Isett v. Meehan

Citations

• 232 Pa. 504
• 81 A. 544
• 1911 Pa. LEXIS 752

Syllabus

<p>Deed — Reservation—Water rights — Mill race — Right to take water— Irreparable damages — Injunction—Equity—Suit against commonwealth.</p> <p>In 1906 there was conveyed by the plaintiff to the commonwealth, for use of the department of fisheries, a tract of land which included part of a certain creek and a race which left the creek at the breast of a dam and supplied power to plaintiff’s gristmill, located a short distance below the tract. In the conveyance there was the following, reservation: “And reserving further from this conveyance the right to the uninterrupted and perpetual flow of the water of Spruce creek into and through the said head race from the western course of Spruce creek to the Isett grist mill at Spruce creek of the same height, width, depth and capacity as now constructed, used and maintained, to furnish water and power to.said gristmill.” Upon this.land the state erected a fish hatchery plant. The plaintiff filed a bill averring that the commissioner of fisheries intended to divert the waters of the creek for purposes of the hatchery plant in violation of the reservation in the deed and to the irreparable injury of the plaintiff. It appeared by' the uncontradicted testimony of the defendant that his purpose was to take water from the stream only when it was running over the' top of the dam, under which conditions water sufficient to run the mill would continue to pass down the race. Held, (1) while the proceeding was against the fish commissioner in his official capacity, it was not to enjoin him from discharging any official duty imposed upon him by statute, but was to prevent his performing what is to be regarded as a merely ministerial duty under the general powers and discretion conferred upon him, and if in doing so he defied a covenant between the state and the appellee, he could not shield himself under the plea that the state was being sued; (2) that the defendant should be enjoined from diverting water from the creek only when the wa