In granting the Defendants' motion for summary judgment, the trial court reasoned as follows: In disposing of the Motion for Summary Judgment, we rely upon the holding and rationale of the Superior Court in LaForm v. Bethlehem Township, [ 499 A.2d 1373 (Pa.Super.Ct. 1985).] In that case, it was held that "liability under Section 368 [of the Restatement (Second) of Torts] for creating a dangerous water runoff condition on a public highway must be preceded by some actionable negligence on the part of the landowner."
Our jurisprudence considers water a "common enemy" of neighboring landowners, who may fight against it as they will. LaForm v. Bethlehem Tp., 499 A.2d 1373, 1378 (Pa.Super. 1985) (en banc). Thus,
To impose liability on an upper landowner for the effects of surface water runoff on a lower-lying property, the lower landowner must show one of these exceptions applies—that the upper landowner either "diverted the water from its natural channel by artificial means, or...unreasonably or unnecessarily increased the quantity (or changed the quality) of water discharged upon his neighbor." LaForm v. Bethlehem Twp. , 346 Pa.Super. 512, 499 A.2d 1373, 1378, 1383 (1985) (citations omitted); see alsoBretz v. Cent. Bucks Sch. Dist. , 86 A.3d 306, 316 (Pa. Commw. Ct. 2014) ; Florimonte v. Borough of Dalton , No. 987 C.D. 2012, 2013 WL 3973727, at *6, *8–10 (Pa. Commw. Ct. Apr. 4, 2013) ; Fazio v. Fegley Oil Co. , 714 A.2d 510, 513 (Pa. Commw. Ct. 1998). Even where the lower landowner shows the upper landowner has "alter[ed] the natural conditions so as to change the course of the water, or concentrate it at a particular point, or by artificial means to increase its volume," the upper landowner may avoid liability for injury caused thereby if he shows that the use that inflicted the damage was "natural, proper, and free from negligence, and the damage unavoidable."
See also 51 P.L.E. Waters § 107 (“The owner of a dominant tenement may not divert surface waters from their normal ways and channels, or concentrate water at a particular point so as to increase its force or velocity, either by making artificial channels or any other affirmative act ... even though no more water is thereby collected than would naturally have flowed upon a neighbor's land in a diffused condition.”) (citations omitted). These principles were distilled by our Superior Court in LaForm v. Bethlehem Township, 346 Pa.Super. 512, 499 A.2d 1373, 1378 (1985) (en banc), which held that an upper landowner is liable for the effects of surface water running off his property in two distinct circumstances: (1) where the landowner has diverted the water from its natural channel by artificial means; or (2) where the landowner has unreasonably or unnecessarily increased the quantity or changed the quality of water discharged upon his neighbor. Accord Fazio v. Fegley Oil Co., 714 A.2d 510, 513 (Pa.Cmwlth.1998) (adopting LaForm ).
Shamnoski v. PG Energy, Div. of S. Union Co., 858 A.2d 589, 605 (Pa. 2004) (quoting Lucas v. Ford, 69 A.2d 114, 116 (Pa. 1949)). Bretz v. Cent. Bucks Sch. Dist., 86 A.3d 306, 316 (Pa. Commw. Ct. 2014) (continuing trespass); LaForm v. Bethlehem Township, 499 A.2d 1373, 1383 (Pa. Super. Ct. 1985) (negligence). There is no evidence as to whether the high point on the north side of the right-of-way, which blocks water from the right-of-way from flowing down the Mall hill, existed when the track was constructed in the late-1800s, or that CSX created the high point.
“The law regards surface water as a common enemy which every proprietor must fight to get rid of as best he may.” LaForm v. Bethlehem Twp., 499 A.2d 1373, 1378 (Pa. 1985) (en banc). the owner of a dominant or superior heritage has an easement in the servient or inferior tenement for the discharge of all waters which by nature rise in or flow or fall upon the superior.
A. Plaintiffs' Claims Against Amtrak. Pennsylvania adheres to the common law or "common enemy" rule that regards surface waters as a common enemy which every proprietor must fight to get rid of as best he may. Strauss v. City of Allentown, 215 Pa. 96, 63 A. 1073 (1906); LaForm v. Bethlehem Township, 346 Pa.Super. 512, 499 A.2d 1373, 1378 (1985). Under this rule, not only is an owner of higher land under no liability for damages to an owner of lower land caused by water which naturally flows from the one level to the other, but he can, at least in the development of urban property, improve his land by regrading it or erecting buildings thereon without legal responsibility for any consequent diversion of surface waters from his property to that of adjoining owners.
¶ 16. Scruggs cites LaForm v. Bethlehem Township, 499 A.2d 1373, 1378 (Pa.Super.Ct. 1985), for the rule that "an upper landowner is liable for the effects of surface water running off his property only when he has (1) diverted the water from its natural channel by artificial means or (2) unreasonably or unnecessarily increased the quantity (or changed the quality of water discharged." Id.
The City asserts that its acts in planning the intersection at Midvale Avenue and East River Drive were discretionary and thus immune from a finding of liability. Relying upon LaForm v. Bethlehem Township, 346 Pa. Super. 512, 499 A.2d 1373 (1985), the City maintains that liability could be found if the workmanship or maintenance of the system were defective, but not for a defective plan. The City's reliance on LaForm is somewhat misplaced.
Still, the question remains whether the Baptistes have sufficiently pleaded a cognizable injury to state an independent negligence claim. See LaForm v. Bethlehem Twp., 499 A.2d 1373, 1384 (Pa. Super. Ct. 1985); RESTATEMENT (SECOND) OF TORTS §§ 371, 497. The Baptistes believe they have sufficiently pleaded physical property damages insofar as they alleged that "noxious odors, pollutants and air contaminants" have "physically" invaded their property, JA29 (Compl. ¶ 12), constituting a "hazard to health, safety, or property."