The Scranton tribune. [volume] (Scranton, Pa.) 1891-1910, 1896-12-18


dardsville'-thereby permitting dams
to be erected on, that part of the river.
and declaring also, that "the dams here
tofore erected on the headwaters OF
said stream above the aforesaid faiis
shall be lawful under the provisions OF
said act" So.
: In the year 1870. CPL. l3D an act was
passed to incorporate The Upper Lehigh
Navigation company. for the purpose OF
improving the navigation above the
great falls. No. evidence was Onered
that anything was done in pursuance
of this statute: and 1t is cited now
because the defendant regards 1t as a
fact from which the. court should infer,
that In 1910 the Legislature did not sup
pose it had lost it's power over the
upper waters Of the river, and there
fore that the act of 1922 was not intend
ed to transfer absolute dominion over
the whole stream to the Coal and Nav
igation company.
In 1862 a great food visited the val
ley of the Lehigh, and carried out many
of the company's dams. Here follows
a review of the acts of 1863 (P. l.. 99)
and 1864 (P. L. 533) relating to the
rights surrendered by the Lehigh Coal
and NaHgation3 eompany!' 4.
In pursuance. .of the powers granted
by the acts heretofore cited the COM
pany maintains a slackwater naviga-
ton, forty-six miles long, from Mauch
Chunk to the mouth of the river at
Easton, upon which it's own boats and
boats owned by other persons, to the
number Of 3O9, are engaged in the trans
portation of freight, which in each OF
the years 1894 and 1895 aggregated
about $50, 900 tons. 1t has also convey
ed to twenty eight corporations and
individuals, by lleasesor other form OF
contract, the right to use the water.
and the water-power,;; of the river for
manufacturing and other purposes re-
ceiving, froms msthese contracts revenue
of about $23000 year. Eighteen other
corporations chnd Individuals use the
water for similar purposes without pay
ing therefor. The valley is populous,
and its habitants depend on the riv-
er and it's tributaries for their domes-
tic supply.
z. The defcndant's dam Is built within
II short distance of the ponds which
form the source of the river. and at this
point the stream Is usually of small
size. The basin, or watershed, of the
dam Is aboul fifteen square miles in
area, and in its ordinary stage the vol
ume of Water flowing through the pool
does not exceed go - gallons Il day.
The stream is rather to be called a
brook thar river. In times of fresh
cts, however. which occur every year
usually late in the winter, or early
in the spring-the volume Is greatly
increased, reaching $50, 100000 gallons
day, or even more. There are many
tributaries Of the main river, large and
small, both above and below White
al nf
floods every year and discharge large
quantities of water into the principal
stream. Without further detail, it Is
sufficient to find, in general terms. that
every year during the season of fresh
cts vast Quantity of water Is poured
down the channel of the Lehigh, far In
excess of any demand which the plain
tiffs or the total population of the val
ley, can possibly make, upon it, either
now or, withir any petiod worth con-
sidering.
1t is from this water in flood, arrest
ed once a year at such season only,
that the defendant has filled and pro-
poses to fill its pool, storing the con-
tents there until an emergency arises.
The evidence is ample to justify the
finding that such an act has not been.
and will not be- pcrceptible by any one
of the plaintiffs; and that no injury,
even Of the most trifiing character. has
been done or will be done thereby to
any interest which the court Is now
asked to protect. The ordinary flow Of
tie stream will not be interfered with:
for the dam and pool either are now,
or can easily be, so equipped that the
exact quantity of water flowing in may
he accurately measured and allowed to
flow out.
The watershed of the river above
White Haven is ABOUT 300 square miles
in area; and. Of the whole valley as
lar as Easton. about /. $3.50 square miles.
The Lehigh runs into the Delaware riv-
er, and thence into Delaware bay:
Susquehanra system and finds It's way
at last into Chesapeake bay.
DISCUSSION AND CONCLUSIONS.
Tho principal question to he consid-
cred has not yet been decided bv the
courts Of Pennsylvania. In the Pari-
tic states the subject has been dis
cussed, but I have not been
willing to rely upon any case from
these states as an authority, because
of the different circumstances which
prevail in that region and which have
influenced the judicial and Legislative
treatment Of the right to use the water
of stream. Elsewhere there Is little
help to be had. The subjects Of
controversy have usually been, either
a conflict between two rights. both
growing cut of riparian ownership; or
an interference (under the right of
eminent domain or otherwise) with the
normal and ordinary flow Of the stream.
Many Of the cases are collected in the
note to Davis VS.. Getchell, 73' Amer.
Decis. G3S. ! But the two questions now
raised are 'neWs In almost every state
of, the, Union. First; Does mere ri
parian ownership+ justify the owner in
diverting part Of the flood-waters of
stream'and carrying it elsewhere for
consumption, SO long as the quantity
diverted is too small to affect even
slightly the. rights of others? And,
second May this diversion and con-
sumption be authorized under a grant
| OF eminent domain; the stream being
navtgable. the grantee being a corpora :
tion supplying water to a city, and the
quantity taken being inappreciable by
the persons complaining? In
| this riew'it " enGugh to say, that the
| Ltigation taken as whole brings be-
fore the court. substantially every kind
| OF right which now exists'in the waters
| VI thc iLciiiSH Is dNerreu TO be
| III danger Of injury at the defendant g
hands. The Bethlehem South Water
company and the individuals who join
with 1t represent a certain class OF ri
'parian owners. and lay especial stress
| upon the domestic uses to which such
owners may lawfully put the waters of
a stream. Samuel Wallace and his as
sociates represent, those who use the
river asa source of, power, and for
other objects in the business of manu-
facturings
| Finally, the Navigation company
standing upon its legislative title has
a certain interest in the water which
does not depend upon riparian owner
ship. The extent ,of' its right will be
examined more fully at later stage
of the discussion - - -
| 1t is unnecessary to spend time over
the first question above stated. The
proposition Is. that because the defend
ant owns riparian tract of land II
| may divert q mart of the aood. .ura 10,