Blauch v. Johnstown Water Co. , 247 Pa. 71 ( 1915 )

Opinion by

Mr. Justice Brown,

We are “not asked on this appeal to disturb any fact found by the court below. The complaint of the appellant, as gathered from the assignments of error, is of legal conclusions which led to a dismissal of his bill, filed under the Act of June 19, 1871, P. L. 1360.

What injuries the appellant, if he is injured, is the diversion of the waters of Stonycreek river four and one-half miles above the point where it flows through or along his land. The water so diverted is taken by the Johnstown Water Company, and, if the rights of the appellant are invaded, as alleged in his bill, they are invaded by that company. The limit of the court’s inquiry in this proceeding was, therefore, to ascertain whether that water company does in fact possess the right or franchise to take the water: Mory v. Railroad Company, 199 Pa. 152; Windsor Glass Company v. Carnegie Company, 204 Pa. 459; Bland v. Tipton Water Company, 222 Pa. 285.

The Johnstown Water Company was incorporated under the special Act of April 11, 1866, P. L. 723, “for the purpose of introducing, from some convenient source, a sufficient supply of pure and whplesome water, into the Boroughs of Johnstown, Conemaugh, Millville, Prospect, Cambria and the vicinity.” Neither in the act incorporating it nor in the provisions of the Act of March 11, 1857, P. L. 77, under which it was to be organized and managed, was the right conferred upon it to take water by condemnation proceedings; but, in the Act of April 24, 1869, P. L. 93, amending the Act of 1857, the right of the company to take water is clearly recognized, if not expressly conferred. We need not, however, dwell upon this, for, on July 10, 1888, the Johnstown Water Company accepted the provisions of the Constitution and of the Act of April 29, 1874, P. L. 73. By its acceptance of them it became entitled, under the twenty-sixth section of the Act of 1874, “to all of the privileges, immunities, franchises and powers” conferred by that act upon corporations to be created under it. It was amended by the Act of May 16, 1889, P. L. 226, which expressly confers upon a water company the right “to appropriate so much of the water from the rivers^ creeks, canal water rights and easements, within or without the limits of the city, borough or place in which said company may by its charter be located, as may be necessary for its purposes.” We need say nothing more in support of the unavoidable conclusion of the court below that the Johnstown Water Company does possess the right of eminent domain, in the exercise of which it may take the waters of Stonycreek river at Border’s dam.

But it is contended that, even if the Johnstown Water Company did accept the provisions of the Act of 1874, it did not, by such acceptance, acquire the right of eminent domain, inasmuch as it failed to designate which one of the five boroughs named in the Act of 1866, incorporating it, it proposed to supply with water. An answer to this is that the only territory which it is now supplying, and has been supplying for nearly twenty-five years, is the City of Johnstown, and during all of that period the said five boroughs have been embraced within the limits of that municipality. Another answer is that the water company neither lost nor surrendered, in accepting the provisions of the Act of 1874, the franchise or privilege, specially conferred upon it by the Act of 1866, to supply five named boroughs with water. Bly v. White Deer Mountain Water Company, 197 Pa. 80, is, therefore* without application. If the proposition contended for by counsel for appellant be correct, that when the Johnstown. Water Company accepted the provisions of the Act of 1874 it was bound to confine its supply of water to one of the five boroughs named in. the act incorporating it, it would mean that the company would have been compelled to abandon and sacrifice all of its mains and its supply system in four of the said five boroughs.. Such a situation surely was never within the contemplation of the legislature.

Another reason advanced, in support of the prayer for an injunction is that the bond of the Johnstown Water Company, to secure payment of damages to the appellant, had not been approved by the court below at the time this bill was filed. True, the bond had not been approved, but it had been filed, and its approval was excepted to by the appellant solely on the ground of the insufficiency of its amount. In this equitable proceeding, in which the only question for consideration is whether the Johnstown Water Company possesses the right of eminent domain, the complaint of the appellant of the nonapproval of a bond is to be regarded as unavailing when it is remembered that the water of the stream was actually appropriated by the water company at least sixteen years before he purchased the first of his two tracts of land, and that he purchased both with full knowledge of such appropriation of the water. If the case were one in which the Johnstown Water Company was now, for the first time, attempting to take the water, the failure to have its bond approved might be a good ground of complaint by the appellant.

The taking of the water from Stonycreek river is the injury done to the appellant, as already observed, if he has been injured in his private rights. This taking is by the Johnstown Water Company under its undoubted right of eminent domain. The Manufacturers’ Water Company has not attempted to take the water from the stream. What it has done has been merely to enter into a contract or agreement with the taking company, by the terms of which it gets the water taken by that company. If the taking company is making an improper use of the water which it takes in the exercise of a clear franchise, it is answerable for its misconduct to the Commonwealth alone. The Act of 1871 confers no right on a private individual to ask a court to pass upon the misbehavior of a corporation, or to arrest its misconduct, and in this proceeding the question of the alleged improper use of its franchise by the Johnstown Water Company is not to be considered. “The Act of 1871 contemplates nothing more than that it shall be made to appear from the charter, that the corporation has the power to do the particular act in controversy, and which involves some right of the contestant, but when we get beyond this, we assume something with which we have no business in a collateral proceeding: we assume to assert the right of a third party, the Commonwealth, who may or may not, at her own option, insist upon the observance of those rights”: Western Pennsylvania Railroad Company’s App., 101 Pa. 399. “Under the Act of 1871 the inquiry is limited to the grant in the charter to do the thing complained of. If the power is there given, the authority of the court to interfere is at an end. The further questions of good faith in obtaining the charter or in acting under it can only be raised by the Commonwealth”: Windsor Glass Company v. Carnegie Company, supra.

The twenty-two assignments of error are overruled and the decree is affirmed at the cost of the appellant.