Meninchino v. City of New Castle

• Decision Date: 02 July 1929
• Docket Number: 182-1929
• Citation: 96 Pa.Super. 405
• Parties: Meninchino v. City of New Castle, Appellant
• Court: Pennsylvania Superior Court

96 Pa.Super. 405

Meninchino v. City of New Castle, Appellant

No. 182-1929

Superior Court of Pennsylvania

July 2, 1929

Argued April 18, 1929

Appeal by defendant from judgment of C. P. Lawrence County, No 27-1928, M. D., in the case of Enrico Meninchino v. City of New Castle, a municipal corporation.

Trespass to recover damages to land. Before Hildebrand, P. J.

The facts are stated in the opinion of the Superior Court.

Verdict for plaintiff in the sum of $ 250 and judgment thereon.

Error assigned was the judgment of the court.

Robert White, City Solicitor, for appellant. -- Where a city by proper corporate action, caused a mound to be erected in a street so that the water coming there naturally was turned aside and flowed over plaintiff's land, it is not liable in an action of trespass: Kislinski v. Gilboy, 19 Pa.Super. 453; Bridgewater v. Beaver, 269 Pa. 27; Rielly v. Stephenson, 222 Pa. 252.

Where the employes of a city, in cleaning its streets, dump refuse and dirt so that surface water is diverted on to the land of an adjacent owner, the city is not liable to the injured property owner for the negligent act of its employes Harris v. District of Columbia, 14 A.L.R. 1471; Mitchell v. City of New Castle, 275 Pa. 426; Allentown v. Kramer, 73 Pa. 406; Coal Co. v Scranton, 148 Pa. 231.

Clarence A. Patterson, and with him J. Clyde Gilfillan of Gilfillan & Patterson, for appellee. -- The city is liable in trespass for diverting surface water from its natural course and causing it to flow upon plaintiff's land, where it did not flow before: Torrey v. Scranton, 133 Pa. 173; Woolheater v. Mifflin Twp., 74 Pa.Super. 557; Bohan v. Avoca Borough, 154 Pa. 404.

Before Trexler, Keller, Linn, Gawthrop, Cunningham and Baldrige, JJ.

OPINION

Gawthrop, J.

The action is trespass for damages alleged to have been caused by the negligence of defendant in diverting surface water from the city streets to and upon plaintiff's property. From the judgment entered on a verdict for plaintiff defendant has appealed, and the sole question presented is whether there was error in refusing a point for binding instructions and a motion for judgment n. o. v.

In the light of the verdict the following may be stated as the facts: Plaintiff owns and resides upon a lot at the northeast corner of Swansea Avenue and Liberty Street, in the City of New Castle. Liberty Street, a paved highway, runs north and south and is approximately level, there being a slight slope from the south toward Swansea Avenue, which crosses Liberty Street at right angles. To the west of Liberty Street Swansea Avenue rises rather abruptly and to the east it slopes sharply downward. Although it has been opened for thirty years, it is unpaved, and is impassable for traffic east of Liberty Street and only slightly used to the west thereof. A considerable area west of Liberty Street drains down to and upon that street. The flow of surface water on Liberty Street is toward Swansea Avenue and, for a period of at least twenty years, at times of freshets and hard rains, water was accustomed to flow down Swansea Avenue from the west, cross Liberty Street and pass east-wardly down Swansea Avenue. This condition prevailed both before and after the paving of Liberty Street. As a result of this action of the water considerable quantities of dirt and gravel were deposited on the surface of Liberty Street. In April, 1927, the employes of the street department of the city removed some dirt, sand and gravel from Liberty Street and placed it immediately to the east of Liberty Street across the mouth of Swansea Avenue. They continued to deposit this material in this manner until July, 1927, when a mound about three feet high had been formed entirely across the mouth of Swansea Avenue. This mound formed a barrier which prevented the surface water collecting on Liberty Street from crossing that street and taking its natural course down Swansea Avenue. The result was that during a heavy rain in July, 1927, (but not an extraordinary storm or flood) surface drainage water coming down Swansea Avenue from the west and from Liberty Street to the south collected in such quantities at the intersection of the two streets that it ran around and through the north end of the mound or barrier and upon and over the property of plaintiff...