Westbury Realty Corp. v. Lancaster Shopping Center, Inc.
152 A.2d 669
Pa.
1959
Check Treatment

*1 She not attend Helen funeral. She did Lewis’ post has sent a never card or a card or Christmas present slightest she showed not in- Erica, nearly terest in Erica’s one existence until month after yet the death of Helen Lewis. Mr. has Weaver never apparent Erica seen fondness for child is and his he “I think are children when testified when there five already, one more will he an intolerable burden.” Both Shoemakers and the have nice homes, Weavers qualified reputa- family each is character and custody to have the Erica. tion the above However, summary necessity without refer- demonstrates, ring any that the best interests authorities, community of Erica be in the welfare would where she always custody in the has lived and of the Shoemakers who have demonstrated their affection and love her. appointing

The Order Court E. Vivian person guardian during Weaver of the of Erica Lewis minority custody her vacated, Erica Lewis hereby awarded to James W. Shoemaker and Doris party respective E. pay Shoemaker. Each shall their costs.

Westbury Realty Corp., Appellant, v. Lancaster

Shopping Inc. Center, *2 Before Argued May C. Jones, Bell, J., Bok and JJ. Jones, Cohen, McBride, Musmanno, Carl A. for Wilcer, appellants.

William G. him Storb and Storb, Mann, Stein, appellees. for

Bernard M. Brown Zimmer- Zimmerman, appellee. man,

Opinion by July Me. Justice Cohen, 2, 1959: Appellants, building owners of lots ain Westbury Realty Corp., as known own- Glenmore, portion brought ers of the an unsold of Glenmore, enjoin equity discharg- action in appellants’ ing provide onto land and adequate disposal system as to for this so damage. discontinue further

The land which own side is on west *3 County. Township, of Lititz Pike in Manheim Lancaster Directly (Lancaster across the the Pike, Shopping Algon Realty Company Sears, and Center, Company) upon Roebuck & own seventeen acre tract remaining which built stores and the macadamized portion. improvement by to the Prior of this land appellees, the collected surface water which drained was by eighteen pipe means of an inch in- which had been Department Highways by stalled the Lititz under discharged appellants. onto Pike and the Be- land seepage prevented paving by cause natural the was buildings, the amount of surface water drained was eighteen pipe greatly so that the inch increased was to accommodate this sufficient flow. excess water appellants across the Pike onto the land of the flowed dwellings and caused to enter the of the water basements undeveloped making and flood unfit land, purposes. construction

Preliminary objections, the nature of a demurrer complaint appellees, by that the stated failed filed equitable out a cause of action which to make granted. relief could be The lower court found complaint negligence since the the cre- did not aver by artificial channel ation water was discharged appellants’ onto cause land, collected alleged. sustaining action had been The order objections gave preliminary to leave complaint days. twenty file an amended within Nine- days by after the order court teen en banc, appellants, complaint, rather filed than amend their appeal. this objections preliminary

Usually, are sustained where by complaint, to file with leave an amended action appealable merely interlocutory is court and not an final the leave amend decree. Avhere However, scope, the court’s order becomes limited in definitive appealable. Washington, Ciletti v. 107 A. (1954). 2d The instant case such situation. complaint prior afore- stated: That to the “18. Depart- paving by said construction and defendants, Highways eighteen (18) inch ment of had installed an pipe to take the Lititz Pike surface under water unimproved improved tract now defendants. discharged this the tract 19. That on . . . Avas developed Corp. by Westbury Realty owned and now the area afore- 20. That after defendant macadamed discharged from this tract said, eighteen pipe (18) into inch also over the aforesaid *4 (sic) Lititz Pike the tracks of land the aforesaid unto plaintiffs. by of 21. That aforesaid flow owned greatly That the afore- increased. ... water changed regraded grade . . . said defendants thereby increasing tracts of their aforesaid land, plaintiffs’ land.” surface unto of water flow negli- they not admit that could sIioav allege any channelling of gence, could nor granted being the leave other than above. This the case, tbe court by amend could and the be utilized, order appealable. became

For some time this the law of has Commonwealth established relative rights landowners concern of surface flow water. Mr. ing Chief Justice Horace summarized the in law Rau v. Wilden clearly Stern 376 Pa. 103 A. 2d 422 (1954), Acres, Inc., 493, 494, where he “A said: landowner alter natural may of surface water on his flow property by concentrating it artificial in an channel and it upon the discharging land of his neighbor lower even no more water though collected than would have thereby flowed naturally upon land in neighbor’s diffused condition. One make improvements upon his own may land, especially in the development of urban it and grade property, upon build without an incidental effect it, liability even upon though there adjoining property result may additional some flow water thereon through a but he natural artificial may not, watercourse, means, into a and precipitate it gather body his neighbor’s property.” Drew in an earlier Lucas et

Mr. Justice ux v. case, et 69 A. 2d 114 said Ford al., 153, 156, (1949), that “where the water diverted from its natural or it is or channel unreasonably unnecessarily where . . . lower quantity quality owner changed a legal (Emphasis supplied). received injury.” it a careful examination of the facts becomes Upon approach. this situation requires apparent are confronted with we Here, acres has seventeen center which covered large shopping buildings non-porous material and natural soil with substantially seepage the natural prevent shopping of surface increase waters. flow sewer as a storm system, is not equipped center this therefore, it in an urban center, be were would *5 tremendously quantity dis- of must be increased posed of the on surface. developed though shopping in a center is

Even of all the characteristics rural the center has section, development. requires attitudes, This an urban developers court. as the both on behalf of the as well higher right to have lands have While the owners discharged flowing in a their lands the water upon the lower and while natural watercourse lands, upper through may increase the lands flow shopping- large a the lands, natural and reasonable use instant a as in the in rural center area, a the land. natural use of cannot be considered case, contemplated surely a land when It use was developed. concepts of were Bather, our water flow the de- artificial use of land is an velopers proper so as accommodation make must place the increased not to burden of flow servient tenement. equities clearly balancing indicates that oppor- have an been denied should complaint hearing. al-

tunity proceed drainage hardship leges have been could that the water representing expenditure prevented of $9,600 adequate drainage facility. of an the cost of construction by the total investment made one considers When shopping project, acre center this seventeen in remedy oc- abuse which the sum of $9,600 insignificant. rather casioned seems sustaining the in error court The lower complaint objections states since the preliminary action. cause of appellees’ procendendo at reversed with

Order cost.

Dissenting Opinion Mb. Justice Bell : I dissent —See: Rau v. Wilden Pa. Acres, 493, 103 A. 2d and 18 494, cases cited 422, therein; Leiper v. Heywood-Hall Construction Co., 317, 320, 321, 113 A. 2d and cases cited. all these

If, notwithstanding Court decisions, desires —as the do—to change the majority then the law, least the Court can do is to make the standards clear certain so that and the parties their will know rights and and litigation limitations, costly thereby will be avoided.

I dissent from the opinion addi- majority tional reason it no judgment sets my up clearly lighted signposts standards, will therefore generate prolific litigation. province appellate of an is to Court duty

erect and maintain clear lighted and well signs, sign- posts and landmarks so that “he that runs may read”; clear and certain by establishing standards, thereby eliminate a suits. costly vexatious multiplicity Park

Lakeside v. Co., Forsmark. Appellant,