Mayor v. Commissioners, &c.

• Decision Date: 08 February 1847
• Citation: 7 Pa. 348
• Parties: Mayor, &c. <I>v.</I> The Commissioners of SPRING GARDEN.
• Court: Pennsylvania Supreme Court

Page 348

7 Pa. 348

Mayor, &c. v. The Commissioners of SPRING GARDEN.

Supreme Court of Pennsylvania.

February 3, 1847.

February 8, 1847.

Feb. 3—8.

COPYRIGHT MATERIAL OMITTED

COPYRIGHT MATERIAL OMITTED

COPYRIGHT MATERIAL OMITTED

COPYRIGHT MATERIAL OMITTED

COPYRIGHT MATERIAL OMITTED

J. M. Read, for appellants.—The title set up by the city is under the grants to Kennedy and the Navigation Company; it cannot be larger than they were. The former is a mere grant of the use of part of the water-power; and in the very ample privileges bestowed upon the company, there is a careful avoidance of a grant of the corpus of the water. Two distinct rights are granted, both of which would have been included in a grant of the water — the exclusive right of navigation, and the right of selling the water-power, incidentally created by the improvements for the former purpose. The rights of grantees of the latter are cautiously preserved in the event of a forfeiture by the corporation, thus showing a distinct understanding of the separate and distinct character of the two rights from each other, and from the ownership of the water of the river. In the grant by the company in 1824, words of larger import are used than in the prior grants; there water as distinct from water-power is granted, with the privilege of vending it to the adjoining districts. But the company, not owning the water under their charter, had no such right as they granted; it remained as before, common to the use of the riparian owners and citizens of the state. There are three uses of water known to the law: drinking, washing, and the other ordinary purposes of life; 2, water-power for manufacturing purposes; 3, navigation. In Mason v. Hill, 5 Barn. & Ad. 1, Lord Denman lays it down as a rule, common to the law of England and the civil law, that running water is common to all. The same principle is laid down, arguendo, in Shrunk v. Navigation Company, 14 Serg. & Rawle, 71: "the river is common;" so are the fisheries in this river: Carson v. Blazer, 2 Binn. 475, 495; Bird v. Smith, 8 Watts, 434; Shultz on Acq. Rights, 68; 24 L. L. In Martin v. Waddell, 16 Peters, 367, the question arose between the proprietaries and the state; and it was held that the water of the rivers, and the soil under them, remained in the state. In Arnold v. Mundy, 1 Halst. 1, 61, 71, 76, it is said that, by the law of nature, navigable streams are common to all, subject only to laws regulating their use, and cannot be aliened. So it is with the public squares, the right to use which is in all the citizens of the state, though the title is in the city: Commonwealth v. Alburger, 1 Whart. 487. The capacity of the legislature to make such an exclusive grant is denied. It was denied, with respect to streets, by McLane, J., in New Orleans v. United States, 10 Peters, 720; and also in Commissioners v. Kempshall, 26 Wend. 413. The right to this exclusive use must arise, if it can at all, by grant, for being declared a public highway by the act of 1803, (4 Smith, 20,) as it was by our common law, there can be no other mode of acquiring it. The settled rule of construction is against an enlargement; the strictest interpretation is always adopted, to avoid any infringement of the higher common right: Bacon v. Arthur, 4 Watts, 437; Mononghahela v. Coons, 6 Watts & Serg. 101; Act 1841, p. 345. This has always been the rule for construing grants by the sovereign. The distinction between water-power and water is recognised legally in Commonwealth v. Church, 1 Barr, 105, and is known in every day's experience; the power is the momentum of the stream, or weight of the body of water when in the stream, and the right to this does not exclude other rights, or give any authority to remove the water from the stream: Pettee v. Hawes, 13 Pick. 323; Speigelmoyer v. Walter, 3 Watts & Serg. 540; Schuylkill Navigation v. Moore, 2 Whart. 477; Schuylkill Navigation v. Farr, 4 Watts & Serg. 362; Schuylkill Navigation v. Freedley, 6 Whart. 109; Zimmerman v. Union Canal, 1 Watts & Serg. 353; Tyler v. Wilkinson, 4 Mason, 397; Blanchard v. Baker, 8 Greenl. 266; Webb v. Manufacturing Company, 3 Sum. 201; Parker v. Cutler, 7 Shep. 357; French v. Camp, 6 Shep. 433; Boston v. Railroad, 23 Pick. 360; Commonwealth v. Shaw, 14 Serg. & Rawle, 9; Ingersoll's Tract, p. 9; Susquehanna Canal v. Wright, 9 Watts & Serg. 9.

This subject was carefully examined in the legislature, and their report (p. 2) is in accordance with the views here contended for.

This legislature having retained all that had not been granted, have given the respondents the right to draw this water; the power used is steam; not the water-power vested in the city, of which we take none. And they complain, when they are devoid of all authority to erect the works to which the alleged injury is committed. [Per Curiam. — The want of right to erect the works by the city cannot affect their title; the whole question depends on the charter of the Navigation Company, and their grant to the city.] The injury to their right is imperceptible, since not nearly all the waste-water is used. Indeed, there is a saving, since, to raise the quantity required by the districts, there is an expenditure of thirty times as much to obtain the power to raise it to the reservoirs.

The act of 1846 alone remains for consideration. The complainants ask the extraordinary powers of this court to be exercised on their behalf; the legislature have, by the act of 1846, put the county of Philadelphia, in a measure, in the situation of the rest of the state, and merely require an establishment of title prior to the injunction. Such is, doubtless, within the power of the legislature: 9 Watts & Serg. 9; Pollard v. Hagan, 3 How. S. C. 212; U. S. v. New Bedford, 1 W. & Minot, 401.

Olmstead, for appellees.—The question is one of property merely, — whether the legislature granted to the company the right to sell the surplus water, and whether they did sell it to the city, and if so, can any one else take it? It is not whether the inhabitants may use the water for washing and drinking; for the defendants claim no such privilege, but a right to erect machinery driven by any power to raise the water for sale to any one for any purpose. They claim the right to sell the water thus raised for manufacturing purposes, as the report of their water commissioners since this injunction shows they have done — a large portion of their rents being derived from breweries, water-wheels, &c. The history of the causes of controversy is brief. After much expenditure by the city in the preliminary attempts to obtain a supply of water, the present works were finished. In contracting with the districts, it was thought reasonable that an increased payment should be made by them to pay a portion of the debt incurred before the present works were erected, and thus equalized the expense. It was considered that the act of 1843, under the construction contended for, was an illegal interference with vested rights, and that it would be improper to make a concession under such compulsion. When the period had elapsed, the defendants declined to accept the proffered concession.

The title of the city to the water is derived through the legislative grants to Kennedy and the Navigation Company. The consideration we have paid is $150,000 to the former, and to the latter the cost of the dam, &c., the expenses of repairs, damages, and $26,000.

It is now said the state could not grant the water to the company. But the doctrine of this court is, that the Commonwealth is the despotic owner of navigable streams, both of the soil and the water, and that there is no riparian ownership, or any right whatever, beyond low water-mark: Carson v. Blazer, 2 Binn. 475; Commonwealth v. Fisher, 1 Penna. Rep. 465; Shrunk v. The Navigation Company, 14 Serg. & Rawle, 71; 1 Smith, 235; 10 Serg. & Rawle, 234; Bird v. Smith, 8 Watts, 434; Zimmerman v. Canal Company, 1 Watts & Serg. 346; Lehigh v. Lehigh, 4 Rawle, 9; Philadelphia v. Trenton Railroad, 6 Whart. 44; Ball v. Slack, 2 Whart. 539; Ueberoth v. Lehigh, 7 Haz. Reg. 292; Baron v. Arthur, 4 Watts, 439; Atkinson v. Savage, 14 Haz. Reg. 10; Wilson v. Black, 2 Peters, 245; Merritt v. Parker, Coxe, 460.

That the legislature designed to grant the water to the company, is apparent, for they are to use or grant the water-power subject to but one restriction, viz. that the navigation shall not be impeded. The mere use of water-power in the stream could not, in any event, affect the navigation; and, as is shown by Mr. J. Kennedy, the water-power cannot exist without the water: Tyler v. Wilkinson, 4 Mason, 397. If this be not so, the city is in a worse position by its purchases than the defendants, for the Navigation Company may cut off our supply, which they have not the means of doing in the other case.

But the defendants rely on the authority given by the act of 1843. In the proviso of that act is a saving of all the rights granted to the Navigation Company; and, since the act not only authorizes the taking of the water for the purpose of drinking, &c., but also the use of the power which, it is conceded, had been absolutely disposed of, the interpretation of the act must be that the river Schuylkill is excepted, so far as the exercise of the authority would be incompatible with the prior grant. Such is the established effect of a proviso: Commissioners v. Keith, 2 Barr, 219; and the intent was to leave to the courts to decide what would, or would not, be in derogation of the legislative contracts.

Meredith, on the same side.—The object of this suit is not merely the redress of an injury, but to determine whether the city, after the immense expenditure incurred, has acquired any right, and if so, whether it may be continually invaded until it is driven to some other place, or means, for obtaining this necessary of life. In the dealings with the Navigation Company and Kennedy, their claims were...