Spring Brook Water Supply Co. v. Pennsylvania Coal Co.
| Decision Date | 16 July 1913 |
| Docket Number | 41-1913 |
| Citation | 54 Pa.Super. 380 |
| Parties | Spring Brook Water Supply Company, Appellant, v. Pennsylvania Coal Company |
| Court | Pennsylvania Superior Court |
Argued March 4, 1913 [Syllabus Matter] [Syllabus Matter]
Appeal by plaintiff, from judgment of C.P. Luzerne Co.-1908, No 377, for defendant on case tried by the court without a jury in case of Spring Brook Water Supply Company v. Pennsylvania Coal Company.
Trespass to recover damages for injuries to water pipes. Before Fuller, J.
The case was tried by the court without a jury under the act of April 22, 1874.
The court found the facts to be as follows:
1. The plaintiff is a corporation of this commonwealth created for the purpose of supplying water to the public, or the supplying, storage or transportation of water and water power for commercial and manufacturing purposes, in the district comprising the counties of Luzerne and Lackawanna.
2. In the exercise of its corporate powers the plaintiff controls, uses and maintains, and has controlled, used and maintained for its corporate purposes during the period of time embracing the claim in this action, certain lines of water pipe in and under certain public highways of this county, viz., a main water pipe twenty-four inches in diameter, laid in 1889, under the Main Road from the village of Duryea to Pittston in the township of Marcy; a main water pipe twenty inches in diameter, laid in 1899, under the Back Road from the village of Moosic to Pittston in said township; a branch water pipe of diameter not given, laid prior to 1896, leading from the first-named main pipe under a road then in said township, now known as McAlpine street in the borough of Duryea, which was incorporated out of said township in 1901; a branch water pipe of diameter not given, laid in 1899, leading from one of said main pipes under a road then in said township, now known as Wright street in said subsequently incorporated borough of Duryea.
Thus it appears that when the pipes were laid the highways were township roads, not embraced within the limits of any city or borough, although afterwards the highways known as McAlpine street and Wright street were embraced within the borough of Duryea.
No evidence has been adduced other than the mere incorporation of that borough, and the fact of prior location in a township, by which we can determine the physical classification of the highways as urban or suburban at any time prior to the suit brought.
3. No evidence was adduced to show by what authority the said water pipes were thus laid under said highways, whether by municipal consent, or by private arrangement, or by judicial proceedings, or otherwise howsoever, or to show that they were laid with defendant's knowledge, and no compensation was ever paid by the plaintiff to the defendant for the privilege of laying the same.
The purpose subserved by said pipes under said highways is to transport water from the reservoirs of plaintiff situated in Lackawanna county and deliver it to sundry subsidiary water companies supplying water to sundry municipalities and the inhabitants thereof in the county of Luzerne, the stock of which subsidiary companies is owned, or their property leased and controlled by the plaintiff.
4. The defendant is a corporation of this commonwealth created for the purpose of mining coal, and, by sundry conveyances between 1851 and 1871 acquired title to the lands abutting upon and embracing the said highways after the latter had for some time been opened and used as public thoroughfares.
5. In the course of its mining operations upon the said land, the defendant, during the years 1906, 1907, and 1908, prior to the institution of this action, removed on " second mining" the pillars of coal which had been left on " first mining" under the said roads and adjacent to the lines thereof on both sides, thus depriving the surface of its natural support, and, on account of the close proximity of the coal to the surface, causing the latter to fall in, whereby plaintiff's said water pipes were displaced and broken, necessitating repairs at a total cost to the plaintiff of $ 816.13.
6. The mining operations aforesaid were not conducted in a negligent manner, nor with willful intention to inflict injury, but in a careful and workmanlike manner, according to the usual course of removing such pillars, though with foreknowledge by the defendant of the consequence which would certainly result, and did result, from the removal as above stated, namely, the subsidence of the surface which was bound to occur whether the mining was done in a careful and workmanlike manner or otherwise.
The court entered judgment for defendant. Plaintiff appealed.
Error assigned was in entering judgment for defendant.
John McGahren, with him Laurence H. Watres and Eugene A. Brennan, for appellant. -- The plaintiff was authorized by law to use the public roads and streets here in question for the purpose of laying and maintaining water pipes thereon and transporting and conveying water through the same for the use of the public.
The defendant coal company had no right to remove the coal pillars from under the highways in question without substituting adequate artificial support, so as to obstruct the same or impair, interfere with or destroy their use for the purpose of passage or any other purpose authorized by law: McDevitt v. Gas Co., 160 Pa. 367.
But even assuming that the laying and use of the water mains in the highways in question did, in law, amount to an additional servitude, payment or security of compensation therefor was not necessarily a condition precedent to its existence: Connellsville Gas Coal Co. v. R. R. Co., 216 Pa. 309; Oliver v. Ry. Co., 131 Pa. 408; Penna. Gas Coal Co. v. Gas Co., 131 Pa. 522; Davis v. Ry. Co., 114 Pa. 308; Lawrence's App., 78 Pa. 365.
F. W. Wheaton, with him Warren, Knapp & O'Malley, for appellee. -- Plaintiff's water main was an additional burden in law: Sterling's App., 111 Pa. 35; Penna. R. R. Co. v. Ry. Co., 167 Pa. 62; McDevitt v. Gas Co., 160 Pa. 367; Bloomfield, etc., Gas Light Co. v. Calkins, 62 N.Y. 386; Kincaid v. Gas Co., 124 Ind. 577; Board of Trade Tel. Co. v. Barnett, 107 Ill. 507.
Plaintiff's water main was an additional burden in fact. Whether plaintiff was a trespasser, as would be the case under Sterling's App., or a licensee, defendant owed it no affirmative duty of support: Gillis v. R. R. Co., 59 Pa. 129; Gramlich v. Wurst, 86 Pa. 74; Breckenridge v. Bennett, 7 Kulp, 95; Woods v. Lloyd, 1 Mona. 254; Thompson v. B. & O. R. R. Co., 218 Pa. 444; Paget v. Girard Trust Co., 44 Pa.Super. 597.
Payment or security of compensation for the additional servitude was a condition precedent to affirmative right of support: McClinton v. Ry. Co., 66 Pa. 404; Mountz v. R. R. Co., 203 Pa. 128.
Before Rice, P. J., Henderson, Morrison, Orlady, Head and Porter, JJ.
The plaintiff company is duly incorporated, for the purpose of supplying water to the public, under the provisions of the Act of April 29, 1874, P. L. 73, and its supplement of May 16, 1889, P. L. 226. The defendant company is and for many years has been the owner in fee of a tract of land, the surface as well as the coal with which it was underlaid, over which certain township roads have for many years been opened and used as public highways. The plaintiff company, in the year 1889, laid its water mains under these township roads and has since then maintained them. The defendant company in its mining operations removed from its land the coal underlying these township roads, in the years 1906 and 1907 and as a consequence there was a subsidence of the surface which disturbed and injured the water pipes of the plaintiff company to an extent...
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