Appeal, No. 131 | Pa. Super. Ct. | Mar 14, 1905
Opinion by
The plaintiff is the owner of the lowest part of a tract of land which his predecessor in title, John H. Duffee, laid out into a plan of building lots, upon which he dedicated streets, among which were Ridley and Sylvan avenues. The-natural drainage of a part of the tract was over the property of the appellee. Ridley avenue was opened and, in the lawful exercise of the. authority of the defendant borough, was graded and macadamized from Harrison avenue to Trites avenue, in front of the property now owned by plaintiff, in the year 1898. As a part of this improvement the borough caused a pipe to be placed under the roadway for the purpose of conducting the
The plaintiff produced evidence which certainly warranted a finding that the grading and improvement of Ridley avenue caused water, which would not naturally have found its way there, to flow over the land then owned by Duffee, now the property of the plaintiff. The natural and necessary consequence of the improvement of the street according to the plan adopted was to extend the watershed of which the land was the outlet. The borough undertook the grading, macadamizing and draining of the road as one entire improvement, and all the elements growing out of it ought to have been considered together by any board of viewers appointed to assess the damages and benefits resulting from the execution of the work. The borough authorities were vested with a discretion to determine the grade at which and the manner in which the street should be improved. A plan having been regularly adopted, it was not for the court below nor the jury to determine whether the borough authorities have acted wisely, nor was it for them to inquire whether some other plan would have been more advantageous. The work having been done according to the plan adopted, the borough at once became liable to answer for such injuries to the property as were the direct and immediate result of the improvement. The right to recover all such dam.ages was in Duffee, the then owner, and not in the plaintiff, his subsequent grantee, and the remedy was a proceeding before viewers, and not an action of trespass: O’Brien v. Philadelphia, 150 Pa. 589" court="Pa." date_filed="1892-10-03" href="https://app.midpage.ai/document/obrien-v-phila-6240990?utm_source=webapp" opinion_id="6240990">150 Pa. 589; White v. McKeesport Boro., 101 Pa. 394" court="Pa." date_filed="1882-11-20" href="https://app.midpage.ai/document/white-v-borough-of-mckeesport-6237260?utm_source=webapp" opinion_id="6237260">101 Pa. 394; Chatham Street, 191 Pa. 604" court="Pa." date_filed="1899-05-23" href="https://app.midpage.ai/document/in-re-change-of-grade-of-chatham-street-6245366?utm_source=webapp" opinion_id="6245366">191 Pa. 604; Lewis v. Homestead Boro., 194 Pa. 199" court="Pa." date_filed="1899-12-30" href="https://app.midpage.ai/document/lewis-v-borough-of-homestead-6245627?utm_source=webapp" opinion_id="6245627">194 Pa. 199;
The learned judge of the court below permitted the jury to pass upon the question of the necessity for taking this water down Ridley avenue to the property in question, instructing them that unless such necessity existed at the time the avenue was graded the owner was not bound'to anticipate that the water, although running there at the time, would be continued to be carried in that direction, “ but had a right to assume that it would be, later on as improvements were made, taken off at some other place as near as might be in accordance with the natural flow; that is to say, by way of Trites and Garfield avenues, and he was not bound to make his claim for any damages arising by reason of increased flow from this water above Sylvan avenue before a jury of view, and can recover for such damages as might have been occasioned to him by reason of this increased flow.” This was a direct invitation to the jury to find against the borough upon the ground that the authorities had adopted a plan which it was not necessary for them to adopt, or because they had failed to grade certain avenues,' which at the time of the grading of Ridley avenue they had not undertaken to improve.
The borough had adopted its own plan and elected to improve its streets in a manner authorized by law, and the court below was without jurisdiction to review the exercise of that discretion. Whatever damages necessarily resulted from the action of the borough were recoverable in a proceeding before viewers, without regard to whether the borough might have adopted some other plan by which the injury to the property would have been avoided. The viewers appointed to ascertain the damages resulting from the grading of Ridley avenue would have been required to deal with the conditions which they found upon the ground, with Trites and Sylvan avenues unopened, ungraded and incapable of diverting any. part of the water which the grading of Ridlejr avenue caused to flow along that street, and Duffee could have recovered full compensation for everything upon which the plaintiff bases his claim. The borough had not then undertaken to open, and
The judgment is reversed.