City of Philadelphia v. Gilmartin , 1872 Pa. LEXIS 121 ( 1872 )

The opinion of the court was delivered, by

Agnbw, J.

In the court below the plaintiff claimed damages arising from a' diversion of the water of the Schuylkill river, to supply the city water-works at Fairmount. The navigation was impeded, and his boat was detained in her voyage from the 9th of August until the 8th of September 1869. The season was one of unexampled drought, and several interesting questions arose in the trial. These had been decided in a former case: The City v. Collins, 18 P. F. Smith 106, in an opinion delivered by the Chief Justice. It is now alleged that that case was not fully argued ; indeed it is said by the counsel that the question of the liability of the city for the acts of her officers, was not apprehended by themselves, in all its bearing, and we are asked, therefore, to review this and several other points in the case. The City v. Collins was ably argued and well considered, yet, in deference to the wishes of the counsel, and in view of the important consequences to the city, we have re-examined the following questions, viz.:

The extent of the alleged grant to the city, contained in the proviso to the Act of 1807.

The extent of the rights of the city under the contracts with the Schuylkill Navigation Company.

The liabilities of the city for the acts of its agents and officers.

The influence of the unexampled drought upon the rights and duties of the parties.

We cannot see in the reservation in the proviso to the Act of 1807, of the right to erect works or machinery for the purpose of conducting the waters of the river to the city, any grant of these waters prejudicial to the navigation of the stream. That act granted to Robert Kennedy a private right only to construct a race and lead off so much water as should be necessary for his mills, subject to the condition that he should not obstruct the navigation of the river, or prevent the fish from passing up. The proviso in favor of the city was an exception merely to this private grant, and while it was a root from which rights might spring, it defined none, and pledged the state to no extent of enjoyment of the water by the city, which would interrupt or impair the navigation. A contrary interpretation has been given to the proviso by all the parties — the state, the Navigation Company, and the city, by legislation and by contracts acted upon and recognised for half a century. By the Act of the 8th of March 1815, incorporating the Schuylkill Navigation Company, to make a slack-water navigation by means of dams, locks and other devices, the stream was devoted to this purpose. The 15th section conferred upon the company the right to use the water-power of the river, sluices and canals to propel machinery, or to sell in fee simple or lease the water-power to others; but with the proviso that it should be so done, that it should not at any time impede or interrupt navigation. This law is directly at variance with the right now claimed for the city to impair the navigation ; and so the city and the company understood it.

This brings us to consider the extent of the rights of the city under her contracts with the company. The first agreement is dated June 8d 1819. It recites the maim of title by the city to the grant of the private right to Robert Kennedy, through certain mesne conveyances, and settles and adjusts the mutual interests of the company and the city in the waters' of the stream. The company stipulated for its right at all times to draw off as much water as they should deem necessary for the purposes of the navigation; and the city bound herself not to reduce the water below the top level of the dam at Eairmount; and not to sell, lease, dispose of any water-power, or to use it for manufacturing purposes except a certain limited use to be made by the city. The city reserved any rights she had .under the Act of 1807; but it is obvious this was a mere precaution, and did not enlarge the rights of the city which were expressly defined by the agreement. It limited the extent of her use of the water and water-power in the most precise terms. The vague and undefined right contained in the proviso thus became clearly fixed and ascertained by the agreement. The express terms of the contract cannot be set aside by such an undefined reservation.

Then came the agreement of July 20th 1820, enabling the city to add eighteen inches to the height of the dam; but otherwise confirming the agreement of 1819. This was followed by the agreement of June 14th :1824, granting to the city the whole water-power of the river produced by the Fairmount dam, and the use of the whole water of the river there, that should remain after drawing off what should he necessary for the purpose of the navigation of the river. To prevent misconstruction, this new concession is followed by the express declaration of the true intent of the parties, that the city should have such use only, of the water, as with the use thereof for the purpose of the navigation would not reduce it below the surface of the dam, or keep it so reduced. To enforce and protect the right of the navigation, it was agreed that should it at any time happen that the water should be drawn off below the top or surface of the dam, it should be lawful for the 'Navigation Company to fasten up the gates or openings used by the city to draw off the water, and to keep them fastened until the water should be raised as high as the top or surface of the dam.

The Schuylkill river was recognised by William Penn as a navigable stream: Proud’s History of Pennsylvania 252. It has been classed as navigable along with the Ohio, Monongahela, Allegheny, Susquehanna, Lehigh and Delaware, and many laws have been passed recognising it as such: Shrunk v. Nav. Co., 14 S. & R. 79, 80, 81; McKeen v. Delaware Div. Canal Co., 13 Wright 433. In view of the navigable character of this stream, and of the policy of this state to improve and preserve the navigation of all her navigable rivers, and in view of the acts of the state, and the contracts of the Navigation Company and the city in regard to this very stream, it is impossible to doubt the superior right of the public to the use of the Schuylkill for navigation, and the consequent subordination of the rights of the city thereto.

We come now to the question of the liability of the city for the acts of her agents and officers in relation to the use of the water of the Schuylkill. This inquiry hears upon the case in two aspects, viz., the competency of the evidence in the bills of exception, and the right of the plaintiff to maintain his action. The agreements heretofore considered, and the other evidence in the canse, exhibit the city as the proprietor of a vast water-power, and its appropriate machinery, and of lands, buildings, reservoirs, and an extensive system of pipes, by which she distributes the water to nearly a million of people. She sends it not only to private dwellings, but to public buildings, mills, manufactories, fountains, and to other uses. She is a vender of water, and sells it for use in the arts, employments and pleasures of the people, deriving large revenues from the sales. In carrying on this vast business and trade in water she stands in the relation of an owner of private property, and employs many agents performing the functions of servants, who are accountable to and report to the municipality, are governed by its regulations, and are supervised and controlled by the councils, committees and officers of the corporation. Thus a mere statement of the facts discloses the relation of principal and agent in reference to the city water-works, and not that of ordinary corporation officers performing merely municipal functions. The principle of the two cases relied on so much by the counsel of the city does not apply. Mitchell v. City of Rockland, 52 Maine Reports 118, was a case where the health officers took possession of a vessel and used it with the consent of the owner as a hospital for a small-pox patient, and afterwards sent a person to fumigate and purify it, who accidentally caused a fire, by which the vessel was injured. The city was held not to be liable for the injury because the health officers had no authority to take possession, and acted beyond their powers, and the city had no special property in the vessel. Russell v. The Mayor of New York, 2 Denio 461, was an action to recover compensation for personal property destroyed by blowing up a building to arrest a fire, upon the order of the mayor and two aldermen acting under a statute. The duty being imposed by the statute on the officers and not on the city, and not by any city regulation, it was held that the city was not liable to respond in damages. There was a question of necessity also discussed in that case, which does not bear upon the aspect of this case now under consideration. I'shall come to that presently. But in regard to municipal affairs the liability of the city is not so restricted as has been argued from the cases just cited. In performing municipal functions only, the corporation must act through officers, for whose negligence and irregularities it must be held liable. A municipal corporation is nothing more than an aggregation of persons, and it cannot be that liability is wholly lost in the number. Men, whether as individuals or communities, have duties to perform which lie at the foundation of responsibility. There are many decisions in this state which vindicate this just principle, to some of which I may refer. For instance, an incorporated district, authorized to pave and grade a public street, was held liable for an injury to a private right of way caused by the diversion of the water from the street upon the private way, on the ground that it had the power and was bound to make a proper provision for carrying off the water from the street: Commissioners of Kensington v. Wood, 10 Barr 93. So a city having charge of a public wharf for landing boats and receiving wharfage for it, was held liable for an injury to a steamboat caused by the neglect of her officers to remove a pile of iron lying there, within the period prescribed by ordinance for the removal: Pittsburg v. Grier, 10 Harris 55. The City of Erie also was held liable for the negligence of its officers in permitting a street to be used, without a warning of its imperfect condition caused by the loss of a bridge carried off by a flood; and a limitation in its charter of the percentage of tax to be levied in any one year was held to be no defence on the ground of a want of means to repair: Erie v. Schwingle, 10 Harris 384. In full accord is Humphreys v. Armstrong Co., 6 P. F. Smith 204, in which the county was made responsible for the acts and omissions of the commissioners in relation to an unsafe bridge which fell with the plaintiff’s wagon and team. The bridge being on the line of two counties and maintained by both, it was afterwards held that Armstrong could recover contribution from Clarion county, notwithstanding the case was one of negligence: 16 P. F. Smith 218. A stronger case is Allegheny City v. McClurkan, 2 Harris 81, in which the city was held liable for the unauthorized contracts of its officers, entered into publicly so as to be within the knowledge of the citizens generally. The city was made to pay the issue of small notes or scrip issued by the councils, though contrary to the Act of 12th April 1828, forbidding the circulation of such notes. There were two questions in the case, the authority of the councils to issue the scrip and bind the city, and the invalidity of the notes on the ground of their illegality. " In the former, the city was decided to be bound on the principle of ratification, on account of the public character of the act of the councils, and the benefit accruing to the city. In the latter, the validity was sustained under the terms of the third section, declaring that the notes shall not be void by reason of the prohibition. In the same volume, p. 177, the case of The Commonwealth v. Pittsburg decides that municipal corporations may perform portions of their business through committees. See also Painter v. Pittsburg, 10 Wright 213. When a municipal corporation transacts business as a vender and distributor of water, the relation of her employees is that of servants to her, and the maxim respondeat superior applies to their acts and negligences in conducting this business. Surely it cannot stand in a higher relation to the business than the state herself when she forms business connections, and for the time being lays down her sovereignty: Wheeling- Bridge Case, 13 Howard 560; Turnpike Company v. Wallace, 8 Watts 316. The facts of the case, as clearly ascertained, the weight of authority, and the demands of justice, make it evident that the relation of the city to the Fair-mount Waterworks renders her liable for the acts of her servants and employees in drawing off the water contrary to her duty to the state, and her contracts with the Navigation Company. The acts and declarations of her agents and officers in the course of their several employments, and duty of supervision and control, were parts of the res gestee, and were evidence to the extent set forth in the bills of exception.

It now remains to consider the influence of an extraordinary drought upon the case. It is a clearly proved fact, and one fully established by the verdict, that the chief engineer of the waterworks and his subordinates drew off the water of the pool, to supply the reservoirs of the city, below the top level of the dam, and kept it drawn off so far below, that, from the 9th of August till the 7th of September 1869, the navigation of the pool was wholly impeded to the class of boats usually navigating the Schuylkill previous to that time. The plaintiff’s boat was of this class, and drew, perhaps, half an inch less. Was this alleged wrong justified by an overruling necessity ? Let it be conceded that an extraordinary drought, following the order of nature, is an act of God, the author of the laws of this order, and that in consequence some one must suffer without redress, upon the maxim Actus Dei nemini facit injuriara ; and let it be admitted, that, for the necessary use of man and his dependent creatures, the right to this element, as indispensable to life and health, is superior to the right of the navigator; yet the inquiry remains, was there such a necessity in this instance, to take from the navigator his superior right to use the stream.

The injury, as shown by the evidence and established by the verdict, arose from the use of the Schuylkill by the city for waterpower, and not merely for consumption. For every gallon of water supplied to the reservoirs thirteen and a half gallons were expended through the turbine wheels, for driving and lifting power; and when common water-wheels were used, the expenditure was twenty-seven gallons for power to every gallon pumped into the revervoirs for consumption. It is also in evidence, and an undoubted fact, that from time to time and for years the councils of the city have been warned by the chief engineer, in his reports, to take steps to protect the city in time of drought, by the use of steam-power, so as to economize the water of the Schuylkill for city use. This had not been effectually done, though steps had been taken in that direction, and in consequence of this negligence, the city has continued to use the water for power beyond the necessity of consumption, thus violating her duty in regard to the navigation by drawing -unnecessarily upon the stream; The injury to the navigator is therefore the result of negligence on the part of, the city, concurring, if you choose, with the providential act. But, in deciding upon the question of illegality in drawing off the water from the navigation, we are carried beyond its use for power, to inquire into the character of the consumption claimed as an overruling necessity.

We have already seen that the city is a large vender of water, from which she is deriving revenue, for all the purposes of the arts, manufacturing, business and pleasure. These uses are not domestic, that is such as are for the preservation of the life and health of the population and their creatures, but are simply utilitarian or business uses, and far exceed those needed for domestic purposes. And even as to those termed domestic, a distinction must be noted between the use proper and that which is lavishly expended in pavement washing, baths, &c. It is perfectly obvious, therefore, that the city drew off water not only for driving and lifting power, but for a consumption far beyond any imperious necessity, and for purposes wholly subordinate to the right of navigation. She chose to prefer the pecuniary interest of her citizens, and doing an injury thereby, she must make compensation to the injured parties. Í mean not by these remarks to draw any comparison- between the importance of the use of the water for the great’ purposes of industry, wealth and cleanliness of a city so populous as Philadelphia, and the use of it for navigation during a few days of drought. The question for us is that of legal right, not comparative weight. Such important interests as those of the city are likely to lead to the substitution of might for right, yet they are not of that imperious necessity which justifies might, -and changes wrong into right. Administrators of the law, we cannot bend or break the law before a large interest, more than we can before one that is small. The doctrine of imperious necessity is not in this case.

The influence of the drought bear-s upon another question raised in the defendant’s sixteenth point, requiring the court to charge that though the city had no right to reduce the water below the comb of the dam, yet, if the plaintiff’s boat could not have navigated Eairmount pool without a breast of water flowing over the dam, then the act of the city did no damage to the plaintiff, and he could not recover. The boat of the plaintiff was of the ordinary class capable of navigating the pools in ordinary low water. The court, therefore, properly answered the point by saying that, whether the city was justified in drawing off the water to the extent of reducing it to the level of the surface of the dam depends upon this, viz.: whether such a use of it impeded or interrupted navigation; and this was submitted as a question of fact for the-jury, whose finding establishes that the drawing off the water at the time of the drought did impede the navigation. The reason given by Judge Thayer is conclusive, that by the 15th section of the charter the company could not sell or grant any water-power ■which would have the effect of impeding or interrupting the navigation. The contract of 1824 granting the whole water-power down to the top level of the dam was, therefore, subject to a proviso, which the law itself imports into that contract, to wit, that thereby the navigation should not be impaired. The correctness of the verdict finds support in the fact that, when the city ceased to draw off the water and the water rose, on the 7th of September and afterwards, the navigation was resumed, though the drought continued, and the city herself was benefited by the increased power thus gained.

When the current of the stream ceases to flow, except in a thin thread, by reason, of th„e drought, the water in the pool approaches closely to a horizontal plane, and loses the height at the head of the pool caused by the ordinary current when flowing. A current descending upon an inclined plane to the dam gives an increased height of water at the head- of the pool. If the pool were three miles long, and the average fall of an ordinary current were two inches to the mile, the height of the water at the head of the inclined plane would be six inches above the horizontal level. A loss of this height at the head of the pool by reason of extraordinary drought would stop navigation to those boats which before had drawn the full depth of the pool. It is evident, therefore, that in such a season of drought, the top level of the dam does not measure the height of the water necessary for the navigation. The superior right of the navigator under the law of the state entitles him, therefore, to have all the diminished flow of the stream drawn away by the city, to be restored to him, instead of its being retained by her. If there be water left to float his boat he is entitled to it; and that there was is established by the restoration of the stream, on and after the 7th of September, when heads of water were permitted to accumulate.

All other questions not noticed, are considered as ruled by the former decision; and finding no error in the record, the judgment is affirmed.

Sharswood, J., dissented.