NO. 1102 OCTOBER TERM, 1979, Appeal from the Order of the Court Of Common Pleas of Delaware County, Civil Division In Equity Case No. 76-17094
Thomas J. Reilly, Upper Darby, for appellant.
Francis R. Lord, Media, for Ridgeway, appellee.
Richard C. Slama, Jr., Media, did not file a brief on behalf of Farrell, et al., appellees.
Spaeth, Cavanaugh and O'Kicki, JJ.*fn* Cavanaugh, J., concurs in the result.
[ 295 Pa. Super. Page 495]
This appeal arises from a judgment assessed by the Chancellor in equity in the amount of $15,000.00 upon Landon Courts, Inc. for alteration of the natural course of surface drainage waters.
The Plaintiff is the owner of a tract of land in the Borough of Yeadon, Delaware County, Pennsylvania. The developed portion of that tract consists of an apartment complex. The Appellant, Landon Courts, Inc., owns adjacent lands which are higher in elevation than the Plaintiff's property. Prior to the development of the Landon land, water flowed across the Landon property onto the lower rear portion of Ridgeway's land. Prior to the development in 1968, the flow of surface water was, as described by the Chancellor, ". . . evenly distributed, unconcentrated in any area, and had an insignificant effect on the Plaintiff's (Ridgeway) property."
Following the Landon's development of their respective properties, including the removal or elimination of a high land point or knoll, part of the surface water flow was diverted away from its natural course towards Lansdowne Avenue and re-directed toward and across the northerly portion of Ridgeway's property. The Plaintiff's experts testified that the Landon's development of their land created an increase in acreage of land draining onto Ridgeway's land, increased by 13% the slope of the land, and increased the concentrated and channelled surface water run-off by 4.07 cubic feet per second.
The Chancellor found that Plaintiff planned to construct an indoor tennis court at the situs where the diverted waters flow. The Chancellor found from the evidence that prior to construction of any facility, the water flow concentration must be alleviated to minimize the damage due to flooding. The Chancellor found that the cost of construction to remove the water flood hazard would add $12,000.00 cost to Ridgeway's
[ 295 Pa. Super. Page 496]
project, along with $3,000.00 in engineering fees and related costs, for a total additional cost to Plaintiff of $15,000.00. The Chancellor found that Landon was responsible for the increase in run-off of water onto Plaintiff's land.
Landon argues that every man has the right to the natural and profitable use of his own land. In support of this position, Landon cites Leiper v. Heywood-Hall Construction Company, 381 Pa. 317, 113 A.2d 148 (1955). The court in that Leiper case found that the crucial factor in denying liability was that the augmented flow of surface waters resulting from improvement of the ...