231 Pa. 290 | Pa. | 1911
Opinion by
We have carefully examined this voluminous record and the exhaustive brief of appellant’s counsel but have failed to discover any reversible error in the trial court’s findings of fact or law. We think the opinion of the learned court clearly vindicates his conclusions and the correctness of the decree which he entered.
The right of the borough, independently of the disclaimer, t’o erect its own waterworks may be eliminated from the case. The court based its conclusion entirely upon the effect of the waiver filed by the plaintiff company in the proceeding instituted by the borough under the Act of May 31, 1907, P. L. 355, 5 Purd. 5703. In fact the court agreed with the plaintiff’s contention that the borough had no right to erect waterworks under the facts disclosed by the evidence, but held that the plaintiff’s disclaimer or waiver in the former suit estopped it from now alleging that the borough could not construct a water plant.
The act of 1907 authorizes cities and boroughs to acquire waterworks owned by private persons and provides the mode of procedure for accomplishing the purpose. It provides that appraisers shall be appointed to value and appraise the property, and that they shall file their report in the prothonotary’s office. The report becomes final if not appealed from in ten days after notice that it has been filed. An appeal is allowed which shall be heard and determined by the court which has the power to increase, lower or modify the appraisement. The municipality is authorized to buy the plant at the valuation thus
Catasauqua borough presented its petition to the common pleas of Lehigh county on December 19, 1907, setting forth its desire of owning the waterworks of the Clear Springs Water Company, the plaintiff in this case, and asked for the appointment of appraisers under the provisions of the act of 1907. The matter was proceeded with to a hearing when the Clear Springs Water Company alleged that the act was unconstitutional and had no application to it, which was denied by the borough. Subsequently the water company filed a paper in the proceeding declining to sell its works to the borough at any valuation which might be placed on the plant by the appraisers or the court, admitting its default under the act of 1907 by reason of its declination to sell its waterworks, and acknowledging the right of the borough to install such water plant or system as it might deem expedient with the same force and effect as if the borough were to prosecute the proceeding to a final valuation of the water company’s works or plant and then determine to purchase the plant at the appraised valuation and the company should decline to sell it. The court directed the disclaimer to be filed of record in the case. In disposing of the application, after the water company’s disclaimer had been filed, the court said: “I see no reason why the remedy provided by the act of 1907 should be further pursued as evidently by an appraisement of the property of the com
The present proceeding is a bill filed by the water company to enjoin the borough from erecting and constructing a water plant. The borough contends, and the learned court below held, that the water company was estopped from maintaining the bill by reason of its disclaimer filed in the former case and the subsequent action of the borough in proceeding with the erection of the plant by virtue of the disclaimer. In his opinion the learned judge says: “The borough afterwards spent nearly $4,000 in digging wells and other preliminaries to erecting its own plant, and increased its indebtedness to that end. The plaintiff in this case (the water company) contends that the waiver amounted to nothing, that the act of 1907 is unconstitutional, and of no effect. I do not take that view of the matter. Granted that the act of 1907 may be unconstitutional, it is nevertheless true that the company, in order to get rid óf the suit, agreed upon a basis of settlement. They admit certain rights as residing in the borough. Why should it not be bound by its admission? The borough relying upon it spent money. Why should not the same rule which would estop the borough from erecting its waterworks estop the plaintiff from interfering when the borough proceeds to exercise the conceded right? ‘He who seeks equity, must do equity.’ The plaintiff cannot blow hot and cold. It cannot prevail, upon the court to dismiss the case in one case upon the strength of its disclaimer, and in the present case deny the validity of such disclaimer. To my mind, the paper filed by' the company controls this case, and prevents the plaintiff from maintaining this bill. The result may be disastrous to the plaintiff, but the situation is one of its own making.” It will be observed that if the application made by the borough under the act of 1907 had been proceeded with to its conclusion and the water
The decree dismissing the borough’s application under the act of 1907 was entered April 27, 1908. The bill in this case was filed in June, 1909. Immediately after the borough’s application had been dismissed, it proceeded to erect a water plant, expended about $4,000 in boring wells, securing a supply of water and in the purchase of lands, held an election to increase the borough’s indebtedness, prepared bonds and laid out the plant and system. The water company had full knowledge of all these proceedings and made no objection. It certainly would be most inequitable and unjust to permit the company to withdraw its disclaimer at this time and under these circumstances, and restrain the borough from erecting a water plant. As pointed out above, had the proceedings instituted under the act of 1907 been proceeded with to completion, the court would have been compelled, after the company had filed the disclaimer, to enter a decree authorizing the borough to erect the plant. The decree dismissing the application as well as the action of the borough in proceeding to erect the plant were based upon the disclaimer or waiver filed by the water company. It was filed of record, and prevented any further prosecution of the borough’s application under the act of 1907, and defeated the borough in having its right to erect a water plant adjudicated by the court. Under well settled principles, recognized alike in text-books and decisions, the conduct of the water company estops it now from asserting any claim or right contrary to its disclaimer.
' There is no merit in the contention that the water company is relieved from the effect of its disclaimer because the act of 1907 may be unconstitutional. If it be conceded that the act does offend the constitution, the proceedings and decree in the case remain unimpeached and cannot be attacked collaterally: Ferson’s Appeal, 96 Pa.
The decree is affirmed.
