Wagner v. Purity Water Co.

Opinion by Henderson, J., This is an action of trespass brought by the plaintiff to recover damages for the impairment of the water supply of his gristmill caused by the diversion of a part of the water naturally flowing into his mill pond, to a reservoir constructed by the defendant in connection with its system of pipes. The defendant is a corporation organized under the Act of April 29, 1874, P. L. 73, to furnish water to the public. In furtherance of its plans it constructed a small dam on a stream flowing into the plaintiff’s pond and diverted water through a pipe to its reservoir. The effect of this as claimed by the plaintiff was that for about four months in the summer and early fall the water at the mill [504] was insufficient as a consequence of which he was compelled to introduce steam power for use during suchperiods. The defendant did not institute proceedings to condemn the plaintiff’s water right nor does it appear that any effort was made to secure an agreement with him for compensation or that there was any failure to so agree. The company proceeded either on the assumption that the quantity of water withdrawn from the stream would not affect the mill or that, because it had the right of eminent domain, it was not necessary to do more than take what it wanted, leaving the party injured to such redress as he might be entitled to. The fact of the taking of the water is not denied and the verdict shows that the result of the taking was injurious to the plaintiff. The defendant says, however, that the only remedy of an owner under such circumstances is a proceeding for the assessment of damages through the appointment of viewers and that, in this case, the plaintiff is without right because he was not the owner of the premises at the time the pipe was laid which carried off the water. That a riparian owner might maintain trespass-for the wrongful appropriation .of a stream by a water company was expressly decided in Lord v. Water Co., 135 Pa. 122. That was the case of a water company incorporated under the act of 1874 purchasing a spring, the outflow of which was through the land of the plaintiff. The water was diverted to the defendant’s reservoir for use in supplying water to the patrons of the company. The action was trespass and the decision was that the right of eminent domain with which the company was invested must be exercised according to law and that the appropriation of the spring without such precedent condemnation was illegal. Such was also the decision in Ganster v. Electric Co., 214 Pa. 628. The same question arose in Standard Plate Glass Co. v. Water Co., 5 Pa. Superior Ct. 563. In that case the water company was organized under the act of 1874, and the action was trespass by a lower riparian owner. In the opinion filed by the president of this court the subject is [505] fully and convincingly discussed, and a restatement of the argument and citation of authorities would be a profitless repetition. There is a class of cases in which damages were recovered for a permanent injury by agreement of the parties as in Mengell’s Exrs. v. Mohnsville Water Co., 224 Pa. 120; and another class in which the injury resulted from a occupancy of land for railway or other permanent purpose as in Thompson v. Traction Co., 181 Pa. 131, but the verdict depended in the first class on the agreement of the parties to treat the appropriation as permanent and in the other on the permanent nature of the use. The case we have before us is not in either class. It did not necessarily follow from the use which the defendant made of the water that the plaintiff’s power would be diminished, and as a matter of fact it was only so diminished during a part of the year. There was no notice to the plaintiff in the adoption of the plan by the defendant that the former’s property would be damaged. The company did not enter on his land nor engage in any act which necessarily implied that he would be subjected to injury. It was evident to an observer that the defendant did not propose to take all of the water from the stream, and what quantity it would take to the prejudice of the plaintiff could only be ascertained as the business was developed. Moreover, it might at any time reduce the amount taken or discontinue the use entirely during the summer months when the water was low in the stream. The act was not of such a permanent character, therefore, as to justify the assumption that it was to be perpetual and to authorize the assessment of damages accordingly. A permanent injury will not be presumed, and the plaintiff could only recover damages on that theory on proof that his property was permanently injured or that the condition complained of is reasonably certain to be permanent: Hoober v. New Holland Water Co., 43 Pa. Superior Ct. 262. The contention that the plaintiff has not a right of action because the trespass was committed before he purchased the property is answered by Standard Plate Glass Co. v. [506] Water Co., 5 Pa. Superior Ct. 563. If there had been a condemnation of the property or a permanent appropriation by agreement with the former owner it may be assumed that the right to damages would have been in the latter, but the evidence does not supply the facts to support this position. The trespass was recurrent and out of each act of impairment of the water right arose a cause of action. When Fisher sold to Wagner, the riparian rights of the former passed to the latter. It follows that the plaintiff may maintain an action to recover damages caused by the diversion of the water for the period complained of, notwithstanding the predecessor in title might have maintained an action for the infringement of his right during his ownership. The judgment is affirmed.