Pennsylvania Railroad v. Miller

3 A. 780, 112 Pa. 34, 1886 Pa. LEXIS 245

• Court: Supreme Court of Pennsylvania
• Decided: April 19, 1886
• Status: Published

Opinion

Mr. Justice Paxson

delivered the opinion of the court April 19th, 1886.

This was an action brought in the court below against the Pennsylvania Railroad Company for diverting the water from the Brandywine creek, to the injury of the defendant in error, who is the owner of a mill property on that stream below the railroad. The water is taken within the line of the road and upon the property of the company. The land covered by the water at this point belongs to the company in fee simple. The water is pumped up from the creek into large tanks and is then used to supply the locomotives of the company. The plaintiff alleges that the quantity taken was so large as to seriously impair the power of his mill, and hence this suit.

It was contended upon the trial below, and it was urged here that the proceeding should have been by a jury of view under the Act of May 16th, 1857, and not by a common law action. We do not regard ,this point as tenable, for the reason that the water was not taken by the company under the right of eminent domain, but by virtue of its rights as a riparian owner. As before stated, it owns the land in fee simple at the point where the water is taken, and has precisely the right of every other riparian owner on that stream. It may use the water as other owners use it without responsibility to any one therefor, provided such use is not of a character to injure other riparian owners on the same stream.

The principle established by a long line of decisions is that the upper riparian owner has the right to the use of the stream on his land for any legal purpose, provided he returns it to its channel uncorrupted and without any essential diminution ; that in all such cases the size and capacity of the stream is to be considered, and that any interruption of or interference with the rights of the lower riparian owner is an injury for which an action will lie, unless too trifling for the law to notice: Wheatly v. Chrisman, 24 Penn. St. Rep., 298. The size and capacity of the stream has always an important bearing upon questions of this nature. Every riparian owner has the right to use the water of the stream passing over his land for ordinary domestic purposes, and if the stream be so small that his cattle drink it all up, while it may be a loss to the iower riparian owner, it is damnum absque injuria. But where the upper riparian owner diverts or uses the water, not for ordinary domestic purposes, such as are inseparable to and necessary for the use of his land, but for manufacturing or other purposes, having no necessary relation to his use of his land, the case is different. In Wheatly v. Chrisman, supra, it was held that “ a proprietor of land over which a stream of water runs has, as against a lower proprietor, the use only of so much of the stream as will not materially diminish its quantity. His right is not to be measured by the reasonable demands of his business.” In that ease the allegation was that the stream had been diverted by one riparian owner in order to work his lead mine to such an extent as to sensibly diminish the supply to the lower owner; and that such use was necessary in order to enable him to carry on his business. It was said by this court: “The proposition of the defendant was that he had a legal right to use a reasonable quantity of the water for the purposes of his business. The court below replied that his business might reasonably require more than he could take consistently with the rights of. the plaintiff. We cannot see how or on what principle the correctness of this can be impugned. The necessities of one man’s business cannot be the standard of another’s rights in a thing which belongs to both.....The defendant had a right to such use as he could make of the water without materially diminishing it in quantity.....If he needed more he was bound to buy it. However laudable his enterprise may be, he cannot carry it on at the expense of his neighbor. One who desires to work alead mine may require land and money as well as water, but he cannot have either unless he first makes it his own.”

This is conclusive of the present controversy. As before observed, the railroad company may use this water by virtue of its rights as riparian owner; but such use must be such as not to sensibly diminish the stream to the riparian owner below. The water belongs to both, and if the former wants more than its share it must take it under its right of eminent domain and pay for it.

Judgment affirmed.