Bennett Water Co. v. Millvale Borough
50 A. 155
Pa.
1901
Check Treatment
Pee Curiam,

No valid reasons have been assigned why the judgment in this ease should be disturbed. What was said by our late Brother Green as to the conduct of Millvale Borough, 162 Pa. 374, can well be repeated now: “We can scarcely doubt that the proceedings by the burgess and councils, having in view the erection of new works, were animated and conducted with an unseemly desire to injure the Bennett Water Company, to de*617stroy the value of its franchises, to disregard the terms of the solemn contract made by the borough with that company and with an entire willingness to evade the teachings of ordinary morality, business integrity and common honesty. Throughout the entire record there cannot be found the least evidence of any fault on the part of the water company either in the structure of their works or in the efficiency of their service.”

The Bennett Water Company was not a party to the proceedings in Fingal et al. v. Millvale Borough, 162 Pa. 393, and our decree there was simply one affirming the decree below, refusing a preliminary injunction. With no final decree in that case, which is still pending, and to which the appellee is not even a party, the borough of Millvale cannot turn to it as conclusive of its right to commit the wrongs complained of by the water company, and it can hardly say with candor that it expended any money or did anything in consequence of what may have been said in Howard’s Appeal, 162 Pa. 374, argued with the preceding case; for its works were erected in 1893, and these cases were not argued until March 9, 1894, and decided only on July 11 of the same year. There is therefore no reasons why what is now settled in White v. City of Meadville, 177 Pa. 643, should not apply to the case before us. No complaint was ever made that the water company had failed to supply pure and sufficient water to those entitled to it. If there had been any dereliction by the company in the discharge of this duty, there was a statutory mode to enforce it. No other course was open to the borough of Millvale, even for failure to properly supply it and its citizens with water, and with no complaint that the water company did not so supply them, the erection of waterworks by the borough, resulting in the ruin of the water company, was a trespass, both wilful and intentional, and' the measure of damages as laid down by the court was entirely proper. The mitigation claimed by the appellant was not of right in view of its wilful wrong to the appellee. Upon the question of damages, as well as upon the others raised, the case was intelligently and correctly submitted to the jury by the learned trial judge in his charge and answers to appellant’s points, and the judgment is affirmed.