Spangler & Union Canal Company's Appeal

The opinion of the court was delivered, by Thompson, C. J. — The main question in this appeal is, whether, conceding the complainant’s right to compensation on account of a diminution of the flow of water from Tulpehocken creek over the canal company’s dam, on account of an increase of its height by the company to supply their canal, the latter is subject to be enjoined from the use of the water of the creek for such a pur- • pose until the plaintiffs are compensated therefor. If so, the consequence would be inevitable, that the public] right to use and pass over the company’s canal, a public highway, would be subordinate to private interests of the mill-owner, and to others similarly situated. This will not do. The canal was built to accommodate the public as a public highway, and a remedy is provided in its acts of incorporation to compensate private parties for injuries received in its construction and use. It would never do to render its úse contingent; to allow parties by writs of injunction to deprive it of the necessary supply of water when most needed. To do so would destroy the highway altogether by rendering its navigation uncertain and eontingent. The dam upon which the additional height complained of was added, was built by the company on its own property, or property obtained by the right of eminent domain granted to it by the Commonwealth, and is a half a mile above the plaintiff’s mill. No contract is alleged as existing between the company and complainants, by which the former engaged to permit any water to flow over its dam to their mill, nor is there any law requiring it to do so. How, then, can the company be restrained from raising their dam for the temporary supply of their works when it needs it ? By the • original act of incorporation of 29th September 1791, the company was authorized to take all the water of the Tulpehocken for the use of its canal; by the Consolidation Act of 1811, it was provided that the company might use the waters of any creek or stream on the route of the intended canal. There is a provision in the latter act, as there was in the former, for compensating parties injured by taking creeks, tenements, mills, mill-ponds, water and watercourses by the company for the construction and use of its canal. We have innumerable decisions to the effect that in all such cases the remedy must be pursued. So, indeed, have we an Act of Assembly to that effect, the Act of 1806. If, therefore, the complainants here sustained or are sustaining injury required to be compensated by the act of incorporation or its supplements, they must resort to that. They cannot stop the works of the company to coerce payment. The notion [394] that consequential injuries are required by the Constitution to be prepaid is a mistake. • The Constitution only applies to talcing private property; that must be prepaid or secured to be paid before it can be taken. Not so consequential damages. If the act of incorporation requires such damages to be prepaid the law may be enforced, but if it ddes not, there is no authority to require their payment at all, or at any time other than that expressed when required to be compensated. If these milbowners have a remedy under the statute they must pursue it; if they have none there, they are not entitled to anything: Monongahela Nav. Co. v. Coons, 6 W. & S. 114; McKenney v. Same, 4 Harris 192; Henry v. Pittsburg and Allegheny Bridge Co., 4 W. & S. 85; Watson v. Pittsburg and Con. Railroad Co., 1 Wright 479. Numerous other authorities might be cited to the same effect. It rarely happens, even, when consequential damages are required to be paid, that they are applied for until the works of the company liable for them have developed their extent. Then the party injured applies. But it would be an intolerable evil if such a party were authorized to stop the works by injunction operating on the supply of water for instance, when it is a canal, until the damages are paid. It cannot be done, and no book or case shows that it can. It is enough, however, to say that this company is authorized to take the waters of Tulpehocken creek for its canal, and it is not an act contrary to law or equity either that they do, and without this it cannot be enjoined, nor can its servants and agents engaged in aiding it to .do what the law allows the company to do. Besides, there is either an adequate remedy in the act for compensating the injury, or there is no allowable remedy of any kind. The amendment allowed on motion of complainants, to add the company as defendants, and on the same day permitting a replication, nunc pro tunc, to be filed, and a decree to be entered against the company, was without authority in practice, and it seems by the record to have been equally unsupported by any agreement of the company, or any one authorized to consent to it. That Mr. Smith accepted notice of the proposed amendment, and argued against it, did not waive notice to the company, and service of the bill and amendment, as required by Rule 54 of equity practice, and we have no evidence of an express waiver by him, and it is expressly denied by him and the company both. This proceeding was too fast by half. It has no significance in this case, but it is noticed to prevent the recurrence of such an error on any similar occasion. Decree of the court below against the company is reversed and appeal dismissed, and the bill as against the individual defendants is dismissed at the costs of the complainants.