Woolheater v. Mifflin Township

74 Pa. Super. 557, 1920 Pa. Super. LEXIS 198

• Court: Superior Court of Pennsylvania
• Decided: July 14, 1920
• Docket: Appeal, No. 18
• Status: Published

Opinion

Opinion by

Trexler, J.,

Plaintiff alleges that the authorities of the Township of Mifflin turned surface water from its natural course and negligently discharged it in large quantities over his land. Plaintiff’s property was located on Bowes avenue in a low place and some water following the natural contour of the ground flowed across it. There was a water course on Hazel street which intersects Bowes avenue not far from plaintiff’s premises. Formerly the water coming down Hazel street was carried over Bowes avenue down a hill to a creek. The township authorities in order to make Bowes avenue passable, repaired it by levelling it at some places, and instead of allowing the water to cross the avenue at Hazel street and to continue straight down the latter street, they turned it into a furrow or ditch and thus led it down Bowes avenue so that it reached plaintiff’s property and flowed across it and thus caused the damage complained of.

The plaintiff was required to fight the “common enemy” as best he could, but he was not required to bear more than his share of the battle. The water that naturally reached his property he had to take care of, but the township had no right to divert the water to his land and thus increase the area of the watershed draining over his premises. It has never been held “that a municipal corporation may throw a body of water upon the property of one of its citizens if it would not naturally flow there. It may not throw upon the land of A the water which flows upon the land of B”: Torrey v. City of Scranton, 133 Pa. 173. See Bohan v. Avoca Borough, 154 Pa. 404; McCormick v. Kinsey, 10 Pa. Superior Ct. 607; Taylor v. Canton Township, 30 Pa. Superior Ct. 305. It is true that under the Act of June 13, 1836, P. L. 560, section 32, supervisors are given large powers in relation to drains and ditches along public roads, but that act does not authorize supervisors to close up the natural watercourse which drains certain property and turn it into another course to' the detriment of the property holder. The scope of that act was defined in Hall v. Rine, 60 Pa. Superior Ct. 401.

The verdict was for $225. This the appellant claims was excessive. “While it was fully as large as the testimony would warrant, we cannot say it is excessive” was the conclusion of the lower court, and we think this is correct. Unless it is so grossly excessive as to shock the court’s sense of justice, it is not just grounds for a reversal: Scott, Admx., v. American Exp. Co., 257 Pa. 25.

All the assignments of error are overruled. Judgment affirmed.