Lord v. Meadville Water Co. , 135 Pa. 122 ( 1890 )

Opinion,

Me. Chief Justice Paxson :

We need not discuss the question presented by the second assignment, for the reason that an examination of the testimony shows conclusively that the jury did not give punitive damages. The verdict, $41, is within the range of the undisputed testimony. The remaining assignments refer to the charge of the court and the answers to points. It is not essential to consider them separately. We can better dispose of them by giving our views generally upon the law of the case.

This was an action of trespass, 'brought by Mrs. Lord, a married woman, against the Meadville Water Company, to recover damages for the diversion of a stream of water which, before the injury complained of, flowed over her land. The Mead-ville Water Company, appellant, was incorporated under the act of 1874, and, it was alleged, had the right of eminent domain for the purpose of supplying the city of Meadville with water. In order to'aid in procuring such supply, the company, in the year 1888, purchased an acre of land near said city, on which was a flowing spring of water, and carried the water from said spring to the city by means of pipes. The plaintiff owns land near this spring, over which the water thereof was accustomed to flow prior to its diversion by the company. She claims that it no longer flows there, and that, by reason of its being diverted out of its natural channel, she is deprived of its use for irrigation and other purposes. This suit was brought to recover damages for such injury.

The questions thus presented are not difficult of solution. By the purchase of this acre of land on which the spring is situate, the company acquired the rights of a riparian owner ; neither more, nor less. What its rights as riparian owner are, were sufficiently defined in the recent case, of Haupt’s App., 125 Pa. 211, where it was said: “ If the authority of the plaintiff were measured by its rights as riparian owner, it would be slender enough. It might indeed use the water for the domestic purposes incident to the said ten acres of land. If there was a tenant.thereon, he could use it for watering his stock, and for household purposes; for any useful, necessary, and proper purpose incident to the land itself, and essential to its enjoyment. But that the rights of a riparian owner would justify the plaintiff in carrying the water for miles out of its channel, to supply the borough of Ashland with water, is a proposition so palpably erroneous that it would be a waste of time to discuss it.” So we say here. The purchase of the acre of land, including the sjoring-, gave the company the rights of a riparian owner1. But such rights were not a justification for the diversion of the water from its natural channel to supply the city of Meadville.

It was conceded upon the argument that the company had the right to divert it under its power of eminent domain. But it has never exercised such right. To do so involves compensation to those who are or may be injured by such diversion. Compensation was not made, nor security tendered. While a city or borough, or a company having the right of eminent domain, may take a spring or stream of water to supply a municipality, it can only do so by making compensation to those who are deprived of the use of the water, as provided by the constitution. A. taking without compensation is a trespass; as much so as the taking of land by a railroad company to construct its road without making compensation or filing a bond with security, as provided by law. Where the power to take exists, it must be exorcised according to law. If it is not, the corporation so taking becomes a trespasser, and may be proceeded against as such. It is a mistake to assume that the purchase of this acre of land gave the company an absolute right to the spring of water. The water did not pass by the deed beyond its reasonable use by the vendee as a riparian owner. As was said in Haupt’s Appeal, supra : “ There can be no such thing as ownership in flowing water; the riparian owner may use it as it flows; he may dip it up, and become the owner by confining it in barrels or tanks, but, so long as it flows, it is as free to all as the light and the air.” The company might have taken this spring under its right of eminent domain, if it possessed such right; for aught that appears, it may do so still, and, after having done so and made compensation to the riparian owners who are injured thereby, it will be free from suits of this nature. Had it done so in this instance, it would not have had this judgment against it.

We do not regard the question of the plaintiff’s title, under the facts of the case, as of any importance. The plaintiff’s husband testified that the farm belonged to her, and he is certainly estopped from recovering damages in another suit.

Judgment affirmed.