Borough of Ashland v. Haupt

Opinion, Mr. Chief Justice Paxson: This was a bill filed by the borough of Ashland, plaintiff below, to restrain the defendants, Frank S. Haupt and John Haupt, from interfering with the water supply of said borough. The facts of the case, so far as it is necessary to state them, are substantially as follows: — 221 — The town of Ashland has a population of about seven thousand inhabitants, and was duly incorporated as a borough in the year 1857, under the laws of this commonwealth. In the year 1876 the said borough purchased a tract of land containing ten acres and upwards, situate in Butler township, about two miles below the head waters of the Little Mahanoy creek, which flows through it; and in the same year constructed a largo basin or reservoir on said tract of land, and appropriated the waters of said creek and its tributaries for the purpose of providing a supply of water for the use of the inhabitants of the said borough. The water was conveyed by means of pipes from the reservoir, which is several miles distant, and is distributed to the inhabitants for private purposes, and such public purposes as are found needful. The cost of said works is stated and shown to be about $63,000. About two miles above the dam is the borough of Frackville, through -which the Little Mahanoy creek flows. This town, it is alleged, contains about seventeen hundred inhabitants. The creek aforesaid is its main source of water supply. There are but few wells and springs in the borough that do not at times become dry, and water has been hauled from the creek to different houses. In 1882, the defendants, being property owners in the borough, in order to facilitate the supply of water to those inhabitants thereof who depended upon the Little Mahanoy creek, determined to pump water from the creek into a reservoir, located on high ground, and from thence distribute it by pipes to those who -might need it. Shortly after this work was commenced, this bill was filed to restrain the defendants from obstructing the stream or diverting the water from its channel. In April, 1883, the Mountain City Water Company was organized, and incorporated under the act of 1874, for the alleged purpose of supplying the borough of Frackville with water. It purchased from the defendants, Prank S. and John Haupt, their appliances and whatever right it could acquire from them to take water from the Little Mahanoy creek. In 1886, it presented its petition to the court below, asking to be permitted to come into this case as defendant, by way of supplemental bill or by amendment of the original bill, which was allowed. The case was referred to a master, who, after a largo amount of testimony had been taken, submitted an elaborate — 222 — report, sustaining the bill, and recommending an injunction, principally on the ground of the interference with the rights of the plaintiff as a riparian owner. Upon exceptions, the learned court below sustained the conclusions of the master, and made the injunction perpetual, but upon other grounds than the riparian rights of the plaintiff. The master found, as a conclusion of law from the facts, “that by reason of the ownership of said tract the borough (Ashland) acquired the rights of a riparian owner, and that the relationship of upper and lower riparian owners existed between the defendants and plaintiff in May, 1882, when the bill was filed.” To this, and other propositions based upon the same view, the learned court below said: “ Whilst not dissenting from the conclusions to which the master has come, I cannot but think that he has placed the rights of the borough of Ashland upon entirely too narrow a foundation. It might work serious injury to the borough, if it only acquired the rights of a riparian owner, when it bought the tract of land and erected its water-works at an expense of upwards of sixty-thousand dollars.” If the authority of the plaintiff were measured by its rights as riparian owner it would be slender enough. It might indeed use the water for the domestic purposes incident to the said ten acres of land. If there was a tenant thereon he 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 justify the plaintiff in carrying the water for miles out of its channel to supply the borough of Ashland with water, is a proposition so palpably erroneous that it would be a waste of time to discuss it. Whatever right the plaintiff borough had to take the water from this stream for the use of its inhabitants must be found in the act of April 3, 1851, P. L. 320, commonly known as the Borough Act, or it does not exist at all. The second section of said act authorizes boroughs “ to provide a supply of water for the use of the inhabitants, to make all needful regulations for the protection of the pipes, lamps, reservoirs, and other construction or apparatus, and to prevent the waste of water so supplied.” Power is also given in the same section, “ to enter upon the lands and premises of any person or persons for the purposes — 223 — authorized by this act, by themselves and their duly appointed officers and agents; ” while the twenty-seventh section provides that “ private property shall not be taken for the use or purpose of the corporation, without the consent of the owners, or until just compensation shall be made therefor, according to the laws of this commonwealth.” It will thus be seen that the act of 1851 expressly authorizes boroughs to provide a supply of water for the inhabitants thereof; it clothes them with the right of eminent domain, by which they may enter upon the premises of any person or persons, and appropriate a spring or stream of water to provide such supply, subject only to the constitutional mandate to make compensation for whatever is so taken. And under the present constitution there can be no question as to its liability to make compensation for property injured or destroyed by the erection or construction of its works. We have no doubt the plaintiff had the power under the act of 1851 to construct its dam and carry this water by pipes to the borough of Ashland, and distribute it to and among the inhabitants thereof. There, however, its right ceases. It would have no power to carry it outside the borough and supply any of the inhabitants of another place or municipality. This is because the act of 1851 only authorizes it to be done for the inhabitants of the borough. It is true, where the water supply is abundant, enough for everybody, there would be no one to complain of its excessive use; but where it is limited, and other parties are deprived of the use of the water, who are entitled to it, for the benefit of those who can show no authority therefor, we must expect the rights of the respective parties to be clearly and sharply defined and rigidly enforced. We have nothing to do with the rights of the riparian owners below the plaintiff’s dam. If they have been injured, they have their claim to compensation if it has not already been made. Our concern is with the upper riparian owners, whose right to use the water of the Little Mahanoy creek the defendants claim has been impaired by the decree of the court below. I do not consider it necessary to consume time by an extended discussion of the rights of riparian owners. It is one of the most interesting branches of the law, but its principles are too well settled to need elaboration here. The law was well stated — 224 — by Justice Thompson in Philadelphia v. Collins, 68 Pa., at page 116, as follows: “ Every individual residing upon the banks of a stream has a right to the use of the water to drink and for the ordinary uses of domestic life; and where large bodies of the people live upon the banks of a stream, as they do in large cities, the collective body of the citizens has the same right, but, of course, in a greatly exaggerated degree.” And it was said by Chief Justice Gibson, in Mayor of Philadelphia v. Commissioners of Spring Garden, 7 Pa., at page 863: “ The inhabitants of the district might have lawfully dipped from the margin of the pool water enough for their several necessities ; but instead of drawing it by hand they have combined their funds to produce a cheaper and better transportation,” etc. In each of these instances the learned justice was speaking of a stream of water which is a public highway. To some extent the same principle may be applied to what may be called a private stream. In the case of a river or public highway all the people of the state have access to it; may ride over it, and use the water. Not so with a private stream. In such case no one can use it or take the water except at a public crossing. There the traveler may stop, refresh himself and water his horse ; the water has no owner, and he impairs no man’s right. But except at public crossings, such as a road or a street, no one but a riparian owner can use the water; not because the latter has any ownership in it, but because the stranger has no right of access to it. There can be no such thing as ownership in flowing water; the riparian owner may use it as it flows ; he may dip it up and become the owner by confining it in barrels or tanks, but so long as it flow's it is as free to all as the light and the air. It follows from what has been said that dwellers in towns and villages watered by a stream may use the water as well as the riparian owner, provided they have access to the stream by means of a public highway. The borough of Erackville, as before observed,-is not a party to this proceedingnor are the other supra riparian owners upon this stream. Their rights, therefore, cannot be determined now. We will not refer to them further than to say that whatever rights the inhabitants of Frackville, or the borough, as representing their collective rights, had to the use of the water of the Little Mahanoy creek at the time the — 225 — plaintiff constructed its dam, they have still. I do not say that the plaintiff may not impair those rights in the exercise of its power of eminent domain, but I do say that they cannot be taken, injured, or destroyed without compensation being first made as provided by the constitution. The plaintiff, however, disclaims all intention of interfering with the rights of the supra riparian owners, and particularly, that it does not wish to deprive the inhabitants of the borough of Frackville of their accustomed use of the water; that the said borough is not a defendant; that the defendants are merely attempting to shield themselves behind the supposed rights of the borough. It is very true the borough is not erecting the works, nor is any one doing so with its authority or as its agent. It appears to have authorized the defendants to lay their pipes through its streets. This, however, does not constitute the water company its agent, nor make the acts of said company the acts of the borough. Were the latter erecting works under the act of 1851 to supply its inhabitants with water, it would be confined to the terms designated in the act, and could use the water only for the benefit of its own inhabitants ; whereas these defendants are affected by no such limitations, azzd if they znay take the water at all, they may do so for the benefit of any one outside of the borozzgh of Frackville ; they could convert it to the use of another zmznieipality, or apply it to the benefit of collieries and other industzies remote from Frackville. This the defendazzts have no right to do, either against ripariazz owners, or those who have lawfully acquired the right to use the water. As the report of the master clearly shows that the works of the defendants, if completed, will render the supply of water for the borough of Ashland izzsuffzcient, this izzjzznction must be continzzed. The decree is affirmed, azzd the appeal dismissed at the costs of the appellazits.