Standard Plate Glass Co. v. Butler Water Co.

Opixiox by Rice, P. J.,

This is an appeal from a judgment in favor of the plaintiff, in an action of trespass brought to recover damages for the injury to it, as a lower riparian owner, by the diversion of the waters of Connoquenessing creek by the defendant company, in the years 1894 and 1895.

The defendant company was incorporated in 1877, under the provisions of the general corporation law of 1874, for the purpose of supplying the borough of Butler with water. In the following year the company built a dam across Connoquenessing creek, from which water is pumped to a reservoir, and thence conducted by pipes to the inhabitants of the borough. It does *574 not distinctly appear in the testimony how much land the defendant company owns or by what title it is held. We assume, however, that it owns the land where its dam was built, and also the land occupied by its pumping station and reservoir. There is no presumption that it owns any other land. Nor is there any evidence that it ever acquired or attempted to acquire the right to divert the water of the creek by condemnation proceedings or by grant. But it is fairly to be inferred that Boyd, the then owner of the land now owned and occupied by the plaintiff, knew of the erection of the dam, and, so far as appears in the testimony, he did not protest against the same. Neither does it appear he consented.

The plaintiff company was chartered in 1887, for the purpose of manufacturing, selling and dealing in glass, and in the same year purchased of one owner a lot of twelve acres on Connoquenessing creek about a mile below the dam of the water company, and of another owner other lots contiguous to the twelve acre lot.

Upon the land thus purchased — partly on the twelve acre lot and partly on the other lots —the company, at very great expense, erected large plate glass works. It also leased an adjoining piece of ground upon the creek, upon which it erected pumps and tanks for the purpose of supplying its works with water pumped from the creek.

All of the lots purchased by the plaintiff company were at one time parts of the farm of William S. Boyd. In 1872 or 1873, Boyd laid off his farm into town lots and, as thus plotted, the twelve acre piece alone bordered on the stream.

The plaintiff company required and used a large amount of water in washing, polishing and grinding glass, and to make steam to run the machinery of its works. According to the testimony it returned to the stream all but about one tenth of the water thus taken and used. For several years it obtained from the creek a sufficient supply for its purposes, but in the drought in the summer of 1894, it became necessary for the water company to take all of the water of the creek in order to supply its customers. As a consequence, the plaintiff company was deprived of the natural flow of the water of the stream to and by its land, and was compelled to open up the pools between its land and the defendant’s dam, and also to obtain water elsewhere to operate its works.

*575 This, in a general way, is a sufficient statement of the facts necessary to an understanding of the legal questions raised by the assignments of error. For the purposes of this discussion we need not refer to the evidence concerning the diversion of the water of Bonniebrook creek.

In his general charge as well as in his answers to the plaintiff’s points, the learned judge instructed the jury, that the measure of damages was the expense that the plaintiff was necessarily put to, during the j^ears in question, in order to supply water to take the place of the water that would have flowed to its land if it had not been diverted by the defendant.

The defendant’s counsel contend for three propositions, which we shall consider in the following order:

First. After the entry upon the stream, by the defendant company, the plaintiff company could not attach property not entitled to riparian rights to other property entitled to riparian rights, and then claim damages for injury done to the property as a whole, but should be confined to the injury done to the property entitled to riparian fights when it was purchased.

Second. The right of action for the diversion of the stream was in Boyd, the owner of the land bordering on the stream at the time of entry thereon of the defendant company, and hence the plaintiff was not entitled to recover.

Third. If the plaintiff company had a right of action against the defendant company the damages recoverable were limited to the injury done to the land as it was at the time of the entry on the stream by the defendant company, and the plaintiff company had no right after that entry, and with notice of it, to devote the land to a new use requiring a large amount of water for artificial purposes, and then charge the defendant company for loss arising from the want of water for such extraordinary use, unless the defendant company took more water than was reasonably necessary to supply the town.

I. It is to be observed that the cause of action is the injury suffered by the plaintiff in consequence of the diversion of the water of the stream in the years 1894 and 1895. Assuming that the plaintiff had a right of action therefor, the question whether the whole property occupied by its works was riparian is to be determined by its condition at the time of the unlawful diversion of the water complained of, and not by the condition, *576 at some former time, of the title to the several contiguous lots comprised in the property. At the time of the alleged injury it was one undivided property, both in title and in use, and we see no reason to doubt that riparian rights followed and were connected with such undivided ownership and use as fully and effectually as before the farm was plotted into lots. If the back lots lost their riparian rights when they were severed in title, such rights re-attached when the lots again became reunited in title, possession and use with the contiguous lots fronting on the stream, and thereafter so far as riparian rights were concerned, the property was to be treated as a unit. See Potts v. R. R. Co., 119 Pa. 285; Chester v. Eyre, 181 Pa. 612 .

II. It is not, and could not be successfully claimed that the defendant company had a right, as an upper riparian owner merely, to divert the water to the extent that it did, even for the purpose of supplying the inhabitants of Butler with water for domestic use. Ownership of the land does not include ownership of the water which flows over or past it. The right which the owner has is to the use of it in common with the other owners as an incident to the land. For many purposes connected with the enjojrment of the land to which the right is incident (for example, for domestic use and for watering cattle) the riparian owner may divert, detain and even consume the water without regard to the effect which such use may have, in case of deficiency, upon proprietors lower down the stream. But he has not in all respects an equal right thus to divert, detain or consume the water for purposes, which, although the same in kind, are in no way connected with the use of the land. In Haupt’s Appeal, 125 Pa. 211 , it appeared that a borough bought a tract of land through which a creek flowed, constructed a reservoir on the tract, and conveyed the water therefrom several miles to the borough for the use of its inhabitants. Speaking of the borough’s riparian rights, the court said: “ If the authority of the plaintiff were measured by its rights as a riparian owner, it Avould be slender enough. It might indeed use the water for the domestic purposes incident to the said ten acres. If there was a tenant thereon lie could use it for watering his stock and for household purposes ; for any useful necessary and proper purpose incident to the land itself, and essential to its enjoyment. But that the rights of a riparian owner would *577 justify the plaintiff in carrying the water for miles out of its channel to supply the borough of Ashland with water is a proposition so palpably erroneous that it would be a waste of time to discuss it.” The same language was quoted with approval in defining the rights — as a riparian owner merely — of a water company incorporated under the act of 1874: Lord v. Water Co., 135 Pa. 122 .

A diversion in the mode described in the testimony is generally regarded as a continuing injury, and is not referable to the day when first commenced, but successive actions may be brought as long as it is continued. “The general rule is that, successive actions may be brought as long as the obstruction is maintained. A verdict in the first instance establishes the plaintiff’s right. Subsequent actions are to recover damages for a continuance of the obstruction. . . . For a continued obstruction to the flow of water he could sustain successive actions. In each he could recover the damages he had sustained subsequently 'to the last preceding action: ” Bare v. Hoffman, 79 Pa. 71 . See also Wheatley v. Chrisman, 24 Pa. 298 ; McCoy v. Danley, 20 Pa. 85 ; Fell v. Bennett, 110 Pa. 181 ; Clark v. R. R. Co., 145 Pa. 438 . So, applying the general principle that successive actions will lie for a continuing trespass or nuisance, not necessarily permanent, the purchaser of an estate upon a stream, from which others have unreasonably diverted the water is-entitled to recover if such diversion is continued: Gould on Water, par. 215; Angelí on Water Courses, par. 399; Atlanta Mills v. Mason, 120 Mass. 244 ; Chapman v. Copeland, 55 Miss. 476 . Whether a different rule would apply where the wrongdoer had permanently changed the course of the stream by turning it away from the lower proprietors is a question we need not discuss. When the plaintiff bought there had been no such diversion of the stream.

How is the case affected by the fact that the defendant company is invested with the right of eminent domain ? If we correctly understand the defendant’s position it is this : that when it erected its dam across the creek, built its reservoir, laid its pipes and commenced to pump water to supply the inhabitants of Butler, it must be deemed in law to have exercised its right of eminent domain by the appropriation, for all time, of so much of the water of the creek as might at any time be necessary for *578 its purposes,; that the right to recover damages or compensation for the permanent injury to the land in question caused by such appropriation was in Boyd, who then owned the land, and that the plaintiff took title subject to the right of the defendant to take all of the water if necessary for its purposes. In support of this position the counsel cite certain decisions in railroad cases, amongst which may be mentioned Neal v. R. R. Co., 2 Gr. 137 , Wadhams v. L. & B. R. R. Co., 42 Pa. 303 , Heise v. Penna. R. Co., 62 Pa. 67 , Lawrence’s Appeal, 78 Pa. 365 , Beale v. Penna. R. Co., 86 Pa. 509 , Davis v. Titusville, etc., Railway Co., 114 Pa. 308 , O’Brien v. R. R. Co., 119 Pa. 184 , Williamsport R. Co. v. R. R. Co., 141 Pa. 407 , Graham v. R. R. Co., 145 Pa. 504 , and Johnston v. Callery, 173 Pa. 129 . These cases decide that where a railroad company enters upon land and builds a railroad across it with the knowledge, and without objection on the part, of the owner, or surveys the route of a railroad and marks it upon the ground, and then, by appropriate action of the board of directors, adopts the same as and for the' location of the proposed railroad, this is an appropriation of the land for the purposes of the railroad, and vests the right to damages in the owner of the land. The appropriation being permanent and continuing in its nature, the injury to the landowner is of like nature; therefore a single recovery can be had for all the damages which may be caused by the location and by the subsequent construction of the railroad. The same principles governed in our own case of Hankey v. Phila. Co., 5 Pa. Superior Ct. 148 . The right to the damages for such appropriation is a personal claim belonging to the owner of the land when the entry and injury takes place, and does not run with the land: McFadden v. Johnson, 72 Pa. 335 . But it is to be observed— and this is shown very clearly in the cases above cited — that the appropriation of land for the purposes of a railroad is evidenced by unequivocal acts, which leave no doubt of the determination of the company to fasten upon the land a permanent and continuing servitude. And although the title of the company does not become complete until it has made or secured compensation to the owner, yet no harm can ordinarily ensue to any one by holding that a purchaser of the land with notice of such appropriation takes subject to the right of the company to perfect its title by making or securing compensation to him who was the owner of the land at the time the appropriation was made.

*579 But upon what principle must the acts of the defendant company in 1878 be deemed, in law, an appropriation, in the exercise of the right of eminent domain, of all of the water of the creek for all time, in the absence of unequivocal evidence of such intention on its part? True, the company was empowered by the statute under which it was chartered to appropriate so much of the water from the creek as might be necessary for its purposes, upon compliance with the conditions imposed by the statute and the constitution. But what evidence is there, and what notice had the lower riparian owner, that it intended to exercise this right, or indeed that it intended to make a permanent appropriation of the stream without right? The offer to show that proceedings were begun by upper riparian owners for the assessment of damages caused to them by backing up the water, and that these were settled by a purchase of their property, was wholly irrelevant to the present issue and was properly rejected. To say nothing of the fact that neither the plaintiff nor its predecessor in title was a party to the proceedings, or was affected with notice of them, the evidence would not show or tend to show an appropriation of the stream by the defendant company in the exercise of its right of eminent-domain. There was no resolution of the board of directors appropriating the stream; no offer to agree with the lower owners or tender of security was made; the company made no entry upon their lands ; and there was no such physical occupation of the stream itself as indicated any certain .intention to continue the diversion of the water permanently, or to take such quantity as would work substantial damage to lower riparian owners; much less that it would at some future time take all of the water. As the defendant company did not for several years take water from the creek in such quantities as to interfere materially with the use of the water by the lower riparian owner, even for manufacturing purposes, he might well refrain from legal proceedings, without estopping himself or his successor in title from maintaining an action when actual damage was done. Let us suppose that, when the company first began to pump water from the creek, Mr. Boyd had brought an action on the case, and had demanded damages measured by the difference in the market value of his farm with the right to the flowing stream and without it, according to the rule laid down in Miller *580 v. Windsor Water Co., 148 Pa. 429 , might not the defendant company have successfully answered, that there was no evidence of a permanent injury to his farm .because there was no evidence of a permanent appropriation of the water? We find nothing in the evidence before us which would have prevented the company from making such answer, and from insisting that the true measure of damages in such a case was the loss that Mr. Boyd might have sustained by the diversion of the stream up to the time of bringing suit, in accordance with the rule laid down in Bare v. Hoffman, supra, Clark v. R. R. Co., 145 Pa. 438 , and kindred cases. As was said in the last cited case, the company was of course at all times liable to an action in vindication of the lower owners’ right, but not for the recovery of actual damages until actual injury was done. It now suits the purposes of the company to claim that there was a permanent appropriation of the creek in 1878, and that the owner of 'the land at that time might have proceeded to have his damages assessed in the mode prescribed by the act of 1874; but it is by no means certain that it would have taken that position if suit had been brought at. that time or would have been compelled to. Nor is it clear that a right of action to recover damages for a permanent appropriation was substituted for the lower owners’ right to have the stream which washed his land flow as it was wont by nature without material diminution or alteration.

In Penna. R. Co. v. Miller, 112 Pa. 34 , the company owned the land in fee through which a stream flowed, and took water from the stream at a point on its own land for the purpose of supplying its locomotives. The plaintiff alleged, that the quantity taken was so large as to seriously impair the power of his mill, and brought an action on the case, in which he recovered. The defendant contended, that by virtue of the act of 1857, the company had the right to take the water from the creek for the improvement and operation of'its railroad, and if in taking such water the plaintiff had suffered any damages, his remedy was to have them assessed by a jury of view in accordance with the provisions of the act, and an action on the case could not be maintained. The Supreme Court, Paxsox, J., delivering the opinion, disposed of this contention in this way: “We do not regard this point as tenable, for the reason that the water was not taken by the company under the right of *581 eminent domain, but by virtue of its rights as a riparian owner. ... As before observed the railroad company may use this water by virtue of its rights as riparian owner, but such use must be such as not sensibly to diminish the stream to the riparian owner below. The water belongs to both, and if the the former wants more than its share it must take it under its right of eminent domain and pay for it.”

A similar question arose in Lord v. Meadville Water Co., 135 Pa. 122 , where it was held that a water company, by the mere purchase of land upon which a spring issues, creating a stream which flows in a natural channel through the land of others, does not acquire a right to divert the water of such spring into another channel -without first paying or securing compensation to lower riparian owners; the rights of the company in such a case are those of a riparian owner, neither more nor less. The pertinency of these two cases consists in this, that in respect of their liability to action for diverting the water the defendants were treated as ordinary riparian owners, although it was conceded that they were invested with the right of eminent domain. “ The company might have taken the spring under its right of eminent domain, if it possessed such right; for aught that appears, it may do so still, and after having done so and made compensation to the riparian owners who are injured thereby, it will be free from suits of this nature. Had it done so in this instance it would not have had this judgment against it:” Lord v. Water Co., supra.

It is worthy of notice that the recovery in the foregoing case was not for a permanent injury to the plaintiff’s freehold, but for damages suffered by him in consequence of being deprived of the water for a certain specified period prior to bringing suit. It is true that the question of the measure of damages was not discussed, but the reasoning of the opinion is entirely inconsistent with the theory, that there was such a permanent appropriation of the stream, under the right of eminent domain as would prevent recovery in successive suits, so long as the unlawful diversion might be continued, or as often as it might be repeated prior to making compensation or giving security therefor.

. A water company invested with the right of eminent domain entered upon land for the purpose of constructing a reservoir,j *582 and cut down and removed the timber. The owner brought an action of trespass quare clausum fregit, and about the same time the company filed a bond for such damages as .he might be entitled to for the entering upon and taking the land. Viewers were appointed and the damages assessed. Upon the trial of the action of trespass the defendant offered to show that upon the hearing before the viewers the plaintiff offered to submit, and did submit, the question of the value of the timber cut, and that damages therefor were claimed and allowed. The rejection of this evidence was held to be error, but it was distinctly conceded by the court that the defendant was a trespasser and was liable as such, in entering upon the land and cutting the timber without making compensation or tendering bond. “ In the action of trespass the plaintiffs were entitled to recover for the unlawful entry, and for any damages to the property down to the filing and approval of the bond; in the proceeding before the viewers they were entitled to recover the value of the property taken as in other cases where the land is appropriated by a corporation under the right of eminent domain: ” Bethlehem Water Co. v. Yoder, 112 Pa. 136 .

Riparian rights are incident to the ownership of the banks of the watercourse. They run with the land. They may be granted away or be extinguished by condemnation proceedings or by prescription, but cannot be defeated by simple appropriation. The opinion expressed in some early cases that a riparian owner may acquire exclusive rights to running water by. prior occupancy has not been sustained by later decisions, and except in those states where the common law has been modified by statute or local usage, the great weight of authority is to the effect that mere prior appropriation or occupancy unless continued for a period of time, and under such circumstances as would be requisite to establish rights by prescription, confers no exclusive rights. See 4 Am. & Eng. Ency. of Law, 984, and cases there cited: Gould on Waters, par. 226. This is the doctrine of our own cases. “If a thing be common there may be an appropriation by general consent or grant. Mere priority of appropriation of running water, without such consent or grant, confers no exclusive right. It is not like the case of mere occupancy where the first occupant takes by force of his priority of occupancy. That supposes no ownership already existing, *583 and no right to the use already acquired. But our law annexes to the riparian proprietors the right to the use in common, as an incident to the land ; and whoever seeks to found an exclusive use must establish a rightful appropriation in some manner known and admitted by the law: ” Hoy v. Sterrett, 2 W. 327 .

It cannot be contended that the former owner of the land in question ever lost or parted with these rights, except when he parted with the title to the land, or estopped himself from asserting them in a court of law. When the title to the land passed, the incidental riparian rights passed with it. If the defendant company has not acquired the right to divert the water — to prevent the natural flow to and past the plaintiff’s land — the fact that it might have acquired it by making compensation or tendering security, or may still do so, does not affect the question of its liability to action for injuries to the party whose right was infringed. The plaintiff and the defendant, under the facts of the case, have the rights in the stream of riparian owners only. It follows that the former may maintain an action to recover such actual and special damages as it sustained in consequence of the detention and diversion of the water in 1894 and 1895, notwithstanding its predecessor in title had a right of action in which he could have recovered nominal damages for the infringement of his right to the natural flow of the water during his ownership.

III. The reasoning by which the foregoing conclusions are reached is as inconsistent with the defendant’s third proposition as with the other two. To hold that the plaintiff may recover damages in respect of the use of the land for agricultural purposes and iix respect of that use only would be to hold that in some way, not clearly explained, the defendant has acquired the right, as against the plaintiff, to take all of the water not required by the latter for such purposes, and to the extent, only, that it was required in 1878. This middle ground is no more tenable than the position that the defendant has the right as against the plaintiff, to take all the water, •if necessary, to supply its customers, without regard to the effect of such taking upon the use of the lower owners’ land for any purpose. Of the two the latter is the more logical position. Neither can be sustained by sound principle or authority. Both are virtually based on the assumption that the plain *584 tiff purchased with notice of a prior permanent appropriation of the stream, for which but a single action to recover all damages, present and prospective, would lie; which assumption, as we have seen, is not warranted by the facts or the law. But i E when the plaintiff purchased, the defendant had the rights of a riparian owner only, and if its acts in 1878, did not amount to a “ taking ” of the stream — a permanent appropriation of so much of the water thereof as it might at any future time find necessary to supply its customers — -then the plaintiff had a right to devote its land to any lawful purpose for which a riparian owner may rightfully use the water of a flowing stream, and could recover damages for the deprivation of the water for such use by the wrongful act of the defendant. A lower proprietor cannot recover special damages on the ground that the diversion of the water interfered with the water power on his land, when during the period of time covered by his action he had no mill or other means of applying or using the water power, made no attempt to use it, and gave no notice to the defendant of any purpose so to do; but if he erects a mill, or leases the site to some other person for that purpose, the defendant must cease the diversion of the water or be subject to a claim for special damages: Clark v. Railroad Co., 145 Pa. 438 .

It is well settled that a riparian owner has the right to the use of the stream as an incident to the land for ordinary purposes, and also for certain purposes which are called extraordinary, provided in such extraordinary use he does not materially diminish its quantity or impair its quality: Wheatley v. Chrisman, 24 Pa. 298 . The use which the plaintiff made of the water was extraordinary but not necessarily unreasonable and wrongful. Whether it was so or not depends not alone on the necessities of the business it conducted, it is true (Wheatley v. Chrisman, supra), nor, on the other hand does the law lay down any fixed and invariable rule as to the number of gallons that the riparian owner may consume in his manufacturing enterprise, without making himself liable to a lower owner. The question is, whether his use of the stream is reasonable and appropriate to the size of the stream and the quantity of water usually flowing therein: Gould on Waters, par. 208. The reasonableness of the use of water by a riparian owner must depend upon the circumstances of each particular case, and of *585 course the size and capacity of the stream rightly enter into the inquiry: Miller v. Miller, 9 Pa. 74 ; Clark v. Railroad Co., 145 Pa. 438 . The plaintiff actually consumed but a comparatively small part of the water that it took; all the rest was returned to the stream. -In the absence of evidence that the taking of such quantity from the stream in. its natural state would materially and sensibly diminish its volume, to the actual damage of lower riparian owners, the defendant is not in a position to deny the right of the plaintiff to use the water for manufacturing purposes and to recover such damages as it has sustained in respect of such use.

The rule as to the measure of damages applicable to the facts of the case, as stated by the learned trial judge, is fully sustained by Hogg v. Connellsville Water Co., 168 Pa. 456 , — a case strikingly similar to the present in many essential facts. See also Hart v. Evans, 8 Pa. 13 .

Judgment affirmed.