Bower v. Hoefner

43 Pa. D. & C.3d 475, 1986 Pa. Dist. & Cnty. Dec. LEXIS 211
CourtPennsylvania Court of Common Pleas, Bucks County
DecidedMarch 14, 1986
Docketno. 83-04781-11-5
StatusPublished

This text of 43 Pa. D. & C.3d 475 (Bower v. Hoefner) is published on Counsel Stack Legal Research, covering Pennsylvania Court of Common Pleas, Bucks County primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Bower v. Hoefner, 43 Pa. D. & C.3d 475, 1986 Pa. Dist. & Cnty. Dec. LEXIS 211 (Pa. Super. Ct. 1986).

Opinion

BORTNER, J„

Plaintiffs John and Elizabeth Bower filed a complaint in equity to enjoin defendant Jean Hoefner from diverting a.water course and maintaining obstructions to the natural drainage course, specifically a wooden, stone and earthen barrier near plaintiffs’ property line, requiring that defendant restore the previously existing swale configuration and topographical elevations of plaintiffs’ property. Subsequently, defendant Hoefner filed a complaint against additional defendants Cameron and Edith Wilson, Wilson Court Associates, Township of Northampton, [476]*476and the Pennsylvania Department of Transportation. Defendant also filed a crossclaim against additional defendants alleging a variety of charges and a counterclaim against plaintiffs alleging improper alteration of a natural water course. On November 23, 1983, a hearing was held and continued while the parties attempted a settlement. Thereafter, defendant continued to expand the barrier. The hearing was resumed on August 26, 27, 29 and 30, 1985. Throughout this time defendant continued to expand the barrier. Therefore, on November 22, 1985, this court entered an order to maintain the status quo of the barrier as of the date of the order. With regard to the original complaint, we herein make the following

FINDINGS OF FACT

1. Plaintiffs John and Elizabeth Bower, husband and wife, are owners in fee of a tract and residence situated at 59 Twining Ford Road, Northampton Township' Bucks County, Pa.

2. Original defendant Jean Hoefner is owner in fee of a tract and residence adjacent to and.sharing a common boundary line with plaintiffs and situated at 43 Twining Ford Road, Northampton Township, Bucks County, Pa.

3. Additional defendants Cameron and Edith Wilson (hereinafter referred to as the Wilsons) are owners in fee of a tract and residence on 5.9 acres situated at Twining Ford Road, Northampton Township, Bucks County, Pa., the tract being adjacent to the rear property lines of plaintiffs ánd original defendant.

4. Additional defendant Wilson Court Associates is a Pennsylvania limited partnership and is the [477]*477owner in fee of 14.6 acres of undeveloped land adjoining the property of additional defendants, the Wilsons.

5. Additional defendant Township of Northampton is a second-class township with offices at 55 Township Road, Richboro, Bucks County, Pa., and is a political subdivision.

6. Additional defendant Pennsylvania Department of Transportation (hereinafter referred to as PennDOT) is a government agency with offices at 200 Radnor-Chester Pike, Saint Davids, Delaware County, Pa.

7. Plaintiffs purchased their tract on May 12, 1949, and subsequently built a residence thereon which was completed in 1950. Plaintiffs’ property is at a higher elevation than defendant’s property.

8. An area located in what is now the Wilson tract has been designated as flood-prone soil according to the soil survey of July 1975. Historically, storm water drained from this area of farmland through a natural swale which crossed the northwest comer of plaintiffs’ property, down what is now defendant Hoefher’s property and onto a lower meadow.

9. Plaintiffs did not alter the historical swale in building and landscaping their home.

10. Plaintiffs planted trees along their property line bordering defendant Hoefner’s property approximately 35 years ago. Some trees were replaced in 1973 and 1979. These trees are now mature hemlocks, hollies and dogwoods. The trees were not planted in the path of the natural swale. The swale runs between some of the trees.

11. In 1982, plaintiffs built a detached garage below the upper course of the swale. The construction and landscaping did not interfere with the swale.

[478]*47812. In 1975-76, defendants Wilsons built barns and a residence on their property. The Wilsons’ pastures and other development slowed the water flow through the natural swale but did not alter the course.

13. Until 1981, the Hoefner property consisted of a carriage house and driveway. The house was not within the natural swale.

14. Subsequent to the purchase of the Hoefner property on October 3, 1980 by defendant Hoefner, defendant began to build an addition to the carriage house consisting of two bedrooms, two bathrooms, a breezeway and a garage. The addition was built within and directly across the natural swale. The addition was begun during a prolonged dry spell.

15. Plaintiff John Bower and defendant Cameron Wilson both advised defendant Hoefner or her agents that the addition was in the natural swale. Defendant Hoefner also had available a topographical map showing the superior elevations of plaintiffs’ property and defendant Wilsons’ property. Neither defendant Hoefner nor her agent Mr. Richard Sanpietro consulted aerial photographs or plans of Wilson Court Associates prepared in 1979 or other information which would have apprised him/her of the potential water hazard. Defendant Hoefner claims not to have been aware of the historical swale until June 1982.

16. In June 1982, a rain storm occurred and defendant Hoefner’s buildings under construction were inundated with water running through the natural swale. Thereafter, defendant Hoefner began construction of a low timber wall 60 to 70 feet in length and five to six feet from the Hoefner-Bower property line.

17. Thereafter, defendant Hoefner also built a stone wall 20 to 30 feet in length running through [479]*479the swale parallel to the timber wall. (She subsequently removed the stone wall.) Defendant Hoefner filled the area between the walls with dirt and vegetation.

18. As a result of defendant Hoefner’s erection of the barriers, the natural flow of surface storm water was deflected back onto plaintiffs’ property.

19. Over the years defendant Hoefner has continued to extend the timber barrier and has brought in soil and sod which she has used to fill the natural swale. In addition, defendant Hoefner has added bales of hay and cinder blocks to the barrier.

20. As a result of defendant Hoefner’s erection of barriers, storm water now flows around the bases of plaintiffs’ line of trees and significant erosion has occurred in this area and has extended down the' line of trees as defendant Hoefner lengthened her barrier. Storm water has been significantly increased on plaintiffs’ property because of the barriers.

.21. On November 23, 1983, a hearing was held in regard to plaintiffs’ petition for a temporary restraining order. The hearing was continued for the purpose of attempting to reach a settlement.

22. The hearing was resumed on January 26, 1985. Arborist Robert McMullin testified for plaintiffs and noted that the erosion around the trees increased between August 1983, and January 1985. He also testified that, if allowed to continue unchecked, the storm water runoff would eventually kill plaintiffs’ trees.

23. Arborist Samuel Atkinson testified for defendant Hoefner that erosion had increased in the area of plaintiffs’ trees by only 1 percent between 1983 and 1985. Mr. Atkinson admitted that if erosion continued over the whole area for the next 10 years, the area would eventually wear away.

[480]*48024. Photographic evidence shows that some eroded channels at the bases of plaintiffs.’ trees measure at least 12 inches in depth.

DISCUSSION

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Bluebook (online)
43 Pa. D. & C.3d 475, 1986 Pa. Dist. & Cnty. Dec. LEXIS 211, Counsel Stack Legal Research, https://law.counselstack.com/opinion/bower-v-hoefner-pactcomplbucks-1986.