Consolidated Water Supply Co. v. State Hospital for Criminal Insane

Opinion by Kephart, J., The Delaware & Hudson Canal Company owned many large tracts of land contiguous to each other in the Counties of Wayne and Luzerne (now Lackawanna). A stream of water, called Racket Brook, had its source on one of these tracts, and it flowed across several of them. The canal company, prior to 1867, erected on its lands three reservoirs. No. 7, the upper reservoir, and No. 4, the second reservoir, were located on the stream, on different pieces of land, some distance apart. The third — 619 — reservoir was located a considerable distance away from the stream on the Porter tract. The waters of the stream were taken from lower reservoir No. 4 by a feeder or canal tO' the Porter reservoir. The water from all reservoirs was used for the purpose of supplying the machine shop and railroad shops of the canal company and Joseph Benjamin & Company. In 1867 the canal company made a lease to the Crystal Lake Water Company, appellee’s predecessor in title. This lease provided that water from Racket Brook was to be taken through the canal or feeder to the Porter reservoir, to be used for supplying the shops and machinery of the canal company, Joseph Benjamin & Company, and the City of Carbon-dale. The lease granted “the right to take and make use of the water of said Racket Brook for supplying water to said reservoir so far as the rights so to do are now vested in the said party of the first part” (the canal company). Subsequent to this date, in 1869, the canal company conveyed a tract of land to Francis Wolcott, on which was erected reservoir No. 7. In this grant the canal company reserved the right to maintain the reservoir to any height that they might desire, to overflow the grantee’s lands, and to draw off, take and use the water from said reservoir at its discretion. This appellant was duly created by act approved May 11, 1905, and on February 19, 1907, the Delaware & Hudson Company, formerly the canal company, conveyed to the Commonwealth two tracts of land, one containing 449 acres and the other 164 acres, upon which a hospital for the insane was erected, and the institution is now and has been for some time in full operation. On May 27, 1912, the Delaware & Hudson Company remised and released to the appellant several tracts of land, one being the right, title and privilege of the grantor to reservoir No. 7. This latter conveyance excepted and reserved “the flowage rights, such rights, if any as may have heretofore been leased by the party of the first part hereof, to the Crystal Lake Water Company.” The appellant — 620 — proceeded to take water from this reservoir for the use and purposes of the institution. An action of trespass was instituted, wherein the parties agreed, through a case stated, on the facts as above outlined. The case in its final analysis, concerns the extent of the grant made to the State institution, the estate, property or right conveyed thereby, and the character of the use that could be made of the waters by the appellant as it affected the appéllee. A short discussion of some general principles will aid in the solution of the case. The ownership of riparian lands does not include ownership of the water which flows in natural channels over or past it. The owner, as an incident or right in the land, or as a property right, may make reasonable use thereof; for domestic and like purposes the owner may consume the entire flow of the Stream, if necessary. The use for extraordinary purposes should be such as will not sensibly or materially diminish the quantity or impair the quality to the lower riparian owner, or, as stated in some jurisdictions, it should be such use as will not prejudicially affect the lower riparian .owner: Irving v. Media Boro., 10 Pa. Superior Ct. 132; Philadelphia & Reading Railroad Co. v. Pottsville Water Co., 182 Pa. 418. Mr. Justice Elkin, in Scranton G. & W. Co. v. Del., L. & W. R. R., 240 Pa. 604-610, states the rule in part, that the use does not include the right to sell the water for general use, nor to divert it, and when used either for ordinary or extraordinary purposes, the use must be made on the riparián land. But an absolute ownership of all the water of a stream may be acquired by prescription, Strickler v. Todd, 10 S. & R. 63, and when one who owns the fee grants to a nonriparian owner the entire flow of the stream as it passes over the land, an upper riparian owner, who is in no way affected by the use under the grant, may not complain. The lessor, the Delaware & Hudson Canal Company, could not, as against riparian rights in other lands, grant to its lessee the right to take all the water from the stream. If such a grant was at — 621 — tempted, it was effective as against other riparian owners only to convey the riparian rights of the grantor as they belonged to the property upon which the right existed. Such use must be made on the riparian land, and when, as in this case, the water was to be taken some distance, and used for nonriparian purposes, such grant, as against one lawfully complaining, was of no legal effect. But a mere intruder or trespasser could not complain, nor could the appellant, as an upper riparian owner, object either to the conveyance or to the use thus made or contemplated by the agreement. Nothing could be done under the lease that would curtail any right that might exist in the appellant to use the water for purposes authorized by law. But when an action is instituted by such grantee or lessee to recover from an upper riparian owner for his diversion of the water, such lower owner sustains the cause of action under the grant only so far as the riparian rights of its grantor will permit. Under the lease it cannot maintain a right to all the water, assuming that it was the intention to thus convey, unless the appellant, as a successor in title from a common grantor, is precluded from asserting any right under its deed. Nor can it assert a title by prescription to the waters of the stream, assuming that its right thereunder is complete, as it will not prevail as against the upper owner (the appellant) unless the use was exercised over the appellant’s grant. A mere nonuser of water rights by the upper owner will not enure to' the benefit of the lower riparian owner’s prescriptive title or riparian right. There must be some notorious act, injuriously affecting the upper riparian owner on his land, hostile, adverse and continuous, before the lower riparian owner could acquire a title by prescription to the upper riparian rights: Hoy v. Sterrett, 2 Watts 327; Hartzell v. Sill, 12 Pa. 248. The case stated presents no facts sustaining such title. Of course a claim under any of these rights would he sufficient to enable the owner thereof to complain and prevent any illegal diversion, trespass — 622 — or some act committed by an intruder; but to sustain a claim for the use of water against the upper property owner, who has full riparian rights, or against one who owns such rights, it must appear that the lower owner has suffered some injury, in that the stream has been sensibly or materially diminished in its flow. Such facts do not appear. The appellee states in his argument that “the quantity of water taken is immaterial; it is the invasion of a right which this action is brought to prevent.” We view the question of damage as a most essential element of its case, for if the appellant, in the use of the water, did not exceed the rights conveyed to it, the appellee would have no cause of action. The appellee urges that it was the intention of the lease to convey all of the waters of Racket Brook and did affect all the lands owned by the canal company, over and through which it flowed. It must be remembered that the common grantor owned many tracts of land. It is apparent from the map that its holdings covered a large territory. The property right created because a stream of water passes over a tract of land appertains to all the land bordering on the stream, the title to which is in the riparian owner. The owner of such rights may grant them away, and by so doing deprive the successor in title of their benefit; but the grant cannot be enlarged beyond the scope wherein it was intended to operate, and be made to include other lands apparently separate and independent. When a conveyance is made of the right to take and make use of the water of a stream which flows through a tract of land, and the stream flows through other tracts of land owned by the same grantor, such grant cannot be made to include the riparian rights on such other tracts of land, though they are contiguous, unless the intention be clearly expressed in the instrument conveying the right; or-if, in the exercise of the rights granted, an interference with such riparian rights must follow; or if there be such use of; all the owner’s holdings as one piece or tract of land that it could be — 623 — said from the grant that it was the intention to affect all the land. None of these circumstances are apparent in this case, and it is evident from a consideration of all the facts that the grantor did not intend by its conveyance to the water company to lease the right to use the water from the reservoir now owned by the appellant. This is emphasized by the fact that at the tinffi the lease was made the lessor was then in the possession and use of the upper reservoir, and that it subsequently in 1869, by deed to Wolcott above referred to, reserved the right to and did use the water from the reservoir, and it further conveyed whatever rights it had to this appellant. The lease to the appellee fixes the place where the water was to be taken from the stream by locating the canal or feeder on the ground, and the facts disclosed in the case stated, with the map attached, show that the land affected was not the same piece as that on which No. 7 reservoir is located. However great appellee’s right may be by prescription or grant, as to riparian owners below, the appellant as an upper riparian owner was not affected thereby. We do not consider the reservation in the deed from the railroad company to the Commonwealth as being sufficient to place the title to the water rights at No. 7 reservoir in the appellee. This reservation was placed in the deed to the Commonwealth as a precaution against what might have been a questionable title. It did not serve to enlarge the appellees grant. The riparian rights as they existed on the stream prior to 1867, when the reservoir was built, with such rights as may have been owned by the canal company at the time of the lease, by the impounding of the water and subsequent prescriptive use, were conveyed to the appellant. Nor are we convinced that the appellant exceeded any right now owned by it in its use of the water. From the nature of the grant and the use made, from the physical connection of the asylum properties, without any further information than that contained in the case stated, the facts in this case are easily distinguishable — 624 — from those in Scranton G. & E. Co. v. Del., L. & W. R. R., supra. We cannot say that the land served by the appellant was not riparian land within the meaning of that term, or that the use of the water was greater than that sold to the Commonwealth. The judgment is therefore reversed.