Helms v. Zeitzeff

• Decision Date: 21 May 1962
• Citation: 181 A.2d 277,407 Pa. 482
• Parties: Paul E. HELMS, Appellant, v. Joseph ZEITZEFF, Trustee under the Will of Rebecca Zeitzeff Deceased, Joseph Zeitzeff, Abe Zeitzeff, Edith Nemiroff and Roseanne Sterman, and City of Chester, County of Delaware, Pennsylvania. Appeal of ZEITZEFF (three cases). Appeal of NEMIROFF. Appeal of STERMAN.
• Court: Pennsylvania Supreme Court

181 A.2d 277

407 Pa. 482

Paul E. HELMS, Appellant, v. Joseph ZEITZEFF, Trustee under the Will of Rebecca Zeitzeff

Deceased, Joseph Zeitzeff, Abe Zeitzeff, Edith Nemiroff and Roseanne Sterman, and City of Chester, County of Delaware, Pennsylvania. Appeal of ZEITZEFF (three cases). Appeal of NEMIROFF. Appeal of STERMAN.

Supreme Court of Pennsylvania.

May 21, 1962.

George S. Saulnier, of Lindenmuth, Class & Saulnier Media, Ronald C. Unterberger, Harper, George, Buchanan &amp Driver, Philadelphia, for appellant Paul E. Helms.

Philip B. Driver, Jr., Philadelphia, for appellant.

Albert Blumberg, Chester, for appellee Joseph Zeitzeff, Trustee under the will of Rebecca Zeitzeff, deceased, and Joseph Zeitzeff, abe Zeitzeff, Edith Nemiroff and Roseanne Sterman.

Philip A. McMunigal, Jr., Asst. City Solicitor, Chester, for appellee, City of Chester.

Before BELL C. J., and MUSMANNO, JONES, COHEN, EAGEN, and O'BRIEN, JJ.

MUSMANNO Justice.

Prior to 1924, a small creek known as Lamokin Run babbled its way through Chester in Delaware County, crossing over a road known as Ninth Street and pursuing its course over other lands until it joined the parent waters of the Delaware River. In 1924, the City of Chester made some improvements on Ninth Street and, in doing so, lowered the course of Lamokin Run so that if flowed through a culvert beneath the thoroughfare.

E. R. Helms, owner of the property adjoining Ninth Street on the south side, laid pipes subterraneously to connect up with the city culvert and thus guide the creek through his land to the land south of his property. The owner of this lower property, S. R. Crothers, sank large domestic hot water boilers (with their ends knocked out) into the bed of the Lamokin Run to assist the creek on its way to the river. After sinking the pipes, he covered them with earth. From time to time dumped fill was poured over the pipes on both properties and eventually the pipes were no longer visible from the surface, which had now risen from 7 to 24 feet above the iriginal level.

Since the hot water boilers had not been sealed together at the joints, all did not go well with the flow of the underground Lamokin Run, and finally came the day when the water no longer wended its way to the Delaware. Failing to locate an outlet, it backed up on to the Helms property, flooding basements and doing other damage.

In May, 1953, Paul E. Helms, who was now owner of the upper property, filed a Complaint in Equity in the Court of Common Pleas of Delaware County against Joseph Zeitzeff, trustee under the will of Rebecca Zeitzeff, former owner of the subservient property, and Morris Zeitzeff, life beneficiary under the trust. On February 3, 1960, by stipulation between the parties, Joseph Zeitzeff, Abe Zeitzeff, Edith Nemiroff and Roseanne Sterman were substituted for the original defendant, Joseph Zeitzeff, trustee under the will of Rebecca Zeitzeff.

Hearings were held before Chancellor Diggins on June 16, 1954, June 12, 1957, June 11, 1958 and December 17, 1959. Following the hearing of June 12, 1957, the City of Chester, at the direction of the Court, was brought in as a party defendant and participated in the latter two hearings. On January 27, 1961, the Chancellor entered a decree nisi, amended on February 9, 1961. After exceptions taken and argued, the Court handed down a final decree on September 27, 1961, ordering the construction through the Zeitzeff property of a pipe of reinforced cement 18 inches in diameter to carry off the waters coming from the Helms property, the project not to exceed an expenditure of $3500, which was to be divided equally between the parties. Both parties appealed, Helms complaining because he was ordered to pay onehalf of the expense of the decreed project and not allowed damages for the losses he suffered as a result of the backingup of Lamokin Run. The Zeitzeffs complained that they were not at fault in any regard and that Helms had no standing in equity because of laches.

The law is well settled that the owner of land through or over which a natural watercourse flows may not obstruct the stream so as to damage the land higher up on the stream. One buys land as it is and he knows that rivers, creeks and tributaries are destined by natural laws to move toward larger bodies of water. There is in each moving stream an irresistible force which cannot be stopped or harnessed without in some way affecting the land which it touches. Thus, the owner of land on the higher level of a stream has the right to have that stream move away from him and every subservient owner has the obligation to let it continue on its way. In Colket v. Verner, 236 Pa. 285, 291, 84 A. 775, 777, this Court approved the following pronouncement of law on the subject:

'As against a lower riparian owner, the owner of the lands higher up the stream has the right to have the waters of the stream flow over his lands as they would naturally flow. The lower owner has no right to obstruct the flow of the stream by a dam so as to flood the land of the upper owner, or to raise the level of the water in its bed to his detriment.'

What the subservient owner may not do through intention he may equally not accomplish through neglect. The evidence in this case demonstrates that the Zeitzeffs from the beginning of the problem presented by the Lamokin Run treated it haphazardly. The owner at the time, as already stated, planted a few boiler pipes in his land, but did not seal them together. Later...