James Irving's Executors v. Burgess and Town Council of Borough of Media

• Decision Date: 17 April 1899
• Docket Number: 173-1898
• Citation: 10 Pa.Super. 132
• Parties: James Irving's Executors v. The Burgess and the Town Council of the Borough of Media, Appellant
• Court: Pennsylvania Superior Court

10 Pa.Super. 132

James Irving's Executors v. The Burgess and the Town Council of the Borough of Media, Appellant

No. 173-1898

Superior Court of Pennsylvania

April 17, 1899

Argued November 23, 1898 [Syllabus Matter] [Syllabus Matter] [Syllabus Matter] [Syllabus Matter] [Syllabus Matter] [Syllabus Matter] [Syllabus Matter] [Syllabus Matter] [Syllabus Matter]

Appeal by defendant, from judgment of C. P. Delaware Co.-1894, No. 154, on verdict for plaintiff.

Trespass. Before Clayton, P. J.

It appears from the evidence that the plaintiff at the time of the commencement of this action, on January 31, 1894, was the owner of a tract of land of about one hundred acres, situate on both sides of Ridley creek with his title extending to the middle of the creek. He owned a large textile manufactory situated on his land which obtained a part of its power from the fall of the creek amounting to about forty-horse power. The mill was operated by him under the trading name of James Irving & Son. He had no partner. Separate accounts were kept of the manufacturing business, for the purpose of measuring the amount of compensation to his son, William A. Irving. The mill was rented to the manufacturing business by annual leases. He had the right to the use of the waters of the creek as a riparian owner, and he had also devoted the power of the creek to the artificial use of furnishing power to his mill. The defendant borough owned a tract of land on the same creek higher up the stream. In 1872 the borough located a pumping station on this land and commenced to pump water to the inhabitants of the borough for general uses. The riparian land belonging to the borough is outside the borough limits. There was evidence tending to show that the amount of water pumped by the borough in 1872 was comparatively small and that the consumption increased continuously after that time; also that the borough had recently begun to furnish water for a district outside of the borough, some of which is within the watershed of Ridley creek and some of it within another watershed. The statute of limitations was pleaded by the defendant.

The court below admitted under objection and exception the following offers of evidence by the plaintiff:

[Henry Green, a witness for the plaintiff, to testify to the amount of water pumped from Ridley creek after the commencement of the suit, and including in the amount, water which was pumped to the Pennsylvania Training School.]

[James Moss, a witness, to testify as to the conditions of the waters of the creek at a period eighteen years and more before the commencement of the suit.]

[Alfred F. Dawson, a witness called by the plaintiff to testify to a test of a boiler made at the plaintiff's mill in March, 1896, two years after the commencement of this suit.]

[The trial judge refused to permit defendant to show by Samuel J. Cochran, a real estate expert, the rental value of plaintiff's property. Bill sealed for defendant.]

The court charged the jury, inter alia, as follows:

[The plaintiff claims the right to take the water of Ridley creek for its corporate purposes by virtue of the grant from the state of its right of eminent domain.] . . .

[The defendants here have made a sad mistake, they have not committed an intentional wrong, but they have made a mistake, which at the time they took this water I suppose was a natural one, for at that time when they completed their works and took this water, it appeared that it had no visible effect upon the flow of the stream, and the owners of the properties situated below did not notice that their rights had been interfered with. They did not come into court and ask for a jury to assess the damages, and the borough did not deem it necessary to give security for what they supposed was a merely nominal interference with their rights. That was the position when the water was first taken, but unfortunately for the borough it has grown to be a pretty large town, and they have not only supplied themselves with water, but they are also supplying their neighbors outside of the borough limits, and there is nothing to prevent them from annexing all the surrounding territory if the future should warrant it, and there is nothing to hinder them, if they have the right to take the water, from taking it all, and it has now developed according to the plaintiff's case to be a serious injury to them.] . . . .

[Now if this company had taken the same amount of water by the same pumps, or pumps similar to them, during the whole twenty-one years, they would have an undoubted defense upon their prescriptive right to take it, but unfortunately for them it appears that when they commenced the exercise of this right, they did not take nearly as much water as they do now. At that time they gave no water to the surrounding territories; they only supplied the public buildings and a few inhabitants of Media, and it seems to me that if you are satisfied that for over twenty-one years they have taken a certain amount of water, you may give them credit for that prescriptive right, but I say to you that it cannot be extended one gallon beyond what they took twenty-one years ago.

If they have taken more during the past twenty-one years than they took when they first commenced, and it is undoubtedly true that they have by the evidence, then they are liable to this action, but when you come to consider the damages, you may, if you see proper, allow them the right to take as much as they took twenty-one years ago, but no more. As to what they have taken beyond that, if that has inflicted any damage upon the plaintiff, they must pay for it whatever the damage is. Now I wish you, gentlemen, to particularly understand what I say about this claim for a prescriptive right. I can only say that if you find that the defendants take no more water from this stream than they took twenty-one years ago, then it would be a defense. If you find that they have taken more water and by different means and by additional and more powerful pumps, and by an extension of their works than they did twenty-one years ago, and that has resulted in an injury to the plaintiff, then it is only a defense so far as a reasonable allowance should be made for what they took twenty-one years ago is concerned. Twenty-one years' peaceable exercise of the right presumes the existence of a grant, but the presumed grant cannot be greater in extent than what it was at the commencement of the twenty-one years; that right under a prescriptive claim must be measured by the enjoyment of it at the time the prescription commenced, it cannot be used in a different or more extensive manner.]

Plaintiff submitted certain points, which points and answers were as follows:

[1. It has been the legal right of the plaintiff, as a riparian owner, during the time covered by this suit, to receive the waters of Ridley creek at his mill, undiminished in quantity, and if the jury believe that the defendant has pumped out of said creek and distributed through the borough of Media and vicinity, the waters of the said creek to the injury of the plaintiff, resulting from such diminution, the verdict should be in favor of the plaintiff for compensation therefor during six years prior to the commencement of this action. Answer: That is affirmed. That is about what I said to you.]

2. The defendant has no legal right to take any parts of the waters of Ridley creek and convey said waters away from said creek and distribute them for consumption in the borough of Media and vicinity, and is under a legal liability to compensate the plaintiff for all injuries to him by reason thereof, including not only the removal of the waters themselves, but the interference with the actual flow of the stream, and this during the six years immediately preceding the commencement of this suit. Answer: Gentlemen, that is also affirmed, it seems to be a correct statement of the law.]

[4. A riparian owner has no legal right to remove waters of a creek away from the riparian lands and the removal of the waters of the creek by the defendant to the borough of Media is not justifiable as the exercise of a riparian right, and the defendant is liable to make compensation to the plaintiff for six years prior to the commencement of this suit, for all injuries to the plaintiff resulting from such removal, and resulting from the interference with the flow of the stream by retaining and discharging the waters of the creek in producing such removal. Answer: That is also affirmed.]

Defendant submitted certain points, which points and answers were as follows:

[1. The borough defendant, by virtue of the power given under the Act of April 6, 1854, P. L. 301, having constructed waterworks and appurtenance on Ridley creek, to furnish the requisite quantity of water for the full supply of the necessary demands of the inhabitants and public buildings within said borough and for this purpose appropriated the water of said creek, there can be no recovery in this action if the jury find that this power has been exercised continuously for twenty-one years before the commencement of this suit. Answer: I decline to affirm that point, gentlemen, but refer to what I said in my general charge. You may give them credit for the quantity that they pumped up more than twenty-one years ago if they have continued to use that, but if they exceeded that they are liable for the excess. We have very little or no evidence I think, or very little at least, of the amount of water that they took twenty-one years ago. They were then located upon a tributary and it was from another stream they pumped.

Mr. Hall: They pumped the entire stream and the weir measurements showed it.

The Court: How much was it?

Mr Hall: Something over 100,000...