McMahon v. Thornton

Opinion by Reeder, J., As early as Bentz v. Armstrong, 8 W. & S. 40, it was held that the agricultural rule of drainage as between servient and dominant tenements cannot apply in cities and towns. There can be no question that it is the well-settled principle of law in this state that in agricultural land, the natural flow of water from lands of a higher upon those of a lower level cannot be made the subject of an action for damage._ But a different rule applies in towns and cities, for if the agricultural rule were to be applied to building lots, there could be no adapting the surface of uneven portions of a city or town to buildings by the filling and the grading of the lot. In the case already referred to, Justice Kennedy says : “ 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 adjoining lots should be consulted and attended to. ... 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 the 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 flow or be on it off in the way just mentioned without regard to the original formation of the lot.” As was said in Davidson v. Sanders, 1 Pa. Superior Ct. 432, “ 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 law, that the Supreme Court has in no case since that been called upon to reconsider the question of the right to recover by one lot owner in the city or town for injury to his property by an adjoining propertjr owner who has built upon and improved his lot, by the flowing of surface or rain water from the one to the other.” While each owner of a lot has the right to grade his lot in [503] any way which, is most convenient to himself, yet if in the grading of the lot he leaves his lot above that of the adjoining lot owner and supports the earth used in the filling and grading of his property by a retaining wall, he must so construct his retaining wall as to inflict no injury upon the adjoining owner; and if the material which he uses for the purpose of retaining the earth used in the filling and grading of his lot is of such a character that it permits the water from his lot to flow through it upon the adjoining property, thereby injuring his neighbor he is liable in an action for damages for whatever injury is occasioned thereby. While the right exists to make his lot conform to his own comfort and convenience, he has no right in the altering of the surface of the land, to do that which will injure his neighbor’s property. He must in such alteration of the land, when changing it from the face that nature has put upon it to conform to his own idea of that which is desirable, take care of all the water that falls or flows upon the land and conduct it off the new surface adapted to his own fancy in such a way as will cause no injury to the adjoining tenements. This evidently was not the conception of the law held by the court below, as evidenced by its charge. As adapted to the facts in this case, the portions of the charge assigned for error in the 1st, 2d, 3d, 4th, 5th and 6th assignments are erroneous, and the assignments must be sustained. Judgment reversed and a venire facias de novo awarded.