Lycoming Gas and Water Co. v. Moyer

Citation99 Pa. 615
PartiesLycoming (now Citizens') Gas and Water Company <I>versus</I> Moyer.
Decision Date13 March 1882
CourtUnited States State Supreme Court of Pennsylvania

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

ERROR to the Court of Common Pleas of Lycoming county: Of January Term 1882, No. 154:

COPYRIGHT MATERIAL OMITTED

R. P. Allen and Addison Candor (C. La Rue Munson with them), for the plaintiff in error.—The alleged damage, caused by the Lycoming Gas and Water Company tapping Mosquito run a mile and a half above the plaintiff's mill-race, was purely consequential, and as such was not recoverable, prior to the Constitution of 1874: Koch v. Williamsport Water Co., 15 P. F. S. 288; Phila. & Trenton R. R. Co.'s Case, 6 Whart. 46. The charter of the Lycoming Gas and Water Company provides for compensation for an injury done to private property in the location of its works; this refers to land taken and occupied by the reservoir, gas manufactory, &c., not to the mere diversion of water. If that had been intended, an express provision to that effect would have been inserted in the charter, as was done in the Act incorporating the Williamsport Water Company, which provides for compensation to person injured "by the diversion of the waters that may be used by the said company:" Act of April 18th 1853, P. L. 721.

But if Moyer had any right of recovery against the Lycoming Company, he should have pursued it against that company. Having allowed nine years to elapse without prosecuting his claim, either against that company, or in the distribution of the proceeds of its franchises and property, he cannot now claim against the Citizens' Water and Gas Company, who paid full value at the sheriff's sale, without notice of his dormant claim. The "restrictions" subject to which the Citizens' Company purchased, are those mentioned in the charter of the Lycoming Company, viz., that the company shall not exercise banking privileges, and shall not extend their pipes beyond a certain territory, &c. The court erred in substituting the Citizens' Company as defendant, and holding that they were liable to the plaintiff: Western Penna. R. R. Co. v. Johnston, 9 P. F. S. 290.

H. W. Watson and Samuel Linn, for the defendant in error.

Mr. Justice GORDON delivered the opinion of the court, March 13th 1882.

It is not open to debate that, prior to the Constitution of 1874, neither the Commonwealth nor its locum tenens was liable for consequential damages resulting from the exercise of the right of eminent domain. It is, however, just as well settled, that the legislature, in its grant of this right to a corporation, might so limit the exercise of that right as to make it subject to the payment of such damages.

The grant to the company defendant is made subject to the condition, "that if, in the location of said works, an injury shall be done to private property, and the parties cannot agree upon the amount of compensation to be made to the owner," viewers are to be appointed for the purpose of ascertaining and assessing the damages. The words here used are of the most general character. "Private property" necessarily includes everything that can be held or owned by private persons, and "injury" any, and every, damage to which it can or may be subjected. Now, that Moyer had property in the waters of Mosquito creek, though of an incorporeal nature, is certain: City of Reading v. Althouse, 12 Nor. 400.

This action was, therefore, well brought against the Lycoming Gas and Water Company, which had disturbed the plaintiff's right. But can the sheriff's vendee, which succeeded to the property rights and franchises of the corporation just named, be held for the damages resulting from the original taking of this water? We answer, yes; for Moyer's right could not be extinguished until it was paid for, or security given for payment, neither of which was done by the former company; hence, the plaintiff's claim was a continuing lien upon the corporate...

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5 cases
  • Penna. R. Co. v. Duncan
    • United States
    • Pennsylvania Supreme Court
    • November 11, 1889
    ...Ahl v. Rhoads, 84 Pa. 319; Lewis v. Jeffries, 86 Pa. 340; Long's App., 87 Pa. 114; Penna. R. Co. v. Langdon, 92 Pa. 21; Lycoming Gas & W. Co. v. Moyer, 99 Pa. 615. And, as this was a rule of property in the state, the decisions establishing it will be followed by this court, even though its......
  • Thibadeau v. Clarinda Copper Mining Co.
    • United States
    • Idaho Supreme Court
    • December 18, 1928
    ... ... spring is the diminution in the value of the property to ... which the water right was appurtenant; that is, the ... difference between the market value of such property ... p. 1674, citing Southern Marble Co. v. Darnell, 94 ... Ga. 231, 21 S.E. 531; Lycoming Gas & Water Co. v ... Moyer, 99 Pa. 615; Gallagher v. Kingston Water ... Co., 25 A.D. 82, 49 ... ...
  • Warrell v. Wheeling Etc. R. Co
    • United States
    • Pennsylvania Supreme Court
    • January 6, 1890
    ... ... v. Commissioners, 12 Met. 455: Wheeling etc. R. Co ... v. Warrell, 122 Pa. 613; Lycoming Gas & Water Co. v ... Moyer, 99 Pa. 615. (2) McMullen v. Wenner, 16 ... S. & R. 18; Easholt v ... ...
  • Warrell v. Railroad Co.
    • United States
    • Pennsylvania Supreme Court
    • January 6, 1890
    ...Bemis v. Springfield, 122 Mass. 110; Murray v. Commissioners, 12 Met. 455: Wheeling etc. R. Co. v. Warrell, 122 Pa. 613; Lycoming Gas & Water Co. v. Moyer, 99 Pa. 615. (2) McMullen v. Wenner, 16 S. & R. 18; Fasholt v. Reed, 16 S. & R. 266; Catlin v. Robinson, 2 W. 373; Stewart v. Coder, 11 ......
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