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PHYLLIS J. FIEDLER v. WAYNE AND JEAN COEN AND STEPHEN AND JANET TILEY (02/18/86)

filed: February 18, 1986.

PHYLLIS J. FIEDLER, J. EARL AND BONNIE MCCALEB, ROBERT AND MARGARET L. CRYAN, PATRICIA AND WALTER M. FISH AND ANN AND JAY H. CALVERT, JR., APPELLEES,
v.
WAYNE AND JEAN COEN AND STEPHEN AND JANET TILEY, APPELLANTS



Appeal from the Order of the Court of Common Pleas of Chester County, Civil, at No. 162 Equity, 1982.

COUNSEL

Peter A. Mardinly, Media, for appellants.

Robert W. Lentz, Paoli, for appellees.

McEwen, Montemuro and Tamilia, JJ.

Author: Montemuro

[ 351 Pa. Super. Page 104]

On August 17, 1984, the Honorable Charles B. Smith of the Court of Common Pleas of Chester County dismissed appellant's exceptions to a Decree Nisi entered by Judge Smith on March 5, 1984 which had issued an injunction in favor of appellees. The order was made final and this appeal followed.

The instant litigation commenced with a complaint in equity filed by appellees, plaintiffs below, seeking to enjoin appellants*fn1 Wayne and Jean Coen from diverting or obstructing a certain watercourse on the Coen property and to maintain the watercourse so that water continued to reach appellees' properties. Appellees also prayed for "[s]uch

[ 351 Pa. Super. Page 105]

    other relief as the Court shall deem appropriate." After a hearing on the matter, and an on-site inspection by Judge Smith, the court entered the following decree nisi:

AND NOW, this 5th day of March, 1984, . . . it is

Ordered that Plaintiffs are granted a permanent injunction and Defendants, Wayne and Jean Coen, are Ordered and Directed to return permanently the flow of the stream on their property, to the man-made watercourse, which runs through the respective properties of Plaintiffs (the "man-made watercourse"). Within ten (10) days of the date of this Order, the Coens shall submit a plan setting forth the means they propose to use to return permanently the flow of water to the man-made watercourse to counsel for Plaintiffs for his approval. In the event said plan is approved by counsel for Plaintiffs, the Coens are Ordered and Directed to carry out said plan and have constructed within forty (40) days of the date of this Order, the device(s) for returning permanently the flow of water to the man-made watercourse. If said plan is not acceptable to counsel for Plaintiffs, or the flow of water is not returned permanently, to the man-made watercourse within forty (40) days of the date of this Order, pursuant to said approved plan, the Coens are Ordered and Directed to permit Plaintiffs, and/or their agents, independent contractors or employees, to enter upon the Coens' property to construct the device(s) as described by Albert J. Giannantonio, at the Hearing in this case, including the opening of the now enclosed flume. Upon certification to this Court, by counsel for Plaintiffs, of the expense of the installation of said device, a judgment in that amount shall be entered in favor of Plaintiffs and against Defendants.

Thereafter it shall be the responsibility of the Plaintiffs to maintain said device(s) to the extent necessary, once installed, so that the flow of water remains in the man-made watercourse. Plaintiffs shall have the right to ...


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