Appeal of Haupt
| Decision Date | 08 April 1889 |
| Docket Number | 16 |
| Citation | 125 Pa. 211,17 A. 436 |
| Parties | APPEAL OF FRANK HAUPT ET AL. v. F.S. & J. HAUPT.] [THE BOROUGH OF ASHLAND |
| Court | Pennsylvania Supreme Court |
Argued February 18, 1889
FROM THE DECREE OF THE COURT OF COMMON PLEAS OF SCHUYLKILL COUNTY IN EQUITY.
No. 16 July Term 1887, Sup. Ct.; court below, No. 6 July Term 1882 C.P.
On May 16, 1882, a bill in equity was filed by the borough of Ashland against Frank S. Haupt and John Haupt, praying for an injunction to restrain the defendants from interfering with the water supply of the borough. The bill set out:
1. Incorporation of the borough of Ashland under the provisions of the act of February 13, 1857, P.L. 36, its population at 7000, and the existence of manufacturing interests within its limits.
2. The purchase by complainant in 1876 of a tract of 10 acres of land in Butler township, through which the Little Mahanoy creek flows, the construction of a dam on the land, and an appropriation and conveyance of water by pipes from the dam to Ashland, a distance of six miles, at the cost of $63,000.
3. That the inhabitants and manufacturers of Ashland are largely dependent on the water so supplied, and that it is necessary for public purposes.
4. That respondents, without legislative grant or franchise, are about to make provision by pumps, pipe, etc., to supply Frackville with water from the Little Mahanoy creek above the dam of complainant, which will irreparably injure the water-works of complainants and endanger the safety and comfort of the inhabitants of Ashland.
5. That the quantity of water flowing in the Little Mahanoy creek in dry seasons is not more than is needed by Ashland.
6. That defendants have tendered no compensation for the damages which diverting the stream as complained will occasion.
An answer was filed, which acknowledged the purchase of the ten acres of land by the borough of Ashland, but denied that the water works were constructed in pursuance of any law, or that said borough could appropriate the water of the Little Mahanoy creek. The answer further alleged that the defendants were tenants in common of part of the land upon which the borough of Frackville was built; that the borough contained about 1700 inhabitants who were dependent upon the Little Mahanoy creek for water for domestic purposes; that the water had theretofore been carried by them from the creek, and the purpose of defendants was to convey it by pumping it into a reservoir from which it could be distributed. The answer further alleged the right of the defendants to do this, irrespective of any damage to Ashland, but denied that any damage would result to said borough.
Issue having been joined, the cause was referred to Mr. D. C. Henning, as examiner and master. The facts found by him are fully stated in the opinions of the court below and of the Supreme Court.
In October 1886, after having taken a large amount of testimony, the master filed his report, sustaining the bill and recommending an injunction as prayed, basing his recommendation chiefly on the ground of the interference with the plaintiff's riparian rights which would result from the defendant's works. On November 1, 1886, the Mountain City Water Company, a private corporation which had succeeded to the rights and appliances of the defendants, filed a petition asking to come in as a party defendant, and the court made an order accordingly.
Exceptions filed to the master's report, after argument, were disposed of by the court, March 7, 1887, in the following opinion by GREEN, J.:
The defendants have filed exceptions to the report of the master, and they have been argued at great length before me. It is not necessary that they should be reviewed seriatim.
The question at issue is a most important one, and involves the interests of thousands of people. It affects the water supply of the borough of Ashland, after an expenditure of between $60,000 and $70,000, in the erection of a reservoir and in laying the pipes to carry the water into the town. A vast amount of testimony has been taken, making a book of more than 350 pages of printed matter, and the master has made an able and elaborate report.
The facts found by him, briefly stated are as follows: The borough of Ashland was incorporated by act of assembly of February 13, 1857, and contains a population of between seven and eight thousand. The act of incorporation conferred upon it all the powers and privileges given under the general borough law of 1851; among others, the right to provide a supply of water for the use of the inhabitants. In 1876 a tract of land lying on the Little Mahanoy creek was purchased by the borough, and a dam or reservoir was constructed for the purpose of retaining the water. From this point trenches were dug and pipes laid a distance of about six miles to the borough, where it is in general use for domestic and manufacturing purposes. There is no other general supply. The amount of money expended by the borough was about $63,000.
The defendants are the owners of a tract of land, known as the James Stephens tract, upon the same stream, near the head waters, and about a mile and a half above the reservoir of the plaintiff, and lying wholly or partly within the limits of the borough of Frackville. They have sold a large number of lots to different persons, on which houses have been erected, and the town of Frackville has become a place of considerable population. None of the lots sold lie on the stream, but are located upon much higher ground. For the purpose of supplying these lot owners and other residents of Frackville with water from this stream, the defendants commenced the building of a reservoir and laying of pipe. The water was to be forced up to a reservoir located upon high ground, by means of a steam power, and be from thence distributed to those who were willing to pay the defendants for its use. It was a private enterprise in which the defendants were engaged. The Little Mahanoy creek is but a small stream, and the master finds that in certain portions of the year, during the summer and dry seasons, there is not more than sufficient to supply the wants of the inhabitants of Ashland. The defendants, when notified to stop their operations, refused, claiming the right to use the water for the purpose aforesaid, and denying any superior right in plaintiffs to divert the water for the uses of the borough of Ashland. Thereupon this bill was brought for the purpose of restraining the defendants from carrying out their intention. These are the main facts of the case as found by the master, and from which he draws the following conclusions of law:
1. That the plaintiff, in its purpose of providing a supply of water, had the right, under the law, to purchase the tract of land on the Little Mahanoy creek and to build a reservior and water-works, even though the tract of land was outside the borough limits, being about six miles distant therefrom.
2. That by reason of the ownership of said tract the borough acquired the rights of a riparian owner, and that the relationship of upper and lower riparian owners existed between the defendants and plaintiff in May, 1882, when the bill was filed.
3. That the appropriation and diversion of this stream by the plaintiff could work no injury to any one but the lower riparian owners; therefore defendants could not complain of such diversion.
4. That the defendants have all the rights of upper riparian owners, the same not having been extinguished by purchase of the plaintiff, but that these rights do not extend to the erection of water-works and furnishing water to those who are not riparian owners, to the detriment of the lower riparian owners.
5. That defendants can claim no compensation, because they have been deprived of none of their rights to the use of the water.
6. That the stream not being large enough to accommodate both parties, and the plaintiff having used all reasonable appliances, and having employed the best of professional skill to prevent the leakage and waste of water, it follows that the plaintiff has shown the better right, and that the defendants must be enjoined from their proposed illegal use of the water.
The master has discussed these different propositions at length and with great ability, and has cited numerous authorities to sustain his conclusions. Whilst not dissenting from the conclusions to which the master has come, I cannot but think that he has placed the rights of the borough of Ashland upon entirely too narrow a foundation. It might work serious injury to the borough, if it only acquired the rights of a riparian owner, when it bought the tract of land and erected its water-works at an expense of upwards of sixty thousand dollars. As it strikes me, after considerable reflection, the question in this case does not turn upon the fact whether the borough of Ashland has acquired the rights of a riparian owner, and, therefore, only liable to the infra riparian owners for any diversion of the stream to supply the wants of the inhabitants of Ashland. Its right as a riparian owner would not authorize such diversion of the water, and the infra riparian owners would not be bound to accept compensation for the relinquishment of their rights to the use of the water. They might insist that the water should not be diverted, and might harass and annoy the borough by suit after suit, until the water was restored again to its original channel. Nor would the rights of the supra riparian owners be in any wise changed by reason of such diversion, if the borough has no larger right than that of a riparian owner; and if they should also divert the water to the injury of the borough, the question as to the injury, might turn upon the injury done to the borough as a...
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