154 A. 803 | Pa. | 1931
The question raised on these appeals by the plaintiff landowners is the power of the County of Allegheny to divert a natural water course in connection with the widening and straightening of Babcock Boulevard, an important and extensively traveled county road.
The facts are not in controversy. Babcock Boulevard extends for some distance through a narrow valley following in a general way the natural windings of Girty's Run, a water course which flowed through and along the line of appellants' properties, abutting on the road for a distance of some 1,200 feet. Pursuant to a resolution of the board of county commissioners which declared that it was necessary for public safety and convenience to relocate, straighten, widen, and alter the boulevard, and after the appropriate proceedings in the court of quarter sessions required by law, the county entered upon appellants' lands and appropriated a strip *563 thereof and a portion of the natural bed of the stream. Part of the land taken was to provide for the stream a new channel into which it was diverted. Appellants, who own adjoining properties, filed these bills to enjoin defendants from proceeding with the appropriation of their lands and to compel them to restore the stream to its natural channel. The cases were tried together in the court below and the chancellor found the taking of the lands and the diversion of the water course were necessary in the improvement of the highway and dismissed the bills.
Appellants challenge the finding of the chancellor that it was necessary to divert the run and argue in the language of Snee v. West Side Belt R. R. Co.,
In the present case they allege that the only necessity to divert the run arose from the decision of the county commissioners to widen and relocate the road in the precise place they selected. This entirely ignores the reason given by the commissioners in their resolution to widen and relocate the highway, that the widening and relocation is necessary for the safety and convenience of the traveling public. Roads which might have met every demand for safety and convenience in the days when six miles an hour was fast speed may be neither safe nor convenient when vehicles are traversing them lawfully at more than six times this speed and unlawfully at more than ten times. Some public authority must determine whether roads as they exist are safe and convenient and where they are county roads, the people making up the Commonwealth, through their chosen representatives, *564 the legislature, have said that the county commissioners, with the approval of the court and grand jury, shall determine the necessity for their change to meet the new conditions of travel. It would be in a plain case only, where the lack of necessity was clearly manifest, that the courts would set aside the commissioners' formal declaration that the public safety necessitated a change in a road.
The Act of May 2, 1929, P. L. 1278, section 871, contains the grant of power to the county commissioners. It authorizes the county to make, construct and maintain public roads or highways as county roads and to "straighten, widen, extend and alter any such road or part thereof." Section 917 further declares that the county commissioners may, for the purposes described in this act, "enter upon private or public property, and may take, injure and destroy the same, in the manner and subject to the restrictions and procedure prescribed by article VII of this act." These are broad powers. Speaking of such power of eminent domain in the recent case of Lutz v. County of Allegheny,
Unquestionably the county has the power to divert a stream when it interferes with the improvement of a county road: Lorah v. Amity Twp.,
The principles and cases covering the rights of riparian owners in the waters of a stream, cited by appellants, have no bearing on the question here to be determined. Nor do the cases relied upon in particular by appellants. In Snee v. Westside Belt R. R. Co.,
The appellants raise the question whether a trial judge may use his knowledge of the locality of plaintiffs' properties as a basis for the findings of fact of the necessity to divert the stream. Since the only knowledge which the judge used was that of the physical geography of the locality and of the location of the highway, of which he was at liberty to take judicial notice, and which here amounted to no more than the sharing by the judge as an individual of a matter of common knowledge, we think he did not err in making such use of it as he did in this instance. See Com. v. Ball,
The judgments are affirmed. *567