25 Pa. Super. 454 | Pa. Super. Ct. | 1904
Opinion by
The plaintiff brought an action of trespass to recover damages for an injury alleged to have been sustained by his property through the obstruction of a natural water course upon the lands of plaintiff lower down. The case was by an agreement of the parties duly submitted to the decision of the judge of the court below, without the intervention of a jury, under the Act of April 22, 1874, P. L. 109. The court below after a full hearing found for the plaintiff and entered a judgment in his favor, and the defendant appeals.
The trustees of the Bingham estate were, in 1894, the owners of a large tract of land in Lower Merion township, through part of which was an ancient water course, through which the lands of the plaintiff situated higher up the stream naturally drained. This water course ran diagonally across the lands now owned by the defendant. The trustees of the estate undertook to improve the property for the purpose of selling it in- lots, and laid out a number of streets, one of which was Thomas avenue. They substituted for the natural water course a pipe eighteen inches in diameter, which instead of following the diagonal course across the land now owned by the defendant ran through said property on a line almost perpendicular to Thomas avenue and then turning at right angles ran along Thomas avenue, in front of the lands of the defendant, and between that land and the center line of the street to a point opposite an alley which they had laid out on the plan, from which point the artificial drain crossed Thomas avenue and ran through said alley to Roberts street. This artificial drain intersected the former natural one at the rear line of defendant’s property, where the same adjoins property now owned by Quinlan, and after passing through defendant’s land to Thomas avenue and along that street it again intersected the natural drain where the latter left defendant’s land, and almost opposite the alley into which the artificial drain turned. Manholes to this drain were constructed at each of the turns which it made in Thomas avenue. The defendant acquired title through the Bingham estate, after this work, changing the natural water course, had all been done. The deed of the defendant does not seem to have been offered in evidence, but it is an undisputed fact in this case that Thomas avenue, after having been improved by
The learned judge of the court below found the following, facts, which findings have not been assigned for error and must be accepted as true: For some time prior to the bringing of this suit the water, during rains, was backed up and came from this pipe which had been substituted for the natural water course causing damages to the property of plaintiff; that this backing up of the water was produced by three causes: “ (a) by reason of increased flow of water into one channel caused by the erection of buildings, macadamizing and construction of streets and inlets therefrom ; (5) by reason of the sewer” (the pipe substitute for the natural drain) “ which confines the water, debris, etc., into a straight channel instead of allowing it to spread; and (e) principally by reason of the faulty construction of the inlets on Thomas avenue, the alley and on Roberts road. The drainage from causes (a) and (5) did not change the relations of defendant as the natural water course was subject to receive the water from streets and land over which it naturally flowed.” The learned judge also specifically found that, “ These manholes from their faulty construction form obstructions to the free passage of the water, collect the debris by forming lodgements, and thus back up the water through the pipe and sewer on to the plaintiff’s land.” The man-holes, or inlets, were in exactly the same form and location in which they had been constructed by the predecessor in title of the defendant, when the pipe drain was substituted for the natural water course.
The defendant took title to her property subject to an ease
The judgment is affirmed.