270 Pa. 517 | Pa. | 1921
Opinion bx
The Susquehanna Boom Company, one of the defendants, incorporated under the-Act of 1846, with its supplement of 1866, was empowered to erect and maintain
Notwithstanding the requirements as asserted in its bill, the boom company, one of the defendants, by an opening or gate in the breast of the dam, allowed the water to pass out as a water power for the operation of the Lycoming Edison Electric Company’s plant below the dam, thus diverting the water from the. river and dam to the latter company’s plant with the avowed purpose of depriving plaintiff of its reasonable use. This gate or opening was constructed before plaintiff had acquired title to the land, and it so happens that its in
To invoke the aid of a court of chancery, plaintiff must ground its right for relief by showing with definiteness that it has an absolute or special property in the thing claimed, of- such character that it may, against the protest of any contending owner, place its structures, pipes and piles where it has erected them, and, as well, show its right to use the water for the purpose, manner and amount demanded. Its bill must present clear statements of facts, sufficient to support a decree, otherwise it cannot be granted.
The Susquehanna Eiver is a navigable stream and therefore held to be a public highway for the use of the citizens of the Commonwealth, and a grant of land along the river extends to ordinary low-water mark. Between high- and low-water mark the grantee takes the land subject to the rights of the public and he may use it for such purposes as do not interfere with the free flow and navigation of the waters: Fulmer v. Williams, 122 Pa. 191; Leaf v. Pa. Company, 268 Pa. 579.
The Commonwealth may, by proper legislation, grant its right to use the bed of a navigable stream, and may
It is quite clear, under the bill, the defendant boom company acquired title to the riparian owner’s rights to the land between low-water mark and “nine feet in perpendicular height above low-water mark” by virtue of its right of eminent domain under the several acts of assembly referred to. “As the land here involved [being the same as that involved in the present litigation] has been flooded by the dam pool for upwards of fifty years, and as there is no assertion of any protest or objection by its successive owners, Ave are Avarranted in assuming that due compensation Avas made by the boom company for the exercise of its easement of flooding said land, by virtue of a proceeding under the bond or by adjustment and conveyance betAveen the parties” (Keystone Wood Co. v. Susquehanna Boom Co., 240 Fed. 296), and, if it was not so adjusted, the owner injured at the time of taking had his right for damages under the bond: Citizens Electric Company v. Boom Co., 227 Pa. 448. And, had the title passed by amicable adjustment for the purpose of the present litigation, the boom company’s right would not be different in kind from that obtained by condemnation. Such title possesses the same attributes as are ordinarily implied in the acquisition of property by a company having the right of eminent domain. This has been variously defined, and in this State it may be said generally to be an exclusive easement, closely akin to a fee, sometimes termed a base, conditional or quali
In construing an act giving a water company the right to take water and land necessary for corporate uses, and similar in this respect to the general act through which these companies function and to the boom company’s' act, this court said, “If the company deems it necessary, it has an undoubted right to enclose its reservoir and prohibit access to it by the plaintiff and everybody else. The plaintiff, as owner of the land adjoining that taken by the company for the purpose of constructing its reser
The facts in the case before us are vastly different from those presented in Mayor v. Commissioners of Spring Garden, 7 Pa. 348, and the principles of law here asserted are not in conflict with that decision; the authorities cited by appellant on this phase of the case do not reach the point. Nor do the quoted expressions from the Citizens Electric Co. v. Susquehanna Boom Com
There is another vital objection to plaintiff’s bill. Assuming that it had riparian rights, it does not follow that it included the use of water in the quantity and for the purpose claimed. “In a long, unbroken line of cases it has been held that the diversion of water from its natural course in a stream by a riparian owner for purposes other than those incident to the proper enjoyment of the riparian land is unlawful. The upper riparian owner has a right to the use of the. water of the stream for any legal purpose provided he returns it to its channel without contamination or substantial diminution”: Penna. R. R. Co. v. Miller, 112 Pa. 34; Scranton G. & W. Co. v. Del., L. & W. R. R., 240 Pa. 604, 610.
There is no averment in the bill that the large quantities of water for plaintiff’s extraordinary use did not diminish the supply necessary for the boom company, or that, after a temporary use, it was returned to the river, and, in view of the positive statement that in time of drought any diminution or diversion was harmful to plaintiff’s works, it is apparent it was exceeding any supposed right in itself to take the water.
From a careful review of the authorities we conclude appellant did not present such an undoubted right to do the things it had been and was proposing to do, as was necessary to support its bill.
Tfee decree of the court below is affirmed at the costs of appellants.