35 Pa. Super. 128 | Pa. Super. Ct. | 1907
Opinion b,y
The plaintiff occupied the .house No. 5725 Germantown avenue, in Philadelphia, as a tenant and carried on a shoe store in a part of the building. She went into possession of the premises in June, 1904. August 6, 1905, during a heavy rain a large quantity of water flowed into the basement of her premises and into the storeroom, wetting and injuring a part of her merchandise. This water the plaintiff alleges came from the surface of Vernon Park, one of the public parks of the city, from which it flowed onto Germantown avenue and into her premises. The complaint set forth in the declaration is that the injury was caused by the negligence of the defendant in raising the grade of Vernon Park along its front on Germantown avenue and in filling up and obliterating a natural water course, which theretofore had drained the park, without providing other and adequate means of drainage as a substitute for the natural water course, whereby the rain water which fell upon the park was thrown onto the street and thence into the plaintiff’s cellar. The evidence shows that many years before the plaintiff lived in the house referred to the city acquired a tract of land containing several acres, known as the Wister property, for a public park. In the development and improvement of the park the authorities having the matter in charge raised the grade of a portion of the land along Germantown avenue and, in doing so, covered over Honey Run, a small natural water course passing through the property. The effect of this change was to bring the level of the property up to the grade of Germantown avenue with a slope toward the avenue. Provision for drainage was made through the park, but at times of very heavy rain water from the surface of the park flowed onto Germantown avenue.
The plaintiff’s action is trespass and proceeds upon the assumption that the city had done something which it was not authorized to do or which having authority to do it had done in so negligent a manner that the plaintiff is entitled to damages. The power of the city to acquire, lay out, improve and maintain ground for public parks cannot be questioned. The Act of February 2, 1854, P. L. 21, and the Act of June 24,
The judgment is, therefore, affirmed.