Appeal, No. 66, March T., 1953, from decree of Court of Common Pleas of Allegheny County, Oct. T., 1950, No. 3416, in case of Robert L. Chamberlin and Doris K. Chamberlin v. Paul Ciaffoni. Decree affirmed.
Joseph M. McClure, with him Robert G. MacAlister, for appellants.
John R. Bowman, for appellee.
Before Stern, C.j., Stearne, Jones, Chidsey, Musmanno and Arnold, JJ.
OPINION BY MR. CHIEF JUSTICE HORACE STERN
Plaintiffs' bill of complaint alleged that they and defendant are the respective owners of properties in
Pittsburgh separated by a 10-foot wide alley known as Ingomar Way; that defendant regraded the surface of his land, thereby causing a diversion of the natural course of the surface waters and their discharge from his property onto the alley and into the basement of the building on plaintiffs' lot; that plaintiffs suffered expense and loss of profits in the operation of their business there conducted; that defendant also deposited large amounts of earth and fill on the alley. The bill prayed that an injunction be granted to restrain defendant from the acts in question, and that he be required to reimburse plaintiffs for their damages.
Unfortunately for the success of plaintiffs' action the facts found by the learned chancellor do not bring it within the class of cases in which the law affords either equitable or legal relief. Those findings are not challenged by plaintiffs. Concisely stated, they are to the effect, (finding number 4) that plaintiffs' property is below the natural grade of defendant's property and therefore, even before the latter began the improvement of his property, surface water flowed from it onto plaintiffs' property, where it was satisfactorily dissipated by means of a storm sewer which was constructed there; (finding number 5) that, in the course of improving his property, defendant raised its natural grade; (finding number 6) that during the course of the improvement, which lasted about 12 months, a large amount of earth and other material was permitted to fall on Ingomar Way and some on plaintiffs' property; that rain and other surface waters were diverted from their natural courses to Ingomar Way and the rear of plaintiffs property in such quantities as to exceed the capacity there of the disposal facilities, with the result that on several occasions water entered the basement of plaintiffs' building causing damage thereto and to the business there carried on; (finding number
) that in a proceeding in equity brought by the City of Pittsburgh against defendant the latter was ordered to remove all the dirt, fill and other material deposited by him on Ingomar Way; (finding number 8) that defendant complied with this order, did remove the dirt and other material, and constructed cribbing on the line of his property along Ingomar Way, which prevented any such material thereafter from falling thereon; (finding number 9) that defendant asphalted the surface of his land and constructed a raised area or curbing along a portion of the line of Ingomar Way, which prevented thereafter any surface water from flowing directly from his property onto Ingomar Way; (finding number 10) that defendant has constructed on his property basins and sewers which catch a great deal of the surface water, and, even though at times they do not prevent some water from flowing down Ingomar Way and onto the rear of plaintiffs' property, such flow is much less in amount than reached plaintiffs' property from defendant's property at its natural grade and causes no damage to plaintiffs' property beyond that which surface water formerly caused.
It must be immediately obvious from these findings that, at the time of the hearing and adjudication, the conditions complained of by plaintiffs had been remedied and therefore the court was justified in refusing, as it did, to grant an injunction. This left open the sole question as to whether plaintiffs should, in these proceedings, have been awarded compensation for the expense and losses alleged to have been incurred by them during the period of the making of the improvements on defendant's property. The damages claimed by them may be classified as (1) losses incurred in their ...