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MESSINGER ET UX. v. WASHINGTON TOWNSHIP. (01/21/58)

January 21, 1958

MESSINGER ET UX., APPELLANTS,
v.
WASHINGTON TOWNSHIP.



Appeal, No. 247, Oct. T., 1957, from decree of court of Common Pleas of Northampton County, July T., 1954, No. 3, in case of Harold J. Messinger et ux. v. Washington Township. Decree affirmed.

COUNSEL

Alfred M. Nittle, for appellants.

J. Lawrence Davis, Township Solicitor, for appellee.

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

Author: Woodside

[ 185 Pa. Super. Page 555]

OPINION BY WOODSIDE, J.

The court below dismissed the complaint of Harold J. Messinger and wife and denied them injunctive relief. They had filed the complaint in the Court of Common Pleas of Northampton County to compel the Township of Washington to remove a pipe and drain from their premises, and to restrain the township from

[ 185 Pa. Super. Page 556]

    diverting water from its road onto their land. Judge FRACK, sitting as a chancellor, took testimony, but died before making an adjudication. Thereafter, Judge BARTHOLD entered a decree nisi dismissing the complaint. After the plaintiffs filed exceptions to the chancellor's findings, conclusions and decree, the court en banc entered a final decree dismissing the complaint. The plaintiffs appealed to this Court.

The defendant offered no testimony at the hearing. The facts, which are not in dispute, are as follows: J. Arling Weaver was the owner of a 57 acre farm, which he had purchased in 1906. Between 1935 and 1940 the supervisors of Washington Township came to Weaver and asked him for permission to put a pipe across the township road onto his farm. This meant that the surface water from the highway, and particularly that flowing in the gutter on the opposite side of the road, would be discharged on his farm. Weaver gave the supervisors permission to lay the pipe saying, "Go ahead; it will be to my advantage because I get the seepage in the meadow from the street." He testified that he thought this would "benefit" him because it would fertilize his meadow. He testified further that he "asked for no damages," ... he "was simply interested in the benefit of the township." The permission "was purely by word of mouth," and "nothing was said about how long [he] would allow the drain to remain" - "there was no time limit."

Following this agreement, the supervisors placed a grate along the side of the road opposite the Weaver farm, dug a ditch across the dirt highway and onto Weaver's land, and placed in it an iron pipe about 16 inches in diameter with a terra-cotta extension. The pipe extended 3.4 feet onto Weaver's land. The water from the pipe then flowed into an open ditch 4 feet deep which was dug a few feet further onto his land,

[ 185 Pa. Super. Page 557]

    and from there it flowed into Weaver's meadow. Later, the township macadamized the road under which the pipe had been laid. There is nothing in the township records relating to the drain or the entry upon Weaver's land. Before the drain pipe was laid there had been a drain further down the road near the home of two "old ladies" who objected to it, and the drain in question was substituted for the one near the home of the "old ladies."

September 15, 1948, Weaver sold to Lillie A. Fidler two lots from the farm for $250. These lots had a frontage along the road of 81.2 feet, a depth of approximately 148 feet and a rear dimension of 194 feet. The pipe entered one of these lots. On ...


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