Appeal, No. 128, April T., 1957, from decree of Court of Common Pleas of Allegheny County, April T., 1956, No. 3038, in case of Betty H. Bradley v. Carmelia Valicenti. Decree affirmed.
Walter W. Riehl, for appellant.
Ella Graubart, with her Patterson, Crawford, Arensberg & Dunn, for appellee.
Before Rhodes, P.j., Hirt, Gunther, Wright, Woodside, Ervin, and Watkins, JJ.
[ 185 Pa. Super. Page 404]
This is an appeal of Carmela Valicenti, from a final decree of the Court of Common Pleas of Allegheny County, granting a mandatory injunction against the
[ 185 Pa. Super. Page 405]
appellant and directing her to construct a retaining wall at the boundary line between her property and the property of the appellee, Betty H. Bradley.
The appellant and appellee are owners of adjacent lots. The appellant excavated for a driveway and the appellee filed a complaint in equity seeking a mandatory injunction. After hearing, a decree nisi was entered, granting a mandatory injunction, directing the appellant to construct a retaining wall to provide lateral support to the appellee's property. Exceptions were filed and after argument before the court en banc, were dismissed and a final decree entered.
The appellee purchased her lot in 1949. At this time the property was in its natural condition. There was no fill of any kind on the property. Her home was constructed on this lot in 1950 and she lived in the home ever since that time.
The appellant is the owner of the lot immediately to the East. A house was built on this lot in 1955. In September of that year the appellant began the construction of the driveway that is the cause of this action. The Western side of the driveway is along the boundary line between the two properties. It was cut for 4' 6", at its greatest depth, below the natural ground. There is five feet of land between the Eastern side of appellee's house and the Western side of the driveway or the boundary line of the lots.
The appellant gave no notice, oral or written, of her intention to make the cut along the appellee's property line. The land began to subside along the line of excavation and the evidence was uncontroverted that, about two feet of land had sloughed off into the driveway ...