David v. Philadelphia Electric Co.

Dissenting Opinion by

Judge Doyle:

I respectfully dissent and would affirm the judgment of the trial court.

There is no question that this is a matter of first impression. The majority would conclude, using the language of our Supreme Court in Kauffman v. Griesemer, 26 Pa. 407 (1856), that a downstream riparian owner may enjoin any discharge of water which does not naturally originate, flow in, or fall upon the upstream property owners land. The concurring opinion, would allow the reasonable discharge of imported waters into the stream bed, if the imported waters were used, or treated in some manner, upon the upstream riparian *455owners property. I am obliged to disagree with both because the appropriate legal principle to be applied, I believe, is the common law tort based “reasonable use” theory of riparian rights which would dictate a different result, and because by the application of either the majority or concurring view, (a) the unpolluted waste-waters discharged into the East Branch of the Perkiomen Creek from the public sewage treatment plant at Sellersville, could be prohibited, and (b) downstream riparians on the lower reaches of the North Branch of the Neshaminy Creek could enjoin the transmission of slightly more than half the water stored' in the Bradshaw Reservoir (49 million gallons per day) by the Neshaminy Water Resources Authority (NWRA), when that public water supply (for Bucks and Montgomery counties is transmitted approximately eight miles by the flume of that creek to the north branch water treatement plant. See Del-AWARE Unlimited, Inc. v. Pennsylvania Public Utility Commission, 99 Pa. Commonwealth Ct. 634, 513 A.2d 593 (1986), petition for allowance of appeal denied, 515 Pa. 587, 527 A.2d 547 (1987) (Del-AWARE/ PUC); Del-AWARE Unlimited, Inc. v. Department of Environmental Resources, 96 Pa. Commonwealth Ct. 361, 508 A.2d 348 (1986), petition for allowance of appeal denied, 514 Pa. 641-44, 523 A.2d 1132 (1986) (Del-AWARE/DER); Sullivan v. County of Bucks, 92 Pa. Commonwealth Ct. 213, 499 A.2d 678 (1985). Both results are unwarranted under what I perceive to be the law in Pennsylvania and what I would urge should be the controlling legal principle.

The injury in Kauffman arose when the owners of certain property, the upper superior heritage, on which there was a natural spring, brought suit for damages against the owner of the lower lying ground, and the defendant, “[fjinding that the water thus introduced [by the plaintiffs] was injurious to his crops, . . . built the *456sod dam across the ditch at the line fence, and this is the wrong complained of.” Id. at 413. The Court found, on the basis of the jury’s verdict for the defendant, that the ordinary flow of water from the plaintiffs spring did not reach the defendant’s land, and from the topography of the land it was physically impossible that it should. To compel it to go there, the plaintiff had dug a ditch which extended at least twelve feet into the defendant’s property. It was under these circumstances that the Supreme Court wrote, at length, as follows:

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 superi- or. 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: Prescott v. Williams, 5 Met. (Mass.) R. 429.
This easement is called a servitude in the Roman law, and consists, says Pardessus, in the subjection of the inferior heritage towards 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 *457which this expression of the law can be applied. It is not however to be understood, he goes on still further to say, that because the flow of water must not be caused by the act of man, that therefore the proprietor who transmits water to the inferior heritage, is not permitted to do anything on his own land — that he is condemned to abandon it to perpetual sterility, or never vary the course of cultivation, simply because such acts would produce some change in the manner of discharging the water. The law intends not this; it prohibits only the immission into the inferior heritage of the waters which would never have fallen there by the disposition of the places alone. It neither would nor could refuse to the superior proprietor the right to aid and direct the natural flow.
Hence, for the sake of agriculture — agri colendi causa — a man may drain his ground which is too moist, and discharging the water according to its natural channel, may cover up and conceal the drains through his lands — may use running streams to irrigate his fields, though he thereby diminishes, not unreasonably, the supply of his neighbour below — and may clear out impediments in the natural channel of his streams, though the flow of water upon his neighbour be thereby increased.
I am aware that in Merrit v. Parker 1 Coxe (N.J.) R., Chief Justice Kinsey denied these principles, and held that by no contrivance and under no pretence can one man cause to flow over the land of another a greater quantity of water than it is naturally subjected to; but on the other hand there is a Maryland case of equal authority, Williams v. Gale, 3 H. & John. R. 231, which, in *458its facts, bears a striking resemblance to the case at bar, and the case of Martin v. Riddle, decided by my Brother Lowrie, in the District Court of Allegheny county, and affirmed in the Supreme Court at September Term, 1848. These cases recognise the principle that the superior owner may improve his lands by throwing increased waters upon his inferior through the natural and customary channels, which is a most important principle in respect not only to agricultural, but to mining operations also.

Id. at 413-14 (Emphasis added.)

This lengthy quote from such an early Pennsylvania decision is necessary because it is the wellspring from which both the majority and concurring viewpoints arise, and because it demonstrates that the Kauffman court never articulated the “natural flow” doctrine of surface water law, which emanated from the Civil Code, without at the same time modifying it, and intermingling it with, the common law “reasonable use” doctrine of surface water law. Theoretically, there are three doctrines of surface water law that can be applied to surface waters;1 the civil law rule or “natural flow” theory; the common law rule or “reasonable use” theory; and the “common enemy” rule.2 The common enemy rule *459has only limited application in Pennsylvania, and only in an urban setting. See e.g., Chamberlin v. Ciaffoni, 373 Pa. 430, 96 A.2d 140 (1953); LaForm v. Bethlehem Township, 346 Pa. Superior Ct. 512, 499 A.2d 1373 (1985). The former two doctrines are variations of the general riparian law developed in states fairly rich in water resources — that is, those states in the eastern portion of the United States.3 They are theoretically totally distinct doctrines.

Under the “natural flow” theory, as applied to a watercourse,1 a riparian owner is “entitled to the natural flow of the water of the running stream through or along his land, in its accustomed channel, undiminished in quantity and unimpaired in quality,” Dimmock v. City of New London, 157 Conn. 9, 245 A.2d 569, 572 (1968), and is much more limited than the right of a riparian owner under the “reasonable use” theory where every riparian owner can conduct reasonable uses even though they may affect the natural flow of water. See generally Restatement (Second) of Torts (Scope Note to Topic 3, 210-13) (1977); Butler, Allocating Consumptive Water Rights in a Riparian Jurisdiction: Defining the *460Relationship Between Public and Private Interests, 47 U. Pitt. L. Rev. 95, 102 n. 13 (1986).

Legal writers have noted that Pennsylvania was the first common law jurisdiction to apply the civil law rule in Martin v. Riddle, 26 Pa. 415 (1856) and Justice Woodward in Kauffman, approved the following language of Judge Lowrie in Martin in his charge to the jury:

The question of the rights of the parties is a very interesting one, but not at all difficult of determination; for it is governed by principles which recommend themselves to the common sense of every man.
The right which every man has to the reasonable use of running streams passing through his land, for irrigation, watering cattle, driving machinery, and for other domestic, agricultural, and manufacturing purposes, is well understood, and, on account of its correspondence with the indications of nature, is seldom disputed in its principles. It is a right, in the enjoyment of which a reasonable regard must always be had to the rights of others. On the other hand — as are our rights, so are our duties. We claim the use of running waters according to the order of nature where it is found for our benefit, and the same order requires us to bear the inconvenience of them when they are injurious.
I shall speak now of the general principles of the law in the manner of rain water and drainage, and of the respective rights and duties of the adjoining proprietors in relation thereto. They are in general the same as in the case of running water — they follow nature. Not readily finding the subject treated of in any of our usual books *461of reference, I venture to extract the law from books of foreign origin — Corp. Jur. Civ. 39, 3, 1, and 43, 21: Code Nap. sec. 640; Poth. du Voisinage.

Id. at 416. We should specifically note that both Kauffman and Martin concerned quarrels over agricultural land in a predominantly agrarian society; that in both the issue of damages was submitted to a jury; and, most important for our purposes, that intermingled with the articulation of the natural flow doctrine of law were superimposed theories of modification under the reasonable use doctrine.

Therefore, I would conclude, contrary to the majority, that since there has been no permanent injury suffered by the plaintiffs here, (nor, by the explicit finding of the trial judge, are they threatened by an irreparable harm) PECO should not be enjoined under the strict application of the natural flow theory of surface water law from discharging additional waters into the East Branch of the Perkiomen Creek.

The natural flow theory has been criticized by some commentators for its failure to take into account technological change, as well as its harshness and inflexibility, See Hands, Kinyon & McClure, Interferences with Surface Water, 24 Minn. L. Rev. 891, 913 (1940); Waters and Water Courses — Torts—Owners of Property Damaged hy Unlawful Ditching or Unreasonable Discharge of Waters May Obtain Relief by Statute or the Tort Concept of Reasonable Use, 60 N.D.L. Rev. 741, 743 (1984), and the Restatement in the Scope Note to Topic 3 — Interference with the Use of Watercourses and Lakes by Use of Water, comments:

In the early days of the Industrial Revolution when many mills and factories were powered by water, the doctrine served a very utilitarian purpose as it passed the water down from one mill *462dam to the next. In todays economy it is not utilitarian and prohibits many beneficial uses of water although those uses may be causing no one any harm and although the water would run to waste if not so used.

There exist today many uses — such as sewage treatment plants, water purification plants and perhaps some farming operations — that would not be allowed to discharge water essential to their operation, but not natural to the property under the majority opinion. The result of such a strict principle of law would be to allow riparian owners downstream from such uses to enjoin them, even though these downstream owners have not been harmed by the introduction of these artificial waters. Such a rule of law, I believe, would wreak havoc upon the orderly administration of public affairs with no corresponding benefit to the public. It is interesting to note that in all of the cases cited by the majority the actions were brought because of an injury or for damages incurred by the particular landowner/plaintiff in each case. Here, by contrast,, there is absolutely no showing that any injury will be done to . the Appellants’ land. Indeed, the evidence suggests the contrary. DelAWAREIDER.

Neither is this a case of strict liability where an upper riparian owner has changed the course of a stream or diverted water from its ordinary channel, see e.g., McCormick Coal Co., Inc. v. Schubert, 379 Pa. 309, 108 A.2d 723 (1954). Unless we are prepared to enjoin every discharge of unnatural water into a stream bed based upon the concept of strict property law (i.e. easement), then the principles we should apply should be based upon tort law and the Latin maxim used in McCormick, “sic utere tuo ut alienum non laedas”; “use your own property in such a manner as not to injure that of another.”

*463Furthermore, limiting absolutely the right of the flowage easement either to waters originating on the land of the upper riparian owner or to waters which would enhance the use of the upper riparian property, is, I believe, an unnecessary restriction under the reasonable use theory and is without legal precedent. Such a restriction would preclude a municipal sewer authority from discharging its unpolluted waste water into a watercourse through an easement secured by condemnation; would most likely prohibit commercial and industrial enterprises from discharging water into watercourses unless coupled with the additional nexus of land use, or “enhancement of the riparian land itself”; and would most assuredly prevent the transmission of the waters from the Delaware River, through the north branch transmission main, along the North Branch of the Neshaminy Creek for use as a public water supply by the North Penn (NP) and North Wales (NW) Water Authorities. See Del-AWARE/PUC; Del-AWARE/DER; Sullivan. There is some justification, of course, for a doctrine that would restrict the definition of riparian land to that which lies within the confines of a natural watershed on the basis that it would ensure that any water that was withdrawn for consumption but not fully used would remain within the watershed and would thus return to the watercourse for use by other riparians in that watershed. See Butler, supra at 111. But here, PECO is not a consumptive user of the waters of the Perkiomen Creek; if anything, PECO would be a consumptive user of the waters in the Delaware River Watershed, and an upper riparian owner to the lower riparians on the Schuylkill River.

We can take judicial notice of the geography of the area which lies between the Point Pleasant pumping station on the upper Delaware River and PECOs Limerick Generating Station just southeast of Pottstown on *464the Schuylkill River. We can also reasonably infer that PECO’s public utility service area for the supply of electricity lies at least between those two points and encompasses all or parts of Chester, Montgomery, Bucks, Delaware and Philadelphia counties. We also know that PECOs application has secured the approval of the Delaware River Basin Commission, the regulatory agency for the water resources of the Delaware River Basin, which includes “the area of drainage into the Delaware River and its tributaries” Section 1.2(a) of the Delaware River Basin Compact, Act of July 7, 1961, P.L. 518, as amended, 32 P.S. §815.1015 which therefore would include the Schuylkill River and its tributary, the Perkiomen Creek, as well as the Delaware River itself and its tributaries, i.e., the Neshaminy Creek and the Schuylkill River. While the Neshaminy Creek is a navigable watercourse under the jurisdiction of the Department of the Army, Corps of Engineers, see Lynch, Riparian Title in Pennsylvania, 41 Pa. B.Q. 224, 233-35 (1970) (Appendix II), there seems to me no logical reason requiring a distinction between the use of the East Branch of the Perkiomen Creek as a factor in the supplying of electric power to the population of the region, and an identical use of the North Branch of the Neshaminy Creek to supply part of the region with its public water supply.

Accordingly, I would affirm the judgment of the trial court.

The' term “surface water” means water from rain, melting snow, springs, or seepage, or detached from subsiding floods, that lies or flows on the surface of the earth but does not form a part of a watercourse or lake. Restatement (Second) of Torts §846 (1977).

“All three doctrines developed in the nineteenth century when nonagricultural land development was increasing. The Flow of Surface Water Law in Connecticut, 14 Conn. L. Rev. 601, 609 (1981-1982). For a discussion of the three surface water doctrines, see Note, Surface Water Drainage, 36 Notre Dame Law 518 (1960-61); Hands, Kinyon & McClure, Interferences with Surface Waters, 24 Minn. L. Rev. 891 (1940). For a discussion of jurisdictions applying the three doctrines, see 93 A.L.R. 3d 1193 (Supp. 1983).” *459Waters and Water Courses-Torts-Owners of Property Damaged by Unlawful Ditching or Unreasonable Discharge of Waters May Obtain Relief by Statute or the Tort Concept of Reasonable Use, 60 N.D.L. Rev. 741, 742 n.ll (1985)

A “prior appropriation” doctrine, a system basically awarding a superior right to use water to the party who first appropriates or exercises dominion over the water for a beneficial use, has developed in the drier parts of the country, i.e., the western states. Butler, Allocating Consumptive Water Rights in a Riparian Jurisdiction: Defining the Relationship Between Public and Private Interests, 47 U. Pitt. L. Rev. 95, 102 n.13 (1985).

The term “watercourse” means a stream of water of natural origin, flowing constantly or recurrently on the surface of the earth in a reasonably definite natural channel. Restatement (Second) of Torts §841(1) (1977).

The Delaware River Basin Compact between the United States and the States of Delaware, New Jersey, New York and Pennsylvania was constructed and framed to meet the demands of a population projected to reach 40 million people by the year 2010 and to preserve the water resources of the Delaware River Basin, acknowledging in its preamble that these “water resources are functionally interrelated and the uses of these resources are interdependent.” Article I of the Compact, 32 P.S. §815.101.