Summary
In Salisbury Township v. Vito, 446 Pa. 200, 285 A.2d 529 (1971), the Pennsylvania Supreme Court upheld the granting of an injunction against a property owner who channeled water from a stream into a pond, increasing the water level of a pond and flooding a neighboring right-of-way.
Summary of this case from Alburger et al. v. Phila. Elec. Co.Opinion
December 29, 1971.
Municipalities — Townships — Watercourses — Pond — Overflow onto public highway — Encroachment on public highway — Decree enjoining defendants from discharging water from their land onto a public road and enjoining encroachment upon public road — Decree requiring landowner to fill in the pond and grade it even with the surrounding land — Power of chancellor to render a decree which accords with the equities in the case where complainant includes a prayer for general relief — Necessity of competent support in the record for additional relief — Abuse of discretion — The First Class Township Law.
1. In this action of equity, in which it appeared that plaintiff, a township, complained that a pond on defendants' land overflowed its banks and the excess water made for generally muddy conditions in the summer and icy patches in the winter on a street, and that, in addition, the pond and a fence surrounding it encroached more than nine feet upon the right of way of the street; it was Held that the evidence sustained a finding that, although there might be other factors contributing to the overflowing, defendants' actions were a significant cause of the overflowing onto the street.
2. Where it appeared that the chancellor enjoined defendants perpetually from discharging water from their land onto a public road, from diverting water into the pond located on their property and from interfering with the flow of a stream located on or near their property, ordered defendants to remove the fence and pond obstructing the public highway right-of-way, and further to fill in the pond and grade it even with the surrounding land; it was Held that the chancellor properly afforded plaintiff relief to which it was entitled under the allegations of its complaint and specific prayer for relief, but that the chancellor abused his discretion in ordering defendants to fill in the pond and grade it even with the surrounding land.
3. A chancellor has power to shape and render a decree which accords with the equities in the case when the complainant includes a prayer for general relief; however, such general relief must have competent support in the record. [204]
4. The obvious purpose of The First Class Township Law, § 2067, as amended, is to protect the interests of the township and its citizens in maintaining and keeping under control existing water-flow and drainage while allowing private landowners the right to normal use of their property. [204-5]
Submitted January 18, 1971. Before BELL, C. J., JONES, EAGEN, O'BRIEN, ROBERTS, POMEROY and BARBIERI, JJ.
Appeals, Nos. 133 and 134, Jan. T., 1971, from decree of Court of Common Pleas of Lehigh County, April T., 1968, No. 9, and Sept. T., 1968, No. 22, in case of Township of Salisbury v. John D. and Ruth L. Vito. Decree, as modified, affirmed.
Equity actions consolidated for trial. Before SCHEIRER, J.
Adjudication and decrees nisi filed ordering defendants to correct certain conditions affecting a public right of way and enjoining continuing trespasses; exceptions thereto by defendants dismissed, and final decree entered. Defendants appealed.
Herbert G. Litvin, for appellants.
James G. Kellar, for appellee.
Appellants, John and Ruth Vito, are defendants in two equity actions brought by the Township of Salisbury, a first class township, in the Court of Common Pleas of Lehigh County. The actions were consolidated for trial and the Chancellor granted the relief requested by the township in both cases. Because we conclude that the Chancellor's orders were overly broad and in at least one instance beyond his authority, we vacate the orders below.
No. 9 April Term, 1968 and No. 22 September Term, 1968.
The township apparently proceeded under the Act of June 24, 1931, P. L. 1206, art. XV, § 1502, cl. XXVI, as amended, 53 P. S. § 56526, which gives First Class Townships the power "to prohibit and remove any obstruction or nuisance in the streets and highways of the township; . . . or to require the removal of the same by the owner or occupier of such grounds."
In 1965 the Vitos purchased a parcel of land fronting Lehigh Avenue in Salisbury Township. Soon after purchase, the Vitos cleared two catch basins on the property of accumulated refuse and garbage and filled in one of them. The other catch basin, which had less than two feet of water in it when the cleanup operation began, has since become a pond with a depth of approximately ten feet. On both wet and dry days the pond overflows its banks and the excess water makes for generally muddy conditions in the summer and icy patches in the winter on Lehigh Avenue. In addition, the southern end of the pond and a fence surrounding the pond encroach some 9.3 feet upon the right of way of Lehigh Avenue. The township complains of these conditions and states that the overflow and encroachment prevent the improvement of Lehigh Avenue in this area.
The major thrust of appellants' argument on appeal is that the township failed to prove that the Vitos' conduct was the legal cause of the pond's overflow. Appellants contend that the installation of a "lateral" under Lehigh Avenue and of a sewer pipe on the Vito property by third parties was accompanied by the deposit of great amounts of fill which prevented the normal drainage of the area. Mrs. Vito testified that there was no overflowing of the pond prior to the deposit of the fill. Although if this Court were trying the matter de novo we might reach a different conclusion, we believe there is support in the record, in the form of expert testimony, for the Chancellor's finding that the installation of the "lateral" and the sewer pipe did not contribute significantly to the overflow.
Appellants apparently do not contest that they are responsible for constructing and maintaining the fence or that the pond encroaches upon the Lehigh Avenue right-of-way.
There is also conflicting testimony in the record relating to the question of how much of the complained of condition on Lehigh Avenue is brought about by natural conditions.
In addition, there is sufficient evidence in the record to show that the Vitos' own actions made for a large increase in the amount of water in the pond. They installed a pipe on their property to channel into the pond water from a stream flowing inside or very close to their eastern property line. Prior to the installation of the pipe most of the stream's water was caused to flow under Lehigh Avenue by means of a conduit known as a dole. After the installation of this pipe, much of the stream's water ran into the pond rather than through the dole. The Vitos also increased the capacity of the pond by clearing the catch basin and by depositing fill on top of which a driveway was constructed around its perimeter. Thus, it is clear that the Vitos were, at least, responsible for an increased capacity of the pond and an increased flow of water into the pond, and the Chancellor was justified in finding that although there may be other factors contributing to the overflowing, the appellants' actions were a significant cause of the overflowing onto Lehigh Avenue. We know of no principle of law which would require the appellants to be the single cause of a prohibited result before they could be held for their contribution to that result.
The Chancellor, having reached the conclusion that appellants were responsible for the conditions complained of, granted the township equitable relief. At No. 9, the appellants were enjoined perpetually from discharging water from their land onto a public road, from diverting water into the pond located on their property and from interfering with the flow of a stream located on or near their property. At No. 22, the Chancellor ordered the Vitos to remove the fence and pond obstructing the Lehigh Avenue right-of-way and further to fill in the pond and grade it even with the surrounding land.
Our review of the record convinces us that the Chancellor properly afforded the Township relief to which it was entitled under the allegations in its complaint and specific prayer for relief, see Luther v. Luther, 216 Pa. 1, 9, 64 A. 868, 870 (1906), except as to that part of the decree at No. 22 which ordered the appellants to fill in the pond and grade it even with the surrounding land. Although this part of the decree was not specifically requested by the Township, we have long recognized the power of a Chancellor to shape and render a decree which accords with the equities in the case when, as here, the complainant includes a prayer for general relief. See Christian v. Johnstown Police Pension Fund Ass'n., 421 Pa. 240, 246, 218 A.2d 746 (1966). Such additional relief, however, must have competent support in the record. We find no basis in the record for imposing these additional burdens on the defendants, and hold that the Chancellor abused his discretion to the extent indicated. Accordingly, his decree will be modified. See Dombrowski v. Philadelphia, 431 Pa. 199, 245 A.2d 238 (1968).
The record supplies no reason for denying to the Vitos the right to maintain a proper pond on their premises. Perhaps, the Vitos will now have to submit plans to the Township Commissioners for the use of water to fill the pond under the provisions of The First Class Township Law. The obvious purpose of this statute is to protect the interests of the Township and its citizens in maintaining and keeping under control existing waterflow and drainage while allowing private landowners the right to normal use of their property.
"No person shall stop, fill up, confine, pave or otherwise interfere with any drain ditch, watercourse, or drainage facilities in a township without first submitting suitable plans thereof to the township commissioners for their approval." Act of June 24, 1931, P. L. 1206, art. XX, § 2067, as amended, 53 P. S. § 57067.
Accordingly, the portion of the Chancellor's decree at No. 22 which requires the defendants to fill in the pond and grade the area even with the surrounding land is vacated. The decrees, as so modified, are affirmed. Each party to pay own costs.