Appeal, No. 41, Jan. T., 1954, from decree of Court of Common Pleas of Northampton County, July T., 1952, in Equity, No. 2, in case of John F. Rau v. Wilden Acres, Inc. Decree affirmed.
Nathan Reibman, for appellant.
Clinton Budd Palmer, with him Frank P. McCluskey, for appellee.
Before Stern, C.j., Stearne, Jones, Bell, Chidsey, Musmanno and Arnold, JJ.
OPINION BY MR. CHIEF JUSTICE HORACE STERN
This controversy is concerned with facts rather than law. It is an action by a landowner to enjoin the owner of higher, neighboring land from artificially draining surface water from his property onto that of the plaintiff.
From a multitude of authorities*fn1 the applicable law may be summarized as follows:
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 development of urban property, grade it and build upon it, without liability for any incidental effect upon adjoining property even though there may result some additional flow of surface water thereon through a natural watercourse, but he may not, by artificial means, gather the water into a body and precipitate it upon his neighbor's property. Even a municipality, while not liable to a property owner for an
increased flow of surface water over his land arising merely from changes in the character of the surface produced by the opening of streets and the building of houses in the ordinary and regular course of the expansion of the city, may not divert the water into another's land through the medium of artificial channels.
What, then, are the facts in the present case? The chancellor found that defendant's land was higher than the adjoining land of plaintiff; that both tracts were farm land located in a rural rather than an urban area; that plaintiff had farmed his land continuously for many years; that a portion of defendant's tract, prior to its development, had drained in a diffused state through a swale ending in a low point or hollow area located partly in each tract; that defendant divided its tract into lots, laid out and paved streets, graded the lots toward the streets, and constructed houses thereon; that, as a result, the surface waters drained down the streets to a point at their intersection near the mouth or funnel of the swale which was a low point in the contour of the land; that defendant, by a two-foot excavation, lowered it still more; that in order to dispose of the surface waters thus collected at that point defendant not only narrowed the mouth of the swale but cut a channel approximately 30 to 36 feet wide and 9 feet deep through a bank of earth it had previously erected across the mouth of the swale, thereby funnelling the water into a body and discharging it with greater force and in increased quantities at a ...