Appeal from order of Court of Common Pleas of Montgomery County, No. 68-12961, in case of Borough of Ambler v. Harry W. Shepherd, Jr., and Margaret E. P. Shepherd, his wife.
Mark E. Weand, Jr., with him Stefan, Timoney, Knox & Avrigian, for appellant.
John F. Christie, III, with him High, Swartz, Roberts & Seidel, for appellees.
Bell, C. J., Cohen, Eagen, O'Brien and Pomeroy, JJ. Opinion by Mr. Justice Pomeroy. Mr. Justice Jones and Mr. Justice Roberts took no part in the consideration or decision of this case. Mr. Justice Cohen took no part in the decision of this case.
This appeal arises from the dismissal by the court below of a bill in equity brought by the Borough of Ambler (the Borough) against Harry W. Shepherd, Jr., and his wife (the property owners) in which the Borough sought to compel the property owners, by mandatory injunction, to remove from the bed of Tannery Run Creek those portions of a retaining wall on their property which had fallen into the creek and to repair the retaining wall. The court en banc dismissed the Borough's exceptions to the chancellor's decree nisi and adopted it as the court's final decree; the Borough then appealed.
The undisputed Findings of Fact made by the learned chancellor establish that the appellees are the owners of a certain tract of land within the Borough of Ambler; that this tract is formed by a natural watercourse known as Tannery Run Creek which passes through the Borough; and that on the land is a retaining wall which abuts, and provides an embankment for the creek. The findings further show that this retaining wall has deteriorated to the extent that part of it has collapsed, causing stone, mortar and soil to fall into the creek partially obstructing its flow, and that, if not properly maintained, the retaining wall will continue to deteriorate and further impede the flow of Tannery Run Creek.
The basic question presented by this case is who, as between the Borough and the property owners, has the duty: (a) to remove the debris which has already fallen into the creek, and (b) to repair the retaining wall.
The position taken by the Borough is that the retaining wall, in its deteriorated condition, constitutes a nuisance or a dangerous structure upon the land of the property owners, and that the Borough is specifically empowered to seek an injunction against its continuance by Subsection (5) of Section 1202 of the Borough Code, Act of February 1, 1966, P. L. (1965) No. 581, 53 P.S. § 46202.*fn1 The Borough relies, additionally, upon Borough Ordinance 488, Section 1*fn2 adopted September 10, 1962, as authority for its effort to compel the property owners to remove from the bed of the stream that debris which has fallen into it.
The property owners, on the other hand, assert that the Borough has the duty to remove all debris from the creek and to maintain the retaining wall in a satisfactory condition because the Borough adopted Tannery Run Creek as part of its surface water sewer system.
In his opinion the chancellor confirmed the fact that the Borough had adopted the creek as part of its sewer system and he upheld the above-stated position of the property owners. In light of this conclusion, the chancellor never determined whether or not the retaining wall constituted a ...