Borough of Collegeville v. Philadelphia Suburban Water Co.

Decision Date24 May 1954
Citation377 Pa. 636,105 A.2d 722
CourtPennsylvania Supreme Court

Grover C. Ladner, P. Nicholson Wood, Clark Ladner, Fortenbaugh & Young, Philadelphia, for appellants.

Harry F. Stambaugh, Sp. Counsel, Samuel M. Jackson, Deputy Atty. Gen., Frank F. Truscott, Atty. Gen., Robert H. Young, Ernest R. von Starck, W. James MacIntosh, for Commonwealth of Pennsylvania (intervenor).

Morgan, Lewis & Bockius, Philadelphia, High, Swartz, Flynn & Roberts, Norristown, for appellee.


CHIDSEY, Justice.

Nine boroughs, six townships and thirty-eight individuals and corporations brought an action in equity against the Philadelphia Suburban Water Company in the Common Pleas Court of Montgomery County seeking to enjoin the defendant from appropriating and diverting water from the Perkiomen Creek, from erecting a dam across the creek for the creation of a reservoir incident to the proposed taking of water, and from condemning or acquiring by eminent domain or otherwise any water, lands or rights whatsoever within the watershed of the creek for water supply purposes.

The defendant filed preliminary objections asking that the complaint be dismissed on the ground that plaintiffs had failed to exercise or exhaust statutory procedures and remedies available to them, that plaintiffs had an adequate remedy at law and that equity was precluded from granting the relief prayed for. The court en banc (one judge dissenting), holding that it had no jurisdiction over the subject matter for the reasons asserted by the defendant, sustained the preliminary objections and entered a decree dismissing the complaint. From this decree eight of the plaintiffs, five of whom are municipalities in the area, two of whom are downstream mill owners, and one an owner of property allegedly situated on or near the banks of the Perkiomen Creek, have appealed under the Act of March 5, 1925, P.L. 23, 12 P.S. § 672 et seq.

Under Procedural Rule No. 1017, 12 P.S. Appendix, complainants filed an answer to the preliminary objections. The latter incorporated therein findings and actions taken by the Water and Power Resources Board, including the permit issued to the defendant to proceed with its project. From the pleadings the undisputed facts material to the issue of jurisdiction, which is the sole issue before us, are as follows:

On or about February 28, 1950, the defendant filed an application with the Water and Power Resources Board under the provisions of Section 6 of the Act of June 24, 1939, P.L. 842, 32 P.S. § 636, requesting allocation to it of an additional 16.5 million gallons of water per day from the Perkiomen Creek, said additional water to be taken at defendant's Wetherill Dam and pumping station after impoundment of the water in a proposed reservoir on the creek, at Green Lane, Montgomery County, and release therefrom for recapture at the Wetherill Dam and pumping station located about 4,000 feet above the mouth of the creek in Lower Providence, Township, Montgomery County. A hearing upon this application was scheduled by the Board for May 10, 1950 and was held after the required notice had been given. About 50 protestants appeared thereat, either in person or by counsel, including some municipalities, the Norristown Water Company and the Pennsburg Water Company. A number of these protestants were thereafter plaintiffs in the equity action.

Following these hearings the Water and Power Resources Board issued a permit on or about January 11, 1951, approving defendant's application for the allocation of an additional 16.5 million gallons of water per day from the creek, subject to certain conditions specified therein. An appeal was taken from this action to the Court of Common Pleas of Dauphin County by Norristown Water Company, Perkiomen Valley Sportmen's Association and Upper Perkiomen Board of Trade. The Borough of Norristown, one of the appellants here, was permitted to intervene by stipulation of the parties to that proceeding. At the direction of the court the Board on April 11, 1951 filed findings of fact and reasons therefor in which it specifically found, inter alia, that the water rights proposed to be acquired by defendant (a) will not conflict with the rights theretofore validated to Norristown Water Company or those held by any public water supply agency, (b) are reasonably necessary for its present purposes and future needs and (c) will not interfere with navigation, jeopardize public safety or cause any injury to the Commonwealth. Thereafter, the appeals were terminated by a compromise which took the form of a consent decree issued by the court under date of June 27, 1951 in the Norristown Water Company appeal, the withdrawal of the Borough of Norristown as an intervenor in that appeal and the withdrawal of the appeals of the other parties plaintiff. The Water and Power Resources Board on July 11, 1951 issued an amended permit which included the modifications which formed the basis of this consent decree.

On May 15, 1952, over 10 months subsequent to the issuance of this amended permit, a petition was filed with the Water and Power Resources Board by a large number of individuals and municipalities, including 32 of the plaintiffs in the instant equity proceeding, requesting the Board to reopen the proceedings, grant a rehearing and in the light of the evidence to be submitted, revoke the amended permit which had been issued. A substantially similar petition was also filed August 15, 1952 by the Borough of Norristown. Extensive hearings were held before the Water and Power Resources Board upon these petitions on October 22nd, November 12th and December 9, 1952. At the conclusion of the last hearing, the proceedings were closed and briefs were filed by the respective parties. Thereafter on April 8, 1953 an order was issued by the Water and Power Resources Board dismissing the petitions on the ground that petitioners had failed to show any new matter or that new or changed conditions had arisen since the original hearings. No appeal was taken therefrom or from the Board's order of July 11, 1951 directing the issuance of the amended permit.

On April 15, 1952, the defendant filed with the Water and Power Resources Board an implementing application for permission to construct the dam on the Perkiomen Creek near Green Lane in Marlboro and Upper Frederick Townships, Montgomery County, which is the subject of complaint in the equity proceeding. The application was made pursuant to the requirements of the Act approved June 25, 1913, P.L. 555, as amended, 32 P.S. § 681 et seq., and was supported by detailed plans and specifications including reports on engineering and geology. In accordance with the requirements of the Administrative Agency Law of June 4, 1945, P.L. 1388, 71 P.S. § 1710.1 et seq., the Board scheduled a public hearing for June 10, 1953. Written notice of this hearing was given by the Board to all parties who had appeared in any of the prior proceedings before it, and by due publication in periodicals. Amongst many protestants appearing were 32 of those who thereafter became plaintiffs in the instant equity action. After this hearing, on August 12, 1953 the Board issued its adjudication and order approving the defendant's application for a permit to construct the dam at Green Lane, subject to certain specified conditions. No appeal was taken from this adjudication and order.

In the permit issued to the defendant the condition was imposed that 'A continuous flow of not less than 0.25 cu. ft. per second per square mile of water shed area above the proposed dam at Green Lane shall be released from that reservoir into Perkiomen Creek immediately below the dam at all times, except when the natural inflow into said reservoir is less than 0.25 c. s. m. when the release from said reservoir shall be equal to either (a) the natural inflow into the reservoir or (b) 0.15 c. s. m., whichever is greater. This release shall be in addition to any water released from the impounding reservoir for recapture at the Wetherill dam allocated under this permit.'

The Board found, inter alia, that the prescribed method of operation will not appreciably increase the channel loss resulting from the transit of the water downstream; that the record clearly established applicant's need for the additional 16.5 million gallons per day; that the Perkiomen Creek would provide defendant's needed additional supply if its resources are conserved in the manner proposed by the defendant; that the project will have a beneficial effect on the lower Perkiomen by improving low flow conditions and by tending to reduce the harmful effects of floods; that the impounding of the water when the flow of the creek is in excess of 11.5 m. g. daily at Green Lane for use during times of low flow, is in the interests of conservation and development of the water resources of the Commonwealth; that the additional taking will not jeopardize public safety or cause any injury to the Commonwealth, but on the contrary will protect one of the large metropolitan areas from the hardship and dangers of a critical water shortage and will provide needed conservation of the water resources in the area and that the water rights proposed to be acquired by the defendant are reasonably necessary for its present purposes and future needs.

It was also specifically found by the Board that '1. The proposed dam is necessary to enable the applicant to comply with the terms of the Amended Permit issued by this Board dated January 11, 1951. 2. The site of the proposed dam provides a hard rock foundation capable of resisting any force imposed upon it by the dam and reservoir. 3. The proposed dam will have an adequate spillway. 4. The proposed dam will provide a safe and stable structure. 5. The proposed...

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