Boalsburg Water Co. v. State College Water Co.

87 A. 609, 240 Pa. 198, 1913 Pa. LEXIS 651

• Court: Supreme Court of Pennsylvania
• Decided: March 31, 1913
• Docket: Appeal, No. 181
• Status: Published

Opinion

Opinion by

Mr. Justice Elkin,

This bill was filed to restrain appellant water company from diverting or taking the waters of Galbraith’s Gap Run so as to change or lessen the volume and flow of the stream for the purpose of supplying the same to the public; and from attempting to condemn by right of eminent domain the site, location and waters theretofore appropriated by the complaining company for a public use. The first contention of appellant is that the Boalsburg company did not condemn the waters of the stream in question under the right of eminent domain, but that it acquired whatever rights it possesses by deed from the riparian owner. It is therefore argued with much force that the complaining company only occupies the position of a riparian owner and can assert no other or different right. The learned chancellor in the court below found against appellant on this question both as to the facts and the law. After a careful review of the record we have reached the same conclusion. We deem the corporate action of the Boalsburg company in 1907 a sufficient compliance with the statute to constitute a condemnation of the waters of the stream, when followed by a location upon the ground and the payment of damages to the riparian owner. Indeed, accepting the findings of the learned chancellor as the proper ascertainment of the facts, there was a sufficient compliance with every requirement of the statute. It is argued, however, that in this respect the chancellor erred because the proofs in contemplation of law did not warrant the findings. This argument is based on the ground that the minutes of a corporation undertaking to com demn under right of eminent domain must show that proper corporate action was taken and proper resolutions were passed, condemning the waters and lirecting the location to be made upon the ground; and that the minutes are the only competent evidence to prove the performance of these corporate acts. Of course, there must be corporate action, which means the adoption of resolutions to condemn without which there can be no adverse taking of the property of another. But when corporate action is taken as the law requires, if for any reason the minutes which should contain a proper record of that corporate action, are lost, destroyed or mutilated, it is competent to prove by those present at the meeting what action was taken. It sometimes happens that by inadvertence or otherwise no minute was made of what occurred at the meeting although proper action was taken, but in such a case the right to prove by parol what was done cannot be denied. As we read our own cases, it is settled law that where an ordinance or resolution is actually passed by a corporation, and through inadvertence or mistake such resolution is not recorded in the minutes, the fact of its passage may be proved by the testimony of those present at the meeting: Harmony Building Association v. Goldbeck, 13 W. N. C. 24; Bohan v. Avoca Borough, 154 Pa. 404; Sidney School Furniture Co. v. School District, 156 Pa. 351; Roland v. School District, 161 Pa. 102. Certainly if it be competent to prove that no minute was made in the first instance, it follows that if a proper minute was made at the time and subsequently the minute book was lost, it is competent to prove what was recorded in the minute book, or what should have been recorded there as the result of the corporate action. This is simply an application of elementary rules of evidence. The best evidence that can be produced under the circumstances is always required. If the original instrument, or the primary evidence, cannot be produced and the proper grounds are laid, secondary evidence may be introduced. We see no reason for excepting the present case from this elementary-rule. The testimony offered at the trial showed conclusively what the resolutions to condemn contained and what the corporate action was. This was followed by a location upon the ground and negotiations for the settlement of damages. All this was done in the exercise of the right of eminent domain, and we think it was sufficient to protect the rights of the first condemning corporation;

, It is further very earnestly contended by appellant that the proceedings to condemn were abandonéd by a settlement subsequently made with the riparian owner which resulted in the execution and delivery of a. deed containing a grant of the rights claimed by the water company in the condemnation proceedings. The contention is that under the deed the Boalsburg Company simply , took the rights of the riparian owner who made the conveyance. The learned chancellor decided this question against appellant and under the facts we think it was properly decided. The deed itself shows that the conveyance was made as a result of the negotiations between the parties on the question of damages after corporate action to condemn had been taken. The intention of • the parties is clearly expressed in the following clause of the deed: “It being hereby agreed and understood by and between the parties that this grant is intended to convey unto the party of the second part, subject to the agreement heretofore made (that is the agreement relating to the settlement of damages) every right that could be acquired by the party of the second part by condemnation proceeding under the right of eminent domain.” Other recitals tend to show the same purpose and intention. There is nothing in the entire record to show that the Boalsburg company abandoned its claim to the waters of the stream under the right of eminent domain. Every act of the company from the date of its incorporation to the present time shows an intention to nse the waters of the stream in question for the purpose of supplying the public with water. As we view it the settlement of damages and the acceptance of the deed from the riparian owner is in aid of this purpose. The statute which gives the right to condemn clearly contemplates an effort on the. part of the condemning company to amicably settle the question of damages with the riparian owner. Eights conferred under the power of eminent domain may be acquired by an adverse condemnation proceeding, but they may likewise be acquired after proper corporate action has been taken directing the location, by an equivalent agreement between the parties: Hendler v. L. V. R. R. Co., 209 Pa. 256. It is the duty of a corporation desiring to condemn land for a public use after proper corporate action has been taken to make an effort to settle the question of damages with the land owner before proceeding adversely. We can see no reason why a corporation having the power of eminent domain, and in the assertion of that power makes an effort to amicably settle the question of damages with a land owner as the law contemplates, should be denied the rights which accrue to a condemning company because it succeeds in doing what-the law requires, that is, settle the question of damages with the land owner. We, therefore, conclude that appellee acquired its rights under the power of eminent domain and not simply as a purchaser from the riparian owner with the usual incidents of ownership in the fee.

It is .further contended that the appellee company has neither the right nor the power to condemn the waters of the stream in question beyond its necessities in furnishing the inhabitants of Boalsburg with an adequate supply of water for domestic and manufacturing purposes and for fire protection — this being the purpose for which the company was incorporated. The power to condemn waters was conferred by the Act of May 16, 1889, P. L. 226, which was an amendment to the Act-of 1874. This power is expressed in the following language : “And it shall have power to appropriate so much of the waters 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.” It must be conceded that the legislature limited the power to condemn the waters of a stream by a water company to so much “as may be necessary for its purposes.” But how shall the question of necessity be determined and by whom? The condemning company clearly has the right to condemn so much water as may be necessary not only for present purposes but for future. needs. As applied to railroad companies this has been decided many times and the same rule should prevail as to water companies, except as it may be modified by the character of the thing condemned and the necessities of the use. The condemning company must determine in the first instance what its necessities are and what volume of water should be condemned for its corporate purposes. The assessment of damages to lower riparian owners depends upon the amount of water condemned. If all or a large portion of the waters of a stream are condemned the damage to riparian owners might be very great; if only a small portion of the entire volume be condemned, the damages might be very small. It is therefore incumbent on the condemning company to decide in the first instance the amount of water deemed necessary to be condemned for its use. This does not mean that the act of the water company in this respect is final and conclusive upon all parties. Indeed, the very opposite is true, because the question of necessity may always be inquired into by a proper proceeding in the courts. But when a water company by proper corporate action has decided how much water is necessary for its present and future uses and has followed this up by a condemnation of the ¡amount of water deemed necessary for its corporate purposes, it thus acquires a prima facie right to the water so condemned. A junior company claiming the right to condemn a portion of the same waters must show that the first condemning company has appropriated more water than is necessary for its present and future needs. The first condemning company has the superior right and the burden of showing that it has condemned more water than its necessities require is on the junior company which undertakes to dispute that right. This is especially true when the waters condemned are those of a small mountain stream as in the present controversy. In the condemnation of large streams of water a very different question is presented. Courts might very properly hesitate to say that the entire flow of a small mountain run was more than the necessities of the first condemning company required, while on the other hand the presumption would be that no company would need all the waters of a river, or other large stream, for its corporate purposes. We fully agree with learned counsel for appellant that the legislature never intended to confer upon any water company the power to condemn and divert all the waters of our large public streams, and that the power to condemn is limited to the necessities of the. public use for which the appropriation is made. Any other view might lead to disastrous results to the people of the Commonwealth. But this argument applies with equal force against two or more companies which undertake to condemn all the waters of a public stream as it does to a single company attempting to do the same thing. In the present case appellant undertook to condemn all the waters of Galbraith’s Gap Bun, the very thing it contends appellee did not have the power to do. All this was attempted after the Boalsburg company made its condemnation and secured whatever rights the law gave it. Surely it was not within the power of appellant to condemn all the waters of the stream which already had been appropriated by appellee. Again, it must not be overlooked, that this is a proceeding in a court of equity, and in determining the right of the parties it is proper for such a court to inquire into the needs of each company. The question of necessity applies to appellant as well as to appellee. It was, therefore, proper for the court below to inquire whether appellant was attempting to condemn more water than its necessities required, and incidental' to this inquiry whether the facts warranted the invasion by the second company of the site and location of the first condemning company. The learned court below took this view of the case and permitted testimony to be introduced along these lines. We are not prepared to say that all of the testimony thus introduced was relevant or competent, but without reference to the competency of some of the testimony, the conclusion reached in our opinion was fully warranted. The equities are with the Boalsburg company, the first to condemn the waters of the stream in question, and- the very able argument of learned counsel for appellant has failed to convince us that the prima facie rights of the first condemning company should not prevail in the present controversy. What appellant attempted to do was in disregard of the prima facie rights of appellee and as we view the case this should not be permitted. We, therefore, conclude upon the record here presented that the learned court below properly exercised its power in restraining appellant from condemning the waters of Galbraith’s Gap Bun and from otherwise interfering with the rights of appellee.

Decree affirmed at cost of appellant.