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

and cost and the conflicting rights Of
others, which will always operate to
confine In actual exercise grant
which may be theoretically without
bounds. The practical limitation
above referred to Is evideutly regarded
by the state as sufficient. 1t Is the
only check relied upon in every charter
now granted to water company.
Assuming therefore that the defend
ants charter empowers II to take wat
er from the river Lehigh. the further
question arises: Has 1t exercised this
plaintiffs?
Concerning the bill filed by the Beth
lehem South Water company. repre-
senting the riparian right for domestic
use. only word need be said. The de-
fendant Is bound to compensate lower
riparian owners for any injury which
may be done to their domestic rights
at any stage Of Its flow. But In view
Of the facts. that no injury has been
done to these rights even in the slight
est degree, and that the defendant ex-
pressly disclaims of record any inten-
tiOn to invade them. 1t seems clear that
no ground for an injunction has been
shown to exist. In the face Of the de-
fendant's solemn disclaimer of record.
nothing heretofore done can be regard
ed as a hostile act: and 1t Is equally
clear that the plaintiffs have not suf-
fered the least perceptible injury. -
The right of the Navigation COM
pany, and the rights possessed by
Samuel Wallace and his associates,
need not be considered separately. For
the purpose Of this case assume
these bills to rest upon independent
foundations; but whatever may be the
source or extent or relation to each
other of the rights enjoyed by the re-
spective plaintiffs, IL they have suf-
fered no harm at the hands of the de-
fendant. and will suffer none when the
water now in the pool is pumped into
Roaring Brook, the injunctions asked
for should be refused. Upon this point
doubt. In this case also. the
defendant disclaims any intention to
impair or conflict with the plaintiffs
right to make manufacturing use of
the stream, and therefore the acts COM
planned of cannot form the beginning
Of a hostile use.
Whether or not the right Of the Navi-
cation company has been taken or in
jured, depends upon the extent of that
right: and this requires some consid-
Grafton of the acts of assembly. AS
against the defendant Gf not against
the riparian owners on the stream),
the cOmpany's claim Is that under its
charter the grant Is not mere grant
of water power" but Is "a grant of
property In the corpus Of the water as
a chattel," (Brief p. 25). subject merely
to the duty of maintaining the navi-
cation; and although its present right
for purposes Of navigation and power
extends no higher than Mauch Chunk
and White Haven respectively. TINS
claim extends from the source Of the
river to its mouth. Apparently also
the claim extends to the water Of ev-
cry tributary, although the legislative
grant speaks merely of "the river Le-
high" and can only be made to cover
the tributary creeks by liberality Of
construction which Is not usually ap-
piled to grants Of this character. But.
even confined to the main stream. the
privilege Is unusual in scope and can
only be sustained by unambiguOus
grant. 1t may be worth nothing that
this extensive claim Is made in the
course of an argument which denies
the legislative competency to grant the
defendant a similar privilege. If the
Navigation company does own the cor
pus of the water In fee simple, II has
absolute dominion over 1t (subject only
to the reserved navigation right; and
may not only sell 1t for consumption
in the valley of the stream. but may
divert 1t to any point outside the val
ley; or may levy toll upon every gallon
which Quenches the thirst Of man or
beast along its banks. II the legisla-
ture could lawfully do this in 1918 and
pair its power? If 1t
(the company really owns the
water in fee simple. 1t has the power
to divert it at any time;-otherwise,
''fee simple" must have some less ex
tensive meaning;-and in point Of fact
1t does divert permanently from some
riparian owners. and has always d.
verted that part Of the stream which
flows in its canal.
But l think the company's right in
the stream will be found upon exami-
nation 10 come short of fee simple
ownership In all the water not needed
for navigation.
In support Of this construction 1t is
important also to notice that neither
the parties in interest nor the legis-
lature supposed in 1922 that the grant
was more extensive than the right to
take tolls, and the right to the power
of the stream.
Strictly construed. ] believe this to
be the extent of the grant to the Navi-
cation company; but there Is one quail
fication which ought to be made. The
grant of water power was for manu-
featuring uses. and this fact ought not
to be lost sight Of. When the act was
passed, the principal manufacturing
use of the water was to prODel ma
chinery; but now, and for many years
past. other manufacturing uses which
consume or cOntaminate the water In
some degree have become much more
important. To these uses part of the
stream is devoted under the contracts
between the company and riparian
manufacturers; and upon the analogy
of Alden's appeal, % Pa. 1872, l regard
this as within the original grant.
If this view of the cOmDany's right
Is sound, 1t remains to inquire whether
the proposed diversion, now in part
accomplished. has taken or injured, or
will take or injure. in any degree the
company's interest in the stream. This
is a question Of fact. and upon the
| evidence / answer 1t in the negative.
| In no respect or degree has the navi-
cation or the power of the river or its
value for manufacturing use been af-
fected by what the defendant has
done; nor will 1t be affected by future
filings of the pool when the stream Is
| in flood. Unless therefore the defend-
| hostile right, no ground for equitable
| interference exists. But to this bill
also the defendant answers tnat no
claim whatever Is mcde Of right to
do any act which will injure the Nayi-
| cation company's interest in the river;
and as stated heretofore. this dis
claimer of record is a complete protec-
/ tion to the company's interest.
1t was also argued that the defend
ants act is an unlawful interference
with the franchise of the Navigation
company: unlawful. because its
| charter gives II no power, either exc
pressly or by necessary implication. to
take franchises: or, II the power Is
there, because the necessity for its ex-
ercise has not besn made to appear.
In support of this position a well
known line Of cases is referred to. Of
which Pittsburg Junction Railroad
company's appeal. 122 Pa. 512, and
Groff's appeal, 12S Pa. 621, are ex-
amples To this I reply that the in