
    Lafferty v. Girardville Borough.
    In an action on the case against a borough, to recover damages for injuries caused by surface water flowing upon a lot abutting on a street, the evidence was to the effect that, in 1873, the plaintiff erected a house on the lot, which was low and swampy and frequently overflowed by water. In front of the house was a corduroy road. About sixty feet down the road, from plaintiff’s house, was a culvert under the road. In 1885, the borough graded the road and rebuilt the culvert in a proper manner. In 1882, owners of lots on the opposite side of the street began to build, and, to protect their lots from an overflow, they constructed a stone wall which partially obstructed the culvert. The plaintiff had no direct connection with the culvert, but her drainage was thrown by, means of a ditch, upon her next lower neighbor’s ground, and it flowed over this toward the culvert. The court below charged that the borough was not bound to drain the plaintiff’s land, and that the plaintiff could not recover. JHeld, not to be error.
    It seems that a borough is not liable in a civil action for a failure to provide a system of drainage which will prevent the flow of surface 'water upon property lying below the level of a street.
    Feb. 21, 1889.
    Error, No. 230, Jan. T. 1888, to C. P. Schuylkill Co., to review a judgment on a verdict for defendant in an action on the case by Patrick Lafferty and Margaret, his wife, in right of said wife, against the Borough of Girardville, at Nov. T. 1883, No. 317. Sterrett and Mitchell, JJ., absent.
    The evidence was to the following effect, at the trial, before Pershing, P. J.:
    Girardville was incorporated as a borough on June 3,1872, and included within its limits a corduroy road which was afterward known as Second street. This street ran nearly north and south. In 1873, Margaret Lafferty built a house on a lot on the east side of Second street. The lot was low, wet, swampy land, which was frequently overflowed with water. About sixty feet down the street from the plaintiff’s house, a culvert extended under and across the street. In 1885, the borough raised the grade of the street and rebuilt the culvert in a proper manner. In 1882, the owners of lots on the west side of the street began to build, and one of them, Achenbach, to protect his lots from overflow, constructed a stone wall, which partially obstructed the culvert. The plaintiff had no direct connection with the culvert but she had cut a ditch in front of the lot of her next lower neighbor, Kinney, and drained her surface water on his land. Some of this water found its way to the culvert.
    The court charged, inter alia, as follows:
    “ The declaration contains three counts, the first of which alleges that, in consequence of the defective construction of a culvert, and subsequently the neglect of the borough to keep it in repair, the plaintiff, in this action, sustained certain damages. ' The second count alleges that she has sustained damages in consequence of the defective construction of this culvert, without alleging, as I read the narr, that there was any subsequent neglect to keep it in repair. The third count charges both defective construction and neglect on the part of the borough to keep it in repair. The allegation of the plaintiff is that, in consequence of the defective construction of this culvert, and the after-neglect of the borough to keep it in proper repair, the property of the plaintiff was flooded and injured. This constitutes the basis of her claim for damages. I may as well say at this point that there is no evidence here of any defective construction of this culvert. The testimony of the plaintiff, by a witness who did the work at the time, that the borough repaired it, shows that the work was well done. Hence, the case comes before you on the allegation of negligence on the part of the borough to keep that culvert in proper repair, and, consequently, allowing the plaintiff’s property to be flooded and injured, as is claimed by the testimony on the part of the plaintiff. . . .”
    “ I may say to you that there is no question of liability on the part of this borough for any action that they took in reference to the streets or any work that they did upon the street. Every borough has the control of its highways.' It has a right to fix the grade, to elevate it, or to lower it, to make the street narrower or to widen it, at any rate to widen it. It is the exercise of powers conferred by the state upon every borough; and it is not negligence for a borough to repair its streets, to open new streets, or to change the grades of its streets. It does not follow that an owner of property who is injured has no remedy. He has. But for any injury winch may have been done to the plaintiff in this action by the change of the grade of the street, and the filling up of the street and sidewalk, which is part of the street, according to the evidence here, the law has provided a specific remedy, and the supreme court has held that that remedy is exclusive, and that an action of this character will not lie to recover damages occasioned in that way. White v. McKeesport, 101 Pa. 394. The only ground upon which the plaintiff can recover in this action is that of negligence on the part of the borough in allowing this culvert to fall into disrepair, to become dilapidated, closed up through the negligence of the borough officers, resulting in injury to this plaintiff. For negligence they would be liable in an action of this kind. But in the exercise of their authority and power to change the street they would • not be liable in this action. . . .”
    The court, after reviewing the testimony and the cases of Carr v. Northern Liberties, 35 Pa. 324; Grant v. Erie, 69 Pa. 420; and Bentz A. Armstrong, 8 W. & S. 40, proceeded:
    “ The evidence is that Mrs. Lafferty dug a ditch, or had a ditch dug through the Kinney lot, according to Kinney’s testimony, two and a half feet deep., in order to take the water from her premises, and there is no evidence that there was any other ditch constructed or dug for that purpose, or any pipe provided to carry it any further. This could only be done as long as Kinney would permit it. He could have prevented her from having a ditch through his premises at any time he saw proper. The evidence on both sides is that, after it left Kinney’s and entered upon the lots on the other side, it spread all over the lots. How much of it went into the culvert, I suppose there is no means of ascertaining. But the evidence is that all that the plaintiff did to conduct the water away from her premises was to convey it through Kinney’s lot, and there is no evidence here that she ever made a connection with this culvert at all. Indeed, the evidence is the other way. Her drainage was thrown upon the other lots and she had no drain to the culvert according to the evidence in this case. The other lot owners had a perfect right to keep the water off from their premises, and prevent the drainage from this property being thrown upon their private property, and they exercised that right. So far as Achenbach is concerned, he exercised his right to put a house upon his lot, and the borough had nó power to prevent him from putting his house there, and they had no power to throw this water upon his premises against his consent, unless they provided a way of giving compensation. The evidence in the ease on this subject is that plaintiff had no communication with this culvert, that the extent of her drainage was through Kinney’s and these other lots, and there the water was allowed to go through wherever it pleased. I cannot come to the conclusion, studying this case pretty closely, that the borough is liable in damages to the plaintiff here, because she having drained her premises through Kinney’s into Kilcur’s and Achenbach’s. Achenbach, in the exercise of his right, put his house upon his own ground, and prevented the borough from further turning the water on his premises, thus committing a trespass upon him. For that reason, I have been constrained to say to you, from my conclusions, that the plaintiff has no right to recover in this action. There are other cases pending, and this, of course, will be a test case upon which will be determined whether I am right in my conclusion or whether I am wrong.
    “ The case of Gold v. The City of Philadelphia, 19 W. N. C. 135, not precisely this case, but it has some bedring on it, is one where the municipality allowed a road to get into such a terrible condition that people would not travel it. Business interests suffered. A party had a hotel, and the hotel was practically abandoned, and the property rendered comparatively valueless. There was no question about the neglect of the corporation to keep the road in proper repair to travel. It was neglected and could not be traveled. Suit was brought to recover damages on that state of facts. The supreme court held they could not recover. It is not exactly this case, but some of the remarks of Justice Paxson may appropriately apply to this case : £ When a duty is imposed upon a municipal corporation for the benefit of the public, no consideration or benefit is received by such municipality, as in the case of a trading corporation, hence no implication arises of liability to the individual citizen resulting from a neglect of such duty. To sustain a contrary doctrine would be disastrous to municipalities, and, consequently, to the general public. If we once throw open the door to a recovery in such cases, how are we to measure thé extent to which a public highway may be out of repair to entitle owners of property abutting thereon to recover damages? Such questions would have to be referred to a jury, whose standard of duty would be as shifting as their verdicts would be uncertain, and in many instances oppressive.’
    [Gentlemen': We instruct you to return a verdict in this case for the defendant.]
    Verdict and judgment for defendant.
    
      The assignment of error specified the portion of the charge included within brackets, quoting it.
    
      John A. Nash, with him James B. Reilly and M. M. L'Velle for plaintiffs in error.
    Under the facts in this case, a duty was imposed upon the defendant to find a means 'of carrying off the water from plaintiff’s land. Stout v. Kindt, 24 Pa. 449; Carr v. Northern Liberties, 35 Pa. 324; Pittsburgh, Fort Wayne & Chicago P. R. v. Gilleland, 56 Pa. 445; Huddleston v. Bellevue Township, 17 W. N. C. 344; Vanderslice v. Phila., 103 Pa. 102; Fair v. Phila., 88 Pa. 309.
    The failure of the borough to keep the culvert open was a negligent want of repair and was therefore actionable.
    The Act of May 24, 1878, P. L. 129, does not apply to this case. White v. McKeesport, 101 Pa. 394; Pittsburgh, Fort Wayne & Chicago R. R. v. Gilleland, 56 Pa. 445.
    Our complaint in this case was because the defendant borough, by its negligent action with regard to Second street and the culvert under it, cast upon our premises water and floods to which this property owed no servitude. It was not because of a failure to carry from our premises water which fell or naturally arose thereon. We submit, however, as a legal truth, that if water that arose upon our premises was impeded in its prescribed and natural flow by the negligent construction of this public improvement and was dammed upon our premises, thereby causing injury, the borough would be liable in this action.
    
      J. W. Ryan and W. A. Marr, not heard, for defendant in error.
    When there are no facts in dispute, the court may give a. peremptory instruction. Koons v. Steele, 19 Pa. 203; McCracken v. Roberts, 19 Pa. 390; Phillips v. Zerbe Pun and Shamokin Improvement Co., 25 Pa. 56.
    Where, admitting every fact and circumstance to be true, the plaintiff has entirely failed to make out his case, it is not error to-instruct the jury to find for the defendant. Weidler v. Farmers’ Bank, 11 S. & R. 134; Malon v. Fry, 1 Watts, 433.
    When there is no conflict of evidence, the judge does not, by instructing the jury what is the legal result of the whole testimony, take the facts from them. Johnston v. Gray, 16 S. & R. 361; Carman v. Noble, 9 Pa. 366; Graff v. Pittsburgh & Steubenville R. R., 31 Pa. 489.
    The doctrine that where there is a scintilla of evidence, it must be submitted to the jury, is exploded. Howard Express Co. v. Wile, 64 Pa. 201; Cunningham v. Smith, 70 Pa. 450; Elliott v. Ins. Co., 66 Pa. 22.
    
      A municipality is not liable for damages resulting from a lawful exercise of its discretionary power to plan and construct sewers and other improvements. Collins v. Phila., 93 Pa. 272; Grant v. Erie, 69 Pa. 420; Green v. Reading, 9 Watts, 382; Parks v. Newburyport, 10 Gray, 28; Luther v. Winnisimmet Co., 9 Cush. 179; Ashley v. Allen, 11 Cush. 192; Young v. Leedom, 67 Pa. 351; Mills v. Brooklyn, 32 N. Y. 489; Potter on Corporations, 392.
    This is not the case of a running stream, with defined boundaries, and the authorities cited by the learned counsel in their argument, which relate to running streams of water, are entirely inapplicable to the state of facts in this .case.
    The rule upon the subject of surface water is well established in 2 Dillon on Municipal Corporations, pages 930-3 and §§ 797-800. See also O’Conner v. Pittsburg, 18 Pa. 187; Carr v. Northern Liberties, 35 Pa. 324; Fair v. Phila., 88 Pa. 309.
    March 4, 1889.
   Per Curiam,

The learned judge below gave the jury a binding instruction to find for the defendant. In this we see no error. The borough was not bound to drain the plaintiff’s property. She appears to have built her house on a piece of low, wet, swampy land, which was frequently overflowed with water. It filled her cellar and made her house damp and uncomfortable. Her principal grievance appears to be that a culvert, which had been constructed across the road, had become filled up, and no longer conveyed the water as formerly. 1 do not understand from the evidence that the plaintiff even had a connection with this culvert. She appears to have cut a ditch through a neighbor’s lot to carry her water away. After it left this lot (Kinney’s), it spread over the lots of some one else; some of it perhaps entered the culvert, how much does not appear. Her drainage was thrown upon the land of other persons, and she had no drain to the culvert. The culvert itself appears to have become stopped up by some of the neighbors building across it. The other lot owners had a right to keep the water off from their premises. Water is a common enemy and they all appear to have been fighting it. The plaintiffs had no case.

Judgment affirmed.  