The opinion of the court was delivered by: Senior Judge Flaherty
Argued: September 14, 2009
BEFORE: HONORABLE BERNARD McGINLEY, Judge, HONORABLE RENÉE COHN JUBELIRER, Judge, HONORABLE JIM FLAHERTY, Senior Judge.
Robert A. and C. Meredith H. Swift (Appellants) appeal from four orders of the Court of Common Pleas of Delaware County (trial court), all dated January 23, 2009, which sustained the individual preliminary objections of Radnor Township, Haverford Township, the School District of Haverford Township (School District) and the Department of Transportation (Department)(Collectively, Appellees) to Appellants' complaint and an additional order denying Appellants' motion to consolidate. We affirm the decisions of the trial court.
In 1979, Appellants purchased a home on one acre of ground located at 328 Highland Lane in Bryn Mawr, Radnor Township (Property or Appellants' property). The Property is near the intersection of Coopertown Road, a Commonwealth highway, and Highland Lane, a road that is owned by both Haverford and Radnor Townships. Coopertown Road and Highland Lane form the boundary between Haverford Township and Radnor Township.
At the time Appellants purchased the Property, there was an existing natural waterway which separated the back one-third (back) of the Property from the front two-thirds (front). The only access to the back is across the waterway. At the time of purchase, a title report done for Appellants referenced an easement for an existing waterway through the premises. Such waterway was to be realigned as shown on a subdivision plan prepared by the developer of Appellants' property and other surrounding properties. The subdivision plan shows a twenty-three foot wide easement planned for the development through Appellants property.
The waterway, at the time of Appellants' purchase, was approximately six feet wide and three feet deep. Currently, the waterway is at least twenty feet wide. In 1979, Appellants built a bridge across the waterway. In 1990, due to widening of the watercourse by water flow they built another larger bridge. In 2003, Appellants found that they needed to build a third, yet larger bridge and began investigating the source of the water due to the significant erosion since their purchase of the Property in 1979.
In 2003, Appellants learned that a storm water management system had been constructed prior to 1973 along Coopertown Road. The system consisted of 6 or 7 inlets spaced at distances which collected storm water from a wide area and transferred it through underground pipes that emptied into a watercourse that passed onto the waterway. In 1973, a developer submitted a subdivision plan to Radnor Township. For approval of the subdivision plan, Radnor Township required the developer to extend the outlet of the storm water system approximately 100 feet from Coopertown Road and to construct an energy dissipater to reduce the velocity of the water. The developer built the dissipater. The dissipater emptied water above ground from a fifteen inch pipe which was approximately fifty feet upstream from Appellants' property. The dissipater has changed through the years. Riprap rocks are missing, several more pipes now discharge into the dissipater and the upstream neighbor put in a poured concrete pad near the dissipater.
In 1984 or 1985, Appellants noticed increased erosion and it was during this time that Appellants' neighbors upstream constructed a cyclone fence, an in-ground swimming pool, put in plastic pipes that exit into the area near the energy dissipater and an additional pipe that is open on both sides that is approximately twenty feet long and fifteen to twenty inches wide which channels water under an earthen walkway.
On April 15, 2005, Appellants filed an action against Appellees in this court's original jurisdiction seeking injunctive and declaratory relief and either restoration of the drainage easement to its 1979 state or diversion of the runoff (2005 Action). Appellants alleged that Appellees had drained excessive amounts of water through a drainage waterway that runs through their backyard, causing erosion, high water velocities, caving of stream banks and bridge collapses, resulting in a nuisance on the Property.
Appellants then filed an amended petition for review which included, along with the first private nuisance count, a second count for violation of the Storm Water Management Act (Storm Act).*fn1 The Department filed preliminary objections to the amended petition for review and cross-claims were filed by the remaining Appellees. Our court dismissed the second count, determining that liability under the Storm Act cannot be asserted against the State or its agencies. However, we transferred the nuisance count to the trial court due to our lack of jurisdiction in the matter. Swift v. Department of Transportation (No. 194 M.D. 2005, filed September 6, 2005).
Thereafter, on April 18, 2006, the trial court denied the Department's preliminary objections without an opinion. The Department subsequently filed an answer and a non-jury trial was held in June of 2006. On October 4, 2006, the trial court denied Appellants' claims concluding that Appellants failed to meet their burden of proving a private nuisance claim. Additionally, the trial court found the Department immune from equitable claims seeking affirmative action. On December 5, 2006, the trial court denied Appellants' post-trial motions and judgment was entered December 7, 2006. Appellants appealed to our court.
While Appellants' appeal was pending before our court, in May of 2007, Appellants filed a second action against Appellees which was docketed at No. 07-5294 (2007 Action). That complaint in equity seeks declaratory and injunctive relief to enforce the Appellees duty to repair and maintain the waterway, to terminate and abate a continuing nuisance or, in the alternative, to enjoin the Appellees from using the waterway, and to enjoin a gutter construction project by Haverford Township pursuant to the Storm Act. The 2007 Action includes the same facts alleged in the 2005 Action, but adds that since June 30, 2006 (the time of trial in the 2005 Action), the effect of the excessive amount of water was high velocity during storms, severe erosion of the waterway, caving in of some of the stream banks, and collapse of the bridge. The 2007 Action does not seek damages and is still pending before the trial court.
In December of 2007, our court affirmed the decision of the trial court regarding the 2005 Action, finding that the Department was immune from suit, that the evidence was insufficient to support a private nuisance, that there was no causal connection proven between the actions of the Appellees and an increase in water flow in the waterway, that the staff engineer for the Department was qualified to testify as an expert, and that the Appellees did not, as Appellants claimed, offer ...