Irving's Executors v. Burgess of Media , 10 Pa. Super. 132 ( 1899 )

Opinion by

Rice, P. J.,

This was an action of trespass to recover damages for the diversion of the waters of a private stream called Ridley creek. The defendant’s waterworks are located on land which it bought for the purpose outside the borough limits.' The main stream from which the water is taken, does not run through the borough, but one of its tributaries does. The plaintiff’s mill is located on the stream about four miles below the defendant’s pumping station. Other facts will be referred to as we proceed.

Without discussing each of the assignments of error separately, the principal questions in the case will be considered under the following heads: First, the defendant’s right to divert the water, (a) as an upper riparian owner; (5) as a borough authorized by law to supply its inhabitants and those living in the vicinity with water for domestic and other ordinary uses ; (o) by prescription; second, the plaintiff’s remedy.

1. It is not pretended that the defendant’s ownership of riparian land at the point where the water is pumped by it from the creek would, of itself and without more, be a defense to the present action. The counsel say they do not stand on the rights of the defendant growing out of riparian ownership, but on the rights of the inhabitants within the limits of the territory drained by the creek and its tributaries, to take as much of the waters of those streams as they may at any time need for domestic uses, without being liable in damages to those below. They say that the borough is simply the agency through which the collective rights of the inhabitants are being exercised. The argument in support of the main proposition proceeds along these lines: There can be no ownership of flowing water; the right to take it for one’s needs is a natural right; all that prevents any person from taking it is that he cannot have access to the stream without trespassing upon the lands of others; if he can have access to it where it crosses a highway, he may take as much as he needs for ordinary uses; the same must be true if he can get to the stream by permission of a riparian owner. The logical result of holding, without qualification, that all inhabitants of a particular district, who can obtain access in any lawful way to a private stream, may take as much water as they need for ordinary uses, would be, that the riparian owner may grant to nonriparian owners the same rights that he has. If this be so, he may admit as many to the same privileges as he pleases, and upon such terms as he pleases, even to the exhaustion of the stream. He may permit a water company, or a borough having the same powers, to erect its pumping apparatus and reservoir upon his land, and if the water company or the borough confines its distribution of water for pay to inhabitants of the district drained by the stream, lower riparian owners cannot complain. If the needs of the inhabitants of the borough should now, or at any future time, require all the water that comes to its plant, all might be taken, if the position of .counsel be correct. The establishment of this doctrine, instead of conserving the natural rights of all the inhabitants of the district, would enable a part of the inhabitants, namely those dwelling in the borough, to appropriate the water to the exclusion of dwellers further down, whose natural rights, the counsel must concede, are equally as sacred. It would, moreover, be destructive of the rights of lower riparian owners to have the stream that washes their land “ flow as it is wont without material diminution or alteration.” The defendant’s counsel defended their position with earnestness and ability, but we cannot avoid the conviction that a process of reasoning which leads to such results must have a fallacy in it somewhere along the line. Ownership of riparian land does not include ownership of the water which flows over or past it, it is true. The right which the owner has is to the reasonable use of it as an incident to the land. For some purposes connected with the enjoyment 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. The lower owner’s right is subject to this well-understood qualification. But the upper riparian owner 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 past or over which it flows. These are elementary principles and scarcely is it required that authorities should be cited in support of them. It' is sufficient to refer to one of the latest decisions of the Supreme Court involving a consideration of riparian rights in a private stream, where the language of Chancellor Kent in Gardner v. Newburgh, 2 Johns. Ch. R. 162, is quoted with approval. “ A right to a stream of water is as sacred as á right to the soil over which it flows. It is a part of the freehold, of which no man can be disseized, but by lawful judgment of his peers or by due process of law.” Speaking of Haupt’s Appeal, 125 Pa. 211, Lord v. Water Co., 135 Pa. 122, and Clark v. R. R. Co., 145 Pa. 438, 452, Justice Dean said: “In substance they hold that the riparian right is not an absolute ownership of the water of the stream. This is not pretended. The riparian owner could not sell the water to a hon-riparian owner, nor could he possess himself of the whole of it; such is not his right; his right is qualified by the rights of the lower riparian owners. But this qualified right appertaining to his property along the stream adds to the value of the property:” Rudolph v. Penna. R. Co., 186 Pa. 541. The riparian owner has in addition to the natural rights which every one possesses, a property right which nonriparian owners do not possess. In conferring upon this borough the power to transact the business of a vendor and distributor of water and for that purpose “to use the water from any streams or springs within the limits of said borough .... or elsewhere found,” the legislature was careful to provide that it should pay “ to those interested a just and equitable compensation for any damage by them sustained,” and further, “ that nothing herein contained shall authorize the borough authorities .... to enter on lands or appropriate the property of persons with whom an agreement cannot be effected, without first giving adequate security for any damage they may occasion, to be approved by one of the judges of the court of common pleas of Delaware county:” Act of April 6, 1854, P. L. 301. The act was intended, and is adequate, to provide for the necessities of the general public, and also to protect the property rights of individuals owning riparian lands. If the right of the riparian owner to the natural flow of a private stream is a property right, as it clearly is under all the authorities, he cannot be deprived of it lawfully by the appropriation of the stream by an upper riparian owner for the purpose even of supplying the natural wants of members of a community not having equal riparian rights, without compensation being first made or secured. The fact that the upper riparian owner is an incorporated water company or a borough authorized to carry on the business of a vendor and distributor of water cannot affect the principle: Craig v. Shippensburg, 7 Pa. Superior Ct. 526, and cases there cited.

2. The defendant’s second position is, that it having entered upon the creek and commenced the diversion of the waters more than twenty-one years before suit was brought, the law presumes that compensation was made for any damage sustained by the plaintiff, or was adjusted by mutual agreement. Whilst refusing to affirm this proposition, the court instructed the jury that the continuous user of the water for the period of twenty-. one years raised the presumption of a grant, but differed from the defendant’s counsel as to the extent of the presumed grant. We cannot better state the .ruling than by quoting from the charge: “ I can only say that if you find that the defendants take no more water from this stream than they took twenty-one years ago, then it would be a defense. If you find that they have taken more water and by different means and by additional and more powerful pumps, and by an extension of their works, than they did twenty-one years ago, and that has resulted in ah injury to the plaintiff, then it is only a defense so far as a reasonable allowance should be made for what they took twenty-one years ago is concerned.” We are of opinion that this was a substantially correct statement of tbe law applicable to tbe facts of the case being tried. The general rule of law is, that although the stream be either diminished in quantity, or even corrupted in quality, as by the means of the exercise of certain trades, yet if the occupation of the party so taking and using it have existed for so long a time as may raise the presumption of a grant, the other party, whose land is below, must take the stream subject to such adverse right: Bealey v. Shaw, 6 East, 208; Hoy v. Sterrett, 2 W. 327. “It is well settled, that if there has been an uninterrupted exclusive enjoyment, above twenty-one years, of water, in any particular way, this affords a conclusive presumption of right in the party so enjoying it, and this is equal to a right by prescription: ” Strickler v. Todd, 10 S. & R. 63; Messinger’s Appeal, 109 Pa. 285. There is no difference of opinion as to this; there is a right in the defendant based on the presumption of a grant, or (to state the proposition in another form) of an appropriation for which compensation was made. The question is as to the extent of the right. The defendant’s counsel contend that it is commensurate with the powers of the borough under the statute; the plaintiff’s counsel contend that it is to be measured by the user twenty-one years before suit brought. The borough, it is true, could have acquired the right to the whole of the flow of the stream by condemnation proceedings or by agreement with the riparian owners, but it was not required by the act of 1854 to take' and pay for the whole, or none. So that it cannot be said that the lower riparian owners were bound to presume, that, when the borough located its works on the banks of the stream and .began to pump the water, this was an appropriation of all of the water of the creek. See Glass Co. v. Water Co., 5 Pa. Superior Ct. 563, 578. They were affected with notice of its acts, and, after twenty-one years, are presumed to have granted the right claimed by the borough as evidenced by them. The owner is not affected by acts that do not bring to his knowledge, either actually or constructively, the assertion of a right adverse to him: Hughesville Water Co. v. Person, 182 Pa. 450, 454. Upon the same principle is it not correct to say, that in the ease of a diversion or of a pollution of a private stream, the lower riparian owner is not affected with notice of the assertion of an adverse right, greater in extent than the acts of the adverse claimant indicate ? If, at the beginning, the latter take but 100,000 gallons daily, is the lower owner bound to take notice of the assertion of the right to take all the water of the stream ? Our examinatioii of the authorities has led us to a different conclusion from that reached by the defendant’s counsel. “ The extent of the presumed right is determined by the user on which is grounded the presumed grant; the right granted being commensurate with the fight enjoyed: ” Angelí on Water Courses (7th ed.), 389. “The extent of the prescriptive right is measured by the extent of the enjoyment, and is confined to the right as exercised originally: ” 28 Am. & Eng. Ency. of Law, 1012. “ The user which originated the right” (to pollute a stream) “ must also be its measure, and it cannot be enlarged to the prejudice of any other person:” Crossley v. Lightoweler, L. R., 2 Ch. 478, quoted in Gould on Waters, see. 345. This doctrine is recognized in our own cases, and we discover no reason for refusing to apply it here: Darlington v. Painter, 7 Pa. 473; Mertz v. Dorney, 25 Pa. 519; Jones v. Crow, 32 Pa. 398; MeCallum v. Germantown Water Co., 54 Pa. 40, 48; Chestnut Hill, etc., Turnpike Co. v. Piper, 77 Pa: 432. See also Bealey v. Shaw, supra, Prentice v. Geiger, 74 N. Y. 342, and Hogg v. Bailey, 5 Pa. Superior Ct. 426, 435. If, originally, the defendant had changed the course of the stream by turning it away from the lower owners, or by some other act, of which the lower owners had notice, had indicated a present purpose to permanently appropriate so much of the water of the creek as might not only then, but in the future, be required to supply the wants of the inhabitants, a different question would be presented.

3. The next question is as to the plaintiff’s remedy. We suppose it will not be denied that if this were a dispute between two private individuals and during the period for which damages were claimed the defendant had diverted the water in excess of his right under a presumed grant, successive actions ex delicto would lie. But such diversion of the water is none the less a tort because the defendant has the right of eminent domain, if the conditions upon which this right may be exercised have not been complied with. See Glass Co. v. Water Co., 5 Pa. Superior Ct. 563, and cases there cited, and especially the eases of Lord v. Water Co., 135 Pa. 122, and Bethlehem Water Co. v. Yoder, 112 Pa. 136. The plaintiff’s laches might be a bar to relief in equity, but it would not be a bar to a common-law action. The measure of damages is another question. It was upon this question that the case of Hankey v. Philadelphia Co., 5 Pa. Superior Ct. 148, turned; the right of the plaintiff to maintain a common-law action was distinctly upheld. Nor can the defendant complain that the damages were not assessed upon the same basis as if the defendant had appropriated the stream in tbe exercise of the right of eminent domain for two reasons: First, the defendant persists in the claim (to quote from brief of counsel), that it has “ the right to take the water out of the creek and its tributaries to supply the needs of its inhabitants and the public buildings, not under the right of eminent domain, but under the right which all of its inhabitants had and have to take water from the creek for domestic purposes.” Second, after the verdict was rendered the court gave the defendant an opportunity to file a bond and to specify the extent of its appropriation, and ordered, that, if this was done, the verdict be set aside and a new trial granted. The defendant did not avail itself of this opportunity to have all the damages, retrospective as well as prospective consequent upon a permanent appropriation, assessed in one proceeding. Therefore, the principle upon which Hankey v. Philadelphia Co., and kindred cases were decided has no application.

This disposes of all of the questions raised by the assignments of error, excepting the first four and the seventeenth.

4. Where a plaintiff has different interests in possession and reversion, he may recover in one action for an injury affecting both; Gould on Waters, sec. 480. Especially is this true where the separation of the interests is a mere business arrangement, made for his own convenience, as, for example, charging one department of his business with so much rent. James Irving was the owner of the mill and the land upon which it was situated. He was, moreover, in' possession and conducting the business during the period covered by the action. His executors claimed to recover damages for the loss of power to run the mill, consequent upon the defendant’s tortious diversion of the water. They were allowed to recover upon the basis of the cost of supplying power to take the place of that of which he was deprived during the period covered by the action. This was a proper method of arriving at the damages in such a case: Hogg v. Water Co., 168 Pa. 456; Glass Co. v. Water Co., 5 Pa. Superior Ct. 563, and see Hart v. Evans, 8 Pa. 13. The fact that William A. Irving, his son, had an interest in the profits of the business was not raised as an objection to the plaintiff’s right to recover all the damages for the entire injury to the freehold as well as to the possession, until after the testimony was closed. The plaintiffs then offered to show that William A. Irving had no such interest in the possession as would entitle him to maintain an action; in other words, that he was a mere employee, compensated by a percentage. This was a discretionary matter and as the court refused to permit the evidence to be given, probably we ought not to assume the facts alleged in the offer. The fact remains, however, that William A. Irving was a party to the suit as one of the executors of James Irving and pressed for a recovery in accordance with the claim as above stated. This, taken in connection with his further stipulation given at. the close of the trial, will fully protect the defendant against a second suit for the damages accruing prior to the bringing of the present suit. Under all the circumstances, therefore, we conclude that the court committed no error in the rulings complained of in the fourth and seventeenth assignments. We remark further with' regard to the former assignment that the bill of exceptions does not distinctly show an offer to prove the rental value and a rejection of that offer.

5. It was necessary for the plaintiff to prove the quantity of water taken during the period covered by the action — 1888 to 1894. This could only be done approximately because no record was kept prior to July, 1895. For the purpose of comparison the plaintiffs were permitted to prove (first assignment) by the record kept by the defendant, the quantity taken during the year beginning July, 1895. This, in connection with other evidence going to show whether the quantity was more or less than that taken in the immediately preceding years, was a proper and reasonably certain mode of proving the fact directly in issue.

Neither of the remaining assignments to the admission of evidence requires particular notice.

All of the assignments of error are overruled and the judgment is affirmed.