Dames v. Borough of Pottstown

Montgomery County Court of Common Pleas

Dames v. Borough of Pottstown

43 Pa. D. & C.2d 315, 1967 Pa. Dist. & Cnty. Dec. LEXIS 218

CourtPennsylvania Court of Common Pleas, Montgomery County

DecidedJune 15, 1967

Docketno. 66-8462

StatusPublished

This text of 43 Pa. D. & C.2d 315 (Dames v. Borough of Pottstown) is published on Counsel Stack Legal Research, covering Pennsylvania Court of Common Pleas, Montgomery County primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Dames v. Borough of Pottstown, 43 Pa. D. & C.2d 315, 1967 Pa. Dist. & Cnty. Dec. LEXIS 218 (Pa. Super. Ct. 1967).

Pincite

Opinion

Ditter, J.,

This case comes before the court on preliminary objections to an amended petition for the appointment of a jury of view.

[316]*316Petitioners allege that a portion of the property they own in the Borough of Pottstown has been used for some years by the public as an alley. Despite the fact that the borough has never by ordinance made this alley a part of its street system, in 1961, and at other times, it has paved the alley and changed its grade. .Petitioners allege that as a result of the work done by the borough, water drains onto their property, causing them damage. It is for the redress of this injury that they seek the appointment of viewers.

The borough has filed preliminary objections in the nature of a demurrer. The borough contends that since the alley was never ordained, its paving and resurfacing was a trespass and that if there is liability, petitioners must sue in trespass.

We disagree. In the first place, even if the borough acted without authority, its later acts may be considered as a ratification of that which had been done: Deer v. Sheraden Borough, 220 Pa. 307, 310-11 (1908). Secondly, the appointment of viewers has been held to be the proper procedure where a property owner is injured by surface waters which result from an unauthorized change of grade: Hughes v. Elizabeth Borough, 343 Pa. 175, 177 (1941). Finally, as set forth in section 303 of the Eminent Domain Code, the Act of June 22,1964, P.L. 84, 26 PS §1-101 etc., is intended to provide a complete and exclusive procedure when property is damaged for public purposes. See also Bleman v. City of Philadelphia, 39 D. & C. 2d 446, 448-52 (1966).

In view of our decision as to the borough’s preliminary objections, there is no reason for us to pass upon petitioners’ preliminary objections to defendant’s preliminary objections.

And now, June 15, 1967, the preliminary objections to the amended petition for a jury of view are hereby dismissed and refused.

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Ditter, J.,

This case comes before the court on preliminary objections to an amended petition for the appointment of a jury of view.

[316]*316Petitioners allege that a portion of the property they own in the Borough of Pottstown has been used for some years by the public as an alley. Despite the fact that the borough has never by ordinance made this alley a part of its street system, in 1961, and at other times, it has paved the alley and changed its grade. .Petitioners allege that as a result of the work done by the borough, water drains onto their property, causing them damage. It is for the redress of this injury that they seek the appointment of viewers.

The borough has filed preliminary objections in the nature of a demurrer. The borough contends that since the alley was never ordained, its paving and resurfacing was a trespass and that if there is liability, petitioners must sue in trespass.

We disagree. In the first place, even if the borough acted without authority, its later acts may be considered as a ratification of that which had been done: Deer v. Sheraden Borough, 220 Pa. 307, 310-11 (1908). Secondly, the appointment of viewers has been held to be the proper procedure where a property owner is injured by surface waters which result from an unauthorized change of grade: Hughes v. Elizabeth Borough, 343 Pa. 175, 177 (1941). Finally, as set forth in section 303 of the Eminent Domain Code, the Act of June 22,1964, P.L. 84, 26 PS §1-101 etc., is intended to provide a complete and exclusive procedure when property is damaged for public purposes. See also Bleman v. City of Philadelphia, 39 D. & C. 2d 446, 448-52 (1966).

In view of our decision as to the borough’s preliminary objections, there is no reason for us to pass upon petitioners’ preliminary objections to defendant’s preliminary objections.

And now, June 15, 1967, the preliminary objections to the amended petition for a jury of view are hereby dismissed and refused.

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Bluebook (online)

43 Pa. D. & C.2d 315, 1967 Pa. Dist. & Cnty. Dec. LEXIS 218, Counsel Stack Legal Research, https://law.counselstack.com/opinion/dames-v-borough-of-pottstown-pactcomplmontgo-1967.

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