Mullin v. Pennsylvania R. , 125 Pa. 189 ( 1889 )

Opinion,

Mr. Justice Green :

We are of opinion that the master and the learned court below were correct in their interpretation of the grant contained in the deed to Thomas A. Parke in 1821, and the reservation in the deed to John Dowlin. It is true the right to take the water includes all the water of the stream, and it was to be taken for the purpose of erecting water-works. But the grant was also subject to the limitation that it was for the use of the Parke tract, and it was “ to be conducted where it formerly was.” There was evidence that the water had been formerly taken by a race-way for the use of a small turning mill which was abandoned many years ago, but of which there were still some remains at a time within the memory of one or more of the witnesses.

We do not see how so limited a grant as this can be now used to divert the water of the stream entirely away from both tracts a distance of a mile or more by means of iron pipes, and the water used, not at all for the purposes of the Parke tract, but for supplying the engines of a railroad company, or the inhabitants of a town. So far as this branch of thp case is concerned, therefore, we think there was no error in the conclusions of the master and court below.

The plaintiff’s bill, however, prayed not only for an injunction but also for compensation for the injury done him, and the master proceeded to determine what that compensation should be. Upon a review of the testimony he concluded that the plaintiff was injured to the extent of an annual reduction of $75 in the rental value of his land, and he allowed him that amount aggregated for seven years, being the time between the erection of the appellant’s works and the filing of the bill. We think this allowance was reasonable and was justified by the evidence. But he also recommended and the court entered a decree for a perpetual injunction restraining the appellant from any further taking of the water. In this we think there was error inasmuch as it appeared that the plaintiff had stood by and permitted the defendant to proceed with the erection of its works and diversion of the water at a very heavy expense without taking any legal steps to prevent it for so long a period as seven years. It is true there was correspondence between the counsel for the plaintiff and defendant upon the subject, in which the claim of the plaintiff for compensation was presented, and there was a promise that it should be considered, which does not seem to have been done. Nevertheless, the plaintiff took no active steps till he filed the present bill, in 1882, seven years after the water was diverted.

We tliink this was undue laches and that it would be very oppressive to interfere by injunction at this late day, the more especially as the plaintiff’s injury is entirely susceptible of compensation, and he lias asked for that relief in Ms bill. It has been many times held that long delay, and sometimes a delay of even less than six years will be regarded as laches sufficient to stay the intervention of equity: Ashhurst’s App., 60 Pa. 317; Evans’s Appeal, 81 Pa. 278; Russell v. Baughman, 94 Pa. 400; Kerr on Injunctions, 202; Todd’s App., 24 Pa. 429; Neely’s App., 85 Pa. 387; Rennyson v. Rozell, 106 Pa. 407; Cox v. P. W. & B. R. Co., 10 W. N. 553. An injunction is not at all necessary to the full and adequate relief of the plaintiff and there is therefore no occasion to award it. We think the plaintiff is entitled to compensation for his injury, but it should be complete compensation, and when ascertained it should be final. It should not be excessive or unreasonable, and it should not be allowed as annual damages, but as the price of the privilege to continue the use of the water. As the master has ascertained the measure of the injury by an annually recurring sum, it is only necessary to capitalize that amount and add it to the amount due to the time of the decree in this court, and thus give the plaintiff complete compensation, which we accordingly do.

Now, to wit, April 8,1889, so much of the decree of the court below as awards an injunction against the further taking and conveying the water of the stream in question, is reversed, and so much thereof as awards the sum of $525 to the plaintiff is changed and modified, and it is now ordered, adjudged, and decreed that the defendant pay to the plaintiff the sum of twenty-two hundred and sixty-two dollars and fifty cents, in full satisfaction and payment of all damages sustained by the plaintiff by reason of the defendant taking and using the water of said stream, and for the right and privilege of continuing to take and use the same hereafter; and it is further ordered that all costs, including the costs of this appeal, be paid by the defendant, and that the record be remitted to the court below.