State Hospital for Criminal Insane v. Consolidated Water Supply Co.

• Decision Date: 12 April 1920
• Docket Number: 158
• Citation: 110 A. 281,267 Pa. 29
• Parties: State Hospital for Criminal Insane v. Consolidated Water Supply Co., Appellant
• Court: Pennsylvania Supreme Court

110 A. 281

267 Pa. 29

State Hospital for Criminal Insane v. Consolidated Water Supply Co., Appellant

No. 158

Supreme Court of Pennsylvania

April 12, 1920

Argued February 23, 1920

Appeal, No. 158, Jan. T., 1920, by defendant, from decree of C.P. Wayne Co., June T., 1917, No. 1, on bill in equity in case of State Hospital for the Insane v. Consolidated Water Supply Co. Affirmed.

Bill in equity for injunction and for damages. Before SMITH, P.J. specially presiding.

The court entered a decree in accordance with the prayers of the bill, and awarded damages in the sum of $3,600. Defendant appealed.

Error assigned, among others, was decree of court.

The decree is affirmed at cost of appellant.

Henry A. Knapp, of Knapp, O'Malley, Hill & Harris, for appellant. -- The question of res adjudicata was decided against appellee in the court below and no exception was filed thereto by appellee and, of course, the point is not raised by any assignment of error in this appeal, and, we respectfully submit, is not before the court.

The binding effect of a former adjudication depends upon the identity of the rights involved, not on the evidence, nor on the arguments used: Myers v. Kingston Coal Co., 126 Pa. 582; Schriver v. Eckenrode, 87 Pa. 213; Lewis &amp Nelson's App., 67 Pa. 153; Forcey's App., 106 Pa. 508; Watt's App., 158 Pa. 1; Pittsburgh C. Co. v. West Side B.R.R., 227 Pa. 90; Funk v. Young, 254 Pa. 548; Wright v. Weber, 17 Pa.Super. 451; Raisig v. Graf, 17 Pa.Super. 509; Kapp v. Shields, 17 Pa.Super. 524.

In cases involving the concurrent jurisdiction of law and equity, only that is res adjudicata which was claimed by plaintiff in his first action and which could have been tried: Moser v. Trust Co., 3 A. 454; Head v. Meloney, 111 Pa. 99; Schwan et al. v. Kelly, 173 Pa. 65; Moser v. Phila. H. & P.R.R., 233 Pa. 259.

G. Von Phul Jones, with him Clarence Balentine, for appellee. -- The appellate court will not reconsider matters decided on a former appeal: Thaler Bros. v. Greisser C. Co., 229 Pa. 512; Welker v. Hazen, 247 Pa. 122, 123; McMahon's Est., 215 Pa. 10; Creachen v. Bromley Bros., 214 Pa. 15.

No exceptions were required of appellee: Powell's Est., 138 Pa. 322; Fullerton's Est., 146 Pa. 61; Johnston's Est., 222 Pa. 514; Central G. Trust, etc., Co. v. White, 206 Pa. 611.

Even an appellant can assign for error fundamental errors without exception having been taken: Bean's Road, 35 Pa. 280; O'Hara Twp. Road, 152 Pa. 319.

Before BROWN, C.J., MOSCHZISKER, FRAZER, WALLING, SIMPSON and KEPHART, JJ.

OPINION

MR. JUSTICE MOSCHZISKER:

The State Hospital for the Criminal Insane, located in Wayne County, Pennsylvania, filed a bill in equity complaining that, on September 8, 1917, the Consolidated Water Supply Company, defendant, had unlawfully opened a dam and allowed the water to escape from a certain reservoir, owned and used by plaintiff for institutional purposes; the bill prayed for an injunction and damages. Defendant filed a cross bill, and all matters sought to be put at issue were duly brought to trial. The original bill was sustained, cross bill dismissed, and the hospital awarded relief as prayed for; the water company has appealed.

The ultimate and controlling issue raised by the pleadings concerns the ownership of the water contained in what shall be hereinafter referred to as "Reservoir 7," both parties claiming through a common grantor. The identical point -- as to ownership -- was directly at issue in a prior suit at law between the same parties, concerning the same subject-matter, wherein a final judgment was rendered in favor of the present plaintiff by the Superior Court (see Consolidated Water Supply Co. v. State Hospital, etc., 66 Pa.Super. 610, 623), that tribunal stating, inter alia: "It is evident from a consideration of all the facts that the grantor did not intend by its conveyance to the water company to lease the right to use the water from the reservoir [7] now owned by the [hospital]."

The matter just quoted is the final governing conclusion, after an extended consideration by the Superior Court of a case-stated, embracing all the material facts now before us; but the court below, instead of sustaining plaintiff's contention that the legal right to the water in controversy had been already determined at law, and, hence, all required of it was to prove defendant's invasion of that right and the damages suffered thereby, entered upon an elaborate trial of the same issues as those adjudicated in the former action, together with certain other attending issues of fact, which were relevant to, and might have been included in, the case-stated. This procedure resulted, however, in the conclusion that, "at the time of the acts complained of, the hospital was, and has since continued to be, and now is, the absolute owner of Reservoir 7 and the waters ponded therein"; which for all material purposes is exactly similar to the decision reached in the prior suit.

The facts brought forth on both suits, essential to an understanding of our present consideration, are these: Prior to 1867, the Delaware & Hudson Company owned the entire acreage over which a stream called Racket brook flowed, and, at that time, when no other riparian rights were involved, it built the dam which formed Reservoir 7, as well as creating two additional water basins, by other dams, at different locations on its lands. November 1, 1867, the company executed a long-term lease to a predecessor in title of the present defendant, for one of these reservoirs other than 7; but this lease -- as properly found by the court below -- did not give to the lessee all the water of Racket brook -- it simply conferred "the right to take water from said brook for supplying said reservoir" (that leased to defendant's predecessor), which, we may remark incidentally, is located lower down the stream than No. 7. The lessor continued to use Reservoir 7 for its exclusive purposes to the year 1910; but, in 1912, it deeded 50 acres, "upon which was and is located the entire dam" of that receptacle, to the Commonwealth of Pennsylvania, this land adjoining 613 other acres (on which plaintiff's institution is erected) acquired by the Commonwealth from the same grantor in 1907. The 1912 deed also conveyed "all the right, title and privilege" of the grantor to maintain the water supply here in controversy, the grant in that respect being identified as "all the rights reserved" in a previous deed of the Delaware & Hudson Company to "Francis Walcott," i.e., the unrestricted right to maintain Reservoir 7, "flowage on said lands, enjoyment in use of the water therein, and access to and from same"; but the deed reserves to the grantor the right to use the contents of this reservoir, and likewise excepts such rights in the premises, "if any," as the grantor "leased, November 1, 1867," to defendant's predecessor in title.

On these facts, and others which we deem it unnecessary to detail in this opinion, the court below concluded, as hereinbefore stated, that plaintiff had an absolute right to all the water in Reservoir 7, saying in substance that all such water was being used strictly for institutional purposes, and that there had been no departure by plaintiff "from compliance with the rule for the return of surplus water, if any, to the original channel" of the stream; further, that plaintiff's rights were subject only to those of its grantor, as reserved in the last mentioned deed, and defendant's claim that it had acquired prescriptive ownership in the waters of Racket brook and Reservoir 7 was "not supported by evidence," any use it had made thereof being "permissive only." Finally, concerning the reservation in the 1912 deed of such rights, "if any," as the grantor had previously "leased" to defendant's predecessor in title, the court below properly found "it did not lease the right to use the water from Reservoir 7"; which is all that need here be said upon this point.

Defendant introduced evidence as to its acquirement of certain rights in Racket brook, which had been appropriated by three other corporations. It is not necessary, in this connection, to decide whether or not plaintiff's supply could be taken for other public purposes (see discussion on private water supplies in the opinion of President Judge RICE, Gring v. Sinking Spring Water Co., 7 Pa. Superior Ct. 63), since we are not convinced the court below erred in finding that no proper condemnation of the water in controversy had been shown, or in holding that, for this reason, the evidence in relation to the alleged appropriations thereof was immaterial. We also agree that the facts found, at the request of defendant, as to the water taken from Reservoir 7 being needed by that company to fulfill its corporate purposes, are immaterial, since no legal title thereto was shown.

We shall not further examine the matters of law or fact involved in the determination of the title to the water in controversy; for, as previously said, all the issues which enter into the determination of that governing point (Allen v. Int. Textbook Co., 201 Pa. 579, 582; Kilheffer v. Herr, 17 S. & R. 319, et seq.) were adjudicated in the previous action at law, except the two matters referred to in the immediately preceding paragraph, both of which were appropriate to, and, if defendant desired them passed upon, should have been incorporated in the case-stated then brought into court. Moreover, as noted in the last mentioned paragraph, and found by the court below, the two new, and subordinate, issues, -- on the point of title to the water -- raised in the present case, when examined, prove to be of no moment.

The fact that the previous action was in form a casestated, makes no difference so far as the question...