Scranton Gas & Water Co. v. Lackawanna Iron & Coal Co.

31 A. 484, 167 Pa. 136, 1895 Pa. LEXIS 869

Opinion

Opinion by

Mr. Justice Williams,

Two important questions are presented on this record. The first of these relates to the construction of the contracts between the parties for the supply of water to the defendants. A contract was made in 1874 and largely modified by a supplemental agreement made in 1881, which provided that the gas and water company should furnish the defendants with pure water for the “generation of steam, for fire hydrants and hydraulics, and for stores and dwellings ” belonging to the Iron and Coal Company, for the price of ten thousand dollars per annum payable in monthly installments. It stipulated that the undertaking should not include the furnishing of water for tuyeres, boshes or condensers or for any other purpose than those named in the agreement. It also stipulated for free access by the officials of the water company, to the works of the iron and coal company, to enable them to see if the arrangements for saving water were working satisfactorily, and reserved the right to put meters upon the waste pipes at the pleasure of the water company, in order to determine with certainty the amount of water used under the contracts. Having disposed of this subject the contract proceeded to consider another, viz: a supply of water for the purposes previously excluded. The water company undertook in this p.ai't of the agreement to furnish the defendant, upon reasonable notice, “ Such other water as may be required by said Iron and Coal Co.,” for tuyeres, boshes and condensers, and for all other purposes required by the works except for water wheels, from the Lackawanna river or Roaring brook, for which it was to receive interest on the cost of constructing the necessary works to bring the water to the defendant’s mills, and the actual cost of operating them and keeping them in repair. The water of the Lackawanna liver and that of Roaring brook at or near the defendant’s works, was not pure water but was charged with acids and other impurities from the drainage of the coal mines near which both streams passed, which rendered the water unfit for domestic purposes and for generating steam. The learned judge of the court below held that the contract provided for a supply of pure water for the four enumerated purposes, and for a supply of “ other water,” or water not pure, to be taken from the river or the brook at any convenient point, for all other purposes except water wheels that the business of the defendants might require. This was a correct construction of the contract. The undertaking of the water company, was to supply pure water for certain specified purposes, and to supply for other purposes “such other water” as might be needed. The words “ such other water ’’are not equivalent to such additional water, but are put in contrast with “ pure water ” whieh the water company, was to supply for purposes that required pure water. The right of the defendant to pure water, under the terms of the contract, was confined therefore to such a supply as was necessary for the “ generation of steam, for fire hydrants and hydraulics, and for stores and dwellings.” It had the right to call upon the water company, on reasonable notice, for a supply of river water for all other purposes, but it had no right to demand pure water for such other purposes, or to take it without demand from any connection under its control, without being liable to pay for it in addition to the sum of ten thousand dollars, the price of the water to which it was entitled under the contract.

The plaintiff alleges that the defendant did use pure water for purposes for which it had no right to use it, and without the knowledge of the plaintiff. The defendant denies this or alleges that only a small quantity was used. The facts were' for the jury, but the learned judge was right in holding that the defendant was liable in this action for such quantity .of water as was- improperly taken from the pure water supply. But the plaintiff’s claim extended over a period of ten years, from 1881 to 1891; and this brings us to the second question, which relates to the statute of limitations. The learned judge held and so instructed the jury that if the defendant “ took the water from the pipes of the water company, without having any right to do so, and without the knowledge and consent of the-water company, then such abstraction of the water was a fraudulent use of the water, g.nd until the plaintiff discovered it they could not bring suit .... and therefore that would be an exception to the general rule that the action must be brought within six years.” Now it must be borne in mind that no deception or fraudulent practice was made use of to divert the attention of the water company, or to relax its vigilance. It must also be remembered that the connection bjr means of which the pure water was used for unauthorized purposes was put in by the water company, and that its officers and employees had access to it at any and all times when they might choose to ex-, amine it. All that the evidence shows, or that the instruction of the learned judge assumes, is that the pure water was taken at times, without any legal right to take it, and without the knowledge and consent of its owners. Reduced to its true proportions the question is thus seen to be whether ignorance of the commission of a trespass will prevent the running of the statute against the owner of the property injured. The trespasser who enters my fields or my uncultivated lands and takes pos-' session and holds them for the statutory period, acquires title to that which he has taken. He is not required to tell me of his entry, or render an account for the timber he has taken or the profits he has made. He comes upon my land, in the language of the learned judge of the court below, “ without having any right to do so, and without the knowledge and consent ” of the owner ; but at the end of the statutory period he ceases to be a trespasser. My remedy is gone, and my land has gone with it. While I was wholly ignorant of his entry upon my land the statute has given it to him. The fee simple passes out of me and vests in him without any act of mine and without my knowledge. The cases that so hold are too numerous to justify an attempt at citation. The true reason for this rule was stated in the recent case of Lewey v. The Coke Company, 166 Pa. 536. What an owner might know if he was personally present by himself or his employees on the surface of his possessions, he is bound to know, unless his attention is diverted by the fraudulent artifices of the wrong-doer. Silence or concealment will not prevent the running of the statute : Sankey v. McElevey, 104 Pa. 265. The question in any given case is not what did the plaintiff know of the injury done him, but what might he have known by the use of the means of information within his reach with the vigUance the law requires of him? In Lewey v. The Coke Company, supra, we held that the owner was not bound to take notice of a trespass committed upon the coal underlying his land, to which he had no access and at which his presence, by reason of the position of the coal stratum, was impossible. When knowledge is impossible because of the laws of nature, or because of the actual fraud of the wrongdoer, the statute runs from the time of discovery. But a constructive fraud is not enough: Downey v. Garard, 24 Pa. 52; Campbell’s Administrator v. Boggs, 48 Pa. 524; Hollinshead’s Appeal, 103 Pa. 158. But in the case now under consideration the pipes and the connection through which it is alleged water was used in excess of the defendant’s contract rights, were put in by the water company, were its property, and were as matter of law under its control. There was no difficultjr in the way of fullest knowledge. • The defendant used more water than was paid for and was silent in regard to it. The plaintiff took no pains to know whether the contract was being observed by its customer, and was therefore in ignorance of the fact that too much water was used. This state of facts is the common one on which the statute is held to run in favor of a trespasser from the date of trespass, and it should have been so held in this case. The 4th, 7th, 11th, 12th, 13th, 14th and 15th assignments of error are sustained.

The judgment is reversed and a venire facias de novo awarded