Davidson v. Sanders

Opinion by Reeder, J., The appellants contend that the court below erred in submitting the case to the jury for the reason that it was necessary to prove negligence in the construction of the well or the grading of the. lot and there was not sufficient evidence of either to justify its submission. This position is defective in its legal proposition as well as in its contention in regard to the testimony. That it is the well settled law in Pennsylvania that in agricultural lands the natural flow of water from land which stands at a higher level upon that which is upon a lower level cannot as a general thing give cause of action cannot be questioned: Meixell v. Morgan, 149 Pa. 415; Martin v. Riddel, 26 Pa. 415; Kauffman v. Griesemer, 26 Pa. 407; Penna. Coal Co. v. Sanderson, 113 Pa. 146. But in Bentz v. Armstrong, 8 W. & S. 40, approved in Young v. Leedom, 67 Pa. 351, it is held that the agricultural rule of drainage as between servient and dominant tenements cannot apply in cities and towns. The reason is that no lot could be filled up and graded or be adapted to building purposes if such rules prevailed in towns. In the former case Justice Kennedy says: “In the argument something was said about the natural formation of the surface of the ground of the two lots and that according to it the water as it fell in rain was naturally inclined to run off from the lot of the plaintiff on to that of the defendant below and the latter was therefore bound to submit to it. This however I take to be a non sequitur, for, in the purchase of lots of ground laid out and sold for the purpose of building up cities and towns thereon it has ever been understood and such has been the practice and usage too, that the natural formation of the surface will and indeed must necessarily undergo a change in the construction of the buildings and other improvements that are designed and intended to be made. In doing this it would seem to be right that the common benefit and convenience of the respective owners of ad [437] joining lots should be consulted and attended to; but certainly no one ought to be restrained from improving his lot in such a manner as to make it answer the purpose for which it was laid out, sold and purchased, if practicable without overreaching his neighbor’s lot. He ought to be permitted to form and regulate the surface of it as he pleases, either by excavating or filling up, as may be requisite to the complete enjoyment of it; taking care however not to produce any detriment or injury to his neighbor in the occupation or enjoyment of his lot. It is of great importance that the water upon each lot arising from rain or other causes should be conducted by the owner thereof, if he wishes to have it removed, directly from it to a sewer or other appropriate place for the receipt and discharge of the same and not to be turned and led upon an adjoining lot without the consent of the owner. And it appears to be the duty of the owner of each lot, if he improves it, to do it in such a way as to lead and conduct the water that happens to fall or be on it off in the way just mentioned, without regard to the original formation of the lot. If the rear of his lot should be elevated so much above the front that he cannot conduct the water to the rear so as to discharge it into a sewer or other appropriate place then he ought to bring it to the front of his lot, where he must of necessity have some place to discharge it without throwing it upon his neighbor’s lot. This he ought to do even if he be compelled to carry it under or through his house or buildings.” This enunciation by the Supreme Court has stood without qualification or limitation for over fifty years. It seems to have been so universally accepted as a correct exposition of the law that the Supreme Court has in no case since that time been called upon to reconsider the question of the right to recover by one lot owner in a city or town for injury to his property by an adjoining property owner who has built upon and improved his lot, by the flowing of surface or rain water from the one to the other. .This is also recognized as a correct exposition of the law by Washburn in the fourth edition of Easements and Servitudes, page 498. This doctrine however is inapplicable to injury to improved property from surface water flowing from unimproved property: Sentner v. Tees, 132 Pa. 216; Vanderwiele v. Taylor, 65 N. Y. 341. But even if this were not the law yet the assignments of [438] error would have to be dismissed under the authorities which we first cited, all of which relate to agricultural lands. Negligence need not necessarily be in construction, it may also be in conception. Grading may be perfect in its mechanical execution and yet may be faulty and negligent in its original design. In this case the testimony of the plaintiff was that the water from the Sanders and Jenkins lot naturally flowed upon the lots of McGuire, Grady and Davidson; that the grading of his lot threw the water all upon the Davidson lot, and instead of being diffused was discharged upon Davidson’s lot in one volume. This testimony was fairly submitted to the jury, and they found the facts in favor of the plaintiff. Even if these lands were agricultural lands, these facts are sufficient to constitute negligence and to justify the directions of the learned court below under the authorities first cited in this opinion. The only assignment of error left for our consideration is the sixth. The appellant complains of the action of the court in admitting the evidence of Joseph Twiss, who .testified to the condition and appearance of the property of the plaintiff after the impetration of the writ in this action, and assigns such admission as error. It was testified that the grading of defendants’ lot was completed prior to the bringing of the plaintiff’s action; that there was no change in the flow of water or in the grading of the lot between the time of the bringing of the action and the trial; therefore when Twiss saw the property the conditions were the same as they were prior to the bringing of the suit, and there was therefore no error in the admission of this testimony. No substantial error is disclosed by the other assignments and they are therefore dismissed. Judgment affirmed. Willard, J., dissents.