Clark v. Penna. R. Co.

Opinion, Mr. Justice Clark: The plaintiffs, Paul Clark and others, own one hundred and twenty acres of land, near the western base of Laurel Hill, in Westmoreland county, along the line of the Pennsylvania railroad, and above the town of New Florence. A small stream of water ran through this land, with such a fall as to form the site for a water power for a mill, and a grist-mill had many years ago been erected, which, by an overshot wheel, was propelled by the water of this stream until about the year 1872, when the mill was abandoned, and has since that time been suffered to go to decay and ruin. At the institution of this suit, and for six years prior to that time, it is conceded there was no mill or other structure erected on this site, suitable for operation for any useful or profitable purpose; nor, during that period was there any effort to operate a mill, or use the water power for any purpose whatsoever. The Pennsylvania Railroad Company, as early as 1853, under some agreement with the widow of the plaintiffs’ predecessor in title, began to divert the water of this stream through a three-inch pipe, from what is known as the Hull dam, which was on the adjoining tract above, owned by the railroad com [449] pany, to its water station at New Florence. About the year 1870 it increased the capacity of the pipe to four inches, and in 1883 to six inches. ■ This suit was brought in 1887, not to recover for any injury to the mill, or to the operation of the mill, for, within the period of the statute of limitations, there was no mill to operate, but for damages to the mill site or water power caused by the defendant’s diversion of the water. The rule of law is uniform and undoubted that every riparian owner is entitled, as an incident to. his land, to the natural flow of the water of a stream running through it, undiminished in quantity and unimpaired in quality, subject to the reasonable use of the water by those similarly entitled, for the ordinary purposes of life; and any sensible or essential interference therewith, if wrongful, whether attended with actual damage or not, is actionable: Mayor v. Commissioners, 7 Pa. 363; Philadelphia v. Collins, 68 Pa. 116. This principle applies to some extent whether the stream is public or private: Haupt’s App., 125 Pa. 224; Lord v. Water Co., 135 Pa. 130. The size and capacity of the stream is, of course, in all cases of this kind, to be considered: Miller v. Miller, 9 Pa. 74. “Every riparian owner,” says our Brother Paxson, in Penna. R. Co. v. Miller, 112 Pa. 41, “ has the right to use the water of the stream passing over his land, for ordinary domestic purposes; and if the stream be so small that his cattle drink it all up, while it may be a loss to the lower riparian owner, it is damnum absque injuria. 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 land, it is different; ” in such case he has only the right, as against a lower proprietor, to use so much of the stream as will not materially or sensibly diminish its quantity: Wheatley v. Chrisman, 24 Pa. 298. The stream in question, although steady, was small; and it is alleged that the six-inch pipe so impoverished the flow of water as to destroy its utility as a water power. The defendant company, as a riparian owner merely, had no right to divert the water from its natural channel, to' the prejudice of the rights of others below it on the stream. If the amount of water required to supply its locomotives at this point, and di [450] verted by it from the channel of the stream, sensibly or materially diminished the flow, it was bound to buy it, or subject itself to an action for an excessive use or diversion of the water. No matter what were the necessities of the defendant’s business, it had no right to convey the water out of its course, to the prejudice of the plaintiffs’ rights: Haupt’s App., 125 Pa. 211. We do not understand the defendant to deny that the plaintiffs, under the proofs, are entitled to'a verdict for nominal damages. The principle is well established that a diversion of the water of a stream, even without actual injury to a lower riparian owner, legally imports damage, because it is an infringement of a right: Angelí on Water-courses, 185. Every injury imports damage, and if no other damage be established, the party is entitled to nominal damages. “ This principle, moreover, applies more strongly,” says the same author, page 591, M where there is a violation of the plaintiff’s right; but the defendant’s act, if continued, may become the foundation, by lapse of time, of an adverse right, and hence actual, perceptible damage is not indispensable as the foundation of an action. ” Any trespass or nuisance which infringes upon the rights of the plaintiff, or which would abridge his present or potential use of his property, will justify an action, although it cause no present actual damage: Gould on Waters, 401-404, and cases there cited. There is an obvious distinction between the proper use of a stream by a riparian owner, which, although it necessarily modifies the flow, infringes no right of other proprietors, and one which infringes their rights, although it may cause no damage: Miller v. Miller, 9 Pa. 74; Del. etc. Canal Co. v. Torrey, 33 Pa. 143; Graver v. Sholl, 42 Pa. 58. But what evidence was there to justify a recovery of special damages? The plaintiffs, as we have said, had no mill' or other means of using or applying the water power. They had an abundance of water in the stream for all the purposes to which they applied it, or sought to apply it; and it is difficult, in this view of the case, to see how they could have suffered any special damage. If they had it in contemplation to erect a mill, they could have vindicated their right by successive actions of trespass; or, after establishing their right at law, if it were at all disputed they might have enjoined its invasion by [451] proceedings in equity. They might perhaps have laid grounds for special damages, by giving notice of their purpose to avail themselves of the water power. The plaintiffs’ theory as to special damages goes upon the apparent assumption that the defendant has appropriated something which was theirs, and for which he should pay the price. But the plaintiffs did not own the water which ran through the defendant’s pipe; indeed, it was diverted from its course before it reached the plaintiffs’ land, and the plaintiffs could in no sense be said to have any title to the water. As riparian owners, they had the right, as we have said, to have the water of this stream run through their land in its natural channel, without any material impairment of its flow. They had a right to the use of the stream as an incident to the land for ordinary purposes, and also for any extraordinary purpose to which they might choose to apply it, provided such extraordinary use did not materially diminish its quantity or impair its quality. They might have chosen to erect a mill, or to lease the site to some other person to erect a mill; and in either case, upon notice from the plaintiffs, the railroad company would have been obliged to cease the diversion of the water or be subject to a claim for special damage; but, as long as the diversion of the water did not do them any actual injury, they had no claim for special damages. The company was of course at all times liable to an action in vindication of the plaintiffs’ right, but not for the recovery of actual damage until an actual injury was done. The mill site was of no use to the plaintiffs, or to a lessee, or to any other person in the absence of a mill, or other useful mechanical construction to which the water might be applied; and until such a structure was erected, or proposed to be erected, how could the diversion of the water cause actual injury ? Had the diversion ceased, and the full flow of the water been restored, how could that have profited the plaintiffs ? They had no means of utilizing the water, and therefore they suffered no actual loss from its diversion. If the plaintiffs had owned the water, they would be entitled to recover its value, but they were only entitled to the use of it as it passed through their property. It is said that they might have leased or rented the water power, and the rental value is therefore the proper measure of [452] damages; but the use of the mill site, either by the owners, or a tenant or lessee of the plaintiffs, is dependent wholly upon the construction of a mill, and it is extremely improbable that a lessee would undertake the expenditure upon a mere tenancy from year to year. The estimated annual value of the mill site, as such, and independent of the land,’ is fanciful, conjectural, and speculative, for it is based upon its value as applied to some sort of a mill. It was variously spoken of by the witnesses as a suitable site for a grist-mill, or a saw-mill, for a sash and door factory, for a coach or wagon factory, or for a woolen factory; but all these suggestions of annual rental value are made upon the assumption that a mill, factory, or other structure would be built, in order to utilize the advantages which the site offers. The true rule in such a case is to estimate the damages sustained from the diversion of the water, in the use of the land for the purposes for which for the time the land was used, or for which it would have been used, but for the refusal of the defendent on due notice to remove the pipe. The injury received, if any, was not to the mill site, for there was no mill, and the site was useless without a mill. It was to the tract as a whole. It was competent, therefore, for the plaintiffs to introduce evidence to show any actual injury they suffered, within the period of the statute, in the enjoyment of their land from the diversion of the water; and, as a means of computation, they might show that the annual rental value of the land was from this cause reduced, but the annual rental value of the mill site is necessarily speculative, and therefore inadmissible. Nor was' it competent to admit any estimate of annual rental value, made upon the basis of a sale or diversion of the water, for the water does not belong to the plaintiffs. As riparian owners, they were entitled merely to the use of it, as it passed through their property. The judgment is reversed, and a venire facias de novo awarded.