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WELDON E. DELP AND VIRGINIA M. DELP v. BOROUGH HARRISVILLE (07/27/76)

decided: July 27, 1976.

WELDON E. DELP AND VIRGINIA M. DELP, APPELLANTS
v.
THE BOROUGH OF HARRISVILLE, APPELLEE



Appeal from the Order of the Court of Common Pleas of Butler County in case of Weldon E. Delp and Virginia M. Delp v. The Borough of Harrisville, No. 13 of 1974.

COUNSEL

Gary L. Farren, for appellants.

James A. Taylor, with him Murrin & Murrin, for appellee.

President Judge Bowman and Judges Mencer and Rogers, sitting as a panel of three. Opinion by Judge Rogers.

Author: Rogers

[ 25 Pa. Commw. Page 487]

This is an appeal from the final decree of the lower court refusing to grant permanent injunctive relief to landowners who sought to prevent a borough from proceeding with construction of a storm sewer system. We affirm.

Weldon E. and Virginia M. Delp (Delps) purchased a seventy-six acre tract of land in Harrisville, Pennsylvania, in 1956 which they use for the breeding and raising of rhododendron plants. The property is located a short distance south of a street in Harrisville under which the borough began in 1974 to construct a sewer drainage pipe. The effect of the finished construction would be to discharge water south of the street which would ultimately infiltrate a spring-fed pond constructed by the Delps on their property for use in irrigating their plants during drought seasons.

The Delps, upon learning of the construction, applied for and were granted a preliminary injunction to halt the construction. At subsequent hearings, testimony was presented by both sides which conflicted in several material matters, especially with regard to the nature and quality of the discharging water, the existence for many years of another pipe under the roadway having the same function as the new construction, the expected volume and velocity of the discharge after the completion of the new construction, the possible effect of the discharge upon the landowners' pond, whether the discharge was into a natural stream bed or artificial ditch, and whether the borough had a right to clear vegetation out of the drainage bed.

Pertinent findings by chancellor are:

"17. The storm sewer was designed to get the water back into the course where it has always flowed.

"18. Ninety-five percent of the water flowing in the ditch was surface water from the north side of Route 58.

[ 25 Pa. Commw. Page 488]

"19. This water formerly went through the twelve inch pipe under Route 58. The land between the storm sewer project and plaintiffs' land is very flat so there will be a modulating or levelling off of any water peaks due to ...


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