Bowers v. Citizens' Water Co. , 162 Pa. 9 ( 1894 )

Per Curiam,

In the spring of 1891 the defendant company built a dam across Greenlick run about forty feet high and six or seven hundred feet in length, and thereby created a permanent reservoir for the accumulation of water for the supply of the borough of Scottdale. The whole stream was appropriated to this purpose, The company also laid pipes from the reservoir to the borough twelve inches in diameter, and commenced using the water in the latter part of the year 1891, and continued to do so until the filing of the petition for the appointment of viewers in this case in January, 1898. These acts were done by the defendant by virtue of its corporate authority as a water company. It was incorporated July 17,1888, under the provisions of the general law of April 29, 1874, P. L. 104, and proceeded to the exercise of its corporate functions, in the course of which the acts complained of in this petition were done. Upon the presentation of the petition, reciting among other things the inability qf the plaintiff to agree with the defendant for the compensation to be paid for the water of the stream, viewers were appointed who in due course reported to the court that they had assessed the plaintiff’s damages at $75. From this award both parties appealed and the case was tried subsequently before a jury who awarded the plaintiff a verdict for $400. From the judgment on this verdict the defendant appeals, and the only practical contention it makes against the plaintiff’s right of recovery, is, that the defendant had never filed a bond, or made a definite appropriation of a specific quantity of water which they would require. To these defences it is only necessary to say in reply that the right of the plaintiff to commence the proceeding-by a petition for viewers does not depend, either upon the filing of a bond by the defendant, or the making of a specific appropriation of a definite quantity of water which they intended to use. The right to commence the proceeding is given by the 41st section of the act of 1874 to either of the parties, and it is sufficient to know that the water was actually taken and used for the corporate purposes for more than a year when the petition was presented. If such defences were permitted to prevail, the company might prevent indefinitely any recovery of damages by the persons injured. The case was correctly tried by the learned court below and we discover no error in the record.

Judgment affirmed.