Appeals from decree of Court of Common Pleas of Lehigh County, April T., 1968, No. 9, and Sept. T., 1968, No. 22, in case of Township of Salisbury v. John D. and Ruth L. Vito.
Herbert G. Litvin, for appellants.
James G. Kellar, for appellee.
Bell, C. J., Jones, Eagen, O'Brien, Roberts, Pomeroy and Barbieri, JJ. Opinion by Mr. Justice Barbieri.
Appellants, John and Ruth Vito, are defendants in two equity actions*fn1 brought by the Township of Salisbury, a first class township,*fn2 in the Court of Common Pleas of Lehigh County. The actions were consolidated for trial and the Chancellor granted the relief requested by the township in both cases. Because we conclude
that the Chancellor's orders were overly broad and in at least one instance beyond his authority, we vacate the orders below.
In 1965 the Vitos purchased a parcel of land fronting Lehigh Avenue in Salisbury Township. Soon after purchase, the Vitos cleared two catch basins on the property of accumulated refuse and garbage and filled in one of them. The other catch basin, which had less than two feet of water in it when the cleanup operation began, has since become a pond with a depth of approximately ten feet. On both wet and dry days the pond overflows its banks and the excess water makes for generally muddy conditions in the summer and icy patches in the winter on Lehigh Avenue. In addition, the southern end of the pond and a fence surrounding the pond encroach some 9.3 feet upon the right of way of Lehigh Avenue. The township complains of these conditions and states that the overflow and encroachment prevent the improvement of Lehigh Avenue in this area.
The major thrust of appellants' argument on appeal is that the township failed to prove that the Vitos' conduct was the legal cause of the pond's overflow.*fn3 Appellants contend that the installation of a "lateral" under Lehigh Avenue and of a sewer pipe on the Vito property by third parties was accompanied by the deposit of great amounts of fill which prevented the normal drainage of the area. Mrs. Vito testified that there was no overflowing of the pond prior to the deposit of the fill. Although if this Court were trying the matter de novo we might reach a different conclusion, we believe there is support in the record, in the form of expert testimony, for the Chancellor's finding
that the installation of the "lateral" and the sewer pipe did not contribute significantly to the overflow.*fn4
In addition, there is sufficient evidence in the record to show that the Vitos' own actions made for a large increase in the amount of water in the pond. They installed a pipe on their property to channel into the pond water from a stream flowing inside or very close to their eastern property line. Prior to the installation of the pipe most of the stream's water was caused to flow under Lehigh Avenue by means of a conduit known as a dole. After the installation of this pipe, much of the stream's water ran into the pond rather than through the dole. The Vitos also increased the capacity of the pond by clearing the catch basin and by depositing fill on top of which a driveway was constructed around its perimeter. Thus, it is clear that the Vitos were, at least, responsible for an increased capacity of the pond and an increased flow of water into the pond, and the Chancellor was justified in finding that although there may be other factors contributing to the overflowing, the ...