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VENDETTI APPEAL. (07/17/56)

July 17, 1956

VENDETTI APPEAL.


Appeals, Nos. 210 and 211, April T., 1955, from judgment of Court of Common Pleas of Erie County, May T., 1953, No. 67, in case of Township of Millcreek v. A Piece of Land Fronting on Montpelier Avenue and Carmen C. and Chester Vendetti. Judgment affirmed.

COUNSEL

William W. Knox, for appellants.

Herbert J. Johnson, Jr., with him James W. Evans, for appellee.

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

Author: Ervin

[ 181 Pa. Super. Page 216]

OPINION BY ERVIN, J.

This is an action of scire facias sur municipal lien brought by the Township of Millcreek, Erie County, Pennsylvania, to collect an assessment for construction of a sewer in Montpelier Avenue in said township upon which street the property of the defendants abuts. The sewer was completed on July 19, 1951 and the assessment therefor was made on September 4, 1951. Defendants filed an affidavit of defense and after various pleadings an issue was formed. Trial of the case before a jury resulted in a verdict for the defendants. The plaintiff thereupon filed motions for judgment n.o.v. and new trial. The court in banc, concluding there was insufficient evidence to warrant the submission of the question of dedication to the jury, set aside the verdict and entered an order granting plaintiff's motion for judgment n.o.v. and directed that judgment be entered for the plaintiff in the amount of $1440.63 with interest and record costs. This appeal followed.

The facts are stated in the opinion, by EVANS, P.J. of the court below, as follows: "J. A. Root on June 11, 1924, recorded a plot of Hartt Estate Division in Erie

[ 181 Pa. Super. Page 217]

County Map Book 2, pages 487 and 488 affecting several acres of property owned by him in Millcreek Township, Erie County, Pennsylvania. Said plot showed streets with designated names, one of which was Montpelier Avenue. Lots were designated by number and so sole at various times to various persons. There was at this time no township facility in the area for sewage and drainage disposal, and as an inducement to prospective purchasers, Root installed in Montpelier Avenue a tile sewer ten inches in diameter extending from the top of the bank of Lake Erie southwardly for approximately 2000 feet to the West Lake Road and for several hundred feet southwardly of said West Lake Road. This privately constructed sewer served the homes erected on lots abutting Montpelier Avenue for sewage disposal purposes as well as to drain water from damp and swampy areas in the subdivision. The sewer terminated at a septic tank constructed by Root at the top of the bank of Lake Erie. After the sale of some of the lots J. A. Root went bankrupt, and the septic tank fell into disrepair with no one assuming the responsibility of restoring it so as to function as originally intended. The effluent ran untreated over the bank bordering Lake Erie into an area where several summer cottages were located.

"These cottage residents, in 1937, complained of the unsanitary and unhealthful condition to the State Health Department and the township supervisors. The supervisors were at that time with the aid of W.P.A. funds constructing sanitary sewers throughout the township, which borders on the City of Erie. They had completed an interceptor sewer along the bank of Lake Erie at right angles with Montpelier Avenue and terminating at a manhole near the terminal of the Root sewer and the defective septic tank. To alleviate the

[ 181 Pa. Super. Page 218]

    situation the supervisors, during the summer months for a period of about 12 or 14 years, blocked off the outlet of the Root sewer near the manhole and defective septic tank and directed the ...


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