David v. Philadelphia Electric Co.

535 A.2d 729, 112 Pa. Commw. 441, 1988 Pa. Commw. LEXIS 8

• Court: Commonwealth Court of Pennsylvania
• Decided: January 12, 1988
• Docket: Appeal, 2845 C. D. 1986
• Status: Published

Opinions

Opinion by

Senior Judge Barbieri,

This is an appeal by sixteen landowners¹ from an order of the Court of Common Pleas of Bucks County denying their motion for summary judgment and granting the motion of Philadelphia Electric Company (PECO) for summary judgment. Appellants sought to enjoin PECO’s use of the upper reaches of the East Branch of the Perkiomen Creek as a conduit to transport Delaware River water to PECOs nuclear power generating station in Limerick, Montgomery County.

The facts of this case, as stipulated by the parties, are as follows. Appellants are riparian owners of lands along the upper reaches of the East Branch of the Perkiomen Creek in Bucks County. From its source to Sellersville, Bucks County, approximately seven or eight miles, the East Branch is nonnavigable. PECO owns approximately forty acres of land along the upper reaches of the East Branch and is also a riparian owner. In 1982, PECO obtained a permit to construct an outfall on its land from which it planned to discharge Delaware River water into the East Branch.² PECOs use of the East Branch as a conduit is an integral part of its portion of the Point Pleasant Water Diversion Project.³ In its natural state, the upper reaches of the East Branch has a median flow of approximately 1.4 cubic feet per second (cfs) and during the summer months it is often reduced to a series of shallow pools connected by a trickle of water running through rocks in the creek bed. There are, however, periods when the flow in the upper reaches of the East Branch increases substantially, particularly after storms.⁴ PECO would discharge approximately 71 cfs of Delaware River water into the East Branch from its outfall, thus raising the median flow to at least 71 cfs.

Appellants, downstream riparian landowners, commenced an action in equity in common pleas court to enjoin PECOs proposed discharge of Delaware River water into the East Branch. In the alternative, they sought to require PECO to condemn a right-of-way for its water flow and pay just compensation prior to commencing any discharge of water. Affidavits and Requests for Admissions were filed and answered and both parties moved for summary judgment. The Honorable Oscar S. Bortner, of the Court of Common Pleas of Bucks County, found that PECOs proposed discharge of Delaware River water into the East Branch was a proper riparian use, denied Appellants’ motion for summary judgment and granted PECOs motion for summary judgment. Alburger v. Philadelphia Electric Company, 50 Bucks 24 (Pa. C.P. 1986). This appeal followed.

The sole issue presented by this appeal is whether an upstream riparian owner has the right to discharge water into a nonnavigable waterway when that water is not generated on that owner’s land but is imported in large quantities from an entirely separate and unrelated water course system and when the volume of that non-riparian water will increase the median flow by more than fifty times the present median flow rate. Appellants claim here, not surprisingly, but contrary to the view of the common pleas court, that such importation of non-riparian water to be discharged into their water course is not a riparian right of PECO. We agree.

At the outset, we are cognizant that under Pa. R.C.P. No. 1035(b) summary judgment may only be granted where there are no genuine issues of material fact and the record, viewed most favorably to the non-moving party, reveals that the moving party is entitled to judgment as a matter of law. Dowlin v. Coatesville Area School District, 22 Pa. Commonwealth Ct. 443, 350 A.2d 190 (1975). See also Goodrich-Amram 2d §1035(b):2 (1976). As the material facts were stipulated to by the parties through the Request for Admissions and the Answer of PECO thereto, the matter is ripe for summary judgment. We are also cognizant that summary judgment may only be granted in the clearest of cases. Kotwasinski v. Rasner, 436 Pa. 32, 258 A.2d 865 (1969).

As noted by the common pleas court, the question of whether a lower riparian owner has a right to enjoin an upper riparian owner from raising the level of a water course and increasing its flow by discharging into the water course additional water, here imported and non-riparian water, is one of first impression in this Commonwealth. Our research into the area of the riparian rights doctrine convinces us that Pennsylvania is one of the “reasonable use” jurisdictions. See Butler, Allocating Consumptive Water Rights in a Riparian Jurisdiction: Defining the Relationship Between Public and Private Interests, 47 U. Pitt. L. Rev. 95, 102 n. 13 (1986). In a “reasonable. use” jurisdiction, such as Pennsylvania, a riparian owner is entitled to use so much of the water that flows through his land as may be reasonably necessary for domestic needs or similar purposes. See e.g., Brown v. Kistler, 190 Pa. 499, 42 A. 885 (1899); Pennsylvania Railroad Company v. Miller, 112 Pa. 34, 3 A. 780 (1886). The only limitation on this use is that the reasonable use made by a riparian owner of the water course must not materially diminish its quantity or quality. See e.g., Lentz v. Carnegie Brothers & Co., 145 Pa. 612, 23 A. 219 (1892); Clark v. Pennsylvania Railroad Co., 145 Pa. 438, 22 A. 989 (1891). Subject to the right of reasonable use by other riparian owners, a riparian owner has a right to have the natural flow of a water course reach his land in its natural channel and in its natural condition. See e.g., White v. Pennsylvania Railroad Co., 354 Pa. 397, 47 A.2d 200 (1946); Beech v. Kuder, 15 Pa. Superior Ct. 89 (1900). While there is no reported case of a downstream riparian landowner being able to enjoin an upstream riparian owner from materially increasing the natural flow of a water course by discharging additional waters into the water course, especially imported and non-riparian water, our review of related case law from Pennsylvania and other jurisdictions convinces us that the downstream riparian may do so.

We begin by recognizing that we are concerned here with a nonnavigable water course. While the Commonwealth holds title to all lands underlying navigable monwealth holds title to all lands underlying navigable waters in trust for the public, City of Philadelphia v. Pennsylvania Sugar Co., 348 Pa. 599, 36 A.2d 653 (1944), title to the lands underlying nonnavigable waters is held by the owners of lands bordering such waters. Ransberry v. Brodhead’s Forest & Stream Association, 315 Pa. 513, 174 A. 97 (1934). See generally Lynch, Riparian Title in Pennsylvania, 41 Pa. B.A.Q. 224 (1970). Thus, Appellants here are the owners of the creek bed of the East Branch as it flows across their properties. Under Pennsylvania law, however, since water is descendible by nature, an upstream riparian owner, such as PECO here, has a flowage easement over the lands of downstream riparian owners for the discharge of all waters that naturally rise in, flow, or fall upon the upstream riparian owners lands. See Kauffman v. Griesemer, 26 Pa. 407 (1856); Markle v. Grothe, 102 Pa. Superior Ct. 90, 156 A. 585 (1931). This flow-age easement enjoyed by the upstream, or dominant, owner over lands of a downstream, or servient, owner is limited to waters naturally originating on the land of the dominant tenement. Thus, the flowage easement PECO enjoys over the lands of Appellants does not include waters artificially introduced into the dominant tenement, such as the diverted Delaware River water that is to be discharged from its outflow. As stated by Associate Justice George W. Woodward in Kauffman:

The law . . . prohibits only the immission into the inferior heritage of the waters which would have never fallen there by the disposition of the places alone. (Emphasis added.)

26 Pa. at 413.

Additionally, established riparian doctrine in" Pennsylvania permits an upstream riparian owner to enjoin a downstream owner from obstructing a water course so that the flow is altered and the water level raised, thus 181 A.2d 277 (1962). Additionally, our courts have held that where the owner of a dominant tenement acts to greatly increase the quantity, or artificially augments the natural flow, of surface water flowing onto the servient tenement, the servient owner has an action against the dominant owner. See e.g., McCormick Coal Co. v. Schubert, 379 Pa. 309, 108 A.2d 723 (1954); Chamberlin v. Ciaffoni, 373 Pa. 430, 96 A.2d 140 (1953). This is also true in a number of our sister jurisdictions. See e.g., Dayley v. Burley, 96 Idaho 101, 524 P.2d 1073 (1974); Poole v. Guste, 261 La. 1110, 262 So.2d 339 (1972); Baldwin v. Overland Park, 205 Kan. 1, 468 P.2d 168 (1970); Scanlan v. Hopkins, 128 Vt. 626, 270 A.2d 352 (1970); Jones v. Boeing Co., 153 N.W.2d 897 (N.D. 1967). See generally Comment, Waters and Water Courses — Torts—Owners of Property Damaged by Unlawful Ditching or Unreasonable Discharge of Waters May Obtain Relief by Statute or by the Tort Concept of Reasonable Use, 60 N.D.L.Rev. 741 (1984). In Salisbury Township v. Vito, 446 Pa. 200, 285 A.2d 529 (1971), the Pennsylvania Supreme Court upheld the granting of an injunction against a property owner who channeled water from a stream into a pond, increasing the water level of a pond and flooding a neighboring right-of-way. In Salisbury Township, the landowners were enjoined from discharging water onto the right-of-way and from interfering with the flow of the stream. While the area of law dealing with surface water is distinct from that pertaining to riparian rights, we find it illustrative to the case at bar, particularly since all parties here are the titleholders to the creek bed of the nonnavigable portion of the East Branch as it flows through their respective properties. There can be no serious question that by proposing to artificially increase the median flow of the East Branch from 1.4 cfs to 71 cfs, an increase of over fifty times the natural flow, PECO is greatly increasing the quantity, as well as artificially augmenting, the natural flow of water over the lands of Appellants. Such an increase is outside of the flowage easement enjoyed by PECO as an upstream or dominant owner and is not a proper riparian use. Accordingly, just as the owner of an easement may enjoin an obstruction of that easement, we feel that Appellants, the owners of servient estates, have the right to seek to enjoin a dominant owner from enlarging from a foreign source the existing flowage easement and increasing the burden on their lands. Thus, the common pleas court erred when it held that PEC O’s planned importation and discharge of 71 cfs of Delaware River water into the East Branch was a proper riparian use and granted it summary judgment. Summary judgment should have been granted to Appellants,⁵ but only with respect to that portion of their motion for summary judgment which requested that PECO be enjoined from flowing water across appellants’ lands through the channel of the East Branch of Perkiomen Creek. No basis has yet been established for plaintiffs’ other request that PECO be enjoined from initiating any eminent domain proceedings for the acquisition of flowage or other rights in the named channel.

We note that the appellants’ Amended Complaint, in paragraph b of their request for relief, appeared to acknowledge the possibility of condemnation by their request that PECO be enjoined unless PECO first paid “just compensation for necessary interests. . . .” However, because the trial court properly declined to reach the question of eminent domain, that issue remains for further consideration upon remand. Of course, an eminent domain issue will exist only if, upon remand, PECO claims eminent domain powers and the appellants oppose their exercise, in accordance with the latter position taken by appellants in their motion for summary judgment before this court.

Order

Now, January 12, 1988, the Order of the Court of Common Pleas of Bucks County at Docket No. 84-05370-11-5, dated August 20, 1986, is hereby reversed and this case is remanded with a direction to proceed as follows:

(1) To grant summary judgment for the plaintiffs to the extent of enjoining the defendant from flowing any water or other materials across the lands of plaintiffs through the channel of the East Branch of Perkiomen Creek;

(2) To consider and resolve whether the defendant has eminent domain power to acquire the necessary rights for effectuating such flow of water, by paying just compensation for them, provided that the trial court determines that the defendant proposes to proceed in that alternative manner.

1 David Alburger; Joanne Alburger; Mervin Bryan; Nancy Bryan; John Cressman; Pamela Cressman; Bernard Delin; Susan Delin; Mark Dornstreich; Judy Domstreich; Michael Ingram; Margaret Ingram; James Petzold; Mary Kay Petzold; Ely Swisher; and Marguerite Swisher.

2 This Court affirmed the grant of a permit to PECO to construct this outfall in Del-AWARE Unlimited, Inc. v. Department of Environmental Resources, 96 Pa. Commonwealth Ct. 361, 508 A.2d 348 (1986), allowance to appeal denied, 514 Pa. 644, 523 A.2d 1132 (1986).

3 The Point Pleasant Water Diversion Project is designed to divert water from the Delaware River for use as drinking water for drought-prone portions of Bucks and Montgomery Counties and as a back-up supply of cooling water for PECOs Limerick nuclear power generating station. Under the project, water would be drawn from the Delaware River at a pumping station at Point Pleasant and pumped through a 2.5 mile pipeline to Bradshaw Reservoir, a facility to be constructed by PECO in Plumstead Township, Bucks County. Once pumped to Bradshaw Reservoir, the water would be divided between the municipal water authorities for use as drinking water and PECO. PECOs share of the water would then be pumped through a 6.7 mile pipeline to an outlhll located on the headwaters of the East Branch of the Perkiomen Creek. PECOs share of the water would then flow along the natural course of the East Branch and the main stem of the Perkiomen Creek 22.2 miles to a pumping station located near Graterfbrd, Montgomery County. The water would then be drawn from the Perkiomen Creek at Graterford and pumped through a pipeline to the Limerick plant. See also Del-AWARE Unlimited, Inc. v. Pennsylvania Public Utility Commission, 99 Pa. Commonwealth Ct. 634, 513 A.2d 593 (1986), allowance to appeal denied, 515 Pa. 587, 527 A.2d 547 (1987); Sullivan v. County of Bucks, 92 Pa. Commonwealth Ct. 213, 499 A.2d 678 (1985)

4 In Del-AWARE Unlimited, Inc. v. Department of Environmental Resources, 96 Pa. Commonwealth Ct. 361, 508 A.2d 348 (1986), allowance to appeal denied, 514 Pa. 644, 523 A.2d 1132 (1986), we noted that the accepted flow of the East Branch in this area is approximately 2 feet per second (fps) and increases as high as 7 to 10 fps during floods. Id. at 376-77, 508 A.2d at 357. While we upheld the granting of PECOs outfall permit by DER, that decision was based on environmental issues pertaining to possible erosion damage to the downstream riparian owners. The property rights at issue here were not involved in that case.

5 We expressly limit the applicability of our holding to riparian owners bordering on nonnavigable water courses as they hold title to the lands underlying the water course. We express no opinion pertaining to navigable water courses where the Commonwealth holds title to the underlying lands in trust for the public.