10 Pa. Super. 132 | Pa. Super. Ct. | 1899
Opinion by
This was an action of trespass to recover damages for the diversion of the waters of a private stream called Ridley creek. The defendant’s waterworks are located on land which it bought for the purpose outside the borough limits.' The main stream from which the water is taken, does not run through the borough, but one of its tributaries does. The plaintiff’s mill is located on the stream about four miles below the defendant’s pumping station. Other facts will be referred to as we proceed.
Without discussing each of the assignments of error separately, the principal questions in the case will be considered under the following heads: First, the defendant’s right to divert the water, (a) as an upper riparian owner; (5) as a borough authorized by law to supply its inhabitants and those living in the vicinity with water for domestic and other ordinary uses ; (o) by prescription; second, the plaintiff’s remedy.
1. It is not pretended that the defendant’s ownership of riparian land at the point where the water is pumped by it from the creek would, of itself and without more, be a defense to the present action. The counsel say they do not stand on the rights
2. The defendant’s second position is, that it having entered upon the creek and commenced the diversion of the waters more than twenty-one years before suit was brought, the law presumes that compensation was made for any damage sustained by the plaintiff, or was adjusted by mutual agreement. Whilst refusing to affirm this proposition, the court instructed the jury that the continuous user of the water for the period of twenty-. one years raised the presumption of a grant, but differed from the defendant’s counsel as to the extent of the presumed grant. We cannot better state the .ruling than by quoting from the charge: “ I can only say that if you find that the defendants take no more water from this stream than they took twenty-one years ago, then it would be a defense. If you find that they have taken more water and by different means and by additional and more powerful pumps, and by an extension of their works, than they did twenty-one years ago, and that has resulted in ah injury to the plaintiff, then it is only a defense so far as a reasonable allowance should be made for what they took twenty-one years ago is concerned.” We are of opinion that this was
3. The next question is as to the plaintiff’s remedy. We suppose it will not be denied that if this were a dispute between two private individuals and during the period for which damages were claimed the defendant had diverted the water in excess of his right under a presumed grant, successive actions ex delicto would lie. But such diversion of the water is none the less a tort because the defendant has the right of eminent domain, if the conditions upon which this right may be exercised have not been complied with. See Glass Co. v. Water Co., 5 Pa. Superior Ct. 563, and cases there cited, and especially the eases of Lord v. Water Co., 135 Pa. 122, and Bethlehem Water
This disposes of all of the questions raised by the assignments of error, excepting the first four and the seventeenth.
4. Where a plaintiff has different interests in possession and reversion, he may recover in one action for an injury affecting both; Gould on Waters, sec. 480. Especially is this true where the separation of the interests is a mere business arrangement, made for his own convenience, as, for example, charging one department of his business with so much rent. James Irving was the owner of the mill and the land upon which it was situated. He was, moreover, in' possession and conducting the business during the period covered by the action. His executors claimed to recover damages for the loss of power to run the mill, consequent upon the defendant’s tortious diversion of the water. They were allowed to recover upon the basis of the cost of supplying power to take the place of that of which he was deprived during the period covered by the action. This
5. It was necessary for the plaintiff to prove the quantity of water taken during the period covered by the action — 1888 to 1894. This could only be done approximately because no record was kept prior to July, 1895. For the purpose of comparison the plaintiffs were permitted to prove (first assignment) by the record kept by the defendant, the quantity taken during the year beginning July, 1895. This, in connection with other evidence going to show whether the quantity was more or less than that taken in the immediately preceding years, was a proper and reasonably certain mode of proving the fact directly in issue.
Neither of the remaining assignments to the admission of evidence requires particular notice.
All of the assignments of error are overruled and the judgment is affirmed.