Philadelphia & Reading Railroad v. Pottsville Water Co.

Opinion by Mr. Justice Green, It must be conceded that the title of the appellant company was not acquired by an exercise of the right of eminent domain, but by voluntary leases from the owners. Hence it follows clearly, under our well settled decisions, that the right acquired under the leases, having been obtained from a riparian owner, has no greater dignity than the right of the riparian owner himself. It is just as clear that riparian owners have no ownership of running water, no right to divert and sell it to strangers for general use, and are limited in their own use of it to ordinary domestic purposes. A very few of our cases easily determine all matters in controversy here. Thus in Pa. R. R. Co. v. Miller, 112 Pa. 34, it was held that where a railroad company owns the land in fee, through which a stream flows, and it takes water from the stream at a point on its own land, for the purpose of supplying its locomotives, such taking is not under the right of eminent domain, but by virtue of its rights as a riparian owner. The case on its facts was much stronger than the case at bar. The company owned the land in fee through which the stream ran, and they 'only used the water to supply their own locomo [424] tives. They increased the quantity of water to be used for that purpose by erecting an engine on their own land along the edge of the stream and pumping from the pool of the plaintiff’s dam water enough to flow through a six inch pipe, whereas they had only used a four inch pipe prior thereto. The owner of the mill property immediately below on the same stream, complained that the supply of water necessary for his mill was materially diminished, and brought an action to recover damages for his injury, and this Court sustained his right to recover. The same arguments were made there as here, that the company owned the water and the right to use it by virtue of its right of eminent domain, but we held that they did not hold by such a right, but only as riparian owners, and therefore could only use it as such. Paxson, J., delivering the opinion, said, “ It was contended upon the trial below, and it was urged here, that the proceeding should have been by a jury of view under the act of May 16., 1857, and not by a common law action. We do not regard this point as tenable, for the reason that the water was not taken by the company under the right of eminent domain, but by virtue of its right as a riparian owner. As before stated, it owns the land in fee simple at the point where the water is taken, and has precisely the right of every other riparian owner on that stream. It may use the water as other owners use it without responsibility to any one therefor, provided such use is not of a character to injure other riparian owners on the same stream. The principle established by a long line of decisions is that the upper riparian owner has the right to the use of the stream on his land for any legal purpose, provided he returns it to its channel uncorrupted and without any essential diminution; that in all such cases the size and capacity of the stream is to be considered, and that any interruption of, or interference with, the rights of the lower riparian owner is an injury for which an action will lie, unless too trifling for the law to notice.” After stating the general doctrine that a riparian owner has the right to use the water of the stream passing over his land for ordinary domestic purposes, the opinion proceeds, “ But where the upper riparian owner diverts or uses the water, not for ordinary domestic purposes, such as are inseparable to, and necessary for, the use of his land, but for manufacturing or other purposes having no necessary relation to his use of his [425] .land, the case is different. In Wheatly v. Chrisman, supra, it was held that ‘ a proprietor of land over which a stream of water runs, has as against a lower proprietor, the use only of so much of the stream as will not materially diminish its quantity. His right is not to be measured by the reasonable demands of his business.’ ” The principal value of this case is that it determines that when a corporation clothed with the right of eminent domain takes the water of a stream for its corporate use, not by an exercise of its right as such, but by virtue of its right as a riparian owner, it has no other or higher right in the water than an ordinary riparian owner, and it matters not what the needs of its business are for the water so used. In the case at bar the appellant company held its right to the water of the stream in question only by virtue of leases from the riparian owner, Dr. Shannon, and it does not matter in the least that it had an option to buy the land through which the stream runs. If it had actually made the purchase and taken the conveyance in fee simple, it would have been in no better condition in this respect under the decision last cited. Another very forcible illustration of the doctrine is found in the case of Haupt’s Appeal, 125 Pa. 211. There an incorporated borough bought a tract of land through which a creek flowed, constructed a reservoir on the tract and conveyed the water therefrom several miles to the borough, for the use of its inhabitants. Another borough was located about two miles above on the same creek, and certain private parties whose rights were subsequently acquired by a private corporation, started a plant to pump the waters of the stream for the use of the upper borough. The lower borough filed a bill to restrain the pumping and diversion of the water, and we sustained an injunction on the express ground that the lower borough had acquired its rights by an exercise of its right of eminent domain, as well as by a purchase of the land. We said: “ 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 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 [426] bhe 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.” In Lord v. Water Co., 135 Pa. 122, a water company had acquired by purchase an acre of ground upon which there was a strong spring, causing a stream of water to flow from it and over the lands of a lower owner. The water company undertook to divert the water of the spring to supply the inhabitants of Meadville with water for their necessary use. The lower owner brought an action to recover damages for the loss of the water, and recovered a verdict and judgment which we sustained. The water company had the right of eminent domain, but did not exercise it. We said, “ It was conceded upon the argument that the company had the right to divert it (the water) under its power of eminent domain. But it had never exercised such right. To do so involves compensation to those who are or may be injured by such diversion. Compensation was not made, nor security tendered. While a city or borough or a company having the right of eminent domain may take a spring or stream of water to supply a municipality, it can only do so by making compensation to those who are deprived of the use of the water, as provided by the constitution. A taking without compensation is a trespass ; as much so as the taking of land by a railroad company to construct its road without making compensation or filing a bond with security, as provided by law. Where the power to take exists, it must be exercised according to law. If it is not, the corporation so taking becomes a trespasser, and may be proceeded against as such. It is a mistake to assume that the purchase of this acre of land gave the company an absolute right to the spring of water. The water did not pass by the deed beyond its reasonable use by the vendee as a riparian owner.” The foregoing principles were all repeated in Clark v. Railroad Co., 145 Pa. 438, and are not at all in dispute. It remains only to apply them to the facts of this case. The defendant is clothed with the power of eminent domain, and is endeavoring by a strict compliance with the law to exercise its right to supply the citizens of Pottsville with an adequate quantity of water for their consumption. It is met by the claim of the plaintiff to a right to use the water of the stream in question to supply [427] water for tbe use of its locomotives, and this right, they say, will be interfered with, and perhaps destroyed, if the wate^ company is permitted to divert the water of the stream. It claims title to the water under a lease from the riparian owner. Such right as he was able to give it, it holds, but it was not more than the right of a riparian owner, and as such it was liable to be appropriated by the water company in proper proceedings. We cannot see that the plaintiff, which never exercised any right of eminent domain in obtaining the water, holds by any better title than its grantor, and we are therefore of opinion that the learned court below did not err in dissolving the injunction and dismissing the bill. We say nothing as to the right of the plaintiff company to compensation for loss of the water to which it may be entitled, as no such question arises on this record. Decree affirmed and appeal dismissed with costs.