New Cumberland Borough v. Riverton Consolidated Water Co., Appeal, No. 94

Appeal, No. 94 | Pa. | Jul 6, 1911

Opinion by

Mr. Justice Moschziskeb,

While there are numerous specifications of error, the appellant’s principal contentions are that the court below failed to give full and proper effect to the ordinance of councils referred to in its opinion; that it admitted incompetent testimony; that it failed to understand and misapplied the actions of the health authorities in relation to the matters before it for adjudication, and that the answers to the plaintiff’s requests for findings were “evasive, indefinite and not responsive to the issue raised in this case.”

Though much might be said in criticism of the manner in which certain parts of the adjudication are stated, after a thorough consideration of the whole record, we are not convinced that an incorrect result was reached or that any of the alleged errors call for a reversal.

Whether or not the orders and permits of the state health authorities to the defendant company were sufficient warrant in law to justify the construction through the plaintiff borough of the water line here objected to, and whether or not the municipal ordinance permits such construction, it is not necessary to decide; for “water companies are not required to obtain permission of a borough to lay pipes in its streets, for the manifest reason that their charters give them the right to enter upon the streets and lay their mains without such permission,” (Dorrance v. Bristol Boro., 224 Pa. 464" court="Pa." date_filed="1909-04-19" href="https://app.midpage.ai/document/dorrance-v-bristol-borough-6249831?utm_source=webapp" opinion_id="6249831">224 Pa. 464, 472); and there is no limitation in the ordinance which would affect the defendant’s right to construct the line in question.

Should it be conceded that all general rights of the water company inconsistent with the municipal grant would be limited by the terms of the ordinance, that would not prevent the defendant from exercising charter rights, which are not inconsistent, simply because no direct reference to the particular rights desired to be exercised are to be found in the ordinance. In other words, the maxim “expressio unius est exclusio alterius” is not to be applied in the construction of this ordinance so as to deprive the water company of its charter rights.

It is provided in the ordinance that Horner and his assignees shall have the right “to enter upon the streets and highways of the said borough for the purpose of supplying good water to said borough and the inhabitants thereof. . . . Said water to be mountain water taken from the springs or runs in Fairview Township, York County, Penna., so long as the consumption of the borough shall not exceed the supply of such springs or runs as may be selected by said Horner, in which event the additional water shall be pumped from the Yellow Breeches Creek.” The appellant contends that this limits the right of the defendant company to pipes conveying water from the springs and runs referred to, so long as they continue to furnish a sufficient supply. It appears, however, that the water which is to run through the new line is to come from the Yellow Breeches Creek, a source of supply named in the ordinance. Even though there may be a sufficient quantity of mountain water from the springs and runs to supply the present needs of the borough, it does not follow that the water company, fixed with the obligation to keep up such supply, could not provide for the future by making the water from the Yellow Breeches Creek presently available in the borough. Hence the limitation contended for fails.

The findings of the court below are that the new main is not to be used exclusively to supply distant points, but “it will also furnish water for the borough of New Cumberland” and “is to be used for furnishing a circulating system of water with the old pipes as well as to furnish increased fire pressure” needed within the borough. Under these circumstances, the fact that it may also be used by the defendant company for the purpose of transporting water beyond the borough limits, would not be sufficient to justify us in reversing the court below for refusing the relief asked for by the plaintiff.

We are satisfied by our examination of the record and by what is stated by the learned president judge of the court below, to the effect that he was not influenced in reaching his conclusions by any testimony in the nature of hearsay, that no harmful error was committed in the rulings on the evidence.

Some of the answers to requests may be justly criticised as “evasive.” Litigants, and this court, are entitled to have direct definite answers placed upon the record to all requests for findings, and when the replies are evasive they merely serve to confuse, and not to assist a proper determination of the issues. The answers complained of have caused us additional labor in examining the evidence, but we are satisfied that no material harm has been done to the plaintiff.

Equity rule 67 provides that upon appeals to the Supreme Court such matters only as have been excepted to and finally passed upon by the court below shall be assigned for error. The preceding rules provide for the taking of exceptions in the trial court, and rule 65 that, “if no exceptions be filed, all objections shall be deemed to be waived.” The assignments in this case do not show that exceptions were taken, or, if taken, how disposed of. For instance, the first specification is: “The learned court below erred in its answer to the first finding of fact for the plaintiff,” quoting the request and answer. This specification should have shown that there was an exception taken, and the assignment of error should have been to the final action of the court on the exception. In Landis v. Evans, 113 Pa. 332" court="Pa." date_filed="1886-10-04" href="https://app.midpage.ai/document/landis-v-evans-6238411?utm_source=webapp" opinion_id="6238411">113 Pa. 332, 335, we said: “The assignments of error are an essential part of the pleadings in this court, and as such should be so complete in themselves as not to require reference to other parts of the record.” Here we must look in other parts of the record for the exceptions and the rulings thereon.

We will not specifically pass upon the twenty-five specifications of error; such of them as it would serve any useful purpose to discuss, have already been touched upon. They are all dismissed and the final decree of the court below is affirmed at the cost of the appellant.