Appeal, No. 133, March T., 1952, from decree of Court of Common Pleas of Allegheny County, July T., 1946, No. 797, in case of The Pittsburgh & Lake Erie Railroad Company v. Township of Stowe. Decree affirmed.
S. V. Albo, with him William F. Cercone, for appellant.
J. Leonard Smith, Jr., with him John J. Heard, Paul E. Hutchinson and Reed, Smith, Shaw & McClay, for appellee.
Before Stern, C.j., Stearne, Jones, Chidsey, Musmanno and Arnold, JJ.
OPINION BY MR. JUSTICE ARNOLD
Defendant, a first class township, appeals from the decree of the court below, enjoining use of plaintiff's drainage facilities by the defendant, to the extent now being made, and also awarding damages to the plaintiff for injury to its property.
The facts found by the court below, all of which were supported by competent evidence, are as follows: Plaintiff's land in the township, acquired in 1878, has been used and occupied ever since by its main tracks, classification yards, yard tracks and other facilities. The land is partially adjacent and contiguous to the Ohio River, and very near to Margaret Street, a duly dedicated street of the township. The fall from plaintiff's property to the Ohio River is very slight. The "surface drainage following its natural course would flow toward and onto the Railroad's said property from an area of approximately 200 acres lying generally south and west thereof," which "area originates at the top of a steep hillside on which there is presently located a housing development known as 'Ohio View Acres.'"
In 1891 plaintiff constructed a stone box drainage system on its property at a point near the northerly terminus of Margaret Street, to receive the surface waters from the north. This was enlarged in 1905. In 1905, defendant built underground sewers throughout the township area for both drainage and sanitary sewage, and the surface waters from the 200 acre area were directed into a 36 inch brick drainage culvert which "terminated at a point on Margaret Street approximately 16 feet south of the inlet to the Railroad's said stone box culvert." All the waters therefrom passed over plaintiff's property into its drainage facilities.
The lower court's 8th finding of fact reads: "In the late fall of 1906, the Township, disregarding the Railroad's protests and without the Railroad's consent, dredged out an open ditch leading from the outlet of its... sewer to the inlet of the Railroad's drainage system..." This resulted in the Railroad's box culvert becoming blocked with debris and in an overflowing of the drain, with damage to its facilities.
In 1919, defendant built more drainage and sewage facilities, and also constructed a 48-inch tile sewer, extending down Margaret Street parallel with the Township's existing 36-inch drainage culvert and terminating at the foot of Margaret Street. This directed additional water and sewage into the plaintiff's drainage system. Shortly after defendant constructed head and wing walls, thus sending into the plaintiff's ...