Beaver Falls Water-power Co. v. Wilson

Chief Justice Agnew delivered the opinion of the court, January 2d 1877. The foundation of the title of the plaintiff was a contract between the state through the Board of Canal Commissioners, and David Townsend. The board by a resolution directed the superintendent of the Beaver Division of the state canal to make a waste-weir in the canal of certain dimensions for the passage of water to Townsend’s Stone Mill, on condition that Townsend should by a written agreement authorize the Beaver Falls Water Company at Fallston, to raise their dam to a certain requisite height. The reasons for the contract are set forth in a preamble to the resolution, and they display the consideration proceeding from Townsend. A state dam constructed below flowed back the water of the Beaver upon the mills of the water company at Fallston making it necessary for them to raise their works and dam. This they could not do without the consent of Townsend, who was a riparian owner and whose dam and works would be affected. Townsend gave his consent, thus relieving the state from embarrassment, and the water company from great loss. The wasterweir was therefore accorded [87] to him in consideration of his consent, and release of his own damages. The contract was carried into execution, the waste-weir made and permitted to remain for a period of about forty years. The contract was an existing one, when the state transferred the canal to the Erie Canal Company under the Act of 7th March 1843, Pamph. L. 36, and therefore fell directly within the terms of the 17th sect, of that act, binding the canal company for all contracts theretofore made for the grant or lease of water privileges. Hence it is quite immaterial to discuss the power of the state herself to abandon the canal and defeat the privilege. She always recognised the contract, and her grantee was bound to do so by the charter.- The power of the canal company to abandon the canal without the consent of the state depends on the terms and nature of the charter. The charter contemplated no such power. It was perpetual until a resumption of the canal by the state, under the reservation of this 'right in the charter. This reserved right was afterwards released by the state for a valuable consideration. See Act of 8th May 1855, Pamph. L. 518. The grant of the charter was for a public purpose, the transportation of freight and passengers by canal and slackwater navigation. This public benefit brought the canal into existence, and justified the taking of private property for the public use. So long, therefore, as the company was able, it was bound to keep up the canal and works for the use of the public; and while this ability continued, Townsend and his assigns were entitled to the waste-weir, and the use of the water flowing through it. But with the loss of ability to perform this public duty, came a new condition of affairs. The law then stepped in and permitted a judicial sale in due course of procedure, of the property of the insolvent corporation for the payment of its debts. What the corporation could not do the law brought about. Hence, a sheriff’s sale swept away the property of the company. Here we are confined by the finding of the facts in the court below to a very narrow compass, the writs, levy, and return of sale not being before us. It is found by the court, that the lands, locks and appurtenances became vested by sheriff’s sale, followed by other conveyances in the defendants, now the appellants. It is not said that the franchises were sold, and we presume they were not, as it is also said that the canal, as such, and for all purposes of navigation,, has been entirely abandoned; a fact inconsistent with the use of the franchise. The abandonment it seems took place in 1872, soon-after the sale. These facts indicate that the sale was made under the Act of 7th April 1870, 1 Br. Purd. 291, pl. 52. That act. allows a sale of the property of a corporation in one county alone, or the levy may extend to other counties. As we understand the facts stated, the property in Beaver county only was sold, vesting in the purchasers only a section of the canal, locks, &c. Giving full effect to the sheriff’s sale, as probably vesting a title [88] to the land in fee, according to Craig v. City of Allegheny, 3 P. F. Smith 477, and Haldeman v. Pennsylvania Railroad Company, 14 Wright 425, still the question remains whether the purchasers are not bound to recognise the nature of the subject of the sale, to wit, a canal and its works, and to take notice of the superior rights of third persons existing in full force at the time of the sale. They bought a canal bed through which the water was flowing to the mill of the appellee. The subject of the sale and.its incidents were visible, and the maxim of the law is caveat emptor. They saw, or might have seen the appellee in the use of the waste-weir and water flowing over it. They were put upon notice, and by inquiry might readily have learned the foundation of the appellee’s right — that it proceeded from a contract with the state, recognised by her until she transferred the canal to the company, which she bound to observe it. They knew, therefore, or ought to have known, that the company took subject to a superior right, which could not be extinguished by a sheriff’s sale. Though 'not an easement in the ordinary sense, this contract privilege was an encumbrance on the property of the company. The land in the hands of the company was necessary to fulfill the contract, and was therefore burdened with the duty of maintaining the flow of water, which was essential to the maintenance of the canal as well as the privilege of the. appellee. The duty of doing both rested on the the company by its charter. The purchasers of the property at sheriff’s sale, therefore, took the land burdened with the superior right of the appellee to use the water at the waste-weir. Now, though the purchasers probably did not take the franchise, and were not bound to maintain the canal for public use, yet having bought subject to the superior right of the appellee to use the water at the waste-weir, they cannot stop the flow of water to the waste-weir to the extent of the privilege granted by the canal commissioners in 1834 and accepted by Townsend in 1835. To hold otherwise would be to declare that the purchaser of a subjected title with notice of the subjection stands on higher ground than the owner. It would defeat an acknowledged right by a sort of legal disintegration of the subject-matter of the sale, against the solemn contract of the state, which she carefully provided for and devolved upon her assignee in express terms. The Act of 1870 is anomalous, it is true, in allowing a piecemeal sale of property, which should remain a unit for public uses, but it ought not to be so interpreted as to do unnecessary injustice. Lex nemini facit injuriam. These purchasers, though perhaps not bound under this sale to maintain the canal have no right to prevent or impair the flow of the water so long as it will flow to the waste-weir for the use of the appellee. Decree affirmed with costs to be paid by the appellants and the appeal dismissed.