Strohl v. Borough of Ephrata

Opinion by Mr. Justice Mitchell, The learned judge below found as a fact that the borough had abandoned the drain or ditch which ran through plaintiff’s property and for a consideration permitted her to fill in and cover it. It is contended by the borough that this finding was erroneous, but as the borough took no appeal, and the appellant makes no complaint of the finding, it must be accepted as an established fact for the purposes of this case. The attempt of the borough therefore to reopen the ditch must be considered as an entry upon appellant’s land for the purpose of making a new drain or watercourse. For this legislative authority must be shown, and the court below was of opinion that such authority was found both in the act of May 22,1883, P. L. 39, and the act of May 16,1891, P. L. 75. We do not find the authority in the act of 1883. That is a supplement to the borough act of 1851, and its main purpose as expressed in section first was to grant power to the borough to lay out and ordain footwalks, pavements, gutters, culverts and drains over and upon lands abutting on turnpike roads [55] within the borough limits; in brief, to extend the ordinary jurisdiction and authority over its streets for the purposes enumerated to the turnpike roads. ' The general power to regulate the streets, gutters, culverts, drains, etc., contained in the section is a mere re-enactment of the section of the borough act which it was intended to amend and enlarge. It does not contain any grant of power to condemn and take private property for the construction of drains or sewers except upon the line of turnpike roads. The rest of the act is devoted to the procedure, and the remedy of the parties aggrieved, which is to be by like proceedings as provided for the case of public roads. The act of 1891 is of a much more comprehensive scope. It is a supplementary act passed to supply omissions and to enlarge inadequate powers and confirm doubtful ones, on the whole subject of municipal control over the laying out, opening and regulation of streets: Hanover Borough’s Appeal, 150 Pa. 202. By its express terms, the subjects of sewers and water courses are included. It is objected by the appellant that the changing of water courses not being mentioned in the title, so much at least of the act as relates to that subject is unconstitutional. Whatever might be the force of this objection if a case should arise relating to the change of a water course simply as such, it is not worth while to discuss it now as the present is clearly a case of sewer. The drain or ditch, as it is variously called, that formerly ran through appellant’s property, was a natural water course, but adopted and used and its area of drainage enlarged by the borough as a channel for carrying off surface water. The borough changed not only its course but its character as an open into a closed drain or iron pipe; it seeks now to restore it to its ancient course and also to its open character. After an abandonment and permission *to appellant for consideration to fill it .up, the right to the old drain as already said was at an end, and whatever the borough does now it must do de novo by virtue of its municipal powers. But drains or ditches, open or covered, are in this connection included in the term sewers, and when the act of 1891 put that subject within the authority of the borough it necessarily included in the grant all the subordinate questions of kind, size, etc. We are of opinion, therefore, that the borough had authority under the act [56] of 1891 to construct a sewer or drain, open or closed, through appellant’s property. But appellant is nevertheless entitled to the injunction prayed for, as it is clear that the borough is not exercising its authority in the appointed way. It appears to have proceeded on the supposition that it might at any time by mere resolution resume its right to the former mode of drainage, and has not taken any of the necessary steps for the acquisition of a new right under the statute. This it must do. It must proceed to condemn and appropriate the appellant’s property to the desired public use, in the regular and lawful way, as prescribed by the act of 1891 and the general road laws. Section five of the act of 1891 provides that when the parties have not agreed upon the amount of damages the municipal corporation may tender sufficient security, and if the security so tendered be not accepted, then it shall be presented to the court of common pleas, “ and upon the approval of said security said municipal corporation may proceed with the improvement.” This it will be observed is a condition precedent to entry which it is not claimed has been performed in this case. Until it has been, the borough is a trespasser and must be enjoined. The act of June 8, 1891, P. L. 210, has no bearing upon the case. That refers to streams and water courses. The finding of the court below that the water course through appellant’s land had been abandoned takes the case out of the purview of that act. There is no longer any water course there, and as already said if the borough wishes to make one, whether a sewer or a drain or a ditch, whatever it may be called, it must proceed de novo. • Decree reversed and injunction directed to be awarded on the basis indicated in this opinion.