spent $100,000.00 in putting in the collapsible board arrangement, with the equipment necessary to utilize it; but there is no proof that, before this bill was filed, it made any contracts on the faith of the construction. We find, as a fact, although we do not think that it can be considered as of legal significance at this time, that the defendant company did not secure permission from the Water Supply Commission of the State of Pennsylvania before proceeding with the improvements of which complaint is now made. It is true that the defendant company offered no evidence to show a charter right to furnish electric current developed by water power of the Susquehanna River to any person or corporation not residing in the Township of Martic, County of Lancaster, State of Pennsylvania, or in Lower Chance ford Township, York County, Pennsylvania. This question also we do not deem material to the present controversy, because whether or not the defendant company is exceeding its charter rights can be inquired of only by proceedings on the part of the State, and not at the instance of a private citizen, and not collaterally. loss of the pins and boards by letting The defendant company proved that it them wash away. They are a collapsible construction, used only at times when the flow of the river is low, and their purpose is to partly equalize the fluctuations of the water level during the day back of the dam, and also to increase the efficiency by adding a few feet more head to the water. The plan also permits of catching occasional short freshets in low water season that otherwise would go to waste. The elevation back of the flash boards during the low water season is never up to 169.5, except for a very short time, when the water rises, and it is ordinarily kept within two feet or so from the crest of the boards. That is an elevation of 167.5. The flash boards are not kept upon the top of the dam continuously. They were put up about June 22, 1912, and were taken down some time in July of that year. They were then re-erected about August 9 or 10, and remained up until September 5 or 6. They were again erected on September 26, and were removed on November 13. In 1913, they were put on about June, and were maintained, off and on, until September or October. The general superintendent testified, and there is no contrary proof, that, each year, the flash boards have been on the dam from thirty to forty up to possibly ninety days, depending on the low water flow. We think that this statement is about correct, and we so find. It is admitted in the defendant's evidence that, by reason of the flash boards, the water is dammed back upon the plaintiff to the extent of from two to two and a half feet up to four and a half feet, and covers at times about five-hundredths of an acre of land. Nor in the present controversy do we deem it important to ascertain whether or not the plaintiff had in mind some time to use the waters of the Tucquan Creek for a water power. It is conceded that he made no move to that end. Therefore, by this alleged injury, his present rights were in this regard in no wise impaired, and we are not dealing with those of a prospective character. CONCLUSIONS OF LAW. When the defendant first placed the flash boards upon the crest of its dam. bills in equity were filed by a number of the owners of land farther up the Susquehanna River than the defendant, and a preliminary injunction was granted to restrain it from so doing. Shortly thereafter, we heard the cases upon motions to dissolve the injunctions, and, on August 26, 1911, we filed an opinion. which is reported in 28 Lanc. Law Recom-view, 361. We there held that "the While George B. Atlee, the plaintiff's predecessor in title, owned the land, his counsel, on September 1, 1911, gave notice to the defendart company that his property was being injured by reason of what he called weir boards. As the record shows, this bill was filed about eight months after the plaintiff acquired the title. Prior to, and during, that period, litigation was pending with other parties owning land and rights along the stream, arising out of the same plaint. owner of a dam is answerable to his | the lands of the plaintiff except by purneighbor for injury, no matter how chase. As we said in the case above slight, to his land in times of ordinary cited, "the principal called the balance freshets occasioned or enhanced by the of injury' does not apply to a case like dam," and that "he must provide against this, and no claim can here be, asserted such injury or procure his neighbor's that the benefit to the defendant will be consent." We, however, also held that, greater than the supposed loss to the "to justify the issuing or continuing of plaintiffs." a preliminary injunction, the plaintiff In Walters v. McElroy et al., 151 Pa., must show a right free from doubt or 549, it was held that, "under the Act of reasonable dispute, and that he will be June 16, 1836, conferring equity powers injured if the defendant's course be per-upon, the Court of Common Pleas, insisted in." Upon that hearing, the defendant claimed that it had no intention of making a permanent addition to the height of its dam, but that it was erecting a removable arrangement of pins and weir boards, by which its shortage of water could be increased at low and medium stages of the water. As the evidence was speculative in character and was in conflict as to whether or not this arrangement would injure the plaintiffs, we modified the preliminary injunction, so as to permit the defendant, at its own risk, to try the experiment and to ascertain from actual test whether or not the water was thrown back upon the plaintiffs' lands. We have not since heard of those cases. The present case, however, involves no uncertainty as to facts. It is conceded that the plaintiff is the owner in fee of the tracts of land along the Tucquan Creek set forth, in his bill, and that the raising of the water by the placing of the pins and flash boards upon the dam has caused the water of the Susquehanna River to dam up the creek and over fivehundredths of an acre of the plaintiff's land, to the depth of from two or two and a half feet to four and a half feet whenever they are used. The plaintiff's right to this land is, therefore, free from doubt, and there is no reasonable dispute between the parties as to the consequences that have ensued from the defendant's acts. junction is the appropriate remedy for the prevention of trespasses and nuisances which by reason of the persistency with which they are repeated threaten to become of a permanent character; and in such cases it is no objection to the jurisdiction of the Court of Equity that the injured party may have a remedy at law." Mr. Justice Heydrick, in delivering the opinion of the Court in this case, also said: "To extricate themselves from this difficulty, the defendants say that the plaintiff's land is little worth, while they are engaged in a great mining industry which will be paralyzed if they shall be restrained from a continuance of the acts complained of, and that in equity a decree is of grace and not of right, and, invoking the principle that a chancellor will never enjoin an act when by so doing greater injury will result than from a refusal to enjoin, they ask that the plaintiff be turned over to his remedy at law. The phrase of grace' predicated of a decree in equity had its origin in an age when kings dispensed their royal favors by the hands of their chancellors; but, although it continues to be repeated occasionally, it has no rightful place in the jurisprudence of a free commonwealth, and ought to be relegated to the age in which it was appropriate. It has been somewhere said that equity has its laws as law has its equity. This is but another form of saying that equitable remedies are administered in accordance with rules as certain as human wisdom. can devise, leaving their application only Under these circumstances, we think the plaintiff is entitled to protection from injury. It makes no difference whether the enterprise conducted by the defend-in doubtful cases to the discretion, not ant company is a large or a small one. It does not have the right of eminent domain, and it cannot acquire any right in the unmerited favor or grace, of the chancellor. Certainly, no chancellor in any English-speaking country will at this time, to occupy it, without his consent. As was said by Thompson, J., in Casebeer v. Mowry, 55 Pa., 419, “the amount of damages is not the sole object of an action of this nature. The right is the great question. It will not do to hold that one man with impunity invade the premises of another by anything in the shape of a nuisance, because the damage may not be appreciable. The law does not justify or excuse any such invasion, be it ever so small, and allows the recovery of nominal damages at least as evidence of the plaintiff's right." In Colket . Verner, 236 Pa., 285, it was held that, "as against a lower riparian owner, the owner of the lands higher up the stream has the right to have the waters of the stream flow over the lands as they would naturally flow"; that "the lower owner has no right to obstruct the flow of the stream by a dam so as to flood the land of the upper owner, or to raise the level of the water in its bed to his detriment"; and that "equity will relieve against the obstruction of a stream by the owner of lower land to the injury of the owner of upper land bordering upon it." See, also, Rider . York Haven Water & Power Co., 242 Pa., 141. day admit that he dispenses favors or refuses rightful demands, or deny that, when a suitor has brought his cause clearly within the rules of equity jurisprudence, the relief he asks is demandable ex debito justitiae, and needs not to be implored ex gratia. And as to the principle invoked, that a chancellor will refuse to enjoin when greater injury will result from granting than from refusing an injunction, it is enough to observe that it has no application where the act complained of is in itself as well as in its incident tortious. In such case, it cannot be said that injury would result from an injunction, for no man can complain that he is injured by being prevented from doing to the hurt of another that which he has no right to do. Nor can it make the slightest difference that the plaintiff's property is of insignificant value to him as compared with the advantages that would accrue to the defendants from its occupation." In Berkey v. Berwind-White Coal Mining Co., 220 Pa., 65, Mr. Justice Elkin, in discussing this same question, said: "Of course, if the injury complained of is irreparable so that it cannot be adequately compensated in damages, or if the act intended to be committed is in the nature of a The next question to consider is, trespass, or tort, or if the wrong sought whether the relief sought is sufficiently to be redressed amounts to a nuisance, sustained by the prayers of the bill. Of which by reason of the persistency with course, a dismissal of the bill upon such which it is repeated threatens to become ground would be without prejudice, and permanent, Courts of Equity will inter- the real issue would no doubt have to be fere by injunction to prevent such met in a subsequent proceeding. It is wrongs.' See, also, Nittany Valley R. true that the relief afforded by a decree R. Co. v. Empire Steel & Iron Co., 218 in equity must conform to the case Pa., 224. In Miller v. Lynch et al., 149 made out by the pleadings as well as the Pa., 460, it was held that, "where plain-proofs. Luther v. Luther, 216 Pa., 1: tiff's right is clear, it is not necessary Zook v. Pennsylvania R. R. Co., 206 Pa., that it should have been first settled at 603. We think, however, the rule has law," and that "a Court of Equity will been fully conformed to in this case. It interfere to restrain by injunction a tres- is claimed that the arrangement of the pass of a permanent nature." In Piro defendant was but temporary, and it has v. Shipley, 211 Pa., 36, it was decided been shown that, when the bill was filed, that "a Court of Equity will restrain the flash boards were not on the dam. a threatened interference with the exer- The bill, therefore, averred that the decise of a right without a prior adjudica- fendant was about to raise the dam from tion at law, where the right is clear and three and a half to five additional feet. there is no serious dispute as to any of That such was the fact was admitted the material facts." by the defendant's superintendent, for the flash boards were put on and the dam was raised that summer. In order The plaintiff owns his land, and no man nor corporation has a right, at any to raise the dam, it was not necessary that a concrete structure should be added thereto. Any other material which raised the water and thus brought about the cause which is the foundation of the complaint would necessarily prove just as effective. Wooden flash boards were deemed sufficient by the defendant to raise the water, and in fact most dams in the Commonwealth are constructed with logs and planking. Nor does it seem to us to make any difference whether the dam was raised temporarily or permanently. If by so doing, frequent trespasses were committed upon the plaintiff's land, he is equally entitled to relief as against these torts. We cannot, therefore, see any solid ground upon which this objection can stand. the proof. Nor can we here inquire whether the defendant company is exceeding its charter rights by furnishing electricity outside of the territory covered by its charter. It is well settled that the existence of a corporation, or its right to exercise its corporate franchise, cannot be inquired into or attacked collaterally, and that whether, for any reason, a charter was originally invalid or has been forfeited, is a question which the Commonwealth_alone can raise. Thus, in Minersville Borough v. Schuylkill Electric Railway Co., 205 Pa., 402, it was held that, "where a corporation is charged with an excessive exercise of power, it is amenable to the Commonwealth, but not to a private suitor, or another corporation, unless the suitor has sustained a private injury, or the cor chises invaded" thereby. See, also, Germania Refining Company et al. v. Alum Rock Gas Company, 226 Pa., 433; Andel v. Duquesne Street Railway Company, 219 Pa., 635; Pinkerton v. Pennsylvania Traction Company and The Columbia & Donegal Electric Railway Company, 193 Pa., 229. DECREE. Nor does it appear to us that the al-poration has had its rights and franlegation of laches is any better based. The plaintiff's predecessor in title gave notice to the defendant on September 1, 1911, that his land would be affected by the raising of the water of the river. There is no evidence that he did not act promptly. How could he know what the defendant proposed to do until that intention was formulated into deeds by drilling the holes and placing the flash boards in position. If it saw fit to spend And now, January 16, 1915, opinion $100,000.00 upon the experiment, that is read and filed and the Court make the no reason why the plaintiff should be following decree to be entered, to wit: barred from defending his land against That the defendant, its agents and emthe trespass caused thereby. Accord-ployees are hereby enjoined and reing to the testimony, the flash boards were on the dam in the fall of 1911 a comparatively few days after this notice was given, and, before they were again used, the bill was filed. Upon this conceded state of facts, it seems to us to be going too far to charge the plaintiff with laches. We do not propose to discuss the claims of the plaintiff that the powers of the defendant company are the combination of the charter rights of The Susquehanna Water and Power Company and The Hill Side Water and Power Company, and that the company was incorporated under the Mill Dam Act of 1803. This may all be true, but we find no sustaining evidence to that effect either in the bill and answer or in strained from increasing the height of its dam which is constructed across the Susquehanna River at or near McCall's Ferry, by at any time in the future placing flash boards or any other device upon the crest of said dam so as to cause the water of the said Susquehanna River to back and flow into the Tucquan Creek and overflow and injure the lands of the plaintiff, located along the same. March 20, 1915. Opinion by LANDIS, P. J. And now, March 20, 1915, this cause came on to be heard at this term of the argument list upon the exceptions duly filed to the opinion and decree entered January 16, 1915, and the same having been argued by counsel upon further con sideration thereof, it is ordered, adjudged | made an impassioned plea for mercy. and decreed as follows: That the defendant, its agents and employees, are hereby enjoined and restrained from increasing the height of its dam, which is constructed across the Susquehanna River at or near McCall's Ferry, by at any time in the future placing flash boards or any other device upon the crest of the dam so as to cause the water of the said Susquehanna River to back and flow into the Tucquan Creek and overflow and injure the lands of the plaintiff located along the same. Blank silence on the part of the prisoner. "Mr. Attorney, what is this man charged with?" asked the judge. The The district attorney stated the case. "It seems to me,' said the judge, "that this is a very trivial case. poor thing doesn't seem to understand a word of English. He probably has no understanding that he has done wrong. Mr. Attorney, just enter a nolle prosequi in this case." The Indian was told he could go; but stood staring and motionless. The marshal, with a gesture, ordered him to sit down. He obeyed, and stayed throughout the long afternoon session of court. In one case, the charge was similar to his own. Scott Miller, a noted local lawyer, was defending. Miller entered a plea of guilty for his client, and then His pathos would have moved a marble statue to tears. He represented long and earnestly the wonderful virtues and manifold kindnesses of his client. When he sat down the judge said: "Five years in the penitentiary." Court adjourned, and as the crowd passed out the Indian followed. He walked down the steps behind Miller. Suddenly he leaned over and whispered in the attorney's ear: "White man talk too damn much." -Chicago Legal News. Minister (calling on inmate of prison) -Remember, Mr. Kenney, that stone walls do not a prison make, nor iron bars a cage. Kenney-Well, they've got me hypnotized, then; that's all. -Dallas News. O. C. ADJUDICATIONS. By JUDGE SMITH. Frederick Goos, City. Monday, June 21, 1915. Oscar Hohein, City. Elizabeth Landis, Ephrata Boro. |