David v. Philadelphia Electric Co.

Concurring Opinion by

Judge Craig:

Modern technology, which has created both the physical capability and the need to move large amounts of water from one location to another, here challenges the adaptability of common-law doctrines of riparian rights originally evolved in the context of an agrarian society.

Riparian rights rest upon the functional relationship between a watercourse and the use of the riparian land through which it flows. See Kauffman v. Griesemer, 26 Pa. 407 (1856). Consequently, when an upper riparian *451owner draws water from another watershed, outside the riparian land, only to send it down the stream for use at a lower elevation equally unrelated to the upper riparian land, the servitude owed by lower riparian land is inapplicable. An upper riparian owner cannot use the watercourse as a mere pipeline when that owners riparian land is neither the origin nor the destination of the water and is unrelated to any use of the water.

As the Pennsylvania Supreme Court stated in Kauffman:

Almost the whole law of watercourses is founded on the maxim of the common law, aqua currit et debet currere. Because water is descendible by nature, the owner of a dominant or superior heritage has an easement in the servient or inferior tenement for the discharge of all waters which by nature rise in or flow or fall upon the superior. Hence the owner of a mill has an easement in the land below for the free passage of the water from the mill, in the natural channel of the stream, accompanied with a right to enter upon the land for the purpose of clearing out the stream, and removing obstructions to the free flow of the water. . . .

26 Pa. at 413 (emphasis added).

In accordance with the principle that the course of the natural flow is subject only to reasonable use, the lower owner has no right, for example, to obstruct the flow of the stream by a dam so as to flood the land of the upper owner. Helms v. Zeitzeff 407 Pa. 482, 181 A.2d 277 (1962). Reciprocally, an upper riparian owner cannot deprive lower owners of the use of the stream by means of an obstruction or undue consumption. Hughesville Water Co. v. Person, 182 Pa. 450, 38 A. 584 (1897). In Kauffman, Justice Woodward pursued the subject by stating:

*452This easement is called a servitude in the Roman law, and consists, says Pardessus, in the subjection of the inferior heritage toward those whose lands are more elevated to receive the waters which flow from them naturally, and quoting the Code Civil, he adds, ‘this obligation applies only to waters which flow naturally, without any act of man; those which come either from springs, or from rain felling directly on the heritage, or even by the effect of the natural disposition of the places, are the only ones to which this expression of the law can be applied.

26 Pa. at 413 (emphasis added).

The Supreme Court clearly makes the point that the law does not bar the upper riparian owner in any absolute way from dealing with the watercourse. The Courts dissertation confirms that the upper riparian owner is not required to leave the water untouched or unused. He may apply it to implementing the agricultural productivity of his land; in the example noted in Kauffman, from the earlier days of water-powered mills, he might use it to turn his mill.

However, with respect to the introduction of additional, new or foreign water, the Kauffman opinion further says:

The law . . . prohibits only the immission into the inferior heritage of the waters which would never have fallen there by disposition of the places alone. . . .

26 Pa. at 413.

That key statement was not mere dictum in Kauffman because the facts of that case involved an upper riparian owners digging a ditch that sent to the lower land a regular water flow that previously had been only sporadic.

*453The present case involves a much more egregious introduction of new water, foreign to the riparian lands. Philadelphia Electric Company (PECO) proposes to bring a large quantity of water, not merely from non-riparian land in the Perkiomen watershed, but from another watershed entirely, the Delaware River watershed; having brought it over the divide, PECO proposes to send it down Perkiomen Creek to be used solely at water plants and a nuclear plant below. The utilization of the water would have no relationship whatsoever to the use or enhancement of the riparian land itself.

Riparian doctrine clearly is founded upon the sensible principle that the central justification for imposing a servitude on lower riparian land is the rational exploitation of the upper riparian land. Accordingly, PECOs proposal here finds no support in any claim of servitude upon lower lands imposed by riparian rights law. PECOs input of imported waters simply represents watercourse usage beyond and outside of any servitude-using right ancillary to the ownership of the riparian land.

Because this analysis excludes other-watershed flows from the easement benefits of the upper riparian land only when the importation is unrelated to the use of that land, the principle so derived is not subject to an overextended interpretation which would prohibit reasonable amounts of imported water from being involved in the use of the upper riparian land. For example, on upper riparian land, useful development may involve potable water brought from a public water source elsewhere, or on that land there may be a sewage treatment plant receiving flows from elsewhere, even another watershed. If the right to discharge non-polluting effluent from such an upper riparian development should arise as an issue in the future, that case would be distinguishable because such a discharge would facilitate the actual use of the upper riparian land, unlike the case here.

*454Possibly PECO could purchase the new easement rights necessary for PECOs use of the watercourse as a pipeline. Or perhaps PECO could obtain such , a new easement through its eminent domain powers. However, PECO cannot place a novel burden upon the riparian easement, of a nature unknown to the common law foundation that is PECOs sole claimed justification here.

Therefore, the opinion written in support of the courts judgment is correct with respect to result. This concurring opinion rejects only that opinions citation of the surface water diversion line of cases as illustrative. Reference to such authority is not necessary, and could be misleading, because those cases do not involve legal consideration of an alleged easement specifically located by the position of a watercourse — the issue here. The present case turns upon consideration of the benefits and servitudes of easements conferred by the law of riparian rights, and that analysis leads to the conclusion that PECOs appropriation of the watercourse as a pipeline, with no functional relation to the riparian land, is devoid of a legal basis and therefore must be enjoined.