The Scranton tribune. [volume] (Scranton, Pa.) 1891-1910, 1896-12-16

ing Brook..It is a Big Victory for
This City as Well as the Water
Company.
The Scranton Gas and Water COM
pany was yesterday declared the win
ner Of the famous suit brought against
1t by the Lehigh Coal and Navigation
company and others to restrain 1t from
using the waters Of the Lehigh river.
The decision was made by Judge j. B.
Mcpherson, of Dauphin county, who
was specially called to preside in the
case. He dismissed the preliminary
Injunction but allowed the bills to
stand to protect the plaintiffs In case
the defendant does not live up to Its
plans as laid down in Its answer to the
injunction proceedings. The opinion
which accompanied the decision covers
| twenty-seven closely type written
pages and Is a most important and in
teresting document us it deals with an
altogether new point of law and reviews
the history Of early legislation on water
ways, and riparian and navigation
rights and particularly the history OF
the I.ehigh company since It's incep-
tiUn in 1906. Owing to the local import
ance which attaches to 1t. the opinion
will be printed substantially in full In
an early issue of The Tribune.
In order to prov ide against the possi-
bility OF drought in this city, the
, Scranton Gas and Water company con-
ceived and adopted the idea of availing
itself of the use Of the waters of the
upper Lehigh. To do this II secured
riparian rights by quietly purchasing
land along the banks of the river near
Gouldsboro and proceeded to erect
| works for diverting the Lehigh water
to the water shed Of Roaring Brook.
The plans comprised reservoir to
catch and store the surplus water dur
ing the spring and winter freshets and
pumping station and pipe line to car
ry the water over divide Of less than a
mile to the headquarters of the Roaring
Brook. 1t was proposed to use this
water only in cases Of necessity. the
present supply of the Gas and Water
company sutficing for all purposes un-
der ordinary circumstances.
AN INJUNCTION OBTAINED.
In January last just as the work was
gotten under way the Lehigh Coal and
Navigation company, the Bethlehem
| South Gas and Water company and
Samuel Wallace and others instituted
| proceedings to restrain the Scranton
company from carrying out its purpos-
es. the plaintiffs alleging that the sup
! ply of water in the river was meagre
enough without any Of II being divert
ed. and the Lehigh Coal and Naviga-
| tion company particularly averring
that no one had q right to use the
Lehigh water without its permission,
the legislature having, 1t claimed, CIV
en- It full simple right to the entire
river from source to mouth. together
with all its tributaries.
The case was first taken to Wayne
county. but the court there ruled 1t had
| no jurisdiction. Then the Lehigh peo-
ple agreed to have the issue tried here
providing foreign judge should be
called in. This the Scranton company
acceded to and In January the hearing
took place. Judge Mcpherson being
called to specially preside.
| The plaintiffs side of the case was
urged strenuously by such able counse
Of wide reputation as Samuel Dickson
and George Wharton Pepper. the lead.
ing civil lawyers of the Philadelphia
bar and Northampton's brilliant con.
sellor, General, w. E. Doster, Of South
Bethlehem. Hon. Alfred Hand and w
]. Hand and Hon. H. A. Knapp repre.
sented the Scranton Gas and Water
company.
The Importance Of the case was wide
| ly commented upon at the time, in.
volving as 1t did the general determin.
| alton Of the rights of riparian owners
as we'll as a determination Of the right.
Of the Scranton Gas and Water com
pany under its charter, and of the lie.
high Coal and Navigation company
under the several acts of assembly
granting 1t special powers and right.
in the river Lehlgh, which Legislation
covers a period of ninety-three years.
PLAINTIFFS CONTENTION.
The contention Of the plaintiffs wa.
that the Gas and Water company hat
no right whatever as a riparian owner
to divert the water Of the river or any
part Of 1t to any other water shed
They also contended that the charter
of the Scranton Gas and Water com
pany, through granting the right o
eminent domain. did not give 1t the
power to take water from the Lehigl
river as that particular stream, vir'
tually as II 1t had been a piece Of rea
estate, had been given by the legisla
ture to the Lehigh Coal and Naviga.
tion company. and that no one coult
take from them their franchise in thi.
respect, without an express enactment
of the legislature.
The Gas and Water company in it!
l
diminishing the ordinary flow of tht
stream and averred that 1t was simply
their purpose to store the surplus wa.
ter in time Of floods, which would 9th
erwise go to waste, and to pump tht
water so stored into the Roaring brool
or another storage reservoir, all OF
which it contended it was entitled Il
| do under Is acquired riparian right:
and the right of eminent domain grant
ed it by It's charter and acts of assem-
bly,.
Judge Mcpherson, in his opinion
| states that the issue presents new
! point of law, never before decided II
this state or in any of the cases brough
| to his notice. The new point Is thu
right of riparian owner in respect e
the diverting of water to another wa
ter shed, when such diversion does no
diminish the. ordinary flow Of tn,
stream. The contention of the plaintiff
that it had a right to do this, he says
is well founded. The legislature hav
ing empowered the Scranton Gas ant
Water company Ito take water from
any stream" gave it the right to TAX.
water from the Lehigh under certain
limitations, as to quantity and inter
ference with the rights Of the other.
He decreed against the claim of thu
Lehigh Coal and Navigation company
that it owned the entire corpus" o.
| the stream and further based his re-
fusal on the grounds that no apprecia
BILE damage could result to the other.
invested with rights in the stream
from the use which the Scranton Ga.
and Water company proposed to maxi
of the river. o..
The Gas and Water company asket
a favorable decision and kept on will
the work on the pumping state ant
pipe line and with the completion O
the reservoir will be ready to suppl!
Scranton with an almost limitles
amount Of water.