Appeal, No. 4, Jan. T., 1964, from decree of Court of Common Pleas of Montgomery County, No. 61-4583, in equity, in case of St. Andrew's Evangelical Lutheran Church, James H. Austin and Sonia S. Austin, his wife, v. The Township of Lower Providence, Earl Schrack and Vienna Schrack, his wife. Decree affirmed.
Charles Potash, with him Cassin W. Craig, and Wisler, Pearlstine, Talone & Gerber, for appellant.
Richard S. Lowe, with him Fox, Differ, DiGiacomo & Lowe, for appellees.
Before Bell, C.j., Musmanno, Jones, Cohen, O'brien and Roberts, JJ.
OPINION BY MR. JUSTICE O'BRIEN
This is an appeal from the entry of a final decree by the Court of Common Pleas of Montgomery County sitting in Equity.
The facts, as found by the chancellor, are as follows:
The plaintiffs are St. Andrew's Evangelical Lutheran Church of Audubon, Pennsylvania, and James H. Austin and Sonia S. Austin, his wife who reside at 61 Pheasant Lane, Audubon, Lower Providence Township, Montgomery County, Pennsylvania, James H. Austin being the minister of the plaintiff church. Earl Schrack and Vienna Schrack, his wife, the defendants, reside at 59 Sparrow Road, Audubon, which is situate across Sparrow Road from the property occupied by Mr. and Mar. Austin. Lower Providence Township caused Sparrow Road (fifty feet in width) to be paved with a two lane cartway approximately 24 to 26 feet in width. As a result of this paving, the road was raised, in October of 1960, approximately 8 inches above the level of the Schrack property. As a result of
this improvement, the Schrack property was from time to time subjected to accumulations of surface waters. In order to alleviate the flooding of the Schrack property and to permit the surface water to flow from the Schrack property, and to permit the surface water to flow from the Schrack side of Sparrow Road to the Austin side, following the natural flow of water before the paving of Sparrow Road, the township placed a concrete drainage pipe, 6 inches in diameter, under the bed of Sparrow Road, in a generally North to South direction, approximately at right angles to the direction of Sparrow Road. Channels for the collection and dispersal of water were placed at the appropriate ends of the pipe. The pipe is 26 feet long and each end terminates 12 feet within the township's right of way.
Prior to the installation of the pipe, surface waters flowing from the Schrack property toward the parsonage property to the south flowed over a broad front along the rear portion of the latter property. The drainage pipe causes the surface waters to flow upon the Austin property in a concentrated flow, and has increased the quantity of surface waters discharged on the Austin property. By reason of the concentrated flow of surface waters, approximately 75 percent of the back yard of the parsonage is rendered swampy and mushy. The pipe drains not only the Schrack property, but also a part of the Apple Valley Development, a near by residential development. The pipe drains property on the north side of Sparrow Road for a distance of 135 feet to the east of the north terminus of the pipe, and for a distance of 55 feet to the west of the north terminus of the pipe, and for a distance of 160 feet to the north of the terminus ...