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

defendant In thus diverting any part OF
the usual and ordinary flow. feel lit
tie hesitation in. declaring this suppo-'
sition at least to be incorrect. The
right Of=an upper against "a lower RI
parian ownership Is SO well settled by
numerous authorities, and SO thor
Oughly understood, that elaboration
would be superfiuous. 80
IL then the defendant was asserting
q right to interfere with the ordinary
flow OF the stream, and could Offer no
better justification than riparian ow-
nership. the injunctions prayed for
would be granted; for I agree fully
with the plaintiffs argument that
where the dispute Is between two RI
parian proprietors and turns simply
upon the extent Of their respective RI
parian rights in the ordinary volume
Of the stream. an injunction will issue
to restrain the upper proprietor from
making nOn-riparian use OF the wat
er, even II the evidence does not show
any appreciable injury to the owner
of the lower tenement. =
l. But IL the defendants claim Is to
take fiood-water only. the argument
would need considerations; for the Ques-
ton has not yet been decided by any
Pennsylvania court The analogies OF
this branch Of the subject do not favor
the defendants position: for as gen.
eral rule riparian ownership has hither-
to been held to justify riparian use
only, and to give no right to avert
the water for use at a distant point:
but how far, IL at ALL this rule should
be modified SO as to permit a riparian
owner to make a nOn-riDarian use OF
food water which no lower owner can
possibly miss from the stream, Is
subject upon which l express no opin-
ion. I, lay aside entirely the defend
ants riparian ownership, because l be-
lieve the second question above stated
to be controlling. and to furnish a suf-
ficient reason for decision.
In this aspect, the defendants claim
depends wholly upon the right of emf
nent domain contained in its charter.
This consideration removes the discus
sion into different region. and makes
inapplicable almost all the cases cited
by both parties. The plaintiffs ask US
so to construe the defendants power
ito take water from any stream, as
to forbid the taking from any stream
unless It flows down some valley
within the basin or watershed which
also contains the city OF Scranton.
They deny the power Of the legislature
to authorize water company to carry
water across a divide or ridge sepa-
rating two watersheds. because this
would divert part of the stream per-
manently from one valley to the other.
Certainly such diversion would go
beyond the usual power of a riparian
proprietor, acting simply upon his
right Of riparian ownership; but l do
not see upon what principle court
may limit the legislative power over
this subject. Undeniably the defend-
ant belongs to the class Of corporations
which may be clothed with the power
of eminent domain.
If the state grants this right with
out restriction it's. grantee may do
whatever the state could do: and
nothing limits the power of the state.
except perhaps some law of universal,
or of Christian, morality. The plain
tiffs urge that another limitation Is to
be found in the laws Of nature, and
that flowing water must continue to
flow even where 1t is not needed, un-
less it can be. taken where the need
may be extreme without violating the
law of gravitation. / think this argu-
ment overlooks the object of the power
of eminent domain. This Is always to
supply some public use: and surely. as
between a law of nature and the bene-
fit of a community, there Is no room to
doubt which must go to the wall.
cannot believe that the course Of
nature interDOses an immOvable bar
rier to the legislative will. and l do
not know what else can prevent the
state from enacting that some part Of
stream which has hitherto flowed
upon one side of a hill may now be
transported to serve public use upon
the other lay no stress.
however, on the navigable character Of
the stream. Whether 1t Is navigable
or not. as pure question of power.
the state might appropriate the whole
flow for public purposes. making due
compensation therefor: although
doubtless so extreme an exercise Of
sovereignty would only be supported
If the language admitted of no other
possible construction. Reasons
of policy may exist to restrain tho
legislature in given case, but this re-
straint is self-imposed. Restriction
from without must be found in the
course of nature or in the constitution
of the state; and do not find in either
the prohibition for which the plaintiffs
contend. Speaking generally, the leg
islature Is all-Dowerful. save as re-
strained by the constitution; 1t may
certainly take private property for a
public use, and this power extends to
the water of a running stream. Upon
what principle shall the state be for
hidden to cross a small elevation, and
pump the water from one side to meet
q public use upon the other? The
power can only be exercised upon
making payment for property taken
or injured: and the relevant question
seems to be: Does the power exist? II
1t does, think it can hardly be impor-
tant to inquire how distant the stream
may be from the place where the wat
er Is to be used, or how many ridges
must be surmounted before the point
of consumption is reached. If the doc
trine cOntended for by the plaintiffs
is sound, 1t would be often difficult.
and might be impossible, for a large
city situated In small basin to sup
ply it's necessities. The case before the
court furnishes an example Of the diff
Guilty; for the available sources Of sup
ply within the Scranton basin have been
| exhausted, and no more can be had
without diverting some water course
| in part. and pumping 1t over an eleva-
| tiOn between the city and the stream.
Except from the Lehigh or the Sus-
| quehanna no water Is attainable: and
while 1t Is true that the city lies upon
l. the, general watershed of the Susque-
hanna. |! Is also true that a supply
| from this source must be pumped up
a much higher hill than the elevation
separating Roaring Brook from the Le-
| high: and that the diversion of water
| from the Susquehanna would violate
technical rights as distinctly as the
| diversion now complained of.
The legislature has declared in un-
| qualified language that the defendant
| may take water from any stream"
and these simple words must be held
to bear the usual and ordinary mean
ing. AS result. the power of the
defendant extends by positive grant
to the stream In dispute. but not
to, the whole of the flow. The precise
extent of it's power Is not now involved.
but there is certainly some limit which
1t cannot pass. Its grant Is to take
water from" any stream, and this
language implies that some water
must be left; how much. need not now
be determined. In this controversy,
the court Is only. concerned with the
question whether certain quantity
Of fiood-water may be taken and car
| ried for cOnSumption into an adjoining