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LUGIN v. DOBSON (03/22/54)

March 22, 1954

LUGIN
v.
DOBSON, APPELLANT



Appeals, Nos. 172 and 173, March T., 1953, from decree of Court of Common Pleas of Allegheny County, Oct. T., 1950, in Equity, No. 2039, in case of Alex Lugin et ux. and Township of Stowe v. E. H. Dobson and Hachmeister Co., Inc. Decree affirmed; reargument refused April 20, 1954.

COUNSEL

John G. Koedel, with him William G. Gault, Alice D. Tobias and Tobias & Weilersbacher, for appellants.

William F. Cercone, for appellees.

Before Stern, C.j., Stearne, Jones, Bell, Chidsey, Musmanno and Arnold, JJ.

Author: Arnold

[ 376 Pa. Page 622]

OPINION BY MR. JUSTICE ARNOLD

Defendants appeal from a decree in equity refusing affirmative relief but awarding damages for destruction of the individual plaintiffs' house and lot resulting from subsidence caused by removal of lateral support. A severance as to Stowe Township was granted, and the case proceeded only as to the individual plaintiffs.

Plaintiffs are the owners of a house and lot on the southerly side of Island Avenue in Stowe Township, Allegheny County, Pennsylvania. The defendant, Hachmeister Co., Inc., is the owner of land on the northerly side of Island Avenue across from and to the east and west of plaintiffs' premises. The defendant, Dobson, was a contractor for Hachmeister. Hachmeister Co., Inc., and its contractor, excavated the Hachmeister land, and it is alleged that this excavation was negligently and carelessly done.

To the findings of the chancellor the defendants filed only 527 exceptions, which were overruled. "These cases involving as they do mainly questions of fact and requiring for correct determination a knowledge of locality are peculiarly for the decision of the court of first instance. Unless we were clearly satisfied that an erroneous result has been worked out by the chancellor

[ 376 Pa. Page 623]

    who heard the witnesses and is familiar with the properties involved, we would not overturn his conclusion": Gordon v. Pettey, 291 Pa. 258, 260, 139 A. 914.

The excavation was made from an embankment along one side of the street. The important feature of the embankment is that it sloped away gradually from the street and formed the toe or bench of earth which supported the higher ground above it, including the street and the land under the houses across the street, and the land above and to rear of the houses. It is alleged that when a portion of this toe or bench of earth was removed by the defendants, the landslide and resulting damage to the home of the plaintiffs occurred. The embankment runs the length of the Hachmeister property, extending 1200 feet on the northerly side of Island Avenue, a public highway running in an east-west direction. At a point midway on said property along said Island Avenue, a footbridge running in a north-south direction crosses over the land, with its Island Avenue approach resting on said embankment. This case is concerned with the excavation that was made east of the bridge across the street from and to the east and west of the plaintiffs' property.

It is admitted that the plaintiffs' property, located on the southern side of Island Avenue, was a three-story, ten-room brick dwelling, 22 feet wide and 40 feet long, erected on a lot 25 feet wide and 100 feet long. The plaintiffs purchased the lot in 1946 and it was in excellent condition up to the time of the slide. There were no cracks or defects in the house. Indeed, this was proved by a multitude of witnesses. It is alleged that as a result ...


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