Barget v. Drake , 52 Pa. Super. 647 ( 1913 )

Opinion by

Henderson, J.,

The plaintiff’s right to take water from Caldeno Creek rests on the grant contained m the deed of the Delaware Water Gap Land & Improvement Company to William Erwin dated August 17, 1898. For several years prior to that date the improvement company had had in operation a water system the source of supply for which was the same creek at a place leased from Staples above the land of that company. From a reservoir constructed on its land the improvement company laid pipes along some of the streets of the borough which were in use as water conduits when Erwin acquired title. The grant to the latter included “the full and free right of constructing and maintaining a dam in said creek and the pumping of water if necessary by hydraulic or steam power, and conducting the whole from said creek by means of pipes operated below the surface over the lands of the said first party in such direction as indicated by said first party, about where the present pipe is laid with the full and free right and privilege of ingress, egress and regress over and upon the lands of said first party or their assigns, where said pipe is or may be laid for the purpose of repairing, renewing or re-laying said pipe at any or all times, doing as little damage as possible and replacing the soil in good condition. The said privilege of damming said stream and the pumping of water to be subject, however, to the condition that if by reason of privileges granted by said first party more than one person is entitled to take water from said creek they shall all use the same dam and the same pumping power, each to pay his proportionate part of the expense thereof.” We are unable to give to this grant a construction which would make it operative to vest in the grantee a title to or interest in the water system then owned and operated by the improvement company. The water right referred to in the deed is the privilege to the grantee of establishing a water system of his own 'or one to be constructed by him in co-operation with subsequent grantees of the improvement company who might require water in the enjoyment of their property. This appears from the very terms of the deed. The grantee was authorized to construct and maintain a dam in the creek and to establish a power system for forcing the water through the pipes; the pipes were to be laid under the direction of the grantor in proximity to the pipes then in use by the company. This does not on its face give to the grantee any right to water from the pipes of the grantor nor does the evidence show that it was so interpreted and understood by either of the parties when the grant was made. The learned trial judge has found as a fact that Erwin’s use of water from the improvement company’s plant was at his request and permissive only, he not being able at that time to establish his own water system. It was a license merely and revocable at the pleasure of the improvement company or the defendant to whom the company sold the water system: Dark v. Johnston, 55 Pa. 164; Baldwin v. Taylor et al., 166 Pa. 507. As the purpose of the plaintiff's bill is to restrain the defendant from shutting off the plaintiff's water supply it was incumbent on the latter to show by prevailing evidence an agreement which vested in him a supply of water from pipes not laid by him and from a water system which he had neither constructed nor assisted in constructing. This he failed to do as the court found on sufficient evidence. It is unnecessary to consider the question raised by the amended bill and the effect of the grant of the water privilege from the improvement company to Erwin as affecting the right of the plaintiff to take water from the creek or the right of the defendant to divert water therefrom at his reservoir. The plaintiff is not attempting to exercise any right under his deed by taking water from the stream and is not affected at this time by such diversion. Where an injunction is sought it must be made clearly to appear that the plaintiff has sustained injury or is about to be damaged by the unlawful act of the defendant. Where the injury is doubtful or contingent an injunction will not be granted: Berkey v. Mining Co., 220 Pa. 65. The party still has his remedy at law if he have a case which would finally support an injunction. The decree of the court below necessarily followed the findings of fact and these findings are sustained by the evidence.

The appeal'is dismissed and the decree affirmed at the cost of the appellant;