Blizzard v. Borough of Danville , 175 Pa. 479 ( 1896 )

Opinion by

Mr. Justice Williams,

On the trial of this case it was made to appear that the borough of Danville began about 1860 to make use of a natural stream known as Blizzard’s Run as a part of its general system of drainage. By means of a covered sewer and a paved alley, the surface drainage of nearly twenty acres has been turned into this stream and one or more cellar drains have been connected with it. The stream thus became an open sewer, adopted and used as such, by the borough authorities; and the duty of the borough to keep its channel open and to remove accumulations ■of filth, ashes, or other material that obstructed the flow of the water and threw it out of its banks upon the lands of adjoining lot owners was as clear as though the sewer had been constructed, instead of having been adopted, by the action of the municipal authorities. The right of action by a lot owner grows, not out of the adoption of the stream as a sewer which was an act wholly within the power of the municipality; but out ■of its negligence in not keeping the sewer in at least as good condition as it found it. There is therefore no question of prescriptive right in this case. There can be no prescriptive right to neglect so plain a municipal duty. If the borough had entered upon some portion of the plaintiff’s lot in the construction of a sewer in 1860, the right of action for that trespass would be at this time effectually barred by the lapse of time. But when a sewer, huilt it may be one hundred or more years ago, gets into bad repair, the liability of the municipality for the injury inflicted upon lot owners arises when the injury occurs and may be sued for within six years thereafter. The judgment -of nonsuit proceeded therefore upon an erroneous idea of the relation of the parties and of the plaintiff’s cause of action. We are inclined to think enough appears in the plaintiff’s declaration to show that, the injury complained of is charged to the ■failure on the part of the municipality to clean out and keep open the channel of the stream so as in ordinary floods to afford a passage for its water as freely as the natural channel did before the action of 1860 was taken by the borough. This is ■the measure of duty which the municipality owes the plaintiff, and if an amendment is needed in order to place the plaintiff’s claim fully on the record, it can easily be made. But upon the evidence this case presented a question of fact for the jury. That was a question of negligence on the part of the municipality. If the borough has simply drained into this stream and then given no attention to the effect of its action on the stream, or on lot holders along its hanks, and the stream has been choked, or its channel obstructed in consequence of the character or quantity of the material drained into it, and injury has resulted to the plaintiff, the negligence of the borough authorities in not removing such obstruction and keeping the channel open is the true ground on which the plaintiff’s right to recover must rest.

Was the stream obstructed or filled up as the result of the adoption of this stream as an open sewer, and the drainage into it ? Did the borough neglect to keep the channel open, and permit the overflow and accumulations complained of? Was the plaintiff injured in consequence of this negligence? If the jury so found their only remaining duty was the ascertainment of his damages.

The judgment of nonsuit entered in this case is now reversed and set aside and a venire facias de novo awarded.