City of Reading v. Althouse ( 1880 )

Mr. Justice Gordon

delivered the opinion of the court, March 22d 1880.

Were it necessary we would have no hesitation in holding that the provisions of sect. 8, art. 16, of the New Constitution, governs this case. That section provides for the making of compensation, not only for the talcing of private property for public use, as was the case theretofore, but also for its injury, or destruction. That the use, which the plaintiff made of the waters of the Great or Antietam creek, through the race or ditch in controversy, was property, though of an incorporeal kind, is not open to debate; and that it was injured by the operations of the city of Reading, is a fact established by the proper tribunal. There is, therefore, no good reason, apparent to us, why the case should not be covered by the above-recited eighth section of the Constitution.

Passing, however, this phase of the question, we cannot see why the plaintiff is not within the protection of the Act of April 14th 1858, Pamph. L. 416. This act provides, that “ Any damages sustained by the owners of land upon which such spring or springs, stream or streams of water, is or are situated, or through which it or ¿hey shall flow, by reason of tho permanent appropriation as aforesaid, .shall be ascertained and compensation made in manner hereinafter provided lor.”

Now, tho defendant has appropriated Ohlinger creek, one of the main branches of Antietam, from which the irrigating ditch or race in question receives its supply. The determinative question then is, did this stream of water, or what is the same, the water of this stream called Ohlinger, or any material part of it, before it was diverted by the city of Reading, flow through the plaintiff’s land ? The channel may be called what you please: Antietam creek or Lincoln’s ditch — that is of no consequence ; was the water formerly wont to flow through the Althouse property ? If so, ho had property in it; a right to it which is protected by the act. Tho counsel for the defendant scorns to think that the provisions of the act extend but to the owners of the natural bed and banks of the stream, but this is a construction warranted neither by the letter nor spirit of the statute. Who would doubt the application of the act were this ditch a natural branch, division of, or outflow of the main stream ? But what radical difference is made by the fact, that man dug the present channel instead of nature ? And how can this affect vested rights, rights now more than a century old ? In the submission executed by the two Lincolns and Michael Seyster, one hundred and eleven years ago, this ditch is spoken of as an existing race or watercourse; but who dug it, or how long it existed before that time, is not mentioned, and no one now knows. Its origin is literally buried in the shades of the past, hence, for all practical purposes it is a natural watercourse; prescriptively and, therefore, legally it is so. The right to it could be no better were it natural. As was said by Chief Justice Gibson, in Seibert v. Levan, 8 Barr 383, “ Whilst the grantor was lord of tho whole, he might assign a permanent channel to the stream, and as regards himself and those who claim under him, impress it with any character he should see proper. There is no particular sanctity in the natural bed of a stream, which is perpetually changing its course from accidental causes.” And in speaking of tho rule that water shall flow ubi aurrere solebat et consuevit, he says, it applies rather to the duty of returning it, than to the channel through which it flows. And so in Sutclife v. Booth, 32 L. J., Q. B. 136, it was held, per Wightman, J., that a watercourse, though artificial, may have been originally made under such circumstances, and have been so used as to give all the rights that the riparian proprietors would have had, had it been a natural stream.

Of like import is the case of Nuttall v. Branwell, Law Rep., 2 Exch. 1; in which Channell, B., says, “I see no reason.why the law applicable to ordinary running streams, should not be applicable to such a stream as this, for it is a natural flow or stream of water, though flowing in an artificial channel.” So, also, on a similar footing he puts the case where two adjoining riparian owners should, by agreement, so alter or divert a stream that it shall run in two channels instead of one. In such case he holds, that a grantor of land on the new stream would have all the rights of a riparian owner.

But the case here supposed is, in fact, the one in hand; here is a division of the Great creek, by the race or water-way in controversy, and that of a date so ancient that the memory of man runneth not to the contrary. So far as the case of the Stockport Waterworks Co., 7 H. & N. 160, has any application, it is an authority for the plaintiff, for Pollock, C. B., advocates the doctrine above stated.

We may then set it down for certain that, so far as authority goes, the ruling of the court below is sustained.

Many cases h^ve been cited upon part of the city, for the purpose of proving that an action for consequential damages against a corporation possessed of the right of eminent domain, cannot be sustained. But these authorities are now of no value, for the new constitution has introduced a different rule. Moreover, the Act of 1853 governs this case, and it, in express terms, provides for compensation to land-owners for any damage they may suffer, not for land taken, but for the taking, “permanent appropriation ” of water. The damages are thus necessarily consequential, as they arise from the disturbance or abridgment of an incorporeal right.

Judgment affirmed.