5 Pa. Super. 563 | Pa. Super. Ct. | 1897
Opixiox by
This is an appeal from a judgment in favor of the plaintiff, in an action of trespass brought to recover damages for the injury to it, as a lower riparian owner, by the diversion of the waters of Connoquenessing creek by the defendant company, in the years 1894 and 1895.
The defendant company was incorporated in 1877, under the provisions of the general corporation law of 1874, for the purpose of supplying the borough of Butler with water. In the following year the company built a dam across Connoquenessing creek, from which water is pumped to a reservoir, and thence conducted by pipes to the inhabitants of the borough. It does
The plaintiff company was chartered in 1887, for the purpose of manufacturing, selling and dealing in glass, and in the same year purchased of one owner a lot of twelve acres on Connoquenessing creek about a mile below the dam of the water company, and of another owner other lots contiguous to the twelve acre lot.
Upon the land thus purchased — partly on the twelve acre lot and partly on the other lots —the company, at very great expense, erected large plate glass works. It also leased an adjoining piece of ground upon the creek, upon which it erected pumps and tanks for the purpose of supplying its works with water pumped from the creek.
All of the lots purchased by the plaintiff company were at one time parts of the farm of William S. Boyd. In 1872 or 1873, Boyd laid off his farm into town lots and, as thus plotted, the twelve acre piece alone bordered on the stream.
The plaintiff company required and used a large amount of water in washing, polishing and grinding glass, and to make steam to run the machinery of its works. According to the testimony it returned to the stream all but about one tenth of the water thus taken and used. For several years it obtained from the creek a sufficient supply for its purposes, but in the drought in the summer of 1894, it became necessary for the water company to take all of the water of the creek in order to supply its customers. As a consequence, the plaintiff company was deprived of the natural flow of the water of the stream to and by its land, and was compelled to open up the pools between its land and the defendant’s dam, and also to obtain water elsewhere to operate its works.
In his general charge as well as in his answers to the plaintiff’s points, the learned judge instructed the jury, that the measure of damages was the expense that the plaintiff was necessarily put to, during the j^ears in question, in order to supply water to take the place of the water that would have flowed to its land if it had not been diverted by the defendant.
The defendant’s counsel contend for three propositions, which we shall consider in the following order:
First. After the entry upon the stream, by the defendant company, the plaintiff company could not attach property not entitled to riparian rights to other property entitled to riparian rights, and then claim damages for injury done to the property as a whole, but should be confined to the injury done to the property entitled to riparian fights when it was purchased.
Second. The right of action for the diversion of the stream was in Boyd, the owner of the land bordering on the stream at the time of entry thereon of the defendant company, and hence the plaintiff was not entitled to recover.
Third. If the plaintiff company had a right of action against the defendant company the damages recoverable were limited to the injury done to the land as it was at the time of the entry on the stream by the defendant company, and the plaintiff company had no right after that entry, and with notice of it, to devote the land to a new use requiring a large amount of water for artificial purposes, and then charge the defendant company for loss arising from the want of water for such extraordinary use, unless the defendant company took more water than was reasonably necessary to supply the town.
I. It is to be observed that the cause of action is the injury suffered by the plaintiff in consequence of the diversion of the water of the stream in the years 1894 and 1895. Assuming that the plaintiff had a right of action therefor, the question whether the whole property occupied by its works was riparian is to be determined by its condition at the time of the unlawful diversion of the water complained of, and not by the condition,
II. It is not, and could not be successfully claimed that the defendant company had a right, as an upper riparian owner merely, to divert the water to the extent that it did, even for the purpose of supplying the inhabitants of Butler with water for domestic use. Ownership of the land does not include ownership of the water which flows over or past it. The right which the owner has is to the use of it in common with the other owners as an incident to the land. For many purposes connected with the enjojrment of the land to which the right is incident (for example, for domestic use and for watering cattle) the riparian owner may divert, detain and even consume the water without regard to the effect which such use may have, in case of deficiency, upon proprietors lower down the stream. But he has not in all respects an equal right thus to divert, detain or consume the water for purposes, which, although the same in kind, are in no way connected with the use of the land. In Haupt’s Appeal, 125 Pa. 211, it appeared that a 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. Speaking of the borough’s riparian rights, the court said: “ If the authority of the plaintiff were measured by its rights as a riparian owner, it Avould be slender enough. It might indeed use the water for the domestic purposes incident to the said ten acres. If there was a tenant thereon lie 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
A diversion in the mode described in the testimony is generally regarded as a continuing injury, and is not referable to the day when first commenced, but successive actions may be brought as long as it is continued. “The general rule is that, successive actions may be brought as long as the obstruction is maintained. A verdict in the first instance establishes the plaintiff’s right. Subsequent actions are to recover damages for a continuance of the obstruction. . . . For a continued obstruction to the flow of water he could sustain successive actions. In each he could recover the damages he had sustained subsequently 'to the last preceding action: ” Bare v. Hoffman, 79 Pa. 71. See also Wheatley v. Chrisman, 24 Pa. 298; McCoy v. Danley, 20 Pa. 85; Fell v. Bennett, 110 Pa. 181; Clark v. R. R. Co., 145 Pa. 438. So, applying the general principle that successive actions will lie for a continuing trespass or nuisance, not necessarily permanent, the purchaser of an estate upon a stream, from which others have unreasonably diverted the water is-entitled to recover if such diversion is continued: Gould on Water, par. 215; Angelí on Water Courses, par. 399; Atlanta Mills v. Mason, 120 Mass. 244; Chapman v. Copeland, 55 Miss. 476. Whether a different rule would apply where the wrongdoer had permanently changed the course of the stream by turning it away from the lower proprietors is a question we need not discuss. When the plaintiff bought there had been no such diversion of the stream.
How is the case affected by the fact that the defendant company is invested with the right of eminent domain ? If we correctly understand the defendant’s position it is this : that when it erected its dam across the creek, built its reservoir, laid its pipes and commenced to pump water to supply the inhabitants of Butler, it must be deemed in law to have exercised its right of eminent domain by the appropriation, for all time, of so much of the water of the creek as might at any time be necessary for
In Penna. R. Co. v. Miller, 112 Pa. 34, the company owned the land in fee through which a stream flowed, and took water from the stream at a point on its own land for the purpose of supplying its locomotives. The plaintiff alleged, that the quantity taken was so large as to seriously impair the power of his mill, and brought an action on the case, in which he recovered. The defendant contended, that by virtue of the act of 1857, the company had the right to take the water from the creek for the improvement and operation of'its railroad, and if in taking such water the plaintiff had suffered any damages, his remedy was to have them assessed by a jury of view in accordance with the provisions of the act, and an action on the case could not be maintained. The Supreme Court, Paxsox, J., delivering the opinion, disposed of this contention in this way: “We do not regard this point as tenable, for the reason that the water was not taken by the company under the right of
A similar question arose in Lord v. Meadville Water Co., 135 Pa. 122, where it was held that a water company, by the mere purchase of land upon which a spring issues, creating a stream which flows in a natural channel through the land of others, does not acquire a right to divert the water of such spring into another channel -without first paying or securing compensation to lower riparian owners; the rights of the company in such a case are those of a riparian owner, neither more nor less. The pertinency of these two cases consists in this, that in respect of their liability to action for diverting the water the defendants were treated as ordinary riparian owners, although it was conceded that they were invested with the right of eminent domain. “ The company might have taken the spring under its right of eminent domain, if it possessed such right; for aught that appears, it may do so still, and after having done so and made compensation to the riparian owners who are injured thereby, it will be free from suits of this nature. Had it done so in this instance it would not have had this judgment against it:” Lord v. Water Co., supra.
It is worthy of notice that the recovery in the foregoing case was not for a permanent injury to the plaintiff’s freehold, but for damages suffered by him in consequence of being deprived of the water for a certain specified period prior to bringing suit. It is true that the question of the measure of damages was not discussed, but the reasoning of the opinion is entirely inconsistent with the theory, that there was such a permanent appropriation of the stream, under the right of eminent domain as would prevent recovery in successive suits, so long as the unlawful diversion might be continued, or as often as it might be repeated prior to making compensation or giving security therefor.
. A water company invested with the right of eminent domain entered upon land for the purpose of constructing a reservoir,j
Riparian rights are incident to the ownership of the banks of the watercourse. They run with the land. They may be granted away or be extinguished by condemnation proceedings or by prescription, but cannot be defeated by simple appropriation. The opinion expressed in some early cases that a riparian owner may acquire exclusive rights to running water by. prior occupancy has not been sustained by later decisions, and except in those states where the common law has been modified by statute or local usage, the great weight of authority is to the effect that mere prior appropriation or occupancy unless continued for a period of time, and under such circumstances as would be requisite to establish rights by prescription, confers no exclusive rights. See 4 Am. & Eng. Ency. of Law, 984, and cases there cited: Gould on Waters, par. 226. This is the doctrine of our own cases. “If a thing be common there may be an appropriation by general consent or grant. Mere priority of appropriation of running water, without such consent or grant, confers no exclusive right. It is not like the case of mere occupancy where the first occupant takes by force of his priority of occupancy. That supposes no ownership already existing,
It cannot be contended that the former owner of the land in question ever lost or parted with these rights, except when he parted with the title to the land, or estopped himself from asserting them in a court of law. When the title to the land passed, the incidental riparian rights passed with it. If the defendant company has not acquired the right to divert the water — to prevent the natural flow to and past the plaintiff’s land — the fact that it might have acquired it by making compensation or tendering security, or may still do so, does not affect the question of its liability to action for injuries to the party whose right was infringed. The plaintiff and the defendant, under the facts of the case, have the rights in the stream of riparian owners only. It follows that the former may maintain an action to recover such actual and special damages as it sustained in consequence of the detention and diversion of the water in 1894 and 1895, notwithstanding its predecessor in title had a right of action in which he could have recovered nominal damages for the infringement of his right to the natural flow of the water during his ownership.
III. The reasoning by which the foregoing conclusions are reached is as inconsistent with the defendant’s third proposition as with the other two. To hold that the plaintiff may recover damages in respect of the use of the land for agricultural purposes and iix respect of that use only would be to hold that in some way, not clearly explained, the defendant has acquired the right, as against the plaintiff, to take all of the water not required by the latter for such purposes, and to the extent, only, that it was required in 1878. This middle ground is no more tenable than the position that the defendant has the right as against the plaintiff, to take all the water, •if necessary, to supply its customers, without regard to the effect of such taking upon the use of the lower owners’ land for any purpose. Of the two the latter is the more logical position. Neither can be sustained by sound principle or authority. Both are virtually based on the assumption that the plain
It is well settled that a riparian owner has the right to the use of the stream as an incident to the land for ordinary purposes, and also for certain purposes which are called extraordinary, provided in such extraordinary use he does not materially diminish its quantity or impair its quality: Wheatley v. Chrisman, 24 Pa. 298. The use which the plaintiff made of the water was extraordinary but not necessarily unreasonable and wrongful. Whether it was so or not depends not alone on the necessities of the business it conducted, it is true (Wheatley v. Chrisman, supra), nor, on the other hand does the law lay down any fixed and invariable rule as to the number of gallons that the riparian owner may consume in his manufacturing enterprise, without making himself liable to a lower owner. The question is, whether his use of the stream is reasonable and appropriate to the size of the stream and the quantity of water usually flowing therein: Gould on Waters, par. 208. The reasonableness of the use of water by a riparian owner must depend upon the circumstances of each particular case, and of
The rule as to the measure of damages applicable to the facts of the case, as stated by the learned trial judge, is fully sustained by Hogg v. Connellsville Water Co., 168 Pa. 456, — a case strikingly similar to the present in many essential facts. See also Hart v. Evans, 8 Pa. 13.
Judgment affirmed.