Sharpe v. Scheible

Opinion by

Mr. Justice Fell,

This actio2i was to recover damages caused by the obstruction of a surface drain by reason of which rain water backed upon and overflowed the plaintiff’s premises. W. H. Wanamaker owned a tract of some five acres of ground in what is now the borough of Chambersburg. The rain water which fell on the higher ground in the vicinity and accumulated in the street upon which the lot fronted, flowed thence through an opening which was a well-defined surface water course, and spread over the land. In 1867 W. H. Wanamaker changed the opening from the street to a point a few feet distant and constructed a ditch by whi.u the water, which before had run upon and over his land, was conducted to a pond in the back part of his lot. His purpose in making the change was twofold ; to relieve the front of his lot from the flow of water so that he could improve it, and to collect the water in a pond at the rear where he could utilize it in manufacturing bricks. He ■erected a number of small dwelling houses on the front, one of-which he sold to the plaintiff in 1867; and in 1872 lie sold the whole of the back part to the defendant.

When these sales were made the ditch was a well-defined ■surface water course two or three feet deep and as many wide, which conducted the rain water, which otherwise would have run over the surface, to the pond mentioned. By a recent grading of the street the flow of water in the ditch has been somewhat increased, and the defendant, to avoid injury therefrom, placed obstructions in the ditch at the point where it enters his land, causing the overflow which injured the property of the plaintiff. The case has been argued here upon the right of the owner of a lower lot of land to shut off the surface water flowing from a higher one. It was submitted to the jury upon the trial as involving only the question of servitude imposed upon the defendant’s land by the former owner of both properties.

We are of opinion that this submission included the only question in the case, and that the instruction to the jury on the subject was accurate and full. The grantor of both plaintiff and defendant while he was the owner of the whole property changed the natural channel to adapt the parts to the uses to which he intended to put them. This created an easement in favor of the land which he conveyed to the plaintiff, and imposed a servitude upon that which he afterwards conveyed to the defendant. Both parties bought with notice of this, and both are bound by it. The charge of the learned judge carefully guarded the defendant from a recovery for injuries caused by an increased flow of water resulting from a change of grade of the streets by the borough authorities, and left him liable only for his own act in diverting the water which would have run upon his property before the change of grade.

The judgment is affirmed.