The Scranton tribune. [volume] (Scranton, Pa.) 1891-1910, 1899-02-16

In the case Of Elizabeth Beach
against the city of Scranton. Judge r.
w. Archibald handed down an opinion
yesterday sustaining the exceptions tc
the report of the referee, setting aside
the report and awarding new trial.
Mrs. Beach owns property in West
Scranton, hiCh, she says, was greatly
damaged b.e. the city allowed sur
face water - run on the lot. ON April
13 last the case was referred 10 Attor-
ney J.. =. Wedeman as referee. lie
filed his report on July %. 1898, and al
lowed the plaintiff damages in the sum
of $3.50. on the same day exceptions
on the part of the city to the referee :
report were filed and these exceptions
were passed upon in the opinion flled
yesterday by Judge Archibald. 1t is in
part as follows:
Tho plaintiffs complaint against the
city appears to he two.iold, that TN"
gutter on the west side of the street was
not Of sufficient capacity or was allowed
to fiji up--it is not clear wfich-and thlt
the street on the east side in front of her
property was so graded that no gutter
was or could be made whereby the water
flowing down that side was cast directly
upon her.
AS to the first of these she has clearly
made out no case: If it is tie capacity
Of the gutter with which she finds fault
she could of course have none. since that
rests in the judgment OF the city au-
thoritieS and for mistake in Judgment
the city is not responsible. For negli-
gently allowing the gutter to fill up there
might he liability. but this the plaintiff
has not shown. The city is not answer
able for the action of nature by which
dirt or sand is washed from Il higher to
II lower level ard deposited In bitches or
drains. 1t is only where this occurs by
reason of some neglect on the nart of
city authorities, or having occurred Is
neg1iGently allowed TO continue. that a
liability accrues rcithcr of which in the
present instance was shown.
SECOND BRANCH OF CASE.
On the second branch of the case some
what more is to be said. Aside from any
Question Of damage from surface water
the plaintiff can recover nothing in this
action for the condition i'll which the
street in front of her property was left
by the attempt made to grade 1t; that
was a matter to be considered in pro-
CecdiugS under the statute to assess the
damages caused by the grading, and if
so, cannot be conSideed here. The con-
,lition in which property is left by a'strcct
improvement and the steps made neces-
sary 20 put it into shape are always
proper bjcc'; of inquiry by viewers ap-
pointed - determine the attendant dam
ages.
IT, therefore i'm grading a street the
natural lay of the ground is higher or
lower than the level of the street as Cs-
tablished in front Of a particular portion
of it, the detrimCnt to the adjoining prop
city is clearly Il constituent part of the
damages sustained by reason of the i'm
prOVcmCuts to be assessed in proceedings
under the statute in favor of those vino
have suffered thereby. This would in
cludc a failure to grade the street 10 it's
lull width as was the case here where
hat was part of the plan.
In the present instance the way in
which the street was left in front of the
plaintiffs place was undoubtedly a detTI-
street was not filled to its fur width
and opposite the plaintiffs property a
vacant space of some fifteen feet was left.
This was Just where the sidewalk and
gutter would nave come so that if these
were needed as they undoubtedly would
be- the plaintiff would have to, and in
fact subsequently did, make them. The
city was not bound to fiji out the street
Ia its entire width If in the judgment OF
the city authorities it seemed best not 10
do so, but We're &nswerable, however for
the attendant injury If they had not. The
original plan as shown by the ordinance
contemplated doing so, but the plaintiff is
largely herself TO blame for the change.
EFFECT or GRADING.
But it is said that the effect of grading
the street in that particular shape has
been to gather a large quantity Of water
ana cast il upon the plaintiffs < land.
Where the city by grading diverts water
from its natural course ana carries 1t