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ROBERT SMITH AND SHELIA SMITH v. MUNICIPAL AUTHORITY BOROUGH WEST VIEW AND TOWNSHIP OHIO (03/26/86)

decided: March 26, 1986.

ROBERT SMITH AND SHELIA SMITH, HIS WIFE, APPELLANTS
v.
THE MUNICIPAL AUTHORITY OF THE BOROUGH OF WEST VIEW AND THE TOWNSHIP OF OHIO, A MUNICIPAL CORPORATION, APPELLEES



Appeal from the Order of the Court of Common Pleas of Allegheny County, in case of Robert Smith and Shelia Smith, his wife, v. The Municipal Authority of The Borough of West View v. The Township of Ohio, a municipal corporation, No. G.D. 80-2474.

COUNSEL

Samuel P. Kamin, Goldberg & Kamin, for appellants.

Fred E. Baxter, Jr., Gondelman, Baxter, McVerry, Smith, Yatch & Trimm, for appellees.

Joseph E. Vogrin, III, Scott & Vogrin, for additional appellees.

Judges Craig and Barry, and Senior Judge Barbieri, sitting as a panel of three. Opinion by Judge Barry.

Author: Barry

[ 96 Pa. Commw. Page 165]

This is an appeal by Robert and Shelia Smith, appellants, from a decree entered by the Honorable Judge Ralph H. Smith, Jr., dismissing their exceptions to his earlier decree which ordered appellants to be bound by engineering reports and a survey of Dr. James P. Miller and to pay the fees and costs of Dr. Miller.

Appellants filed a complaint in equity on June 30, 1980, requesting that the appellee, West View Borough, be directed to remove a tap it had recently installed in appellants' private water line and also enjoined from entering onto the Smith property to make additional taps. Appellants also alleged that this appellee's actions constitute an actionable nuisance. They also requested compensatory and punitive damages.

[ 96 Pa. Commw. Page 166]

Appellee successfully petitioned for the joinder of Ohio Township as an additional defendant since the tapping was part of a U.S. government project involving Ohio Township. Both appellees argue that appellants acquired their property subject to certain rights of way in which the water line was placed.

Following the filing of pre-trial statements it was decided by the parties and Judge Smith that the parties would enter into a stipulation with Dr. Miller, a registered professional engineer. Dr. Miller was designated to make a study of all documents and materials to determine the correct location of the rights of way. The only description of this stipulation is in the form of an unsigned, undated court order which is attached to appellants' brief (appendix A) and reads:

[i]t is hereby ORDERED, ADJUDGED and DECREED that upon consent of the parties hereto JAMES P. MILLER, JR., Professor and Coordinator of Graduate Studies and Civil Engineering of the University of Pittsburgh, a Registered Surveyor and Registered Engineer, shall review all of the data each of the parties hereto elects to submit, and shall make a determination as to the correct survey. Further pursuant to the consent of the parties it is ordered by the Court that the costs of the services of JAMES P. MILLER, JR. shall be borne by the party who is deemed to be incorrect in its survey.

By decree filed on May 29, 1984, Judge Smith found that the gravamen of the dispute centered around a disagreement over past surveys and directed that all parties be bound by Dr. Miller's findings and conclusion that the water main on Smiths' property was within the township right of way. He further directed ...


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