OFFICIAL OPINION No. 28

OFFICIAL OPINION No. 28 Federal Disaster Relief Act, 42 USG §4482-Snyder Run Gonduit----:Town of Bloomsburg-"Pulilic facility"-Gonclusive presumpti.on of public owner- ship. 1. Given the fact that Snyder Run Conduit has been treated and used as within the public domain for all of the t wentieth century, given the fact that the private owners of realty through which the culvert passes re- lied exclusively upon vublic maintenance and repair of the culvert, and given the fact that substantial portions of the culvert were built with public money and pass through public-owned lands, it is concluded that, under principles of Pennsylvania Jaw, the Snyder Run Conduit is public- ly owned by the Borough of Bloomsburg. 2. The Snyder Run Conduit, a publicly owned facility, is eligible for assis- tance under the Federal Disaster Relief Act inasmuch as it is a flood control facility or other public structure or system which was not used exclusively for recreational purposes. Dr. Richard Gersten Director of Civil Defense Harrisburg, Pennsylvania Dear Dr. Gersten: Harrisburg, Pa. April 2, 1973 Receipt is acknowledged of your request for our opm10n re- garding the status of the Snyder Run Conduit as a "public facil- ity" within meaning of the Federal Disaster Relief Act, 42 USC §4482. It is our opinion, and you are hereby advised that the Snyder Run Conduit which was extensively damaged by Hur- ricane Agnes is a public facility within meaning of 42 USC §4482. The Federal Disaster Relief Act, 42 USC §4482, provides for restoration of State and local public facilities which are dam- aged or destroyed by natural disasters. 42 USC §4482 ( c) de- fines public facility within meaning of that section as follows: "For purposes of this section 'public facility' includes any flood -control, navigation, irrigation, reclamation, public power, sewage treatment and collection, water supply and distribution, watershed development, or air- port facility, any non-Federal-aid street, road or high- way, and any other public building, structure, or sys- purposes." tern, other than one used exclusively for recreation In determining whether or not the Snyder Run Conduit struc- ture comes within meaning of this section, the question of pub- lic ownership must first be decided. Available evidence indicates that, in the nineteenth century, Snyder Run was an open creek traversing the Town of Blooms- burg from the present area of Bloomsburg Hospital in the north- west corner of town approximately one and one-half miles long to and under Magee Carpet Company in the southwest corner of town. OPINIONS OF THE ATTORNEY GENERAL 67 An examination of records by Gerald E. Depo, Secretary of the Town of Bloomsburg, reveals that in the late nineteenth and early twentieth centuries, the town council appropriated monies for construction of the culvert over portions of the open run creek. On October 14, 1891, the town council passed Ordin- ance No. 62 which prevented the deposit of sewage, ashes, dirt or manure in the culvert, and further established building standards for private citizens who wished to contribute to the culvert and dedicate such contributions to the public. Thereafter, the Town of Bloomsburg maintained the Snyder Run Conduit from this 1891 date. Prior to June, 1972, repair and maintenance was mostly of a minor nature. When problems would occur, it was customary for private owners of property through which the culvert flowed to notify the town repair crews to repair such problems. On those portions of the conduit which flowed underneath public streets and thoroughfares, the town maintenance crew routinely checked for damage and made repairs as was necessary. As pointed out by the Pennsylvania Supreme Court, where there has bee a history of treatment and use of reality as with- in the public domain ev2n though there is no record title of ownership, such realty is "conclusively presumed" to be publicly owned. Ho.ffman v. Cit11 of Pittsburgh 365 P a. 386, 389 ( 1950) ; Briiker v. Borough of Carlisle 376 Pa. 330, 336 (1954) . Further- more, where there is substantial evidence indicating mainten- ance a..11d repair of the facilities by the municipality, the onus of ownership by the municipality is inferred from official con- duct. Agardy v. Boro11,gh of Pleasant Hills 394 P a. 350 ( 1958). Given the fact that Snyder Run Conduit has been treated and used as within the public domain for a!l of the twentieth cen- tury, given the fact that the private owners of realty through which the culvert passes relied exclusively upon public main- tenance and repair of the culvert, and given th9 fact that sub- stantial portions of the culvert were built with public money and pass through public-owned lands. it is concluded that, under principles of PennsylvaDia law. the Snyder Run Conduit is pub- licly owned by the Borough of Bloomsburg. Given such public ownership of the Snyder Run Conduit, the remaining question is whether or not this is a "public facil- ity" within meaning of 42 USC §4482(c). Historically, the con- duit was used for channeling surface drainage waters as a means of flood control. Consequently, The Snyder Run Conduit lit- erally comes within the statute: " 'public facility' includes any flood control ... facil- ity ... , and any other public . .. structure or system, other than one used exclusively for recreation pur- poses." 42 USC §44,82 ( c) It is our opinion, and you are hereby advised that the SHyder Run Conduit is a "public facility" within meaning of 42 USC 68 OPINIONS OF THE ATTORNEY GENERAL §4482, and is, therefore, eligible for federal financial assistance under the Federal Disaster Relief Act. Very truly yours, RICHARD J . ORLOSKI Deputy Attorney General ISRAEL P ACKEL Attorney General