
    West Bellevue Borough and Killbuck Township v. Huddleston et ux.
    Where a borough throws water collected by rains and freshets on a public highway of a township, and the township accepts the burden of the water, the borough is not liable in damages to a landowner in the township, upon whose land the water has been thrown from the highway.
    To give a servitude over another’s land for the flowage of water, or for the maintenance of a drain or water course, without twenty years’ apparent and visible use, actual consent must be shown by the evidence and cannot be inferred from- the mere fact of the owner’s making no objection to such use.
    A party, sued for damages for overflowing the premises of an adjoining landowner, requested the court to charge that no recovery could be had if the plaintiff consented to the overflow, or, by acts recited in the point, prior to his ownership of the land, caused an increase in the overflow. The court affirmed the point with the qualification that actual consent must be shown by the evidence, and cannot be inferred from the mere fact of acquiescence. Held, that, in the absence of a more specific request to charge the jury, the defendant could not complain, although there may have been evidence from which the jury might infer actual consent on the part of the plaintiff.
    Oct. 22, 1888.
    Error, No. 39, Oct. T. 1888, to O. P. No. 1, Allegheny Co., to review a judgment on a verdict for plaintiffs in an action of trespass on the case, at Sept. T. 1883, No. 137. Clark, J., absent.
    This action was brought, June 27, 1883, by R. H. Huddleston and Clara S. Huddleston, his wife, against the township of Killbuck .and the borough of West Bellevue to recover damages caused to Mrs'. Huddleston’s land by the alleged negligence of the defendants in causing an unusual flow of water on her lands from the public highway. The case was previously tried and a verdict rendered for the defendants, which was subsequently reversed by the supreme court,- for errors in the admission of testimony, and a new venire awarded. See Huddleston v. West Bellevue Borough and Killbuck Township, 111 Pa. 110.
    The evidence tended to establish the following facts, at the second trial, before Stowe, P. J.:
    The public highway, on which plaintiffs’ land abuts, is known as the Beaver road and runs through the borough of West Bellevue and the township of Killbuck. The road runs down hill, a distance of some 1500 feet, toward the Ohio river, from. a point in the borough, to.the township line. The plaintiffs’ land lies in Kill-buck'township at a distance of 799 feet from the borough limits. Mrs. Huddleston was a daughter of David Shafer who died in 1875, seized of the land now owned by Mrs. Huddleston, who claims title from her. father. In 1865 Shafer purchased a considerable tract of land lying on both sides of the Beaver road, and in 1867 he purchased another,-and contiguous, tract of land which he turned into .picnic frounds, called Monitor Grove. In 1869 he purchased from John haw the land which Mrs. Huddleston now owns.
    The Beaver road had been laid out and constructed in 1850 by the then Ohio and Pennsylvania Railroad, now the Pittsburgh, Fort Wayne and Chicago Railway, to take the place of the old Beaver -road, formerly running along the bank of the Ohio river, and which had been taken by the railroad company in the construction of its tracks. When the railroad company had constructed the new Beaver ■road in 1850 it had made a culvert across the new Beaver road near the line now the western line of the borough of West Bellevue, so ■ as to cause the water, produced by rains, etc., to flow into what was afterward the Monitor Grove property; and the water that would naturally collect from that point on the hillsides and road was carried off by two ditches constructed by the railroad company, one on either side of the Beaver road, extending along the road to the point where the. washout is located. At this point the railroad company, at the time of the construction of the road in 1850, had constructed a culvert across the Beaver road, by which the water necessarily pouring through both ditches was collected and cast on tbe Shaw property into the washout for which this suit was brought.
    In 1880, the borough and township joined in building a culvert at the borough line, and, by means of this culvert, turned all the waters into the drain on the lower side of the road. In 1881 and 1882 the washouts complained of occurred.
    The defendants produced evidence to establish the following case:
    When David Shafer became the owner of the Monitor Grove property, in 1861, he found the road, ditches and culverts in this condition. lie then determined to put the Monitor Grove property in such condition as to be profitable. He found that the culvert near the line of the borough of West Bellevue was throwing so much water on the Monitor Grove property as to make the same wet and swampy and unfit for picnic purposes. Owning, as he did, all the property on that side of the Beaver road from the present line of the borough of West Bellevue down to the washout on the line between his land and that of John Shaw, he determined to relieve the Monitor Grove property from the waste water cast upon it by the culvert. He therefore, in order to be relieved of the water, widened and deepened the ditch down along the side of the Beaver road, and diverted and caused the water to flow down to the culvert originally constructed by the railroad company across the road at the Shaw property, and, by a ditch made under his directions, turned the waters into the washout. In order more effectually to prevent the water from breaking over and running on his lands, he constructed, down along that side of the Beaver road, from Monitor Grove to the washout, a footpath or pavement from two to three feet higher than the Beaver road, and made a stone curbing so as to protect his walk. This pavement was made for the purpose of accommodating the patrons of his grove, and remains intact to the present time.
    The court was requested by the borough of West Bellevue to, charge as follows:
    “ The testimony is insufficient to justify a verdict against the borough of West Bellevue; therefore the verdict should be in favor of said borough.” Am. “ Refused.” [1.]
    The borough of West Bellevue and the township of Enllbuck, presented the following points:
    “ 1. If the jury find from the testimony that the Beaver road and drainage therewith connected, was constructed in and through Ohio township in or prior to the year 1850 ; that it was maintained by said township as originally made, with the drainage or flow of water discharging therefrom into and upon the lands of plaintiff, then owned by John Shaw, and afterward purchased and owned by David Shafer, the father of plaintiff, to whom it descended at his death; that in 1861 Ohio township was divided and the township of Killbuck created, and in 1811 the borough of West Bellevue erected from a portion of Killbuck township, embracing within the boundaries of the said last mentioned municipalities parts of said public road; that said borough and township have each maintained their respective portions of said road and drainage upon their original location, and substantially as originally constructed, and the drainage continues to be discharged in Killbuck township, on the land of plaintiff, formerly of John Shaw and David Shafer; that David Shafer, in his lifetime, and until his decease in 1875, assented to the same, and that John Shaw, from whom Shafer purchased the land, assented to said mode of drainage, and the same was so maintained until 1882 or 1883, without objection on part of plaintiff or her predecessors in the title; that David Shafer in 1865 or 1866 constructed •a sidewalk along the southern side of the Beaver road, in Ohio township, and thereby prevented the discharge of any portion of the road drainage into his lands, known as Monitor Grove, and forced the same to be wholly discharged upon the Shaw land (now plaintiff’s) at the place called the ‘ washout,’ and said mode of drainage was maintained until 1882 or 1883 without objection, then ■plaintiff cannot recover, and the verdict should be for the defendants.” Ans. “Affirmed. But this point is founded on the assumption that both John Shaw and David Shafer assented to the turning of the water upon the land by the public authorities, and the jury must have sufficient evidence of the actual agreement or consent of said parties before they can properly so find. It must not be inferred from mere silence. Where the actual use of a drain, is twenty years continuous and visible to the owners of the property during that period, the right to maintain it arises regardless of the assent of such •owners. But to give such a right to another’s land for the flowage of water, or to maintain a drain or water coui’se, as this appears to have done here, without twenty years’ apparent and visible use, actual consent must be shown by the evidence and cannot be inferred from the mere fact of the owner’s making no objection to such use.” [2.]
    “ 2. If the jury find from the testimony that the Beaver road, and drainage therewith connected, was constructed in and through Ohio township in or prior to the year 1850; that it was maintained by said township as originally made, with the drainage or flow of water discharging therefrom into and upon the land of plaintiff, then owned by John Shaw, and afterward purchased and owned by David Shafer, the father of plaintiff, to whom it descended at his death ; that in 1867, Ohio township was divided and the township of Killbuck created, and in 1874 the borough of West Bellevue erected from a portion of Killbuck township, embracing within the boundaries of said last named municipalities parts of said public road; that said borough and township have each maintained their respective portions of said road and drainage upon their original location, and substantially as originally constructed, and the drainage continues to be discharged in Killbuck township, on the land of plaintiff, formerly of John Shaw and David Shafer; that David Shafer, in his lifetime and until his decease, in 1875, assented to the same, and that John Shaw, from whom Shafer purchased the land, assented to said mode of drainage, and the same was so maintained until 1882 or 1883, without objection upon the part of plaintiff or her predecessors in the title, the plaintiff cannot recover and the verdict should be for the defendants.” Ans. “If the evidence satisfies the jury that the facts are as stated in this point, this point is believed to be good law and it is therefore affirmed.” [3.]
    “ 3. If the jury find the facts recited in the first point, and the further fact that jDavid Shafer, in 1865 or 1866, constructed a sidewalk along the southern side of the Beaver road, in Ohio township, and thereby prevented the discharge of any portion of the road drainage into his land, known as Monitor grove, and forced the same to be wholly discharged on the Shaw land (now plaintiff’s), at the place called ‘the washout,’ and said mode of drainage was maintained until 1882 or 1883 without objection, then plaintiff cannot recover, and the verdict should be for defendants.”
    This point was affirmed in language identical with that in the answer to the first point. [4]
    Verdict and judgment for plaintiffs for $20.
    
      The assignments of error specified, 1-4, the answers to defendant’s points, quoting them.
    
      A. M. Brown, for the borough of West Bellevue, with him JRóbb & Fitzsimmons, for the township of Killbuck.
    There was no evidence that the borough had taken any part with the township in causing an unnatural flow of water upon plaintiff’s land,. The first point should have been affirmed. Besides, the township authorities themselves did nothing but keep the road in repair. They did not change the mode of drainage adopted by plaintiff’s father. The court misled the jury in the answer to the first point by assuming that the'water was turned upon the land by the public authorities. Plaintiff was estopped by her acquiescence in the plan of drainage adopted by her father. On the general doctrine of estoppel, see Chapman v. Chapman, 59 Pa. 214; Robinson v. Justice, 2 Pa. 22; Com. v. Moltz, 10 Pa. 530; Vanleer’s Ap., 24 Pa. 228; Beaupland v. McKeen, 28 Pa. 131; Keeler v. Vantuyle, 6 Pa. 253; Smith v, McNeal, 68 Pa. 164; Bidwell v. Pittsburgh, 85 Pa. 412; McKnight v. Pittsburgh, 91 Pa. 273.
    Shafer had a right to arrange any mode of drainage which he saw fit. He owned the land covered by the highway, subject only to the passage of the public. Having adopted a system of drainage, he and those claiming under him are bound by the results of it. Gale and Wheatley on Easements, 52; Seibert v. Levan, 8 Pa. 383; Kieffer v. Imhoff, 26 Pa. 438; Phillips v. Phillips, 48 Pa. 178; Lampman v. Milks, 21 N. Y. 505; Cannon v. Boyd, 73 Pa. 179.
    
      Noah W. Shafer for defendants in error.
    The evidence was ample to sustain the verdict. The jury were convinced that the borough of West Bellevue were guilty of pouring torrents of water upon Killbuck township in such vast quantities that it became an utter impossibility for the township to stop the damage.
    The other assignments of error were fully considered when this case was here before, and will not be discussed again.
    Jan. 7, 1889.
   Paxson, J.,

The first assignment of error is sustained. There was nothing in the case to show any liability on the part of the borough of West Bellevue. The most that can be claimed is that the borough throws the water, collected at times of rains and freshets, upon the township of Killbuck. The township might, perhaps, complain of this, but it does not. The plaintiff below has no right to complain, because the borough does not throw any water upon her land. The township having, for anything that appears in this case, accepted the burthen of the water from the borough, is in duty bound to take care of it, and do all that the law requires to prevent unnecessary injury to the right of property-owners.

Neither of the other assignments of error is sustained. In the second and fourth, objection is made to the qualification of defendant’s points. We do not think the objection well taken. The points were affirmed, provided the jury find that Shafer and Shaw assented to the turning of the water upon the land; that such assent could not be inferred from mere silence; that to give such a right to another’s land for the flowage of water, or to maintain a drain or water-course, as this appears to have done here, without twenty years’ apparent and visible use, actual consent must be shown by the evidence, and cannot be inferred from the mere fact of the owner’s making no objection to such use.” It was urged that this instruction was inadequate; that there was proof of direct acts on the part of Shafer, at least, from which the jury might infer not only his assent, but his active participation in turning the water on the Shaw lot, where the wash-out occurred. If a more pointed instruction was desired, it should have been asked for. The points were fairly answered.

I am at a loss to know what objection the plaintiff in error can possibly have to the answer of the court below to the point referred to in the third assignment. The answer was: “ If the evidence satisfies the jury that the facts are as stated in this point, this point is believed to be good law, and it is, therefore, affirmed.” What more could the learned judge have said ? It was for the jury to find the facts assumed in the point, and if they found them, the point is affirmed. If the facts were not admitted or found by the jury, the point was point no point.

The judgment is reversed as to the borough of West Bellevue, and affirmed as to the township of Killbuck.

A. B. W.  