Brymer v. Butler Water Co.

Opinion by Mr. Justice Williams, This bill was filed under the provisions of the corporation act of 1874. It alleges the incorporation of the company defendant in pursuance of the provisions of that act as a water companjr; the fact that it has been engaged in furnishing a supply of water to the borough of Butler for about seventeen years; and that the water furnished during the dry weather of 1898 and 1894 was muddy and unfit for domestic use, and that the water then being furnished was “ impure, filthy and absolutely unfit for use for domestic or other purposes.” The answer denies that the waters of the Connoquenessing creek, from which the supply for Butler borough has been taken, are either muddy or impure as they ought to be allowed to flow, but admits that certain persons have for some months been pumping large quantities of salt water from an oil well or wells out upon the surface of the ground which has found its way into the stream and rendered its waters, especially when the stream is low, impure and unfit for domestic use; and asserts that it has instituted proceedings in equity to restrain such persons from polluting the stream and destroying the water supply. The case was fully heard in the court below. The learned judge had before him in the first place the question of the quantity and quality of the water furnished by the defendant company. If the quantity was found to be inadequate or the quality so poor as to be unfit for use he was next to consider whether the trouble could be remedied by a reasonable expenditure of money and effort on the part of the company. If he found this fact also in favor of the plaintiffs, it became his duty to make such order as would quicken the diligence of the water [503] company and protect the public served by it. After hearing the evidence the learned judge found as a fact that except during the very dry weather in the summers of 1893 and 1894 the supply had been reasonably sufficient in quantity and reasonably pure in quality. He found that by a better system of storage, the waters of the Connoquenessing could be made to furnisli an ample supply, and that by securing the waters of a tributary called Bonniebrook the supply at command would be several times as great as the population of Butler would require. He also found that the water had been for some months so charged with salt and other minerals from the oil wells as to be absolutely unfit for domestic purposes or for steam, and he enjoined the defendant from collecting water rents except for the flushing of closets and sewers, and for fire purposes. He at the same time made a peremptory order on the company requiring it “ to secure and provide forthwith a sufficient supply of reasonably pure water to the inhabitants of Butler borough and patrons of the said defendant company.” The decree and the findings on which it rests are now assigned as error, and it has been necessary for us to examine the evidence at length in order to determine whether it will support the several findings complained of. This examination has satisfied us that with what has been done to reach the waters of the Bonniebrook the supply must be ample, but that the water has been destroyed for domestic and for steam purposes by the owners and lessees of land along the stream in the effort to obtain petroleum oil from an underlying stratum of sand rock known as the “one hundred foot sand.” We are also satisfied that it will be wholly out of the question.for the defendant to obey the order requiring it to furnish pure water to its patrons, if the pollution of the stream by the owners and lessees of land in the basin of the Connoquenessing is a subject over which a court of equity has no control. This question is involved in the Butler Water Company and the Commonwealth of Pennsylvania ex rel. v. Russell et al., which was argued together with this case, and it will be considered to some extent in the opinion to be filed therein. We shall confine ourselves in this case to the two questions that are peculiar to it. First, does the evidence justify the injunction against the collection of water rents for domestic and [504] for steam purposes ? We think the conclusion reached by the learned judge that the water was utterly unfit for domestic use, that domestic animals would not use it, and that it was so destructive to the pipes in which it was conveyed and to the flues of boilers in which it was converted into steam as to be unsafe for use for steam purposes, has evidence on which it can fairly rest, and that it supports the restraining order. It is inequitable that a corporation chartered to serve a “public use” and actually undertaking to serve the public with one of the necessaries of life should be allowed to collect the price of a supply of good water from those to whom it delivers an article that cannot be used, or be made fit for use by any process within their knowledge or reach. The relations between the defendant and its customers rest on contract, and if the commodity bargained for is not delivered it is elementary law that the price is uot recoverable. Nor was the learned judge mistaken in the measure of the duty imposed by law on the defendant. It is not bound to provide water that is chemically pure, but water that is ordinarily and reasonably pure. The water for the supply of a city must be taken from some lake or stream or watershed that is accessible, that has not been destroyed, and that can furnish a sufficient quantity to meet the demand. After having secured such a source of supply the company is bound to exercise diligence in the effort to preserve it from pollution and to deliver it to the public in no worse condition than that in which it is taken from the source of supply. Practically it is unimportant whether the water becomes unfit for use because of the neglect, or in spite of the vigilance of the company. The question to be considered as between the seller and buyer is, What is the fact? Is the water fit for use? The same question is also to be investigated by the court on behalf of the public. Is the compauy meeting the objects of its organization and discharging its duty to the state by fairly serving the public use to which it is required to minister? If this question must be answered in the negative then the remedy is to order the company to render better service, and to suspend its right to collect rents until water is furnished that can be used with reasonable safety to its customers. If it shall be determined that the defendant and the public are alike remediless, and that the pollution of the stream must go [505] on without check or regulation by the courts, just so long as it may suit the landowners to pump salt water into it, the result will be the practical confiscation of the entire plant of the water company, and of the natural water supply for ten thousand people, for the benefit of a few persons. In this event the company may be compelled by its own business necessities to elect whether it will go out of business or seek some new and independent source of supply. This is a question which, if the necessity arises the company must settle for itself. The court cannot make the election for it. Whether it shall move some eighteen miles to the Allegheny river at an expense probably twice as great as the amount of its capital stock, is a question with which the court has absolutely nothing to do. The court may say “the water you furnish is.unfit for use. You shall not collect pay for that which has no value.” But it cannot point out a possible supply at some other point and say “ you must let go your present source of supply and remove to that which we point out.” This disposes of the second question raised by this appeal and distinguishes between the discretion conferred upon the court by the act of 1874 and the business discretion of the owners of the plant of the water company. The company may select the source of supply, may determine a system of collection and distribution, a mode of storage, and control generally the business details. The court may investigate the efficiency of the system and the quantity and quality of the water furnished, and make such order as may be necessary and just for the protection of the public. We cannot resist the impression that the learned judge took a somewhat harsh and uncharitable view of the conduct of the water company. The pressing evil from which the public suffered was the destruction of the water supply by the oil operators. This the defendant could only correct through the action of the court below, which it had invoked and the result of which it must necessarily abide. Its own investment of $100,000, its business, and in a practical sense its franchises were all at stake. It had nothing to make but much to lose by temporizing, and we can readily understand how, without the assistance of the court, the officers of the company might feel that there was nothing they could do to save the public or themselves from heavy loss. Any temporary expedient may well have seemed to them a useless [506] expenditure of money, so long as the pumps were pouring out a continuous stream of water loaded with salt and other injurious minerals into the source of supply. But if it be assumed that the officers of the company intended no disrespect or insubordination, but did in good faith all, or more than the court should have required of them, still the fact remains that the water had been polluted and was clearly unfit for use. That they were unable to remedy this condition or to furnish what their patrons had a right to expect and demand. They had no equitable right therefore to collect pay for what they did not and could not supply. So much of the decree as directed the company to furnish reasonably pure water is a mere declaration of the defendants’ legal duty ; so much of it as enjoins the collection of rents for water that cannot be used is an appropriate method for compelling the discharge of that duty and for the protection of the public meantime. The decree must be affirmed at the costs of the appellant.