Fleming's Appeal

The opinion of the Court was delivered, July 7th 1870, by Sharswood, J. The appellants complain that the court below overruled their exception to the report of the examiner (who wras invested by his appointment also with the functions of a master), which was that he had found as a fact “ that the owners of the lots through which the stream of water passes have no special or greater interest in said stream of water than the citizens of said borough generally;” and yet we have not been furnished with any of the evidence before him, from which he drew that conclusion. It can hardly be expected that we can reverse the decree on this ground in the dark. The other errors assigned all depend necessarily upon this first one. Had a map or plan been attached to the paper-book showing the course of the stream, it would have materially assisted us in arriving at a just and satisfactory decision. From the master’s report, however, it may be inferred that John Allison being the owner of the land upon which the borough of Greencastle is now built, laid it out in streets and lots, and, with a view to secure a supply of water to the grantees of the lots from him, purchased from William Rankin, who was the owner of a stream in the neighborhood, the right to draw therefrom a certain quantity for that purpose. On the 8th of March 1786, he took from him an obligation to that effect. A copy of this bond is not given in the paper-books. It would seem that an artificial watercourse must have been intended. The stream, with some alterations made many years ago in its channel at the request of [448] residents near its line to suit their convenience, still flows through the corporate limits, passing over streets and' alleys, lots and enclosures. It ran over the ground originally, but in 1857 in pursuance it would seem of the Act of Assembly of that year, to be presently adverted to, it was trunked and dipping boxes placed at different points on the line in the streets, for the convenience of the residents and their cattle. The expenses of the work were paid by the borough for that portion of the trunk which crossed streets and alleys, and by the lot-holders for the portion included within their limits. What title or interest the borough had to any part of this stream does not appear. From the terms of Rankin’s grant as recited, he was to deliver the water to John Allison and his assignees for ever — which undoubtedly meant the grantees of lots from him. If it crossed streets and alleys laid out by him for public use, as is perhaps to be inferred, then undoubtedly the borough, rightfully invested with the care and oversight of the public highways, may be considered as one of his assignees to whom the benefit of this gr'ant extended. If then this is an artificial stream of water, each proprietor of land over which it passes, and the borough so far as the highway is concerned, has a right to the enjoyment of it in the course marked out for it, either by its original designation or by subsequent agreement, and is under the obligation to keep his portion of it in such a condition of repair that the usual amount shall be transmitted to the other proprietors below and in its usual state of purity. If he fails in this duty he is liable to an action by any or all of the proprietors below, including the borough, for damages: Washburn on Easements 293. Had the entire stream been granted or dedicated by John Allison to public use before making any grants, so that his grantees would have derived title, subject to such grant or dedication, then indeed a question like that so much debated in Hammett v. The City of Philadelphia might have arisen. But upon the meagre facts reported, the case seems to stand entirely clear of that question. The Act of Assembly of April 8th 1857, Pamph. L. 329, authorized the borough authorities of Greencastle to take upon themselves the supervision of the water and watercourse in question, to see that the proper quantity of water is at all times delivered by the heirs or assignees of William Rankin, deceased, according to the terms of the contract between him and John Allison, and to enforce the delivery of the same by 'Such suit or suits in their corporate name as may be necessary. If the borough was in law or fact an assignee of John Allison this provision was unnecessary; to the extent of the damage suffered by the streets it had such a right and such a remedy. But if it was intended to vest in the borough the right to recover all the damages suffered by all Allison’s other assignees — grantees of lots — it surely [449] needs no argument to prove that it was entirely beyond legislative power. They could not take away the rights of the grantees derived under the contract between Rankin and Allison, nor could they assign their rights to the borough without their assent. But the act went further, and authorized the authorities, or a majority of them, “ whenever they may deem the same necessary by themselves, their agents, engineers, officers and workmen, and with their tools, carts, wagons and horses, to enter upon any of the lands, lots, enclosures, streets, lanes, alleys or highways, along the original or present course of the said stream, for the purpose of examining the condition thereof, removing obstructions therefrom, repairing the bed or channel of the same, or preventing the wasting of the water therefrom or its appropriation to uses not designed originally.” Be it remembered, that these provisions relate not to a public easement, but to a private watercourse, secured by grant and contract to private lotholders, and in which, if the borough had any pretence of right, it could only be as assignee and custodian of the streets over which it passed. The borough is invested not with the power to take the stream for public use upon making compensation to the owners, the only constitutional and legitimate mode of accomplishing the object, which may have been useful and laudable, but with all the powers incident to such taking with no provision for compensation. Nay, proceeding a Step further, the act provides “that the expenses incurred in repairing the said watercourse and keeping the same in good order shall be paid as follows, to wit: those incurred in the streets, lanes and alleys of the said borough, shall he paid out of the borough funds, and those incurred on private property shall be taxed by the said burgess and town council against the property through which the said stream passes, according to the amount expended upon each property, and shall be a lien thereon, and collected as other borough taxes are by law collected.” Now this power would have been well enough, if it had been preceded by the necessary preliminary step of taking and appropriating this private watercourse to public use, and if it had appeared that the private owners of property through which the stream flows were specially benefited by such repairs and improvements. The last section of the act is conceived in the same spirit, for it declares “ that the burgess and town council aforesaid may by ordinance provide what fines and penalties shall be enforced against any person who shall wilfully or maliciously do any injury or damage to the said watercourse, or who shall obstruct the same, divert or use the water unlawfully, waste it or render it impure or unfit for use.” It is very evident that the legislature must have been informed or believed that this watercourse had been dedicated by John Allison for the public use of the inhabitants of the borough. On this supposition only can such legislation be accounted for. All that we can [450] Say is, that if such was the fact, it has not been made to appear to us by anything upon this record. This invasion of private rights and property seems to have been submitted to in 1857, but that is no reason why it should continue to be, or why this or any other court should countenance its enforcement. Decree affirmed and appeal dismissed at the costs of the appellants.