caused by surface water, which the borough is under no legal duty to receive over its land; second, that petitioner's property is outside the borough limits and does not abut on the improvement.
As we must sustain the first position, we need not consider the second. The report shows that the land on plaintiff's side of the borough line was swampy, though the extent and character of the swamp does not appear. Apparently the land inside the borough was lower than that outside, so that in times of heavy rain such rain water as was not immediately absorbed by the ground flowed over the land in its natural state into the borough. When the borough built up the land on its side, this natural flow of surface water was obstructed. On this subject the board of viewers made the following findings of fact: "That your Viewers, after considering all the testimony and having viewed the ground, are of the opinion and so find that the water condition complained of by the plaintiff, B. O. Kunkle, is a direct result of the filling and improving of the alley mentioned on the extreme northern boundary of Ford City Borough, and that this filling and improving so obstructed natural flow of the surface water from said Bellwood Garden so as to dam the same up and turn it back upon the plaintiff's, B. O. Kunkle, property." "6. That in March of 1928, the Borough of Ford City completed the filling and grading of a ten foot alley, being the northern boundary of the said borough and the southern boundary of the said plan of lots. . . . . . *574
which caused the occasional bursts of water in times of freshets and storms, descending from the hills and inundating the land owned by the petitioner, to collect and thereby causing an accumulation of the said water to back up and flood the lands of the petitioner, by interfering with, and obstructing, the natural drainage of surface water from the plaintiff's properties." (Cf. Aron v. Philadelphia,
For such damage the law furnishes no remedy. In Strauss v. Allentown,
In Rielly v. Stephenson,
On the facts found by the viewers, quoted above, to which no exceptions were filed by the petitioner, the alleged damage appears to have resulted entirely by the interference with the flow of surface water during rainy periods; there is neither allegation nor finding that the borough acted negligently. The exceptions raising the point should have been sustained.
The appellee refers to cases in which municipalities were held liable for collecting surface waters and discharging them in bulk on private property, the latest being Mitchell v. City of New Castle,
The order appealed from is reversed, the exception is sustained, and the record is remitted with instructions to dismiss the proceeding.
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