265 Pa. 199 | Pa. | 1919
Opinion bv
In this case the court below enjoined appellant from diverting the waters of Pine creek to the prejudice of the Palmer Water Company, the latter having appropriated the waters of Big creek, of which Pine creek is a tributary. An examination of the record discloses numerous
(A) Compare finding of fact No. 5, p. 13: “Big Creek is a mountain stream whose minimum yield is approximately 14,000,000 gallons per day,” with finding No. 17, p. 26: “The continuous minimum flow of Big Creek...... is 24,000,000 gallons every 24 hours, and the maximum flow has been as high as 41,000,000 gallons every 24 hours”; and finding No. 26, p. 27: “The average daily flow......of 29,000,000 gallons per day is 2.5 times the capacity of the pipe used by the Palmer Water Company to convey water to the New Jersey Zinc Company.” What is the minimum flow?
(B) Compare finding No. 10, p. 53: “The Palmer Water Company has not condemned more water than its present and future needs require,” being (finding No. 2, p. 13) “all the water of Big Creek at and above the Parryville dam,” in order to deliver it to its “one consumer, the New Jersey Zinc Company” (see finding No. 21, p. 26), and its needs measure the appellee’s requirements, and finding No. 8, p. 14: “The New Jersey Zinc Company [of Pennsylvania] requires for its manufacturing uses at the present time 16,000,000 gallons of water per day,” and (finding No. 9, p. 14) “its probable requirements [will be] twenty million gallons per day at the expiration of four years,” with finding No. 25, p. 27: “The maximum capacity of the pipe-line leading from the Parryville dam of the Palmer Water Company to the plant of the New Jersey Zinc Company of Pennsylvania is 11,500,000 gallons per day,” and with paragraph (A) above.
The uncontradicted evidence is that 6,480,000 gallons were lost daily by actual measurement through seepage and leaks. One-half of the loss came from the flume of the Carbon Iron & Steel Company and one-half seeped underneath the dam. Compare finding No. 23, p. 18, which says: “Every reasonable effort has been made ......to minimize the seepage......In 1908 over $2,000 were expended......in extensive repairs,” with finding No. 28, p. 28, which says: “That with reasonable expenditure 4,500,000 gallons of the leakage can be conserved.”
The decree is reversed, the exceptions are reinstated and the record remitted to the court below that proper and consistent findings of fact may be made, the law applied thereto, and a decree entered in accordance therewith.