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TAYLOR (ET UX. v. HARRISON CONSTRUCTION CO. (07/21/55)

July 21, 1955

TAYLOR (ET UX., APPELLANTS)
v.
HARRISON CONSTRUCTION CO.



Appeal, No. 223, April T., 1954, from judgment of Court of Common Pleas of Allegheny County, Jan. T., 1952, No. 1707, in case of Thomas Taylor and Agnes Taylor, his wife, v. Harrison Construction Company. Judgment affirmed.

COUNSEL

Morris A. Mendlowitz, for appellants.

Gilbert J. Helwig, with him Reed, Smith, Shaw & McClay, for appellee.

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

Author: Wright

[ 178 Pa. Super. Page 545]

OPINION BY WRIGHT, J.

Thomas and Agnes Taylor brought an action in trespass against the Harrison Construction Company seeking to recover damages for an alleged invasion of their interest in the use and enjoyment of land resulting from defendant's interference with the flow of surface water. The trial resulted in a verdict for the defendant. The court en banc refused plaintiffs' motion for a new trial and directed the entry of judgment for defendant. This appeal followed.

Appellants own two adjoining sixty foot lots on an unimproved street in West Mifflin Borough, Allegheny County. These lots are located on a hillside approximately one-half mile from the bottom. The slope of the hill extends above the lots a distance of seven or eight

[ 178 Pa. Super. Page 546]

    hundred feet. Appellee constructed a plant for the General Motors Corporation near the foot of the hill, and obtained permission to deposit dirt excavated from the plant site as fill on properties of land owners in the vicinity. One of these properties was situated immediately to the rear and downhill from appellants' lots. Appellee sought appellants' permission to deposit fill on their lots in order to level out the whole area, but appellants refused to give such permission. As a consequence, there was erected near the base of appellants' lots a bank of earth approximately 25 feet high, and it was necessary for appellee at considerable expense to install drain pipes in order to provide drainage from the higher ground. This installation was made according to a standard method of drain construction which conformed to the requirements of the Pennsylvania Department of Highways. Nevertheless, the flow of surface water is sometimes impeded in periods of heavy rainfall so that pools of water have formed on appellants' property. Appellants' testimony disclosed that their lots were formerly part of a farm, from which several plans of lots have been laid out, and that their general location was in a building area supplied with water, gas, and electricity.

The complaint averred that appellants' damages were caused by appellee's "carelessness, maliciousness, and recklessness". The trial judge submitted the issue of negligence to the jury. In addition, he affirmed appellants' single point for charge relating to liability as follows: "The jury should find a verdict for the plaintiff if it finds that the actions of the defendant were unreasonable". The trial judge also granted the request of appellants' counsel for an additional charge on wanton negligence. No further request or objection was made, and only a general exception was taken.

Appellants' first contention on this appeal is that the lower court erred "in ...


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