Appeal, No. 185, Jan. T., 1956, from judgment of Court of Common Pleas No. 3 of Philadelphia County, Dec. T., 1951, No. 5955, in case of Valley Forge Gardens, Inc. v. James D. Morrissey, Inc. Judgment reversed; reargument refused July 31, 1956. Trespass for damage to real estate. Before LEWIS, PJ. Special findings of jury for plaintiff; adjudication filed finding for plaintiff; exceptions to adjudication dismissed and judgment entered for plaintiff. Defendant appealed.
Louis F. Floge, with him Josephine H. Klein, Bernard G. Segal, and Schnader, Harrison, Segal & Lewis, for appellant.
Ralph S. Croskey, with him Croskey & Edwards, for appellee.
Before Stern, C.j., Jones, Bell, Chidsey, Musmanno and Arnold, JJ.
OPINION BY MR. JUSTICE JONES
The Valley Forge Gardens, Inc., sued James D. Morrissey, Inc., in trespass to recover damages for the alleged injury by the defendant of five artificial ponds of the plaintiff which it maintained for ornamentation of its Memorial Park Cemetery in the vicinity of King of Prussia in Montgomery County.
The defendant corporation, pursuant to a public contract with the State Highway and Bridge Authority (created by the Act of April 18, 1949, P.L. 604, 36 PS § 3601), constructed a portion of the "Philadelphia Expressway" - a highway running from the eastern extension of the Pennsylvania Turnpike at King of Prussia to Philadelphia. Approximately a quarter of a mile to the north of the plaintiff's cemetery the defendant contractor was required, in accordance with its contract and related plans prepared and supplied by the State Highway Department, to construct a fill some 35 Feet high and extending 1,000 to 1,500 feet in length. The fill necessarily crossed, at right angles, a narrow (2' wide) stream, which fed the plaintiff's ponds and which was conducted through the made embankment by a steel pipe culvert. The plaintiff's ponds were some 1,200 feet distant from the right-of-way of the Expressway, and the stream in its intervening meandering passed under two other highways. By the time the defendant had completed its contract, dirt and silt, washed by the natural effects of erosion from the slope of the fill, had been carried by the stream
into the plaintiff's ponds and eventually filled them. The plaintiff had the ponds dredged and built a desolating basin to prevent their being filled again in such a manner. The cost of that work was the quantum of the damages which the plaintiff sought to recover in the instant suit.
The plaintiff, in its amended complaint, alleged that the damage to its ponds and the deposit of dirt and silt therein were the result of the defendant's negligent construction of the highway fill in disregard of the possible effects of erosion and that, in thus filling the ponds with dirt and silt, the defendant was guilty of trespass quare clausum fregit. The defendant in its answer denied that it had constructed the fill negligently or carelessly but, on the contrary, averred that it had performed the work in a careful, lawful and prudent manner in accordance with its contract with the State Highway and Bridge Authority and the accompanying plans and specifications. The defendant joined the Authority as an additional defendant, but the latter's preliminary objections were sustained on the ground that the Authority was an instrumentality of the Commonwealth and, therefore, immune from suit in the absence of specific statutory provision. No appeal was taken from the order eliminating the Authority as an additional defendant.
At trial, the plaintiff offered no proof that the defendant had performed its work under the contract negligently. That issue was accordingly withdrawn from the jury by the learned trial judge with the consent of counsel and is no longer in the case. The defendant had affirmatively proved that all of its work had been done in strict accordance with the contract and the plans specifications. The trial judge ...