240 Pa. 604 | Pa. | 1913
Opinion by
The purpose of filing this bill was to restrain defendant railroad company from diverting the waters of Roaring Brook from their natural course above No. 7 dam and making use of them for locomotives, repair shops, passenger station, freight station, round house and other general railroad purposes in the City of Scranton. The only rights the railroad company have in the waters of the stream in question are those of a riparian owner of land adjacent to Roaring Brook. We therefore agree with the learned court below that this controversy in its last analysis centers around the rights of the defendant as a riparian owner. The question for decision here is not what the water company under its charter powers did or attempted to do, but whether the railroad com-. pany, being the owner of a small strip of land at the. point where it pumped the water from the stream, can
Collateral issues relating to the charter powers of the water company and other matters incident to the business transactions of the parties can have no controlling effect in this controversy because the precise question for decision is the right of the railroad company to divert the water of the stream from its natural course and convey it through, over and away from the riparian land to a reservoir several miles distant to be used for general railroad purposes. In a long and unbroken line of cases it has been held that the diversion of water from, its natural course in a stream by a riparian owner for purposes other than those incident to the proper enjoyment of the riparian land is unlawful. The upper riparian owner has a right to the use of the water of the stream on his land for any legal purpose, provided he returns it to its channel without contamination or substantial diminution: Penna. R. R. Co. v. Miller, 112 Pa. 34. In the. present case the water diverted, and about which complaint is made, was not used on the. riparian land for any purpose, nor was it returned to the stream at any point, above the land of the complaining lower, riparian owner. It is argued that a riparian owner may use and enj'oy the flowing water of a stream in such rea-, sonable manner as not to injure unnecessarily the rights of others and, a number of authorities are cited in supports this,position. Several of our own cases are relied, on to sustain fhe proposition that a riparian owner has
It is settled law that riparian owners have no ownership of running water, nor have they any right to divert or sell it for general use, and are limited in their own use of it to ordinary purposes incident to the enjoyment of the riparian land, and in exceptional cases to what is called extraordinary uses upon the land itself, provided such extraordinary use does not materially diminish the flow of the stream or impair the quality of the water. But the extraordinary use must be upon the riparian land and this is the utmost limit to which our cases have gone. To further extend the doctrine would be to disregard settled principles of law. As we view it there is no escape from the conclusion that appellant' standing alone on its rights as a riparian owner cánnot lawfully divert the water of Roaring Brook for general: railroad uses in the City of Scranton.
It is . strongly urged that the appellant company has the right by prescription and . by contract to divert the water about which complaint is made. This right is asserted under the agreement .of 1866, the deed of 1897, and the long, continued use of the water at certain points for railroad purposes. The answer to this position is obvious. No attempt is made in this proceeding to interfere with these rights of' the railroad company. Whatever rights, if any, appellant may have .by deed or covenant or by .prescription, it may still enjoy, but we cannot undertake to determine , just what those rights are in this case, except that they do not include the right to .supply wat^r. for general railroad, purposes'in the City of .Scranton.. No such : right was ever asserted .by the railroad company until within a recent period: and.
The standing of appellee to ask equitable relief by way of injunction in a case of this character is ruled by Griffiths v. Monongahela Railroad Co., 232 Pa. 639. As has been hereinbefore pointed out this is not a case where a lower riparian owner seeks to enjoin the ex- . traordinary use of .water on the riparian land. The thing complained of here is not the unlawful diversion of
Decree affirmed, at cost of appellant.