Summary
In Vincze v. New York Cent. R. Co., 1931, 9 N.J. Misc. 1089, 157 A. 159, a verdict for the plaintiff was reversed by the New Jersey Supreme Court with instructions for a directed verdict for the defendant.
Summary of this case from Florida East Coast Railway v. MichiniOpinion
November 23, 1931.
Waters — Definition of watercourse — Words and phrases — Obstruction — Obstruction of channel — Surface water.
1. A watercourse is a stream of water usually flowing in a definite channel having a bed and sides or banks, and discharging itself into some other stream or body of water. [419-420]
2. To constitute a watercourse, there must be unmistakable evidence of frequent action of running water, and a distinction is to be taken between a regular flowing stream of water, which at certain seasons is dried up, and those occasional bursts of water which in times of freshets or storms descend from the hills and inundate the country. [420]
3. Whilst the owner of a lot at the foot of a slope is under no obligation to allow his lot to continue as a reservoir for the surplus water of the neighborhood, yet he may not obstruct a natural channel for the flow of the water, or a channel that has acquired the character of an easement, and may not gather surface water into a body and discharge it on the adjoining land. His right is to shut out the invading water, as a common enemy, for the protection of his own land. [419]
Eminent domain — Municipalities — Diversion of water — Viewers.
4. Public bodies are liable for injury caused by diverting rainwater from its natural channel and casting it upon private property. [419]
5. A proceeding before viewers as provided by the Act of 1915, P. L. 312, section 1, article II, chapter 6, and not an action of trespass is the appropriate remedy against a borough for the alleged injury to obstructing a watercourse, caused by street improvements, which is the direct, immediate, necessary, and unavoidable consequence of the exercise of a power conferred upon the borough. [421]
Submitted October 9, 1931.
Before FRAZER, C. J., WALLING, SIMPSON, KEPHART, SCHAFFER, MAXEY and DREW, JJ.
Appeal, No. 51, March T., 1931, by plaintiff, from order of C. P. Armstrong Co., June T., 1928, No. 131, refusing to take off nonsuit, in case of B. O. Kunkle v. Ford City Borough. Affirmed.
Trespass for alleged obstruction of watercourse. Before GRAFF, P. J.
Nonsuit; refusal to take it off.
GRAFF, P. J., filed the following opinion:
The plaintiff instituted this action in trespass against the defendant borough, alleging that said defendant in the system of the general improvement of its streets and alleys filled up a natural watercourse, causing water to be thrown upon his lots, with consequent damage. Upon conclusion of the plaintiff's testimony, a compulsory nonsuit was entered, and this case now comes before us upon a motion to take off said nonsuit.
A plan of lots was laid out in Manor Township, immediately adjacent to and north of Ford City Borough, and the plaintiff, prior to the injury complained of, purchased certain of said lots, and erected thereon dwelling houses. The name of said plan of lots was called Bellwood Gardens. A number of years ago a series of swamps existed upon the eastern side of Ford City Borough, beginning at the northern end thereof and extending to the southern part. Adjacent to Ford City Borough, and immediately north of the swamps, there existed in Bellwood Gardens a swamp about forty feet wide and three hundred feet long. This swamp was connected with the one immediately south, being in Ford City Borough, by a narrow strip, over which was a culvert, where a township road formerly passed. Twenty-five or thirty years ago, in the course of the improvement of Ford City Borough, streets and alleys were graded and paved, and the swamps at the lower end of Ford City, up to the one immediately south of Bellwood Gardens, were filled in, and buildings erected thereon. Certain streets and alleys were improved across the swamps to the hill at the eastern side of Ford City. Surface water drained from the hills and surrounding territory into the swamp in Bellwood Gardens, and during heavy rains and floods the water drained south into the swamp located in Ford City, and into said borough. During the years 1925 and 1926, the defendant borough in the course of the general improvement of its streets and alleys, paved Sixth Avenue, at the northern end of said borough, and graded and filled in an alley at the northern end of the borough, and immediately south of Bellwood Gardens. In the course of this work the alley was raised a number of feet, and the connection between the swamp in Bellwood Gardens and the swamp in Ford City filled in. Subsequent thereto, after a heavy rain, water came in and upon certain lots owned by the plaintiff in the plan of lots known as Bellwood Gardens, and caused the damage complained of. The plaintiff contends that the defendant committed an illegal act, in the improvement of its streets and alleys, in that it closed and obstructed a natural watercourse, and therefore this action in trespass will lie.
Whilst the owner of a lot at the foot of a slope is under no obligation to allow his lot to continue as a reservoir for the surplus water of the neighborhood, yet he may not obstruct a natural channel for the flow of the water, or a channel that has acquired the character of an easement, and he may not gather surface water into a body and discharge it on the adjoining land. His right is to shut out the invading water, as a common enemy, for the protection of his own land: Rielly v. Stephenson, 222 Pa. 252. Every public body is liable for a resulting injury, caused by diverting rain water from its natural channel and casting it upon private property: Mitchell v. City of New Castle, 275 Pa. 426; Torrey v. City of Scranton, 133 Pa. 173.
It is provided in section 1, article II, chapter 6, of the Act of 1915, P. L. 312, that a borough may enter upon, appropriate, injure, or destroy private lands, property or material, in laying out, opening, widening, extending, vacating, grading or changing the grades or lines of streets, lanes or alleys. . . . . . . The construction of slopes, embankments and sewers. . . . . . . And the changing of watercourses. It is not questioned but that the defendant borough was within its legal rights in grading and improving the street and alley complained of. However, it is contended that an illegal act was committed in the changing of an alleged watercourse. What is a watercourse is clearly defined by Judge RICE in Kislinski v. Gilboy, 19 Pa. Super. 453, 454: "A commonly accepted definition of a watercourse is a 'stream of water usually flowing in a definite channel, having a bed and sides or banks and discharging itself into some other stream or body of water': 28 Am. Eng. Ency. of Law, (1st edition), 944. Mere drainage over the general surface of land is very different from the flow of a stream or brook across the premises of another. In general, the channel and banks formed by the flowing of water must present to the eye on a casual glance the unmistakable evidence of the frequent action of running water (Gould on Waters, 2d edition, section 264); but the water need not flow continually, and there are many watercourses which are sometimes dry. 'There is, however, a distinction to be taken in law between a regular flowing stream of water, which at certain seasons is dried up, and those occasional bursts of water which, in times of freshet, or melting of ice and snow, descend from the hills and inundate the country': Angell on Watercourses, 7th edition, section 4."
The swamp located in Bellwood Gardens, Manor Township, immediately north of Ford City, was of large proportion, and existed for a great number of years. Surface water from the hills and immediately surrounding territory drained into this swamp, as well as into the swamp immediately south, in Ford City Borough. The water stood in each of these places for almost the entire year. No witness was called who stated that he ever saw any water flowing, in the connecting link between the two swamps, excepting during very heavy rains, and in flood times. Some surface water drained from Bellwood Gardens to a street in Ford City Borough, and into a manhole; only, however, after heavy rains. As stated in Kislinski v. Gilboy, supra, mere drainage over the general surface of land is very different from the flow of a stream or brook across the premises of another. To constitute a watercourse, there must be unmistakable evidence of frequent action of running water, and a distinction is to be taken between a regular flowing stream of water, which at certain seasons is dried up, and those occasional bursts of water which in times of freshets and storms descend from the hills and inundate the country. Whilst ordinarily water stood in the swamps of Ford City and Bellwood Gardens, yet no water flowed in a regular stream, excepting after heavy rains or flood. We therefore conclude that the drainage of the water south from Bellwood Gardens into Ford City was merely a drainage of surface water, and did not constitute the flowing of water in a watercourse. Ford City Borough committed no illegal act in the filling in and grading of its streets and alleys, nor is there any evidence that such work was done in a negligent manner. Under such circumstances the remedy of the plaintiff, if any, is that expressly provided by the Act of 1915, P. L. 312, supra, in which an elaborate system is provided for the ascertainment of damages in a proceeding before viewers. Under such circumstances it has been repeatedly held that a proceeding before the viewers is the exclusive remedy. A proceeding before viewers is the appropriate remedy for an injury caused by street improvement in a borough, which is the direct, immediate, necessary and unavoidable consequence of the exercise of a power conferred upon the borough: Barrett v. Minersville Boro., 38 Pa. Super. 76; Schroeder v. Boro., 74 Pa. Super. 532; Robinson v. Boro., 215 Pa. 375.
We therefore conclude that there was no error in the entering of the compulsory nonsuit.
And now, September 27, 1930, after due consideration, the motion to take off the compulsory nonsuit is refused, and the rule heretofore granted discharged.
Plaintiff appealed.
Error assigned was order refusing to take off nonsuit, quoting record.
E. O. Golden, for appellant. C. O. Morris and H. A. Heilman, for appellee.
The lower court clearly reached the proper determination of this case and its action in refusing to take off the nonsuit is affirmed on the opinion of the learned trial judge.
Judgment affirmed.