Clark v. Penna. R. Co.

Citations

• 145 Pa. 438
• 22 A. 989
• 1891 Pa. LEXIS 681

Syllabus

<p>1. The right of an upper riparian owner to divert the water of a stream for manufacturing or other purposes having no necessary relation to his use of his laud, is limited, as between himself and a lower proprietor, to so much of the water as will not materially or sensibly diminish its quantity. No matter what are the necessities of his business, he has no right to more than this.*</p> <p>2. Such diversion of the water, to an extent materially lessening its flow, even without actual injury to a lower riparian proprietor, legally imports damage, as it is an infringement of a right; and if no other damage be established, the party whose right is thus infringed is entitled to nominal damages: Miller v. Miller, 9 Pa. 74; Del. etc. Canal Co. v. Torrey, 33 Pa. 143; Graver v. Sholl, 42 Pa. 58.</p> <p>3. For such diversion, however, a lower proprietor cannot recover special damages, on the ground that it interfered with the water power upon his land, when, during the period of time covered by his action, he had upon his land no mill or other means of using or applying the water power, made no attempt to use it, and gave to the defendant no notice of any purpose so to do.</p> <p>4. If he had it in contemplation to erect a mill, he could have vindicated his right by successive actions of trespass; or, after establishing his right at law, he could have enjoined its invasion by proceedings in equity. He might, perhaps, have laid grounds for special damages, by giving notice of his purpose to avail himself of the water power by using or leasing it: Per Mr. Justice Clark.</p> <p>5. The true rule of damages, in such case, is to estimate the injury sustained from the diversion of the water in the use of the land for the purposes to which it was devoted, or for which it would have been used but for the refusal of the defendant, upon notice, to discontinue the diversion. As a means of computation, a reduction in rental value from this cause may be shown.</p> <p>6. But the rental