Westbury Realty Corp. v. Lancaster Shopping Center, Inc.

• Citation: 396 Pa. 383,152 A.2d 669
• Parties: WESTBURY REALTY CORP., Lynn C. Londrey and Bertha B. Londrey, his wife, Wendell N. Stadel and Bertha M. Stadel, his wife, and Alexander Reid and Thelma R. Reid, his wife, Appellants, v. LANCASTER SHOPPING CENTER, INC., Sears, Roebuck & Co., and Algon Realty Co., and Commonwealth of Pennsylvania, Appellees.
• Decision Date: 02 July 1959
• Court: Pennsylvania Supreme Court

152 A.2d 669

396 Pa. 383

WESTBURY REALTY CORP., Lynn C. Londrey and Bertha B. Londrey, his wife, Wendell N. Stadel and Bertha M. Stadel, his wife, and Alexander Reid and Thelma R. Reid, his wife, Appellants, v. LANCASTER SHOPPING CENTER, INC., Sears, Roebuck & Co., and Algon Realty Co., and Commonwealth of Pennsylvania, Appellees.

Supreme Court of Pennsylvania.

July 2, 1959.

Carl A. Wiker, Lancaster, for appellants.

Brown & Zimmerman, B. M. Zimmerman, Lancaster, for Lancaster Shopping Center, Inc.

William C. Storb, Stein, Storb & Mann, William C. Storb, Dist. Atty Lancaster, for Sears Roebuck & Co.

Before CHARLES ALVIN JONES, C. J., and BELL, MUSMANNO BENJAMIN R. JONES, COHEN, BOK and McBRIDE, JJ.

COHEN, Justice.

Appellants owners of lots in a building development known as Glenmore, and Westbury Realty Corp., owners of the unsold portion of Glenmore, brought an action in equity to enjoin the appellees from discharging surface water onto appellants' land and to provide an adequate disposal system for this water so as to discontinue further damage.

The land which appellants own is on the west side of Lititz Pike in Manheim Township, Lancaster County. Directly across the Pike, the appellees (Lancaster Shopping Center, Algon Realty Company and Sears, Roebuck & Company) own a seventeen acre tract upon which they built stores and macadamized the remaining portion. Prior to the improvement of this land by appellees, the surface water which collected was drained by means of an eighteen inch pipe which had been installed by the Department of Highways under Lititz Pike and discharged onto the land of appellants. Because natural seepage was prevented by the paving and buildings, the amount of surface water drained was greatly increased so that the eighteen inch pipe was not sufficient to accommodate this flow. The excess water flowed across the Pike onto the land of the appellants and caused water to enter the basements of the dwellings and flood the undeveloped land, making it unfit for construction purposes.

Preliminary objections, in the nature of a demurrer filed by the appellees, stated that the complaint failed to make out a cause of action upon which equitable relief could be granted. The lower court found that since the complaint did not aver negligence or the creation of an artificial channel by which the water was collected and discharged onto appellants' land, a cause of action had not been alleged. The order sustaining the preliminary objections gave leave to appellants to file an amended complaint within twenty days. Nineteen days after the order by the court en banc, the appellants, rather than amend their complaint, filed this appeal.

Usually, where preliminary objections are sustained with leave to file an amended complaint, the action by the court is merely interlocutory and not an appealable final decree. However, where the leave to amend is limited in scope, the court's order becomes definitive and appealable. Ciletti v. City of Washington, 1954, 378 Pa. 641, 107 A.2d 871. The instant case is such a situation.

The complaint stated:

'18. That prior to the aforesaid construction and paving by defendants, the Department of Highways had installed an eighteen (18) inch pipe under the Lititz Pike to take surface water from the unimproved tract now improved by the defendants. * * *

'19. That this water was discharged on the tract now owned and developed by Westbury Realty Corp.

'20. That after the defendant macadamed the area aforesaid, the surface water from this tract was discharged into the aforesaid eighteen (18) inch pipe and also over the aforesaid Lititz Pike unto the tracks (sic) of land owned by the plaintiffs.

'21. That the aforesaid flow of water was greatly increased. * * *

* * *

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'24. That the aforesaid defendants * * * changed the grade and regraded their aforesaid tracts of land, thereby increasing the flow of surface water unto the plaintiffs' land.'

The appellants admit that they could not show negligence, nor could they allege any channelling of water other than above. This being the case, the leave granted by the court to amend could not be utilized, and the order became appealable.

For some time the law of this Commonwealth has established the relative rights of landowners concerning the flow of surface water. Mr. Chief Justice Horace Stern clearly summarized the law in Rau v. Wilden Acres, Inc., 1954, 376 Pa. 493, 494, 103 A.2d 422, 423, where he said:

'A landowner may not alter the natural flow of surface water on his property by concentrating it in an artificial channel and discharging it upon the lower land of his neighbor even though no more water is thereby collected than would naturally have flowed upon the neighbor's land in a diffused condition. One may make improvements upon his own land, especially in the...