McEwen v. Supervisors of McHenry Township , 1973 Pa. Dist. & Cnty. Dec. LEXIS 395 ( 1973 )

GREEVY, P. J.,

Plaintiff, Jane L. McEwen, owner of a property adjacent to a township road, has filed a complaint in equity alleging that the township supervisors constructed a ditch along said road blocking the natural flow of surface water and diverting the water onto her property. She seeks to have defendant remove the ditch and obstruction, restore the natural flow of the water and pay for damages already suffered. The matter is now before us on defendant’s preliminary objections in the nature of a demurrer.

The duty is imposed on township supervisors to maintain and repair drains and ditches along public highways: Act of May 1, 1933, P. L. 103, art. 11, sec. 1152, as amended, 53 PS §66152. The manner in which the duty is to be discharged is necessarily one involving the exercise of discretion by the supervisors. Courts of equity have no jurisdiction to supervise their action except in case of clear abuse of discretion. No abuse of discretion is alleged in the present case.

In the case of Allen v. Blaker, 3 Lyc. 262 (1952), we held that where township supervisors open and maintain drains or ditches to clear water from the road, and the drains divert water on to plaintiffs property injuring it, the equitable remedy of injunction would not lie as plaintiffs had an adequate remedy at law.

The supervisors have broad discretion and, in the absence of showing an abuse of discretion, plaintiff should seek remedies for damages at law. Therefore, the preliminary objections are sustained, and the case is certified to the law side, and plaintiff is given leave to file an amended complaint.

ORDER

And now, February 7, 1973, it is hereby ordered and directed that defendant’s preliminary objection be sustained and this court certifies the action to the law side of the court, pursuant to Pennsylvania Rule of Civil Procedure 1509(c). Plaintiff is given leave to file an amended complaint within 20 days.