222 Pa. 285 | Pa. | 1908
Opinion by
This bill, which was filed under the Act of June 19, 1871, P. L. 1360, was properly dismissed by the court below. It was not necessary to determine what rights had been acquired by the Tipton Water Company from the Merivale Water Supply Company, or to discuss those possessed by the Pennsylvania Railroad Company under the Acts of April 15, 1859, P. L. 679, and April 22, 1905, P. L. 264. The limit of the court’s inquiry in this proceeding was to ascertain whether the Tipton Water Company, the real defendant, did, in fact, possess the right or franchise to do the act through which the appellant alleges injuries resulted and will result, to his private rights, and, in view of the undoubted franchise conferred upon it by its charter and the undisputed facts in the case, the learned chancellor ought not to have rested with the mere statement that there was some force in the contention that the plaintiff had no standing to complain under the act of 1871, but should have so distinctly ruled.
The Tipton Water Company was incorporated under the act of April 29, 1874, and its supplements, for the purpose, according to its charter, “of supplying water to the public in Antis township, Blair county, Pennsylvania, and to such persons,
After its appropriation of the waters of Tipton run the Tip-ton Water Company laid a line of pipe leading from its impounding dam to the line of the right of way of the Pennsylvania Railroad Company at Tipton station, also in said township. Prior to the laying of this pipe the Pennsylvania Railroad Company had laid and owned, on or near its right of way, running westwardly from Tipton station, a line of pipe through which it took water from Tipton run by pumping the same from a milldam. When the pipe laid by the Tipton Water Company was completed it was connected with the said line of pipe owned by the Pennsylvania Railroad Company, and some of the water taken from Tipton run by the water company is conveyed by pressure from the reservoir of the water company through the line of pipe owned by the Pennsylvania Railroad Company, westwardly, outside of the township of Antis, to the railroad company’s shops, in the township of Logan. On the line of the water company’s pipe there is a meter by which it measures the water which it furnishes to the Pennsylvania Railroad Company. The water is all furnished within the township of Antis and amounts to 1,500,000 gallons daily. The water company has no control over the disposition made by the Pennsylvania Railroad Com
The right of the Tipton Water Company to take the waters of Tipton run for the purpose of supplying water to the public in Antis township is not questioned, and it was in the exercise of this right or franchise that the waters of the run were taken, resulting in what, in this proceeding, may be conceded to be
It is urged that this case is identical with Bly v. White Deer Mountain Water Company et al., 197 Pa. 80. This results from • a misapprehension of what was decided in that case, for what was there enjoined would not be permitted here. Bly’s complaint was that the White Deer Mountain Water Company, or the White Deer Creek Water Supply Company, or both of them, were proceeding to build a dam or reservoir across the White Deer creek, and were digging ditches and trenches and laying mains and pipes from the said reservoir into municipalities, boroughs and townships other than White Deer and Kelly townships, for the purpose of supplying water to such municipalities, boroughs and townships. Neither company had the right or franchise to supply water in the territories into which the pipes were being laid, and the prayers of the bill were for an injunction to restrain each of them from taking any of the waters of White Deer creek for the purpose of supplying the same to the public in any municipality, borough or township other than the townships of White Deer or Kelly. The injunction as to the White Deer Creek Water Supply Company ought manifestly to have been continued, for reasons appearing in the opinion, and as to the water company we said, through our Brother Mestrezat: “The only questions, therefore, for consideration here are (1) the right of the White Deer Mountain Water Company to appropriate the waters of White Deer creek for the purpose of supplying the same to the public in any municipality, borough or township other than White Deer township, in Union county, and (2) the right of the plaintiff to have that question determined by a court of equity in a proceeding under the provisions of the act of June 19, 1871.” What was enjoined was the taking of the
At the time this bill was filed — February 14, 1906 — a bond had not been approved by the court to secure to the appellant the payment of his damages, and the court found as a fact that no effort had been made to agree upon the amount of compensation-to be allowed him for the taking and appropriation of the waters of the run. In view of this he contends that the preliminary injunction should have been made perpetual. Though no bond had been approved at the time these proceedings were instituted, one had been tendered to the appellant in December, 1904, and, upon his refusal to accept it, notice was given to him that it would be presented to the court of common pleas of the county for approval on the 24th of that month. In pursuance of this notice a bond was filed on that day, but was not approved because excepted to by the appellant. Subsequently, on May 16, 1906, another bond, in a larger amount, was substituted and approved by the court. As no bond had been approved at the time the appellant applied for the injunction, the restraining writ was properly issued and ought to have been continued until the water company secured to him the payment of his damages in the mode pre
As to the contention that, as there was no evidence of any attempt by the water company to agree with the appellant as to the amount of compensation he ought to receive for the damages he sustained, the tender and filing of the bond were unauthorized, we need only repeat what was said of a similar contention in Wadhams v. Lackawanna & Bloomsburg Railroad Co., 42 Pa. 303: “It is next insisted that there ,was no evidence of any attempt by the defendants to settle with the plaintiff, and agree upon the damages before they entered upon his land and before they filed the bond given as a security. Hence it is inferred that the tender of the bond, and the filing of the same, was unauthorized by law, and that the defendants were not empowered .to appropriate the land for the said road. Though the acts of assembly do not -in terms require any attempt to make a settlement before a tender of a bond or filing it in the common pleas, it is perhaps a just inference from their language that there should be some evidence of inability of the parties to agree before the court should undertake to pass upon the security offered. But the very offer of a bond is an assertion by one of the parties that they cannot agree, and is in itself some proof of such inability, for without the consent of both such an agreement cannot be made. And if it were not so, the action of the court approving the sureties, and directing the bond to be filed, involves an adjudication that everything had been done which entitled the company to have the bond filed. If an attempt to settle was a prerequisite, the order of the court is conclusive that the attempt had been made. The decree of the court, like any other judgment, is final between the parties, as to all matters
All of the assignments of error are overruled and the decree of the court below is affirmed, the costs on this appeal to be paid by the appellant.