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BARNDOLLAR ET UX. v. GROSZKIEWICZ. (04/12/55)

April 12, 1955

BARNDOLLAR ET UX., APPELLANTS,
v.
GROSZKIEWICZ.



Appeal, No. 202, April T., 1954, from decree of Court of Common Pleas of Allegheny County, Oct. T., 1953, No. 3632, in case of Harold T. Barndollar et ux. v. Thomas Groszkiewicz et ux. Decree affirmed.

COUNSEL

William J. Krzton, with him Esler W. Hays, for appellants.

Irving Sikov, for appellees.

Before Rhodes, P.j., Hirt, Ross, Gunther, Wright, Woodside and Ervin, JJ.

Author: Ross

[ 178 Pa. Super. Page 111]

OPINION BY ROSS, J.

Harold T. Barndollar and Anna B. Barndollar brought a complaint in equity in the Court of Common Pleas of Allegheny County seeking a mandatory injunction for the removal of a wall built by the defendant, Stella Groszkiewicz, which wall encroaches slightly more than two feet on their property. The chancellor, after hearing, refused the injunction on the ground that plaintiffs' delay of a year before filing their complaint had forfeited for them the right to have the obstruction removed, and decreed that they were entitled only to compensatory damages, which he assessed at $35. In addition, he imposed costs on the plaintiffs.

[ 178 Pa. Super. Page 112]

After dismissal of their exceptions to the chancellor's adjudication by the court en banc, they appealed to this Court.

The defendant Thomas Groszkiewicz died in 1945 before this cause of action arose and his widow is, therefore, the sole defendant.

In the main the basic facts are undisputed. In 1946 the plaintiffs purchased a lot on Bakerstown Road, Tarentum, on which a garage was situated, across the street from their residence. Defendant owns a house and lot immediately adjacent to this garage property situated at a higher elevation than plaintiffs' lot. The chancellor found that plaintiffs, who have lived at their present address since 1939, were familiar with the condition of the premises in question when they purchased them. A faulty drainage condition which, according to the plaintiffs' predecessor in title, Anna Bayer, had existed since the garage was built, due to the topography of the land, brought a seepage of water into the garage. The plaintiffs, in an attempt to correct it, removed a then-existing wall between the parties' properties and in digging discovered a pipe coming from the direction of defendant's home. Plaintiffs notified defendant to remove the pipe and she complied. Plaintiffs constructed a new wall along the rear of the garage but the flooding continued. They then complained to defendant. In August 1952 defendant's son and brother erected the wall which is the subject of this proceeding. Admittedly the new wall, built entirely at defendant's expense, has remedied the drainage difficulty but the wife-plaintiff testified, "... I don't want that wall on my property. I want that wall off there."

According to one witness for the plaintiffs, the wall was constructed in approximately eight or nine hours of one day. However, the husband-plaintiff testified that it ...


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