Appeal, No. 21, April T., 1957, from judgment of Court of Common Pleas of Cambria County, Dec. T., 1954, No. 783, in case of John Craig et al. v. Borough of Ebensburg. Judgment affirmed.
Clarence E. Davis, with him Lawrence L. Davis and Davis & Davis, for appellant.
Thomas A. Swope, with him Shettig, Swope & Shettig, for appellees.
Before Rhodes, P.j., Hirt, Gunther, Wright, Woodside, Ervin, and Watkins, JJ.
[ 185 Pa. Super. Page 583]
This appeal is from the lower court's refusal to grant motions for judgment n.o.v. and new trial.
The Borough of Ebensburg, on July 1, 1941, acquired title to Lake Rowena situate in Cambria Township and Borough of Ebensburg. The Commonwealth of Pennsylvania then acquired title to this land on October 24, 1946 and constructed a dam upon it. On September 14, 1951 the Borough, under an agreement with the Commonwealth, assumed responsibility to care, supervise, maintain and preserve the property. When the Borough assumed this responsibility the spillway on the breastworks was not of sufficient height and this matter was brought to the attention of the Department of Forests and Waters. The department prepared specifications for twelve inch flashboards on the spillway which were furnished and paid for by the Commonwealth of Pennsylvania.
Plaintiffs instituted an action in trespass to recover damage to their property which they alleged was caused by the water backing up as it was raised by the flashboards. The jury returned a verdict in favor of plaintiffs in the sum of $3,600; this was later reduced by remittitur to $3,500.
The court denied motion for judgment n.o.v. and directed plaintiffs to file a remittitur agreeing to accept
[ 185 Pa. Super. Page 584]
$2,000; otherwise a new trial would be granted. Plaintiffs agreed ...