Appeals, Nos. 242, 243, 244 and 245, March T., 1962, from decrees of Court of Common Pleas of Allegheny County, Oct. T., 1951, No. 1330, and Jan. T., 1962, No. 860, in case of John Albert, Genevieve Albert, his wife, Raymond J. Curley et ux. v. Most Reverend John Wright, Bishop of Roman Catholic Diocese of Pittsburgh, trustee of Catholic Congregation of the Church of Our Lady of Loretto, and James J. McGaffin, Jr., doing business as McGaffin Construction Company, and in case of Most Reverend John J. Wright, Bishop of Roman Catholic Diocese of Pittsburgh, trustee of Church of Our Lady of Loretto, v. William Thomas, Edith J. Thomas, his wife, John Albert et ux. Decree, as modified, affirmed; reargument refused April 22, 1963.
Lloyd F. Engle, Jr., with him Sidney J. Sable, and Wilner, Wilner and Kuhn, for appellants.
William L. Jacob, with him William L. Jacob, Jr., for appellee.
Before Bell, C.j., Musmanno, Jones, Cohen, Eagen, O'brien and Roberts, JJ.
OPINION BY MR. JUSTICE MUSMANNO
The Alberts, Thomases, and the Curleys own lots, in that successive order, fronting on Chrysler Street in the 19th Ward of the City of Pittsburgh. The rear line of these lots adjoin, to the north, property owned by the Roman Catholic Diocese of Pittsburgh.
The Alberts purchased their property in 1954, and the Thomases in 1948. After the Thomases took possession, and for five years following, they spread on their land a fill made up of earth, rock, bricks, concrete chunks, metal, tree stumps and wood. Much of this heterogeneous mass slid over to the adjoining lot of the diocese then owned by the City of Pittsburgh, and encumbered as well the land on either side owned by the Alberts and the Curleys.
The predecessors in title to the Albert's also heightened their backyard with fill. The Alberts themselves did little or no significant filling.
A portion of the fill on the Albert and Thomas properties moved, through operation of the law of gravitation, as well as the rains and the snows, on to the diocesan property at some points to a depth of 90 feet.
In August, 1960, Father Garber, Pastor of Our Lady of Loretto Church, having been authorized to
build a school building on the diocesan property, visited all the homes fronting on Chrysler Street and, in the rear, abutting the diocesan property, to discuss with the owners, the problem presented by the migratory fills. He stated that he was willing to allow some of the offending fill to remain on the diocesan land so as to continue to give support to the backyards involved, provided the property owners would allow the diocese to regrade parts of those backyards so as to establish a ...