Shopping Center, Inc., 396 Pa. 383, 152 A.2d 669 (1959); Lucas v. Ford, 363 Pa. 153, 69 A.2d 114 (1949). The runoff, though decreased in some areas of the Bogar/Sperry boundary, was increased in the area draining to the J ditch. That increase resulted in the creation and continuation of the ditch. Sperry argues that Bogar should recover no damages since the fair market value of her land at its highest and best use is not affected by the J ditch per se. As long as the drainage problem is corrected, the value of the land is undiminished. The Breiner case offers some support for Sperry's argument that the measure of damages is the diminution in value of the land at its highest and best use, or the cost of restoration, whichever is less. No Pennsylvania cases were cited by the Breiner court on this point however.
Pennsylvania distinguishes between permanent and remediable injuries to land in determining the applicable measure of damages. Where the injury is permanent the injured party recovers the depreciation in value caused by the injury. Rabe v. Shoenberger Coal Co., 213 Pa. 252, 62 A. 854 (1906). Where injuries to realty are remediable "the cost of repair or restoration is obviously the measure of damages." Id. It is only where the cost of the repairs exceeds the value of the property before the injury that the measure of damages is the total value of the property. Lobozzo v. Adam Eidemiller Inc., 437 Pa. 360, 263 A.2d 432 (1970); Jones v. Monroe Electric Co., 350 Pa. 539, 39 A.2d 569 (1944). Cf. Romesberg v. Caplan Iron & Steel Co., 385 Pa. 36, 122 A.2d 53 (1956) (same measure of damages applied to personal property).
The damage to Bogar's land, creation of the J ditch, is clearly remediable. The cost of restoration, approximately $ 6,000, is much less than the fair market value of the land at its highest and best use before the injury, $ 385,000. The Restatement (Second) of Torts § 929 (1979) also supports using the cost of restoration as a measure of damages in such case. Comment b to subsection 1(a) of § 929 states that the ordinary measure of damages for property used as the home of the owner is the cost of repairs even where the cost of repairs is greater than the total value of the property.
Bogar is also entitled to injunctive relief to prevent future erosion damage to her land caused by unreasonable runoff from Sperry's land. St. Andrew's Evangelical Lutheran Church v. Lower Providence Township, 414 Pa. 40, 198 A.2d 860 (1964). There is no doubt that construction of a swale, like that proposed by Ballinger in 1960, will prevent future erosion.
Sperry argues, however, that the construction of a berm combined with extension of the french drains will resolve the problem. All three expert witnesses testified that french drains alone are ineffective in controlling runoff.
Given this evidence, I am reluctant to rely totally on the berm proposal to resolve the problem. I will instead order Sperry to build the berm on the condition that if the berm fails to reduce the runoff to the pre-1960 level, Sperry will construct a swale as proposed by Ballinger in 1960.
III. Conclusions of Law
1. I have jurisdiction over the subject matter, 28 U.S.C. § 1332, and the parties and the amount in controversy is greater than $ 10,000 exclusive of interest and costs.
2. Pennsylvania law governs the substantive issues of liability in this action. Erie R. Co. v. Tompkins, 304 U.S. 64, 58 S. Ct. 817, 82 L. Ed. 1188 (1938).
3. Defendant was negligent in causing or permitting increased water runoff from its land onto the Bogar land, as a result of which the Bogar property was damaged.
4. Defendant is liable to plaintiff in the amount of $ 5,768 for the cost of restoring the J ditch on plaintiff's land, and in the amount of $ 500 for loss of rental income.
5. Bogar is also entitled to an injunction directing Sperry to reduce the surface water runoff to the pre-1960 level.