Appeal, No. 257, March T., 1953, from judgment of Court of Common Pleas of Beaver County, March T., 1952, No. 23, in case of Rezin H. Morton v. Borough of Ambridge. Judgment reversed.
Ralph E. Smith, with him Myron E. Rowley, James E. Rowley and Rowley & Smith, for appellant.
Robert L. Orr, with him Eugene A. Caputo and Reed, Ewing & Ray, for appellee.
Before Stern, C.j., Stearne, Jones, Bell, Chidsey, Musmanno and Arnold, JJ.
OPINION BY MR. JUSTICE CHIDSEY
This is an appeal from a judgment entered on a directed verdict for the defendant borough in an action in trespass to recover for property damage suffered when a storm sewer collapsed.
In April and May of 1948, plaintiff purchased five lots in the Borough of Ambridge, Beaver County. The deeds delivered to plaintiff were made subject to the following easements or conditions: "3. There is hereby reserved to Charles A. Dickson, his heirs and assigns, the right to enter upon any of the lots and upon any of the streets, alleys or ways which are crossed by a natural drainage course upon the land upon which said plat of lots, streets, alleys and ways, is laid out, which water course is approximately indicated by the line upon the Plan marked 'A-B.' This
reservation or right of entry is for the purpose of enabling the said Charles A. Dickson or his assigns, or any person or persons acting by or with his consent, to construct a sewer or other appropriate improved water course, it being understood that the private right to Charles A. Dickson hereby reserved shall cease and determine whenever and as soon as a public sewer or other waterway may be constructed to care for the water flowing in said water course."
"4. This adoption and dedication of streets, alleys and ways is not to be construed as a prohibition upon the construction, maintenance and operation upon the streets, alleys and ways of said plan of any appropriate privately or publicly owned system of pipes for the distribution and supply of water, gas, sewage or other pipeable substance to the owners of the lots embraced in the said plan; provided always that such construction, operation and maintenance of pipes for water, gas, sewage or other pipeable substance shall always be construed as conferring a benefit upon the owners of the several lots in said plan, and no owner of any such lot may or shall have any claim for damage against the said Charles A. Dickson, his heirs or assigns, by reason of such construction, operation, and maintenance.". The rights reserved to Charles A. Dickson had been assigned to the defendant borough in 1942.
Prior to the time plaintiff purchased the lots, an 84 inch storm sewer had been built along the lines of the natural watercourse referred to in the reservation above quoted. The sewer was constructed in various sections, at various times and by various parties. The portion underlying ...