Wagner v. Purity Water Co.
| Decision Date | 28 May 1913 |
| Docket Number | 319 |
| Citation | 88 A. 484,241 Pa. 328 |
| Parties | Wagner v. Purity Water Company, Appellant |
| Court | Pennsylvania Supreme Court |
Argued May 12, 1913
Appeal, No. 319, Jan. T., 1912, by defendant, from judgment of the Superior Ct., March T., 1912, No. 32, affirming judgment of C.P. Snyder Co., Dec. T., 1910, No. 13, on verdict for plaintiff in case of Charles A. Wagner v. The Purity Water Company. Reversed.
Appeal from Superior Court.
The facts appear in the opinion of the Supreme Court and in 50 Pa.Super. 500.
Plaintiff recovered a verdict in the lower court for $227.08, upon which judgment was entered, which judgment was affirmed by the Superior Court in an opinion by HENDERSON, J. Defendant appealed.
Error assigned was in affirming the judgment.
Judgment reversed and a venire facias de novo awarded.
Andrew A. Leiser and Jay G. Weiser, for appellant. The remedy was by view and not in trespass: Koch v. Williamsport Water Co., 65 Pa. 288; Bowers v. Citizens' Water Co., 162 Pa. 9; Lewisburg Bridge Co. v. Union & Northumberland Counties, 232 Pa. 255.
Plaintiff had no right of action having bought the mill after and subject to the appropriation of water by the defendant: McFadden v. Johnson, 72 Pa. 335; Losch's App., 109 Pa. 72; Davis v. Ry. Co., 114 Pa. 308; Nittany Val. R.R. Co. v. Steel & Iron Co., 218 Pa. 224; James v. West Chester Boro., 220 Pa. 490.
Measure of damages was difference in value of mill before and after the appropriation of water: Carpenter v. Lancaster, 212 Pa. 581; Hankey v. Philadelphia Co., 5 Pa. Superior Ct. 148; Mengell v. Mohnsville Water Co., 224 Pa. 120; Linton v. Armstrong Water Co., 29 Pa.Super. 172; Becker v. St. Ry. Co., 30 Pa.Super. 546; Thompson v. Traction Co., 181 Pa. 131; Rabe v. Shoenberger Coal Co., 213 Pa. 252.
M. I. Potter and C. P. Ulrich, for appellee. -- The defendant never having exercised any of the rights of eminent domain, it was to be treated as a riparian owner and nothing else: Lord v. Water Co., 135 Pa. 122; Ganster v. Met. Electric Co., 214 Pa. 628.
Before FELL, C.J., BROWN, MESTREZAT, POTTER and ELKIN, JJ.
As indicated in several recent cases brought to our attention there is a misapprehension as to the rights of water companies incorporated for the purpose of supplying water to the public. The misapprehension is that under their charter powers such companies have the right to appropriate and divert the waters of a stream without condemnation under the right of eminent domain. This is clearly an erroneous view of the law. It is true that water companies may acquire riparian rights by purchase, but when they do so they acquire only the rights of riparian owners, with the additional right to supply the water so obtained to the public, being answerable in damages to other riparian owners who may be injured by the diversion of the waters of the stream; or, if the water company in the first instance take proper corporate action by a resolution to condemn, it may then acquire by purchase or settlement of damages with the riparian owners, every right which it could have secured by proceeding adversely under the right of eminent domain. The mere incorporation of a company possessing the power of eminent domain does not ipso facto give to such corporation the right to enter upon and take the lands or property of an individual owner without proceeding to condemn in the manner provided by statute. In this respect water companies cannot be regarded as possessing any higher powers than railroad companies or other public service corporations. When a water company, or any other public service corporation, is invested with the right of eminent domain, it must exercise that power in the manner provided by statute, or sanctioned by law, before entering upon and taking the lands or property of an individual owner. No one can be deprived of his property without just compensation no matter what power the legislature may have conferred upon a corporation which asserts the right to take it for a public use. So far as is disclosed by the record in the case at bar appellant water company never took any corporate action nor instituted any proceedings to condemn the waters of the stream in question under the right of eminent domain. This was asserted as a fact at the trial in the court below and is stated in the opinion of the Superior Court. We, therefore, must assume in considering the questions before us for decision that appellant did not exercise the right of eminent domain when it undertook to appropriate the waters of the stream about which complaint is made in this action. It did construct a small dam across the stream which flowed into a pond of appellee and diverted some of the water from its natural course to a reservoir as a supply for consumers. It is suggested in the argument of the learned counsel for appellant that this was an appropriation of the waters of the stream for the corporate uses of the water company, but the record does not disclose how the appropriation was made nor the authority under which the right is asserted. But it is clear that the water company has diverted some of the water of the stream from its natural channel and is storing it in its reservoir for the purpose of supplying it to the public. The verdict of the jury must be taken to mean that the appellee was injured by what appellant did in diverting the water from its natural course. If there were no other questions in the case it would be necessary to say that the verdict of the jury was an answer to the contentions of appellant. But there are some other interesting questions in the case which require consideration and discussion here. Counsel for appellant very earnestly and ably contend that an action of trespass cannot be maintained under the facts of this case. It is urged that the remedy for securing compensation in the nature of damages for any injuries that resulted to appellee by appropriating the water of the stream was by view and not by an action of trespass. This view would be sound if the water company had appropriated the water under a proceeding to condemn. In such a case the statutory remedy is by view and under the authority of ...
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