Scranton Gas & Water Co. v. Delaware, Lackawanna & Western R.R. Co.

• Decision Date: 05 May 1913
• Docket Number: 413
• Citation: 88 A. 24,240 Pa. 604
• Parties: Scranton Gas & Water Co. v. Delaware, Lackawanna & Western R.R. Co., Appellant
• Court: Pennsylvania Supreme Court

88 A. 24

240 Pa. 604

Scranton Gas & Water Co. v. Delaware, Lackawanna & Western R.R. Co., Appellant

No. 413

Supreme Court of Pennsylvania

May 5, 1913

Argued March 31, 1913

Appeal, No. 413, Jan. T., 1912, by defendant, from decree of C.P. Lackawanna Co., in Equity, Oct. T., 1911, No. 1, making permanent a preliminary injunction in case of Scranton Gas &amp Water Company v. Delaware, Lackawanna & Western Raliroad Company. Affirmed.

Bill in equity to restrain defendant from diverting the waters of a stream. Before EDWARDS, P.J.

The opinion of the Supreme Court states the facts.

The court made permanent a preliminary injunction, restraining defendant from pumping the waters of the stream. Defendant appealed.

Error assigned, amongst others, was the decree of the court.

Decree affirmed at cost of appellant.

John G Johnson, with him D. R. Reese, John McGahren, J. H. Oliver and S. B. Price, for appellant. -- The court's adjudication is inconsistent with its finding that a railroad company is not obliged to purchase water from a water company incorporated for the purpose of supplying a city, although the railroad uses the water within the limits of the municipality: Bland v. Tipton Water Co., 222 Pa. 285; Harrisburg v. R.R. Co., 33 Pa. C.C.R. 641.

The resolution of a water company appropriating water of a stream, without further action before or after, does not entitle it to complain of the use of the water by another riparian owner. Under its charter the plaintiff company does not obtain a right to take all the waters of Roaring Brook: Lehigh Coal & Nav. Co. v. Scranton Gas & Water Co., 6 Pa. D.R. 291; Phila. & Reading R.R. Co. v. Pottsville Water Co., 182 Pa. 418; Lord v. Meadville Water Co., 135 Pa. 122; AEtna Mills v. Waltham, 126 Mass. 422; Saunders v. Bluefield Waterworks & Imp. Co., 58 Fed. Repr. 133.

A water company, a riparian owner, cannot enjoin a railroad company, also a riparian owner on same stream, from taking water for the use of its engines at a time when the flow of the stream is four times the amount needed for both parties: Penna. R.R. Co. v. Miller, 112 Pa. 34; Clark v. Penna. R.R. Co., 145 Pa. 438; Rudolph v. R.R. Co., 186 Pa. 541; Hollister v. R.R. Co., 11 Lacka. Jur. 247; Philadelphia & Reading R.R. Co. v. Pottsville Water Co., 182 Pa. 418; Wheatley v. Chrisman, 24 Pa. 298; Philadelphia v. Commissioners, 7 Pa. 348; Brown v. Kistler, 190 Pa. 499; Elliott v. Fitchburg R.R. Co., 64 Mass. 191; Canton v. Shock, 58 L.R.A. 637; Standard Plate Glass Co. v. Water Co., 5 Pa. Superior Ct. 563; Earl of Sandwich v. Great Northern Ry. Co., L.R. 10 Ch. Dig. 707; Wilkes-Barre Water Co. v. Coal & Navigation Co., 3 Kulp 389; Fifield v. Spring Val. Water Wks., 130 Cal. 552 (62 Pac. Repr. 1054); Lehigh Coal & Nav. Co. v. Scranton Gas & Water Co., 6 Pa. D.R. 291; N.J. Zinc & Iron Co. v. Morris Canal & Banking Co., 44 N.J. Eq. 398 (15 A. Repr. 227); Hetrich v. Deachler, 6 Pa. 32; Wheatley v. Baugh, 25 Pa. 528; Miller v. Miller, 9 Pa. 74; Bliss v. Kennedy, 43 Ill. 67.

The minutes of a corporation are not evidence of facts therein stated in a suit against another corporation: State Bank of Pike v. Brown, 53 L.R.A. 513; Union Canal Co. v. Lloyd, 4 W. & S. 393; Bedford R.R. Co. v. Bowser, 48 Pa. 29; Graff v. Pittsburgh, Etc., R.R. Co., 31 Pa. 489.

A party cannot assert rights under a contract which it has failed to perform when its performance is made a condition on which the contract rests: Hamilton v. Elliott, 5 S. & R. 375; Zuck v. McClure, 98 Pa. 541; Ferris v. The "Alida," 14 Philadelphia 602; Miller v. Phillips, 31 Pa. 218; Rugg v. Moore, 110 Pa. 236.

A railroad which is a riparian owner may take water for the use of its engines by reason of long continued use and acknowledgment of the right to use in deeds and contracts to which complaining riparian owner is a party: Share v. Anderson, 7 S. & R. 43; Smith v. Loafman, 145 Pa. 628.

Alex. Simpson, Jr., with him O'Brien & Kelly and F. W. Wheaton, for appellee. -- Plaintiff was incorporated by the special Act of Assembly of March 16, 1854, P.L. (1856) 599, which act conferred upon it the power of eminent domain, and in brief gave it the right to do all things necessary in order to enable it to perform its corporate functions. By virtue of the acts of assembly plaintiff is distinguished from a mere private corporation in which the public is only indirectly interested: Coatesville Gas Co. v. Chester County, 97 Pa. 476; Pittsburgh's App., 123 Pa. 374; Scranton Gas & Water Co. v. Northern Coal & Iron Co., 192 Pa. 80; Leazure v. Hillegas, 7 S. & R. 313.

A corporation has no higher or better right to property obtained by condemnation proceedings than to that which it has acquired by purchase: Oregon Cascade R.R. Co. v. Baily, 3 Ore. 164; In re Petition of Providence & Worcester R.R. Co., 17 Rhode Island 324; Scranton Gas & Water Co. v. Coal & Iron Co., 192 Pa. 80; Scranton Gas & Water Co. v. Railroad Co., 225 Pa. 152.

The act of the defendant was far beyond its right as a riparian owner of the little piece of land, part of its right of way, through which the stream ran: Miller v. Miller, 9 Pa. 74; Wheatley v. Chrisman, 24 Pa. 298; Penna. R.R. Co. v. Miller, 112 Pa. 34; Haupt's App., 125 Pa. 211; Philadelphia & Reading Railroad Co. v. Water Co., 182 Pa. 418; Wilkes-Barre Water Co. v. Lehigh Coal & Navigation Co., 3 Kulp 389.

Whether at the time the defendant was pumping water from the stream there was a surplus of water flowing into the dam below is of no moment: Luther v. Luther, 216 Pa. 1; Zook v. Penna. R.R. Co., 206 Pa. 603; Thompson's App., 126 Pa. 367.

For an unreasonable use of the stream by an upper riparian proprietor an action will lie in favor of a lower proprietor, notwithstanding the latter has suffered no actual damage: New London Water Comrs. v. Perry, 69 Conn. 461; Morrill v. Water Power Co., 26 Minn. 222 (2 N.W. 842); Heilbron v. Canal Co., 75 Cal. 426 (17 Pac. Repr. 535); Newhall v. Ireson, 61 Mass. 595; Stowell v. Lincoln, 77 Mass. 434; Tillotson v. Smith, 32 N.H. 90; Harrop v. Hirst, L.R., 4 Exch. 43; Earl of Norbury v. Kitchin, 15 L.T. (N.S.) 501; Sampson v. Haddinott, 1 C.B. (N.S.) 590; Creighton v. Evans, 53 Cal. 55; Dela. & Hudson C. Co. v. Torrey, 33 Pa. 143; Clark v. Railroad Co., 145 Pa. 438; Gould v. Eaton, 117 Cal. 359; McCarter v. Hudson County Water Co., 70 N.J. Eq. 695 (65 A. Repr. 489); Gould v. Stafford, 77 Cal. 66 (18 Pac. Repr. 879); Griffiths v. Railroad Co., 232 Pa. 639; Scranton Gas & Water Co. v. Iron & Coal Co., 167 Pa. 136.

Equity has jurisdiction to protect plaintiff's rights. Plaintiff has come into court with clean hands: Jenkins v. Fowler, 24 Pa. 308; Wilson v. Berg, 88 Pa. 167.

Before FELL, C.J., POTTER, ELKIN, STEWART and MOSCHZISKER, JJ.

OPINION

MR. JUSTICE ELKIN:

The purpose of filing this bill was to restrain defendant railroad company from diverting the waters of Roaring Brook from their natural course above No. 7 dam and making use of them for locomotives, repair shops, passenger station, freight station, round house and other general railroad purposes in the City of Scranton. The only rights the railroad company have in the waters of the stream in question are those of a riparian owner of land adjacent to Roaring Brook. We therefore agree with the learned court below that this controversy in its last analysis centers around the rights of the defendant as a riparian owner. The question for decision here is not what the water company under its charter powers did or attempted to do, but whether the railroad company, being the owner of a small strip of land at the point where it pumped the water from the stream, can convey it through mains off the riparian land to a reservoir two or three miles distant, there to be used as a supply for general railroad purposes as above indicated. If the railroad company does not have the legal right to thus divert the water from its natural channel, the controversy is within very narrow limits and most of the questions raised in the court below and here have no material bearing on the case. If the railroad company did what it has no right to do, it is no answer to say that the water company has violated its contract or transgressed the law in other respects.

Collateral issues relating to the charter powers of the water company and other matters incident to the business transactions of the parties can have no controlling effect in this controversy because the precise question for decision is the right of the railroad company to divert the water of the stream from its natural course and convey it through, over and away from the riparian land to a reservoir several miles distant to be used for general railroad purposes. In a long and unbroken line of cases it has been held that the diversion of water from its natural course in a stream by a riparian owner for purposes other than those incident to the proper enjoyment of the riparian land is unlawful. The upper riparian owner has a right to the use of the water of the stream on his land for any legal purpose, provided he returns it to its channel without contamination or substantial diminution: Penna. R.R. Co. v. Miller, 112 Pa. 34. In the present case the water diverted, and about which complaint is made, was not used on the riparian land for any purpose, nor was it returned to the stream at any point above the land of the complaining lower riparian owner. It is argued that a riparian owner may use and enjoy the flowing water of a stream in such reasonable manner as not to injure unnecessarily the rights of others and a number of authorities are cited in support of this position. Several of our own cases are relied on to sustain the proposition that a riparian owner has the right to the use of the stream as an incident to ...