McCallum v. Germantown Water Co.

• Decision Date: 07 January 1867
• Citation: 54 Pa. 40
• Court: Pennsylvania Supreme Court
• Parties: McCallum <I>versus</I> The Germantown Water Co.

Page 40

54 Pa. 40

McCallum versus The Germantown Water Co.

Supreme Court of Pennsylvania.

January 7, 1867.

APPEAL from the decree of the Court of Common Pleas of Philadelphia: In Equity.

COPYRIGHT MATERIAL OMITTED

A. H. Smith, for appellant.—The defendant had acquired a prescriptive right to discharge his refuse water into Paper Mill run to some extent, and had not used this right in excess of his right during the time complained of. Courts of equity will not ordinarily decide that a nuisance exists when the fact is controverted, but will require the party first to establish his right at law: Burnham v. Kempton, S. C. of N. H., 3 Am. Law Reg. 379; Dana v. Valentine, 5 Metc. 8; Attorney-General v. Cleaver, 18 Ves. 211; Commissioners v. Long, 1 Pars. 146; Crenshaw v. State River Co., 6 Rand 245; Angell on Watercourses, § 453, p. 520 n.

The change, disuse, resumption or modification of the manufacture of goods used to be made at the factory, or the alteration or renewal of any machinery, would not affect the prescription of the defendant if in the ordinary course of his business: Simpson v. Seavey, 8 Greenl. 138; 5 Paige 597. Nor would the disuse for less than twenty-one years destroy it: Haight v. Morris Aqueduct Co., 4 Wash. 601; Dana v. Valentine, 5 Metc. 8.

The acquiescence of the plaintiffs and those under whom they claim for so long a period, deprives them of the right to stop the defendant's works by the summary process of injunction: Birmingham Canal Co. v. Lloyd, 18 Ves. 515; Supplement to Drewry on Inj. 5, and cases cited; Wood v. Sutcliffe, 8 Eng. Law & Eq. 217.

Paper-mill run has been used to carry off the refuse waters from these works for a time far exceeding that required to gain a right by prescription. Within that period all of the numerous streams falling from the ridge of high lands north-west of Philadelphia have become the seats of great and important manufactures. These establishments are necessarily dependent on the natural drainage of the country for carrying off their refuse.

The builders of these establishments rely not on prescription, but on the custom of the country and the necessity of the case, as well as upon the acquiescence of parties who may be supposed to be injured, for the protection of their rights of drainage.

The principle contended for by the plaintiffs would enable any manufacturing village on the banks of a creek, seeking to pump water for its own accommodation from the bed of the stream, to shut all the factories and mills on the upper water of the stream, in order that it might have the water pure and uncontaminated.

The difficulty was met in Wood v. Sutliffe, 8 Eng. Law & Eq. 217, though there had been a verdict and nominal damages for plaintiff in that case.

The case of Wheatley v. Chrisman, 12 Harris 298, was rightly decided, and does not militate against the right of the defendant in this case, for that was in a rural district. Besides, there was no prescription or acquiescence in that case as there is in this. That, too, was an action at law.

Hole v. Barlow, 4 C. B. Rep. N. S. 334, and Bamford v. Tarley, 9 Jurist 377, N. S., relate to injuries arising from the recent establishment of offensive trades.

In St. Helen's Smelting Works v. Tipping, lately decided in the House of Lords, 5 Am. Law Reg. N. S. 104, it was found by the jury that the defendant's business of copper smelting was not carried on in a proper place.

The American cases have recognised, perhaps more fully than the English ones, the necessity of subordinating the rights of riparian owners in some cases to the commercial and manufacturing interests of the country: Veazie v. Dwinel, 3 Am. Law Reg 715; Sup. Ct. of Maine; Tourtellot v. Phelps, 4 Gray 370, 376; Gould v. Boston Duck Co., 13 Id. 442; City of Springfield v. Harris, 4 Allen 494.

J. B. Thayer, for appellees.—Every riparian proprietor has a right to the enjoyment of a stream upon his land in its natural state, both as to quality and quantity. This right may be modified or lost entirely by acquiescence in an adverse use of the stream, so as to give to those so using it a prescriptive right. The extent of his prescriptive right must be measured by the enjoyment of it, and an increased or different use or enjoyment within the period for prescription, creates no right to maintain such excessive or different use: 3 Kent's Com. 554, note and cases cited; Angell on Watercourses, ch. 4, pp. 150, 152, 155; Darlington v. Painter, 7 Barr 473; Wheatley v. Chrisman, 12 Harris 298; Howell v. McCoy, 3 Rawle 256; Warner v. Hunter, 1 Phila. Rep. 414; Gale on Easements 227.

The right to the enjoyment of pure water upon one's land is a natural right, inherent in and co-extensive with the right to the land itself. The necessities of manufactories are no reason for taking away a private right without compensation. The constitution of the Commonwealth, in sec. 10 of art. 9, positively prohibits this very thing. The law in this state upon this point is well settled: Howell v. McCoy, 3 Rawle 256; Wheatley v. Chrisman, 12 Harris 302.

In England the principle contended for by the appellant was attempted to be established in Hole v. Barlow, 4 C. B. 344. In less than two years the doctrine set forth in Hole v. Barlow was doubted in The Stockport Water Co. v. Potter, 7 Jurist, N. S. 882, and in Bramford v. Thurley, 9 Id. N. S. 377, was directly overruled.

In Cavey v. Ledbetter, 9 Jurist, N. S. 798, Bramford v. Thurley was affirmed upon this very point, and finally in The St. Helen's Smelting Co. v. Tipping, a recent case in the House of Lords, 14 Am. Law Reg. (Dec. No. 1865) 104, it was for ever set at rest.

The opinion of the court was delivered, January 7th 1867, by READ, J.

The Germantown Water Company was incorporated under the 18th and 19th sections of an Act of Assembly passed the 29th of March 1851, Pamph. L. 295, which substantially adopted the provisions of "An act to incorporate The Honesdale Water Company," passed the 14th of March 1850, Pamph. L. 497, as fully as if the 3d section and all the subsequent sections of the said act were thereby re-enacted, substituting the borough of Germantown and county of Philadelphia, for the borough of Honesdale and county of Wayne, wherever the same are mentioned in the said act.

The president and managers of the company were authorized to purchase and hold, in fee simple, or for any less estate, any spring or springs, stream or streams of water, or any water-power or powers near or convenient to said borough; or any lands, tenements or hereditaments, to which any spring or springs, stream or streams of water, or any water-power or powers, may be appertenant, and convey said water into said borough by means of pipes, trunks, aqueducts, or in such manner as they shall deem most advisable and convenient; and should they find it necessary, proper cisterns or reservoirs for the reception thereof, with all the necessary powers of using the lands of individuals, and the public streets and grounds, in constructing the necessary works for supplying the borough with water. They are also authorized to erect fire-plugs or hydrants, to be used for extinguishing fires in said borough. Any person wilfully destroying or injuring, in any manner, any of the works belonging to the company, or wilfully corrupting or otherwise rendering unwholesome the spring or springs, stream or streams of water, which shall be conveyed or brought into said borough by said company, or in any way polluting, or rendering noxious or offensive the said water, shall forfeit and pay a sum not less than five nor more than one hundred dollars, at the discretion of the justice before whom suit is brought; and if such judgment is not paid, and no goods of such person can be found, whereof to levy the same by execution, then such person shall be committed to the county jail for any period not less than one nor more than fifty days, at the discretion of the justice rendering such judgment; "and shall remain liable for the full amount of damages to the said company in any other action instituted by them, and shall, moreover, be subject to and indicted for the same."

The said company was duly organized under said charters, and letters patent being issued in due form, the said company purchased a tract of land upon both branches of Crab creek or Paper Mill run, and erected thereon, at great expense, an engine-house, with engines and all the necessary pumping apparatus, reservoir, standpipe and other works. The said company, at great expense, erected a collecting-dam across the said creek, and built a reservoir at Mount Airy. The said plaintiffs, at the same time, purchased also the right to use the water of the said creek and its tributaries, for obtaining therefrom the necessary supply of water, to be furnished by means of their works, to the people of Germantown; and the water is conducted from the said Crab creek into the company's reservoirs, and thence, by means of iron pipes, distributed to the consumers of said water.

There are two reservoirs. The small one holds about one million gallons of water — the larger one, built around it (the smaller one), holds about eleven million gallons of water when full, and could be filled with the present pumping apparatus. It is about twenty feet deep, and there is kept in it from eight to ten feet water. There are three dams — the upper dam, the main dam and the middle dam. There is a pumping-well thirty feet in diameter and thirty feet deep, and the springs have been led into the well, some by pipes, some by drains, and one very fine spring, immediately at the pumping-well, runs a stream from the rock into the well.

The lower dam was built as a reservoir or storing-dam; the upper dams were built to prevent heavy deposits, &c., from going into the larger reservoir, and it is easier to remove that stuff from the upper dams than the lower ones. There is a pipe leading from the middle dam along the...