Consolidated Water Supply Co. v. State Hospital for Criminal Insane

Citations

• 66 Pa. Super. 610
• 1917 Pa. Super. LEXIS 327

Syllabus

<p>Waters■ — Diversion of waters — Lease—Relative rights of upper and lower riparian owners — Ownership of water.</p> <p>The use of the waters of a stream by a riparian owner does not include the right to sell the water for general use, nor to divert it, and when used either for ordinary, or extraordinary purposes, the use must be made on the riparian land.</p> <p>An absolute ownership of all the waters of a stream may be acquired by prescription, and when one who owns the fee grants to & nonriparian owner the entire flow of the stream as it passes over the land, an upper riparian owner, who is in no way affected by the use under the grant, may not complain, but when an actipn is insti- ■ tuted by such lessee to recover from an upper riparian owner for his diversion of the water, such lower owner sustains the cause of action under the grant only so far .as the rights of his grantor will permit. Under the grant, the lower owner cannot maintain a right to all the water, assuming that it was the intention to thus convey, unless the upper owner, as a successor in title from a common grantor, is precluded from asserting any right under his deed, nor can the lower owner assert a title by prescription to the waters of the stream, assuming that his right thereunder is complete as it will not prevail as against the upper owner unless the use was exercised over the latter’s grant.</p> <p>A mere nonuser of water rights by the upper owner will not inure to the benefit of the lower riparian owner’s prescriptive title, or riparian right. There must be some notorious act, injuriously affecting the upper riparian owner’s on his land, hostile, adverse and continuous, before the lower riparian owner can acquire a title by a prescription to the upper riparian rights.</p> <p>To sustain a claim for the use of water against the upper property owner, who has full riparian rights, or against one who owns such rights, it must appear that the lower owner has suffered some injury, in that the