250 Pa. 536 | Pa. | 1915
Opinion by
This proceeding was instituted by riparian owners to restrain the defendant water company from taking, appropriating or diverting the waters of Spruce Creek Run so as to trespass upon or interfere with the rights of complainants. The bill was filed 19th July, 1902, and the defendant answered 25th August, 1902. The case was pending for eleven years before it was called for hearing 5th of August, 1913. The permanent injunction issued 14th of February, 1914, and a few months later the present appeal was taken. Thus it appears that the case slumbered for about twelve years, during all of which time except for a few days before the preliminary injunction was dissolved by order of the court the water company made use of the waters appropriated, before any decisive action was taken.
The precise question for decision is whether the water . company in the exercise of its right of eminent domain appropriated the waters in question for a lawful public purpose under its charter powers. Properly to determine this question it is necessary briefly to consider the purpose for which the water company was incorporated and what it did in condemning the waters of Spruce Creek for its corporate uses. It is conceded by both parties to the controversy that the water company had the right to appropriate waters for the supply of the public in the Borough of Scottdale. This power vested in the water company not only by its charter but by positive law. It is also agreed that even if the decree appealed from in the present case should be affirmed, the
“Resolved, That said Citizens Water Company for the purpose of supplying the public with water, and for its corporate purpose, take and appropriate all the waters of both branches of Spruce Creek in Bullskin Township, Fayette County, Pennsylvania, at, above and flowing into both said branches of Spruce Creek at the dams, intakes and waterworks of said company, located on the respective branches of said creek.......”
This was followed by naming the tracts of land affected by the appropriation, and to the resolution there was attached plots showing the location of the lands, dams, intakes and other works of the condemning company. The plots also showed that the locations had been staked on the ground, and as thus marked had been adopted by resolution of the condemning company. This was a sufficient appropriation within the meaning of the law: Boalsburg Water Company v. State College Water Company, 240 Pa. 198. Upon its face it is difficult to see how the water company exceeded its powers in appropriating the waters in question under the resolution to condemn. The appropriation was made “for the purpose of supplying the public with water,” and this the water company clearly had the right to do “for its corporate purposes.” It is true that the resolution did not say in terms that the waters appropriated were intended to supply the public in the Borough of Scott-
It is also urged that the case at bar is ruled by Bly v. White Deer Mt. Water Co., 197 Pa. 80. This contention is based upon a misapprehension of what that case decided. The distinction was clearly pointed out by this court in Bland v. Tipton Water Co., 222 Pa. 285, wherein the present chief justice in discussing what had been decided in the Bly case, among other things said:
“What was enjoined was the taking of the waters of the creek for the purpose of directly supplying the same to the public in townships and municipalities other than*541 the one in which the water company was authorized to supply the same.”
In the present case the court is asked to enjoin the water company from taking the waters of the creek for the purpose of supplying the same to the public in the Borough of Scottdale, where it is conceded it had the right to supply water to the public, and this is a very different proposition from that of enjoining the taking of water for the direct supply of the same to the public in townships and municipalities where the water company had .no legal right to furnish such a supply. The Bly case is not an authority for the principle sought to be enforced in the present case. If the contention of appellees should prevail in this case any riparian owner acting upon his own initiative could enjoin a water company from appropriating the waters of a stream even for a lawful corporate purpose if per chance the water company supplied any consumer outside the limits of the territory in which it exercised its corporate functions. In no decided case has it been held that a riparian owner may do this thing and we are not convinced that the doctrine of the cases relied on by the learned court below should be so extended.
Decree reversed, permanent injunction dissolved and bill dismissed. Costs to be equally divided between the parties.