
    Buchert v. Boyertown Borough.
    Where a borough has never assumed control of a portion of a turnpike road lying within its limits, and a house has been built at a point on the turnpike within the borough, where there was a rise of land on both sides, and there was no gutter in the road to carry away the' surface water, the borough is not liable for damages caused by an accumulation and overflow of water on the land where the house was built.
    March 8, 1889.
    Error, No. 303, Jan. T. 1889, to C. P. Berks Co., to review a judgment on a verdict -for defendant in an action on the case by Susanna Buchert against the Borough of Boyertown, at Aug. T. 1881, No. 90. Paxson, C. J., and Sterrett, J., absent.
    The facts are stated in the charge of the court, infra, by Hagenman, P. J. . .
    On the cross-examination of the plaintiff, the defendant proposed to show the location and conformation of the ground before the injured building was put up.
    The plaintiff objected on the ground that the previous condition or topography of the ground in the locality is immaterial, it having been shown in evidence that the borough was incorporated and had laid out a borough plan — and laid out grades for streets and erected gutters, provided water-courses and given the building line. It is not cross-examination, nothing of the previous condition of the ground having been shown in chief. Objection overruled and exception. [1]
    The defendant (having shown, on cross-examination, by Daniel K. Bitter, that the borough had cut down the streets between plaintiff’s residence and the Englesville road about a foot, proposing to show that it was done about two years ago, which was objected to by plaintiff, for the reason that it was after the bringing of this suit, and overruled by the court, but no exception taken) proposed asking the following question:
    “ Q. The gutter now, as you have just described, is a foot deeper than it was in 1881, between her house and the Englesville road ?”
    Objected to by the plaintiff, because it is immaterial whether the gutter was deeper or shallower now than it was then. The defendants cannot hide themselves behind their own neglect at that time, and now show diligence in order to prevent a verdict going against them. Objection overruled and exception. [2]
    The court charged as follows:
    “ This action is brought by Susanna Buchert against the Borough of Boyertown to recover damages which she alleges her property has suffered from the negligence of the borough. From the evidence, it would appear that her husband, shortly before his death, built a house on a lot in the Borough of Boyertown, on what is called Philadelphia avenue; that after his death, she became the owner of this property, on the 4th of December, 1880, by purchase; and that between the 4th of December, 1880, and the 7th of July, 1881, when she brought suit, the property sustained some damage, which, according to her allegation, was caused by the neglect of the borough.
    
      “ The witnesses upon both sides of this case assert the fact that this house of Mrs. Buchert’s is built upon low ground. It is facing the turnpike, and, from the point where the house is built, the fround rises in both directions — toward Gilbertville and toward •oyertown; and that the water from both these points flows into this hollow, and formerly used to flow across the lot now owned by the plaintiff and the lots owned by Cleaver and Houck. That was the natural course of the water, and in that way it continued to flow until the Buchert house was built. The evidence is that, upon the opposite side of the turnpike, there is hardly any gutter whatever; but the water which ran down on the opposite side of the turnpike crossed at that point, almost immediately in front of the plaintiff’s house, certainly opposite the lot of either Mrs. Buchert or Cleaver, and then ran down over the lots now occupied by Mrs. Buchert and Cleaver and Houck. You have the testimony of Mr. Houck that, before Mrs. Buchert’s house was built, the water ran down aside of the house and on his lot where his house now stands; and that the gutter may still be seen there on the opposite side of his house. These are facts which have been sworn to by witnesses pretty much on both sides of this case.
    “Now it is claimed by the plaintiff that her property was injured by water. When, and how? is the inquiry. It occurred some time during the winter of 1881, after there had been considerable snow. There was either a thaw or a rain, and a large accumulation of water came down, as it naturally would, from both sides of these hills or rises in the turnpike, both from Gilbertville and from Boyertown, and was all thrown into what was and still is a hollow at the point where the Buchert and Cleaver and Houck property now stand. This was in the winter time; the ground was frozen, doubtless, and the water which had accumulated from the snow and the ice did not sink away into the earth, but gathered there. It is said in consequence of this her house was damaged. There is probably no dispute that there was some damage done to Mrs. Buchert’s house by the water which accumulated there on that occasion. One of the witnesses says there was damage done to the amount of $500; the plaintiff says $500 or $600, — $600 and the cost of $100 to make her drain.
    “ The next inquiry which you will have to make now is, how did this injury occur? You have the testimony of Mr. Houck on the part of the defendant, I do not recollect that the witnesses on the part of the plaintiff testified to this, that the snow was thrown by Mrs. Buchert from her pavement into the gutter and the street. You have the testimony of one of the plaintiff’s witnesses, and also of one of the defendant’s witnesses, that when this water accumulated at this point, it being the lowest point, it ran on to the Buchert pavement. [The jury will recollect two of the witnesses testifying to that fact, that the water accumulated there, and was thrown in upon the plaintiff’s pavement in consequence of there having been snow shoveled from her pavement into the gutter which prevented the water from flowing along the gutter. If that is so, if the plaintiff shoveled snow into the gutter and thereby the water would not flow along the gutter and was turned upon the pavement, then even if the borough authorities were negligent, she could not recover, for, in that case, she contributed to the cause of the injury by filling up her gutter and preventing the water from flowing off.] [3]
    “In regard to this gutter, what is the evidence of the witnesses ? Prior to the time when either Buchert or Houck built their houses, the natural flow of the water was down over the lot of Buchert and Cleaver and Houck. Now, if Buchert put up a house at that point where the water would gather, stopping up, if you please, the natural water-course partially, which was down over his lot, he cannot ask the borough authorities to make a drain and carry off the water for him. The testimony of Houck is that, after the Buchert house was built, the water was drained, as it were, toward the property and ran down aside of the Buchert lot on his property, and when he himself built he stopped the natural flow of the water down over his lot. He made the gutter that is there. When was it made ? There is no evidence as to the time when it was made by any of the witnesses, except, probably, that of Houck. Houck speaks of the gutter having been made in front of the Buchert house by Buchert himself, and he speaks of having made the gutter in front of his ■own property and that he made the gutter up to the Engelsville road. According to the testimony of Mr. Grim and Mr. Sands— Mr. Grim was the chief burgess and Mr. Sands the street commissioner — the borough authorities did not do anything with the gutter nt this point until after 1881; in 1882 they cut down the grade of that street and made the gutters along the side. Mr. Sands says ■that the borough authorities did nothing to these gutters or to that part of the street which was covered by the turnpike in front of the .Buchert property. The same is the testimony of Houck. These .are positive witnesses and their testimony is of a positive character. Mrs. Buchert says the same thing — that the borough made the gutter; but how ? Her husband happened to be a member of the council and he made the gutter in front of his house; that is all. There is no reliable testimony to show that the Borough of Boyer-town did make these gutters on either side of the turnpike in front of either the Buchert property or of the Houck property, certainly not until in 1882, when they cut down the grade of that street, and in that way made a gutter so as to carry off the water.
    [“ When Buchert put up his house at this point, the Borough of Boyertown was not bound to make a gutter to carry away the water from his premises. Until they took hold of the street, and until they made their water-courses, the Borough of Boyertown was not liable for any damage which might result from the water being carried against the property of Mrs. Buchert; certainly not until after they had undertaken to grade that street and fix the gutters of that street. Now, if Houck made the gutter in front of his property, and if Buchert made the gutter in front of his property, that imposed no liability on the part of the borough to keep that gutter in repair. They were in no way bound to open the gutter, deepen it or keep it in repair, nor to see that the houses of those persons who saw proper to build on that low, depressed place were freed of the water that would gather there. That we give you as the law which will govern you in this case.”] [4]
    The defendant presented, inter alia, the following points:
    “ 6. When the Borough of Boyertown was created, by virtue of its charter, it assumed'control of the streets and gutters, as well as grades and building lines within the limits of the borough, and became, ab initio, responsible for the keeping in repair of the gutters, made and encompassed in its limits; and the mere fact that the officers of a turnpike road were permitted to repair and keep up a portion of their road, being within the borough limits, will not excuse the borough authorities from exercising such supervision over the work as to see that it is properly done, and the authorities of the borough cannot excuse themselves from responsibility, because of the neglect of the turnpike people to keep the gutters open. Ans. This point is answered in the negative.” [5]
    “Under all the evidence in this case, it does not appear that the plaintiff has any cause of action against the defendant, and the verdict of the jury should be in favor of the defendant. Ans. The court decline to charge as requested in this point.”
    
      The assignments of error specified, 1, 2, the rulings on the evidence, quoting the offers and objections, as above, but not giving the answers; 3, 4, the portions of the charge within brackets, quoting them; and, 5, the answer to defendant’s point, quoting the point and answer.
    
      Henry D. Green, with him Rothermel Bros., for plaintiff in error.
    The admission of the evidence complained of in the first and second assignments prejudiced the minds of the jury.
    Sufficient had been done by the borough authorities to show that their authority had been exercised over the property.
    
      H. Willis Bland and J. K. Grant, not heard, for defendant in error.
    A municipal corporation is not liable for non-action, in failing so to grade a street as not to cause surface water to flow upon adjacent lots. Dillon’s Mun. Corp., § 799.
    The only ground of liability of a municipality to a property owner, from the flow of water, is negligence in the corporation in the performance of a corporate duty, and where such negligence is the proximate cause of the damage to the property. Fair v. Phila., 88 Pa. 309; Carr v. Northern Liberties, 35 Pa. 324; Collins v. Phila., 93 Pa. 272; Easton v. Neff, 102 Pa. 474; Grant v. Erie, 69 Pa. 420; Wilson v. Mayor, 1 N. Y. 595; Smith v. New York, 62 N. Y. 295.
    March 18, 1889.
   Per Curiam,

There is nothing in either of the specifications of error that requires a reversal of this judgment. The evidence was insufficient to support a verdict in favor of the plaintiff, and the learned judge of the common pleas should have affirmed defendant’s point, in which he was asked to direct a verdict in its favor. That, however, was a technical error, of which plaintiff had the benefit, and he is, therefore, not in a position to complain.

Judgment affirmed.  