Williams v. Fulmer

Opinion by Mb. Justice Williams, These are cross appeals from the same judgment and may be best considered together. The same parties were before us in 1888 with substantially the same questions, and the case is reported in 122 Pa. 191. The plaintiff is a manufacturer of school slates. His factory is situated on the west bank of the Lehigh river, and prior to 1883 the machinery was propelled by water power. This was obtained by means of a dam thrown across an arm of the river that flowed between an island and the main land on which the factory was located. The dam raised the surface of the water above it from one to two feet, which was sufficient to furnish the power required for the factory. The defendant owns and operates a slate quarry on land immediately above that of the plaintiff. He has been dumping the refuse from his quarries for many years into the river a little way above the plaintiff’s factory. He had in this manner filled up the channel of the arm of the river far beyond low water mark, and had nearly closed the channel into which it flowed. The water was by this means diverted from the front of the plaintiff’s land and thrown into the channel on the opposite side of the island, and the water power of the plaintiff was completely destroyed. This action was brought to recover damages for the destruction of the water power. The defence rested on the general proposition that the Lehigh river was a navigable public highway belonging to the commonwealth; that the plaintiff as a riparian owner had no right to its waters or the power to be obtained from them, but that the state had granted the exclusive right to such water power to the Lehigh Navigation Company which was still its owner. We held that the defence was well taken so far as the water power was concerned; but that the plaintiff was nevertheless entitled to recover for any injury he had sustained by reason of the diversion of the stream from its natural channel along the front of his land; and if any such diversion had been affected with malice toward the plaintiff, or for the purpose of inflicting injury upon him, exemplary damages might also be given. Another trial has now taken place resulting in a recovery for the plaintiff, although for a smaller sum than before. From this judgment both parties have ap [414] pealed. The plaintiff asks us to reconsider our former holding so far as it relates to the water power, and allow a recovery at the very least for the loss of such power as the water flowing between high and low water marks would afford him, in addition to the damages which he has recovered as a riparian owner. The defendant on the other hand asks us to reconsider our judgment so far as to deny the plaintiff any right to recover damages for the diversion of the stream, and hold him to be remediless. We must decline to do either. The plaintiff is without title' to the water or the power to be derived from it whether above low water mark or below it. He used it for years it is true, but the right to use it was in the Navigation Company, the grantee of the commonwealth, and not in him. His use of it could have been stopped at any time. He cannot recover for that to which he has no title. But he was the owner of land lying upon a navigable stream. The advantages of his location were inseparable from the ownership of the land, and if they increased its desirability or added to its value for purposes of business or of pleasure they were his property as truly as the land itself. The diversion of the stream was an injury to his land that was direct, peculiar, and not shared with the general public. It was as clearly actionable as the diversion of a stream passing over his land. Whoever brought about such diversion so as to deprive him of the advantages of his location, whatever they were, inflicted a pecuniary wrong upon him. The manner in which the diversion is brought about is not important. It might be accomplished by means of elaborate works arranged to carry the stream elsewhere, or it might be affected by filling up the channel so as to compel it to seek another. The result accomplished and the injury inflicted would be the same. The lower riparian owner would be deprived of the natural advantages which ownership of the land at that point gave him, by the unlawful act of another; and he would have a right to call upon the wrongdoer to repair the wrong done him by restoring the stream to its channel or making compensation for its loss. The learned trial judge followed the rule laid down in Williams v. Fulmer-, 122 Pa. 191, and tried the cause with discrimination and ability. The assignments of error in both appeals are overruled and the judgment affirmed.