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May 24, 1954


Appeals, Nos. 142 to 149, inclusive, Jan. T., 1954, from decree of Court of Common Pleas of Montgomery County, June T., 1953, in Equity, No. 3, in case of Borough of Collegeville et al. v. Philadelphia Suburban Water Company. Decree affirmed; reargument refused June 24, 1954. Bill in equity. Defendant's preliminary objections sustained and final order entered dismissing complaint, before CORSON, DANNEHOWER and FORREST, JJ., opinion by CORSON and DANNEHOWER, JJ., dissenting opinion by FORREST, J. Plaintiffs appealed.


P. Nicholson Wood, with him Grover C. Ladner and Clark, Ladner, Fortenbaugh & Young, for appellants.

W. James MacIntosh, with him Robert H. Young, Ernest R. von Starck, High, Swartz, Flynn & Roberts and Morgan, Lewis & Bockius, for appellee.

Harry F. Stambaugh, Special Counsel, with him Samuel M. Jackson, Deputy Attorney General and Frank F. Truscott, Attorney General, for Commonwealth, intervenor, appellee, on question of jurisdiction of Water and Power Resources Board.

Before Stern, C.j., Stearne, Jones, Bell, Chidsey, Musmanno and Arnold, JJ.

Author: Chidsey

[ 377 Pa. Page 638]


Nine boroughs, six townships and thirty-eight individuals and corporations brought an action in equity

[ 377 Pa. Page 639]

    against the Philadelphia Suburban Water Company in the Common Pleas Court of Montgomery County seeking to enjoin the defendant from appropriating and diverting water from the Perkiomen Creek, from erecting a dam across the creek for the creation of a reservoir incident to the proposed taking of water, and from condemning or acquiring by eminent domain or otherwise any water, lands or rights whatsoever within the watershed of the creek for water supply purposes.

The defendant filed preliminary objections asking that the complaint be dismissed on the ground that plaintiffs had failed to exercise or exhaust statutory procedures and remedies available to them, that plaintiffs had an adequate remedy at law and that equity was precluded from granting the relief prayed for. The court en banc (one judge dissenting), holding that it had no jurisdiction over the subject matter for the reasons asserted by the defendant, sustained the preliminary objections and entered a decree dismissing the complaint. From this decree eight of the plaintiffs, five of whom are municipalities in the area, two of whom are downstream mill owners, and one an owner of property allegedly situated on or near the banks of the Perkiomen Creek, have appealed under the Act of March 5, 1925, P.L. 23.

Under Procedural Rule No. 1017 complainants filed an answer to the preliminary objections. The latter incorporated therein findings and actions taken by the Water and Power Resources Board, including the permit issued to the defendant to proceed with its project. From the pleadings the undisputed facts material to the issue of jurisdiction, which is the sole issue before us, are as follows:

On or about February 28, 1950, the defendant filed an application with the Water and Power Resources

[ 377 Pa. Page 640]

Board under the provisions of Section 6 of the Act of June 24, 1939, P.L. 842, 32 PS § 636, requesting allocation to it of an additional 16.5 million gallons of water per day from the Perkiomen Creek, said additional water to be taken at defendant's Wetherill Dam and pumping station after impoundment of the water in a proposed reservoir on the creek, at Green Lane, Montgomery County, and release therefrom for recapture at the Wetherill Dam and pumping station located about 4,000 feet above the mouth of the creek in Lower Providence Township, Montgomery County. A hearing upon this application was scheduled by the Board for May 10, 1950 and was held after the required notice had been given. About 50 protestants appeared thereat, either in person or by counsel, including some municipalities, the Norristown Water Company and the Pennsburg Water Company. A number of these protestants were thereafter plaintiffs in the equity action.

Following these hearings the Water and Power Resources Board issued a permit on or about January 11, 1951, approving defendant's application for the allocation of an additional 16.5 million gallons of water per day from the creek, subject to certain conditions specified therein. An appeal was taken from this action to the Court of Common Pleas of Dauphin County by Norristown Water Company, Perkiomen Valley Sportsmen's Association and Upper Perkiomen Board of Trade. The Borough of Norristown, one of the appellants here, was permitted to intervene by stipulation of the parties to that proceeding. At the direction of the court the Board on April 11, 1951 filed findings of fact and reasons therefor in which it specifically found, inter alia, that the water rights proposed to be acquired by defendant (a) will not conflict with the rights theretofore validated to Norristown

[ 377 Pa. Page 641]

Water Company or those held by any public water supply agency, (b) are reasonably necessary for its present purposes and future needs and (c) will not interfere with navigation, jeopardize public safety or cause any injury to the Commonwealth. Thereafter, the appeals were terminated by a compromise which took the form of a consent decree issued by the court under date of June 27, 1951 in the Norristown Water Company appeal, the withdrawal of the Borough of Norristown as an intervenor in that appeal and the withdrawal of the appeals of the other parties plaintiff. The Water and Power Resources Board on July 11, 1951 issued an amended permit which included the modifications which formed the basis of this consent decree.

On May 15, 1952, over 10 months subsequent to the issuance of this amended permit, a petition was filed with the Water and Power Resources Board by a large number of individuals and municipalities, including 32 of the plaintiffs in the instant equity proceeding, requesting the Board to reopen the proceedings, grant a rehearing and in the light of the evidence to be submitted, revoke the amended permit which had been issued. A substantially similar petition was also filed August 15, 1952 by the Borough of Norristown. Extensive hearings were held before the Water and Power Resources Board upon these petitions on October 22nd, November 12th and December 9, 1952. At the conclusion of the last hearing, the proceedings were closed and briefs were filed by the respective parties. Thereafter on April 8, 1953 an order was issued by the Water and Power Resources Board dismissing the petitions on the ground that petitioners had failed to show any new matter or that new or changed conditions had arisen since the original hearings. No appeal was taken therefrom or from the Board's order

[ 377 Pa. Page 642]

    of July 11, 1951 directing the issuance of ...

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