Bitting's Appeal

• Decision Date: 24 March 1884
• Citation: 105 Pa. 517
• Parties: Bitting's Appeal.
• Court: Pennsylvania Supreme Court

105 Pa. 517

Bitting's Appeal.

Supreme Court of Pennsylvania.

March 4, 1884.

March 24, 1884.

March 4, 1884.

Before MERCUR, C. J., GORDON, PAXSON, TRUNKEY, STERRETT, GREEN and CLARK, JJ.

APPEAL from the Court of Common Pleas of Berks county: In Equity: Of January Term, 1883, No. 180.

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H. Willis Bland and Henry C. G. Reber for the appellants. The demurrer admits the complainants' title to the water-right, held in grant, as set forth in the bill; a prior adjudication upon the legal title is therefore unnecessary in order to give the complainant a status to invoke the well established equitable jurisdiction by injunction to restrain the disturbance of water rights: Mitford & Tyler's Pl. and Pr., in Equity, pp., 305 — 6; 1 Daniel Chancery Pl. and Pr. (Perkin's ed.), p., 565 — 566; Story's Equity Pleadings, § 452.

The statutory equitable jurisdiction of the Common Pleas is ample to include the powers which have always been exercised by Courts of Chancery. Acts of June 13, 1836, February 14, 1857. Equitable jurisdiction in this class of cases (disturbance of water-right) is ancient and established. It is founded upon the pressing necessity of immediate relief being granted where, in the absence of such relief, permanent mischief and lasting injury might result, and also rests upon the necessity of preventing multiplicity of suits; High on Injunctions, sect. 502 (1st ed.); Lyon v. McLaughlin, 32 Vermont, 423; Corning v. Troy, etc., 40 N. Y., 191; Webb v. The Portland Manufacturing Company, 3 Summer, 190; Tyler v. Wilkinson, 4 Mason, 400; Townsend v. McDonald, 2 Kernan, 381; 2 Story Equity, §§ 801, 926-7; Angell on Water Courses, sect. 449, 450; Gardner v. The Trustees of Newburgh, 2 John. Ch., 162; Tuolumne, etc. v. Chapman, 8 Cal., 392; Gardener v. Newburgh, 2 Johnson's Chan. R., 164; Finch v. Resbridger, 2 Vernon, 390; Bush v. Western, Precedents in Chancery, 530; Anon., 1 Vern., 120; East India Company v. Sandys, 1 Vernon, 127; Hills v. University of Oxford, 1 Vernon, 275; Anon., 1 Vesey, 476; Anon., 2 Vesey, 414; Whitchurch v. Hide, 2 Atk., 392; 2 Vesey, 453; Attorney General v. Nichol, 16 Vesey, 338.

The adverse use of the water of an artificial water course for twenty years, confers a right to the enjoyment thereof in the same manner, and to the same extent, as would have been the case if the water had flowed in a natural channel: Magor v. Chadwick, 11 Ad. & El., 571; Washburn on Easements (3d ed.), 389-393, 394-397; Beeston v. Weate, 5 El. & Black., 986; Watkins v. Peck, 13 N. Hamp., 370; Wheatley v. Chrisman, 12 Harris, 302; City of Reading v. Althouse, 12 Norris, 400.

George F. Baer (C. H. Schaeffer with him), for the appellee. —The injury complained of is not irreparable by damages at law: Pinchin v. London & Blackwall R. R. Co., 5 D. M. & G., 860; Wheatley v. Chrisman, 12 Harris, 298. There being no irreparable injury, equity will not interfere by injunction until the plaintiff has established his rights by his action at law: Bliss v. Kennedy, 43 Ill., 67; Norris v. Hill, 1 Mich., 202; Reid v. Gifford, 6 John. Ch., 19; Rhea v. Forsyth, 1 Wright, 503; Schlecht's Appeal, 10 Smith, 172; Pfeltz v. Pfeltz, 14 Md., 376; Tomlinson v. Rubio, 16 Cal., 202; Tevis v. Ellis, 25 Cal., 515; White v. Booth, 7 Vermont, 131; Shields v. Arndt, 3 Green Ch., 234; Caldwell v. Knott, 10 Yerger, 209; Hart v. Mayor of Albany, 3 Paige, 213; Biddle v. Ash, 2 Ashmead, 211; Story on Eq. Pleading, 473.

Mr. Justice GORDON delivered the opinion of the court, March 24, 1884.

The effect of the demurrer was to admit all the material allegations of the plaintiff's bill. Such being the case, the right of the plaintiffs to have and use, for the purposes of irrigation, the waters of Angelica Creek, through the race or races on the north side thereof, every sixth and seventh day of the week, from the 1st of April until the 15th of August, in each and every year, as well as the right of entry on the lands formerly of Jacob Kurtz, now of the defendant, at the times mentioned, for the purpose of opening the gates or sluices necessary to turn the water upon their meadows, has been fully established.

For the same reason, also, we must take as admitted the fact that the defendant has prevented the exercise of the plaintiffs' right by refusing them the water, as above described, and by adopting such measures as are intended to prevent such use in the future. There being thus no dispute over the facts of the case, or about the rights of the plaintiffs, we have for answer but the single question, whether a court of equity will interfere to prevent a wrong of this kind, or whether the remedy is to be found only in a court of law? We are inclined to think that the answer to this proposition is not at all difficult, and for it we need go no farther than the 13th section of the Act of June 13, 1836, which Act, with the subsequent one of February 14, 1857, clothes the Courts of Common Pleas with equity powers. The 5th placitum of the section cited, empowers the courts therein mentioned to prevent or restrain the commission or continuance of acts contrary to law, and prejudicial to the interests of the community, or the rights of individuals. The power here conferred is very extensive; it is, indeed, hard to conceive how it could be made more general, and whilst we agree that it is nevertheless limited to those cases where there is no specific or adequate legal remedy, we must hold that the case in hand is one falling within both the letter and spirit of the statute. The plaintiffs have a valuable and continuing right in the...