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ELMER J. GREGER AND IDA MAE GREGER v. CANTON TOWNSHIP (03/01/79)

decided: March 1, 1979.

ELMER J. GREGER AND IDA MAE GREGER, HIS WIFE
v.
CANTON TOWNSHIP, A MUNICIPAL CORPORATION, THE CITY OF WASHINGTON, A MUNICIPAL CORPORATION AND THE PENNSYLVANIA DEPARTMENT OF TRANSPORTATION, APPELLANTS. (3 APPEALS)



Appeals from the Order of the Court of Common Pleas of Washington County in case of Elmer J. Greger and Ida Mae Greger, his wife v. Canton Township, a municipal corporation, and The City of Washington, a municipal corporation, and The Pennsylvania Department of Transportation, No. 568 March Term, 1974.

COUNSEL

Donald J. McCormick, Special Assistant Attorney General, with him Robert W. Cunliffe, Deputy Attorney General, and Robert P. Kane, Attorney General, for appellant, Department of Transportation.

John Solomon, for appellant, Canton Township.

Clark A. Mitchell, with him Hanna, Mitchell & Mitchell, for appellant, City of Washington.

Samuel P. Kamin, for appellees.

Judges Wilkinson, Jr., Blatt and MacPhail, sitting as a panel of three. Opinion by Judge MacPhail.

Author: Macphail

[ 41 Pa. Commw. Page 22]

Mr. and Mrs. Elmer Greger own real estate in Canton Township (Township), Washington County, Pennsylvania. The tract is divided into north and south sections by an alley. There are improvements on both sections. The northern section fronts on Caldwell Avenue, which intersects with Hays Avenue at its eastern terminus. Caldwell Avenue is Legislative Route No. 62159. Canton Township is contiguous with the City of Washington (City), the boundary line being east of the Greger tracts, along and to the west of Hayes Avenue.

When the Gregers purchased their real estate, a catch basin constructed and maintained by the Pennsylvania Department of Transportation (Department) was located on the north side of Caldwell Avenue opposite the northern section of the Greger tract. A culvert, also constructed and maintained by the Department, was located under Caldwell Avenue. That culvert drains the water from the catch basin in the direction of the Greger property and now into a trench crossing that property in a southerly direction to a culvert at the alley separating the northern and southern sections of the Greger tract. From there the water continues in a trench in a southerly direction to another culvert under Addison Street, which marks the southern boundary of the south section of the Greger tract.

Since the Gregers purchased their land, the flow of storm water has increased. In addition, sewage waste now enters the trench crossing the Greger tracts. The record indicates that this discharge comes

[ 41 Pa. Commw. Page 23]

    from septic systems constructed on inadequately sized lots to the east and to the north of the Greger real estate and on the north and south sides of Caldwell Avenue. All of those lots are in Canton Township.

Due to the conditions described above, the Gregers claim that there has been a de facto taking of their real estate by the City, the Township and the Department. On that theory the Gregers petitioned for the appointment of viewers. Preliminary objections were filed in the Washington County Court of Common Pleas by all three governmental bodies alleging that there was no de facto taking, that the statute of limitations barred the suit and that the Court of Common Pleas erred in referring the matter of the statute of limitations to a board of viewers. Those preliminary objections were overruled, and on appeal from that order to this Court we remanded the ...


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