182 Pa. 418 | Pa. | 1897
Opinion by
It must be conceded that the title of the appellant company was not acquired by an exercise of the right of eminent domain, but by voluntary leases from the owners. Hence it follows clearly, under our well settled decisions, that the right acquired under the leases, having been obtained from a riparian owner, has no greater dignity than the right of the riparian owner himself. It is just as clear that riparian owners have no ownership of running water, no right to divert and sell it to strangers for general use, and are limited in their own use of it to ordinary domestic purposes. A very few of our cases easily determine all matters in controversy here. Thus in Pa. R. R. Co. v. Miller, 112 Pa. 34, it was held that where a railroad company owns the land in fee, through which a stream flows, and it takes water from the stream at a point on its own land, for the purpose of supplying its locomotives, such taking is not under the right of eminent domain, but by virtue of its rights as a riparian owner. The case on its facts was much stronger than the case at bar. The company owned the land in fee through which the stream ran, and they 'only used the water to supply their own locomo
In the case at bar the appellant company held its right to the water of the stream in question only by virtue of leases from the riparian owner, Dr. Shannon, and it does not matter in the least that it had an option to buy the land through which the stream runs. If it had actually made the purchase and taken the conveyance in fee simple, it would have been in no better condition in this respect under the decision last cited.
Another very forcible illustration of the doctrine is found in the case of Haupt’s Appeal, 125 Pa. 211. There an incorporated borough bought a tract of land through which a creek flowed, constructed a reservoir on the tract and conveyed the water therefrom several miles to the borough, for the use of its inhabitants. Another borough was located about two miles above on the same creek, and certain private parties whose rights were subsequently acquired by a private corporation, started a plant to pump the waters of the stream for the use of the upper borough. The lower borough filed a bill to restrain the pumping and diversion of the water, and we sustained an injunction on the express ground that the lower borough had acquired its rights by an exercise of its right of eminent domain, as well as by a purchase of the land. We said: “ If the authority of the plaintiff were measured by its rights as riparian owner it would be slender enough. It might indeed use the water for domestic purposes, incident to the said ten acres of land. If there was a tenant thereon he could use it for watering his stock and for household purposes: for any useful, necessary and proper purpose incident to the land itself, and essential to its enjoyment. But that the rights of a riparian owner would justify
In Lord v. Water Co., 135 Pa. 122, a water company had acquired by purchase an acre of ground upon which there was a strong spring, causing a stream of water to flow from it and over the lands of a lower owner. The water company undertook to divert the water of the spring to supply the inhabitants of Meadville with water for their necessary use. The lower owner brought an action to recover damages for the loss of the water, and recovered a verdict and judgment which we sustained. The water company had the right of eminent domain, but did not exercise it. We said, “ It was conceded upon the argument that the company had the right to divert it (the water) under its power of eminent domain. But it had never exercised such right. To do so involves compensation to those who are or may be injured by such diversion. Compensation was not made, nor security tendered. While a city or borough or a company having the right of eminent domain may take a spring or stream of water to supply a municipality, it can only do so by making compensation to those who are deprived of the use of the water, as provided by the constitution. A taking without compensation is a trespass ; as much so as the taking of land by a railroad company to construct its road without making compensation or filing a bond with security, as provided by law. Where the power to take exists, it must be exercised according to law. If it is not, the corporation so taking becomes a trespasser, and may be proceeded against as such. It is a mistake to assume that the purchase of this acre of land gave the company an absolute right to the spring of water. The water did not pass by the deed beyond its reasonable use by the vendee as a riparian owner.”
The foregoing principles were all repeated in Clark v. Railroad Co., 145 Pa. 438, and are not at all in dispute. It remains only to apply them to the facts of this case. The defendant is clothed with the power of eminent domain, and is endeavoring by a strict compliance with the law to exercise its right to supply the citizens of Pottsville with an adequate quantity of water for their consumption. It is met by the claim of the plaintiff to a right to use the water of the stream in question to supply
Decree affirmed and appeal dismissed with costs.