The Scranton tribune. [volume] (Scranton, Pa.) 1891-1910, 1902-08-19

the city Of Scranton and others, Judge
John p. Kelly yesterday handed down
an opinion in which he continued the
preliminary injunction granted to the
company to restrain the city from in
terfering with the water mains of the
plaintiff company in the construction
of sewer in Front street, South
Scranton. The opinion follows:
The plaintiff is corporation of the
state Of Pennsylvania. incorporated by
special act of legislature, approved March
IS. 1864 tP. l.. 1856. p. $500. Under the Sec
ond section of the act of incorporation,
1t has the right ito provide, erect and
maintain all works, machinery, fixtures
or engines, necessary or proper for maxi
ing, raising and introducing into the vii
lage of Scranton. Luzerne county. suf-
tlcient supply of pure water"
and to enter upon lands and enclosures,
streets. lanes and alleys, roads. highways
and bridges as may be necessary to oc-
cupy or to obtain necessary materials
for the construction of said works, and
to occupy, ditch and lay pipes, and from
time to time to repair the same" In
1897 or 1898 the plaintiff laid line of
water pipes upon Front street. on the
South Side, in the city Of Scranton. with
in the limits Of the old "Village of Scran-
ton" between Prospect and Stone ave-
uues.
THE SEWER AUTHORIZED.
In 1897 the city passed an ordinance
frovidins for the construction of the
Seventeenth sewer district main sewer,
which was approved by the mayor m
February Is, 1897. The sewer provided for
by this ordinance also in part is located
on Front street. For reasons which do
not appear in the evidence, and which
are not of any moment here, the actual
construction of the sewer in question
along this street was not begun until the
spring of the present year. AS the work
of construction was proceeded with, It
was found that the sewer as located upon
this street in question came in contact
with the plaintiffs water pipes, and 1t
became necessary to either change their
location or abandon the construction of
the sewer as located Notice was given
to the water company to remove its
pipes, and upon its refusal to do SO, it
was threatened on the part of the de-
}endant to remove them or cause them
20 be removed. in order to make way for
the continuation Of the construction OF
the sewer. and upon complaint of plain
tiff preliminary injunction was granted
to restrain the defendant from removing
or interfering with the water pipes at the
location in question.
There are some questions Of fact and
law involved in this case which we do
not now feel called upon to discuss, con-
fning ourselves to the main question::
Can a municipal corporation, in the exer-
else of its municipal function in the mat
ter Of the construction of sewers. re-
move. or cause to be removed, the water
pipes of a water company. which have
been previously laid in the public streets
7nder lawful authority, whenever the
same are found to be in the way of the
sewer construction, as located by the
municipal authorities. without first pay
Ing or securing the damage sustained by
the water company on account OF such
removal? Or, has the municipality such
superior right to the use Of the public
streets for the purpose of constructing
sewers. as to require a water company to
remove, at it's own expense, its pipes
lawfully laid upon the public streets.
whenever they may be found to inter-
fere with the construction of a sewer?
CONVENTIONS OF PARTIES.
We are not called upon to decide the
relative rights Of the parties in this pro-
ceeding, whether the right of one is
subordinate to the other, in case of inter-
ference. The plaintiff in it's bill ex-
presses its willingness to relocate or
move its pipes, provided 1t is indemni-
fed for the damages it may sustain by
so doing Paragraph g. and does not in
sist upon maintaining its pipes in their
present position.
1t is contended on the part Of the city
that in the block in question the water
pipes are laid diagonally across the
street, and that 1t Is not practicable to
build the sewer there without interfer-
ing with the water pipes; that 1t is the
duty OF the water company to give way
and relocate Its pipes at it's own expense;
and that In case Of refusal to do so she
has the right to treat them as an unlaw-
full obstruction to the construction of the
hnt
payment of any damages for so doing:
that her right is superior to that of the
water company.
1t Is true that the water pipes In the
block In question are not laid parallel
with the street lines. as no doubt they
should be. In order to interfere as little
as possible with the use of the street for
other proper purposes. But be that as 1t
may. the true location of the pipes could
have been ascertained upon inquiry by
the officers of the city before locating the
sewer. and the evidence is to the effect
that If the pipes had been first located,
the sewer in question could have been
built without interfering with them.
The pipes were laid under the authority
of the commonwealth, as granted to the
water company by the act of incorpora-
tion. They constitute part of the plant
and property of the company. They
We're laid before the construction of the
the city, more or less damage will result
TO the water company, and If moved by
the company 1t will suffer damage to the
extent OF the expense of moving them
MUST PAY DAMAGES.
Conceding then. for the sake of argu-
ment, that the right Of the water com
pany Is subordinate to that of the city,
ana that In case of conflict it's pipes must
give way. is not such removal or reloca-
tion an injury for which the company is
entitled to be compensated. within the
meaning of the clause of the constitution
which provides that municipal and other
corporations and individuals invested
with the privilege of taking private prop
erty for public use. shall make Just COM
pensatton for property taken, injured or
destroyed by the construction or enlarge
ment OF their works highways or i'm
proVements, which compensation shall be
paid or secured before such taking, in
jury or destruction" We are of the opin-
ION that 1t Is. and that before the city
can compel water company to remove
or relocate its pipes to make way for the
construction of sewer. she must first
either pay or secure the damages to be
incurred.
We find no case in Pennsylvania which
squarely rules this precise question, al
though there are cases sustaining the
principle upon which we base our con-
eluslon. Among them are: Common
wealth vs.. Pa pal Co.. 66 Pa. Al: Pitts
burgs, etc, r. p. VS.. S. w. Pa Ry.
Co.. n Pa. l7a. In Moore VS.. New Or
.eans Water Works Co., Q14 Fed. r.
aSO, the exact question now before us is
passed upon In the circuit court of the
United States for the Eastern district of
Louisiana. The constitution OF the state
of Louisiana contains clause to the ef-
feet that private property shall not be |
taken or damaged for public purposes