Appeal from the Order of the Court of Common Pleas of Erie County in the case of Township of Harborcreek v. Gust J. Straneva and Catherine C. Straneva, his wife v. Charles R. Davis and Patricia A. Davis, his wife; Robert G. States, Jr. and Marsha States, his wife, and Leonard Langer and Eve Langer, his wife, Intervenors, No. 87 Equity 1976.
Eugene J. Brew, Jr., McClure, Dart, Miller, Kelleher & White, for appellant.
William J. Cavanaugh, for appellees, Gust J. Straneva et ux.
John Dodick, with him, Donald E. Wright, Jr., Knox, Graham, McLaughlin, Gornall and Sennett, Inc., for appellees, Charles Davis, et ux., and Leonard Langer, et ux.
Judges Barry and Palladino, and Senior Judge Kalish, sitting as a panel of three. Opinion by Judge Barry.
[ 108 Pa. Commw. Page 314]
The Township of Harborcreek (township) instituted an action in equity in the Court of Common Pleas of Erie County alleging that Gust and Catherine Straneva (subdivider), Charles and Patricia Davis and Leonard and Eve Langer (abutting landowners) had wrongly and without permission diverted a stream from its original course along the rear of certain properties fronting Suzanne Drive to a course along Suzanne Drive and other township streets. The township sought an order directing the defendants to return the stream to its original position. Following a hearing the trial court determined that the subdivider was solely responsible for diverting the course of the stream. In accordance with that determination, the trial court entered the following order:
AND NOW, this 10th day of October, 1979, it is hereby ORDERED and DECREED that defendants, Gust J. Straneva and Catherine C. Straneva, his wife, shall return the stream in question that was diverted towards Suzanne Drive, to its original course, or to allow the Township of Harborcreek to return the course of the stream to its original location. It is FURTHERED [sic] ORDERED and DECREED
[ 108 Pa. Commw. Page 315]
that defendants shall not interfere in the future with the stream so as to divert it or change its course in any manner, and the cost of carrying out this order shall be borne by defendants, Gust J. Straneva and Catherine C. Straneva, his wife.
Both parties filed exceptions which were denied.
On December 23, 1981, the township filed a petition to amend the decree in equity on the basis that improvements made on the properties in question, i.e., new homes, made the relocation of the stream impractical. The township proposed that
[t]he most practical solution to the problem at present, considering the changes made in the past five (5) years, would be to allow the Township to maintain the stream in its present location, along the roadside ditch, and making improvements thereto, for the ...