Goulden v. Scranton City

Opinion, Mr. Justice Green : The master finds that the plaintiffs’ lot is located upon the line of a natural course of surface drainage; that, for some distance above the lot, this line is marked by a ravine in which a small stream formerly flowed, kept alive by springs which have since failed; but that for fifteen years past the surface water has run in this ravine, usually a small stream, occasionally dry, and in heavy rains a torrent. It is apparent that if no culvert had been built across Railroad Avenue for this water to go through, the ravine would have continued open, and all the water that came into it would have flowed through it and in time of flood would have been precipitated upon the plaintiffs’ land without restriction. If the culvert were taken away now, the same result would follow. But the preservation of the culvert is presumably necessary in order to sustain the street above it. When it was built, it might as easily have been built five feet wide and five feet high, as three feet wide and three feet high, but the latter dimensions being supposed sufficient were adopted. It appears now they are not sufficient and therefore in rebuilding the culvert it is made of the larger dimensions. It seems rather singular that an injunction should be awarded against such an exercise of corporate authority as this. The purpose of the increased size of the culvert manifestly is to carry off the water in time of flood, and thus prevent it from damming up and overflowing the adjacent territory. Certainly this is an entirely legitimate purpose, to be encouraged rather than repressed or restrained. As the whole of the water must have gone down this natural water course if it had remained in a state of nature, it is difficult to understand why a miti [108] gated flow through a restricted limit should be the subject of a restraining injunction. The argument that it was for fifteen years carried through a still more limited channel and therefore that limit cannot now be exceeded, is entirely without force. The three feet limit was not a natural one and the case therefore is not one of a proposed increase in the size of the natural channel, but it was an artificial channel, found now to be insufficient in size and therefore necessarily to be enlarged, but still much less than the natural channel. The authorities cited in the opinion of the court and in the argument for the appellees, which hold that surface waters cannot be gathered together and cast upon a citizen’s land even by a municipality, or that a natural channel cannot be increased in size and made to carry an increased flowage, are inapplicable. Having said this much, it is only necessary to add that the diversion of an increased surface flow into the natural drain or ravine, more than was accustomed to find its outlet in that way, is not the subject of complaint in the plaintiffs’ bill and no relief is asked against the defendant on that ground. The decree made by the court below has nothing to rest upon in the pleadings and cannot be sustained. If the plaintiffs desire to obtain redress for an increased flowage of surface water into the natural drain by artificial means, let them proceed in soihe appropriate form for such an injury. They have not done so in the present proceedings. Decree reversed, and bill dismissed at the cost of the appellees.