Magee v. Pennsylvania Schuylkill Valley Railroad Co.

• Decision Date: 21 March 1900
• Docket Number: 137-1899
• Citation: 13 Pa.Super. 187
• Parties: J. Henry Magee v. Pennsylvania Schuylkill Valley Railroad Company, Benjamin F. Shibe and the Philadelphia, Bala and Bryn Mawr Turnpike Company. Appeal by Benjamin F. Shibe and the Philadelphia, Bala and Bryn Mawr Turnpike Company
• Court: Pennsylvania Superior Court

13 Pa.Super. 187

J. Henry Magee v. Pennsylvania Schuylkill Valley Railroad Company, Benjamin F. Shibe and the Philadelphia, Bala and Bryn Mawr Turnpike Company.

Appeal by Benjamin F. Shibe and the Philadelphia, Bala and Bryn Mawr Turnpike Company

No. 137-1899

Superior Court of Pennsylvania

March 21, 1900

Argued October 18, 1899 [Syllabus Matter] [Syllabus Matter] [Syllabus Matter]

Appeal by Benjamin F. Shibe and the Philadelphia, Bala and Bryn Mawr Turnpike Company, from judgment of C.P. No. 2, Phila. Co., June Term, 1895, No. 750, on verdict for plaintiff.

Trespass for injuries to land. Before Pennypacker, P. J.

At the trial it appeared that the plaintiff owned a dwelling house and lot on Bala avenue, Montgomery county, Pennsylvania. He alleged that his land was injured by the action of the defendants in constructing a drain in such a manner as to throw an increased volume of water upon his land, and also by throwing polluted water upon his land, through the drain.

Plaintiff's statement of claim was as follows:

The plaintiff, in February, 1894, was and from that time has been, and still is, possessed of a certain dwelling house and lot with the appurtenances, situate on Bala avenue, in Bala, Montgomery county, Pennsylvania, having a frontage of one hundred feet, and extending of that width from said Bala avenue to the property of the Pennsylvania Schuylkill Valley Railroad Company. During all of said time the plaintiff and his family inhabited and dwelt, and still do inhabit and dwell, in said house.

To the east and adjoining the property of the plaintiff is the said land of the Pennsylvania Schuylkill Valley Railroad Company, one of the defendants to this action, and further to the east and adjoining the property of the Pennsylvania Schuylkill Valley Railroad Company is the property of Benjamin F. Shibe, another of the defendants, said Shibe's property extending eastward to the western side of a turnpike owned and operated by the Philadelphia, Bala and Bryn Mawr Turnpike Company, also a defendant to this action. It became the duty of the said defendants to drain the water from their proprieties by its natural channel, and so that it would not flow upon and over the property of the plaintiff, and so as to cause no increased volumes of water to flow over the plaintiff's land. Yet the defendants, disregarding these duties to the plaintiff, did, wilfully, negligently and without regard to the rights of the plaintiff, drain the water from their properties in such a manner that it did not flow in its natural course, but caused large volumes of water to flow upon and over the property of plaintiff and increasing the quantity of water passing over the property in times of rainfall to plaintiff's injury, washing ruts in his lawn, flooding his cellar, undermining the foundations of his house, polluting his well and seriously affecting the health of plaintiff and his family and materially interfering with the enjoyment of said property, thereby causing said plaintiff to expend large sums of money in introducing other water on premises for family use; for procuring medical attendance and medicines for himself and family; and he will be compelled to expend other large sums in repairing drain on his property and repairing the walls of his house, thereby damaging him to the amount of $ 5,000, and therefore he brings this suit."

The facts developed at the trial are stated in the opinion of the Superior Court.

Plaintiff's points and the answers thereto among others were as follows:

[1. If the defendants, or either of them, by means of a drain or drains collected in one channel waters which would otherwise remain stagnant or evaporate or gradually flow off, and discharge them in a mass upon the plaintiff's property to his injury, he or they so doing are responsible to the plaintiff in damages. Answer: Affirmed.]

[3. If the jury believe that the defendants, or any one of them, made or constructed an artificial drain by which the water from his or their land was discharged upon that of the plaintiff in a different manner from its accustomed channel, and injury resulted therefrom, he or they are responsible in damages, and a verdict should be rendered for the plaintiff. Answer: Affirmed.]

[5. If the defendants, or either of them, drained the water from his or their lands upon the land of the plaintiff to his injury, other than by the accustomed and natural channels, they are either severally or jointly negligent and responsible for damages to the plaintiff. Answer: Affirmed.]

[6. If the jury find from the evidence that the defendants, or either of them, did so collect water upon his or their own land and turn it in a body on the lands of plaintiff, through an artificial channel made by defendants, or either of them, and this to the injury and damage of plaintiff, he is then to receive such damage as you believe from the evidence he has sustained. Answer: Affirmed.]

Defendants' points and the answers thereto among others were as follows:

[1. In view of the admission of the plaintiff that the property alleged to have been injured is situate in Montgomery county, and that the act done, from which he claims the injury has resulted, resulted from the construction of culverts and pipes in Montgomery county, he is not entitled to recover in the present action, and your verdict must be in favor of the defendant. Answer: Refused.]

[2. The turnpike company is authorized to construct drains for the purpose of draining its turnpike. The uncontradicted evidence is that the culvert under the turnpike and the pipe leading from such culvert to the culvert under the right of way of the Pennsylvania Schuylkill Valley Railroad Company, were constructed by the turnpike company for the purpose of draining its turnpike. Under this undisputed state of facts the plaintiff cannot recover in this action, against the turnpike company or against Shibe, any damages occasioned by such construction. Answer: Refused.]

[3. Under its charter the turnpike company was authorized to make such ditches and drains as it deemed proper and necessary to carry the water from its roadbed over property which was lower in level than the turnpike. The evidence discloses the fact, uncontradicted, that the drain or culvert under the turnpike carried water through the culvert constructed by the turnpike company; that the natural watershed was from the turnpike across the land of Shibe under said culvert through the railroad embankment across the land of plaintiff. Under these circumstances he is not entitled to recover damages against the defendants for the construction of the drain under the turnpike or of the pipe leading from such drain to the culvert through the railway embankment. Answer: Refused.]

[4. It appeared by the uncontradicted testimony that in pursuance of its right, the Pennsylvania Schuylkill Valley Railroad Company constructed a culvert some twenty inches in diameter through its embankment which opened upon the land of the plaintiff to the west. It was within the right of the turnpike company to drain its turnpike by a culvert under the same and by a pipe across the lands of Shibe into and through this railway culvert. If you find that the turnpike company constructed said culvert and pipe for the purpose of draining its turnpike, there can be no recovery in the present suit against it. Answer: Refused.]

[5. The defendants in this case are not joint tort feasors. Under no circumstances would Shibe be liable for the action of the turnpike company in draining its turnpike, nor would the turnpike company be liable for the action of Shibe in opening a connection with its pipe, nor for his action in altering the grade of his lot. Answer: Refused.]

[6. In the course of improvement of suburban property the owner may fill up his ground to adapt it for residence, without responsibility to the adjoining owner, whose land is lower than his own, upon whose property the water may be thrown. In the course of improvement of suburban property each owner must take care of the water which naturally flows on his ground. Answer: Refused.]

[7. If you find that the natural water course was from the turnpike across land of Shibe through the railway culvert, and across the land of the plaintiff; that in the course of his building improvements Shibe prevented the water from running across his land and through the same along the turnpike towards the south, it was the right of the turnpike company to so construct its drains that the water would not continue to flow along its turnpike to the south, out of its natural course; but to construct drains in such way that the water would flow in accordance with its natural course across the lands, including that of the plaintiff, to the west. Answer: Refused.]

[8. Your verdict must be for the defendants. Answer: Refused.]

Verdict and judgment for plaintiff for $ 350. Defendants appealed.

Errors assigned were above instructions, quoting them.

John G. Johnson, for appellants. -- The turnpike company by laying a pipe for the purpose of draining its turnpike down a natural water course was not guilty of a trespass: Act of January 26, 1849, P. L. 10; Act of June 13, 1836, P. L. 551.

Under the evidence a joint verdict or judgment could not be permitted against Shibe and the turnpike company: 1 Chitty on Pleading, 97.

The action was local, and the court of common pleas of Philadelphia county had no jurisdiction of the same: Prevost v. Gorrell, 2 W. N.C. 440; 1 Chitty on Pleading (4th Am. ed.), 270; Oliphant v. Smith, 3 Penrose & Watts, 180; Musselman's App., 101 Pa. 165.

John E McCully, with him Thomas G. Hawkes, for appellee. -- An owner of land has no right by means of drains to collect in one channel waters which would otherwise remain...