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LEIPER v. HEYWOOD-HALL CONSTRUCTION COMPANY. (03/14/55)

March 14, 1955

LEIPER, APPELLANT,
v.
HEYWOOD-HALL CONSTRUCTION COMPANY.



Appeal, No. 9, Jan. T., 1955, from decree of Court of Common Pleas of Montgomery County, April T., 1952, in Equity, No. 14, in case of George N. Leiper and The Philadelphia National Bank, Trustees under will of Agnes M. Leiper, Deceased v. Heywood-Hall Construction Company. Decree affirmed; reargument refused April 22, 1955.

COUNSEL

F. C. Fiechter, Jr., with him Freeman, Fox & Fiechter, for appellants.

Samuel H. High, Jr., with him High, Swartz, Childs & Roberts, for appellee.

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

Author: Bell

[ 381 Pa. Page 318]

OPINION BY MR. JUSTICE BELL

Plaintiffs brought a bill in equity to enjoin defendant from collecting surface water into an artificial channel and increasing greatly the volume thereof so that it was precipitated in greatly increased quantities upon plaintiffs' land, causing substantial injury.

Defendant bought from the Houston Estate in 1950 56 acres of land, part of which adjoined plaintiffs' property. Defendant erected a residential development thereon, known as "Plymouth Meeting Village", consisting of 149 dwellings - four dwellings to an acre. Defendant installed no gutters, sewers, reservoirs or drains to carry off the surface waters. Each lot had its own cesspool or septic tank. The land had formerly been farm land.

Plaintiffs contend that defendant changed the contour of its land by creating an artificial low point at what is now the junction of Narcissa Road and Colony Lane, and (a) because of this artificial condition, surface

[ 381 Pa. Page 319]

    water from 12 acres which previously had drained toward the southeast now drains toward the northwest, and (b) because of defendant's grading of lots, the amount of surface water which otherwise would have passed to the southeast, was washed or gullied down across plaintiffs' land. Plaintiffs also contend that sewage was mingled with the surface water. The chancellor found that there was no credible evidence to support these contentions.

The chancellor also found that the equivalent of 37 lots or approximately 12 acres drain naturally toward plaintiffs, contrary to plaintiffs' contention; that a ditch or gully or channel approximately 10 feet wide and varying in depth from 1 to 2 1/2 feet existed prior to 1950 as an intermittent drainage ditch through what is now the bed of Priscilla Road, for approximately 150 feet from what is now Colony Lane, to the line of plaintiffs' property; that Plymouth Meeting Village was developed pursuant to a plan prepared by a competent registered engineer, and the plan approved by the township authorities of Whitemarsh Township; that a concentration of four dwellings per acre (less roads and streets) tends to an urban rather than a rural area; that the construction of sewers and drainage problems in other parts of the township or county are irrelevant in this case; that "Of course, the defendant, in building the houses and laying out of its streets, necessarily diverted the flow of water on its own property; this was a necessary result of its proper and reasonable use of its land. The surface water enters the plaintiffs land at the same point it has entered for years, as this is the lowest point in the watershed."

The chancellor further found that defendant did not divert the surface water into artificial channels; that the development of ...


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