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decided: January 12, 1988.


Appeal from the Order of the Court of Common Pleas of Bucks County in the case of David J. and Joanne R. Alburger, Mervin C. and Nancy W. Bryan, John R. and Pamela G. Cressman, Bernard S. and Susan A. Delin, and Ely H. and Marguerite S. Swisher v. Philadelphia Electric Co., No. 84-05370-11-5.


James M. Neill, for appellants.

Jeffrey S. Saltz, with him, Bernard Chanin, Wolf, Block, Schorr and Solis-Cohen, and Robert W. Valimont, Power, Bowen & Valimont, for appellee.

Judges Craig and Doyle, and Senior Judge Barbieri, sitting as a panel of three. Opinion by Senior Judge Barbieri. Concurring Opinion by Judge Craig. Dissenting Opinion by Judge Doyle.

Author: Barbieri

[ 112 Pa. Commw. Page 442]

This is an appeal by sixteen landowners*fn1 from an order of the Court of Common Pleas of Bucks County denying their motion for summary judgment and granting the motion of Philadelphia Electric Company (PECO) for summary judgment. Appellants sought to enjoin PECO's use of the upper reaches of the East Branch of

[ 112 Pa. Commw. Page 443]

    the Perkiomen Creek as a conduit to transport Delaware River water to PECO's nuclear power generating station in Limerick, Montgomery County.

The facts of this case, as stipulated by the parties, are as follows. Appellants are riparian owners of lands along the upper reaches of the East Branch of the Perkiomen Creek in Bucks County. From its source to Sellersville, Bucks County, approximately seven or eight miles, the East Branch is nonnavigable. PECO owns approximately forty acres of land along the upper reaches of the East Branch and is also a riparian owner. In 1982, PECO obtained a permit to construct an outfall on its land from which it planned to discharge Delaware River water into the East Branch.*fn2 PECO's use of the East Branch as a conduit is an integral part of its portion of the Point Pleasant Water Diversion Project.*fn3

[ 112 Pa. Commw. Page 444]

In its natural state, the upper reaches of the East Branch has a median flow of approximately 1.4 cubic feet per second (cfs) and during the summer months it is often reduced to a series of shallow pools connected by a trickle of water running through rocks in the creek bed. There are, however, periods when the flow in the upper reaches of the East Branch increases substantially, particularly after storms.*fn4 PECO would discharge approximately 71 cfs of Delaware River water into the East Branch from its outfall, thus raising the median flow to at least 71 cfs.

Appellants, downstream riparian landowners, commenced an action in equity in common pleas court to enjoin PECO's proposed discharge of Delaware River water into the East Branch. In the alternative, they sought to require PECO to condemn a right-of-way for its water flow and pay just compensation prior to commencing any discharge of water. Affidavits and Requests for Admissions were filed and answered and both parties moved for summary judgment. The Honorable Oscar S. Bortner, of the Court of Common Pleas of

[ 112 Pa. Commw. Page 445]

Bucks County, found that PECO's proposed discharge of Delaware River water into the East Branch was a proper riparian use, denied Appellants' motion for summary judgment and granted PECO's motion for summary judgment. Alburger v. Philadelphia Electric Company, 50 Bucks 24 (Pa. C.P. 1986). This appeal followed.

The sole issue presented by this appeal is whether an upstream riparian owner has the right to discharge water into a nonnavigable waterway when that water is not generated on that owner's land but is imported in large quantities from an entirely separate and unrelated water course system and when the volume of that non-riparian water will increase the median flow by more than fifty times the present median flow rate. Appellants claim here, not surprisingly, but contrary to the view of the common pleas court, that such importation of non-riparian water to be discharged into their water course is not a riparian right of PECO. We agree.

At the outset, we are cognizant that under Pa. R.C.P. No. 1035(b) summary judgment may only be granted where there are no genuine issues of material fact and the record, viewed most favorably to the non-moving party, reveals that the moving party is entitled to judgment as a matter of law. Dowlin v. Coatesville Area School District, 22 Pa. Commonwealth Ct. 443, 350 A.2d 190 (1975). See also Goodrich-Amram 2d ยง 1035(b):2 (1976). As the material facts were stipulated to by the parties through the Request for Admissions and the Answer of PECO thereto, the matter is ripe for summary judgment. We are also cognizant that summary judgment may only be granted in the clearest of cases. Kotwasinski v. Rasner, 436 Pa. 32, 258 A.2d 865 (1969).

As noted by the common pleas court, the question of whether a lower riparian owner has a right to enjoin an upper riparian owner from raising the level of a water course and increasing its flow by discharging into the

[ 112 Pa. Commw. Page 446]

    water course additional water, here imported and non-riparian water, is one of first impression in this Commonwealth. Our research into the area of the riparian rights doctrine convinces us that Pennsylvania is one of the "reasonable use" jurisdictions. See Butler, Allocating Consumptive Water Rights in a Riparian Jurisdiction: Defining the Relationship Between Public and Private Interests, 47 U. Pitt. L. Rev. 95, 102 n. 13 (1986). In a "reasonable use" jurisdiction, such as Pennsylvania, a riparian owner is entitled to use so much of the water that flows through his land as may be reasonably necessary for domestic needs or similar purposes. See e.g., Brown v. Kistler, 190 Pa. 499, 42 A. 885 (1899); Pennsylvania Railroad Company v. Miller, 112 Pa. 34, 3 A. 780 (1886). The only limitation on this use is that the reasonable use made by a riparian owner of the water course must not materially diminish its quantity or quality. See e.g., Lentz v. Carnegie Brothers & Co., 145 Pa. 612, 23 A. 219 (1892); Clark v. Pennsylvania Railroad Co., 145 Pa. 438, 22 A. 989 (1891). Subject to the right of reasonable use by other riparian owners, a riparian owner has a right to have the natural flow of a water course reach his land in its natural channel and in its natural condition. See e.g., White v. Pennsylvania Railroad Co., 354 Pa. 397, 47 A.2d 200 (1946); Beech v. Kuder, 15 Pa. Superior Ct. 89 (1900). While there is no reported case of a downstream riparian landowner being able to enjoin an upstream riparian owner from materially increasing the natural flow of a water course by discharging additional waters into the water course, especially imported and non-riparian water, our review of related case law from Pennsylvania and other jurisdictions convinces us that the downstream riparian may do so.

We begin by recognizing that we are concerned here with a nonnavigable water course. While the Commonwealth holds title to all lands underlying navigable

[ 112 Pa. Commw. Page 447]

    monwealth holds title to all lands underlying navigable waters in trust for the public, City of Philadelphia v. Pennsylvania Sugar Co., 348 Pa. 599, 36 A.2d 653 (1944), title to the lands underlying nonnavigable waters is held by the owners of lands bordering such waters. Ransberry v. Brodhead's Forest & Stream Association, 315 Pa. 513, 174 A. 97 (1934). See generally Lynch, Riparian Title in Pennsylvania, 41 Pa. B.A.Q. 224 (1970). Thus, Appellants here are the owners of the creek bed of the East Branch as it flows across their properties. Under Pennsylvania law, however, since water is descendible by nature, an upstream riparian owner, such as PECO here, has a flowage easement over the lands of downstream riparian owners for the discharge of all waters that naturally rise in, flow, or fall upon the upstream riparian owner's lands. See Kauffman v. Griesemer, 26 Pa. 407 (1856); Markle v. Grothe, 102 Pa. Superior Ct. 90, 156 A. 585 (1931). This flowage easement enjoyed by the upstream, or dominant, owner over lands of a downstream, or servient, owner is limited to waters naturally originating on the land of the dominant tenement. Thus, the flowage easement PECO enjoys over the lands of Appellants does not include waters artificially introduced into the dominant tenement, such as the diverted Delaware River water that is to be discharged from its outflow. As stated by Associate Justice George W. Woodward in Kauffman :

The law . . . prohibits only the immission into the inferior heritage of the waters which would have never fallen there by the disposition of the places alone. (Emphasis added.)

26 Pa. at 413.

Additionally, established riparian doctrine in Pennsylvania permits an upstream riparian owner to enjoin a downstream owner from obstructing a water course so that the flow is altered and the water level raised, thus

[ 112 Pa. Commw. Page 448181]

A.2d 277 (1962). Additionally, our courts have held that where the owner of a dominant tenement acts to greatly increase the quantity, or artificially augments the natural flow, of surface water flowing onto the servient tenement, the servient owner has an action against the dominant owner. See e.g., McCormick Coal Co. v. Schubert, 379 Pa. 309, 108 A.2d 723 (1954); Chamberlin v. Ciaffoni, 373 Pa. 430, 96 A.2d 140 (1953). This is also true in a number of our sister jurisdictions. See e.g., Dayley v. Burley, 96 Idaho 101, 524 P.2d 1073 (1974); Poole v. Guste, 261 La. 1110, 262 So.2d 339 (1972); Baldwin v. Overland Park, 205 Kan. 1, 468 P.2d 168 (1970); Scanlan v. Hopkins, 128 Vt. 626, 270 A.2d 352 (1970); Jones v. Boeing Co., 153 N.W.2d 897 (N.D. 1967). See generally Comment, Waters and Water Courses -- Torts -- Owners of Property Damaged by Unlawful Ditching or Unreasonable Discharge of Waters May Obtain Relief by Statute or by the Tort Concept of Reasonable Use, 60 N.D.L.Rev. 741 (1984). In Salisbury Township v. Vito, 446 Pa. 200, 285 A.2d 529 (1971), the Pennsylvania Supreme Court upheld the granting of an injunction against a property owner who channeled water from a stream into a pond, increasing the water level of a pond and flooding a neighboring right-of-way. In Salisbury Township, the landowners were enjoined from discharging water onto the right-of-way and from interfering with the flow of the stream. While the area of law dealing with surface water is distinct from that pertaining to riparian rights, we find it illustrative to the case at bar, particularly since all parties here are the titleholders to the creek bed of the nonnavigable portion of the East Branch as it flows through their respective properties. There can be no serious question that by proposing to artificially increase the median flow of the East Branch from 1.4 cfs to 71 cfs, an increase of over fifty times the natural flow,

[ 112 Pa. Commw. Page 449]

PECO is greatly increasing the quantity, as well as artificially augmenting, the natural flow of water over the lands of Appellants. Such an increase is outside of the flowage easement enjoyed by PECO as an upstream or dominant owner and is not a proper riparian use. Accordingly, just as the owner of an easement may enjoin an obstruction of that easement, we feel that Appellants, the owners of servient estates, have the right to seek to enjoin a dominant owner from enlarging from a foreign source the existing flowage easement and increasing the burden on their lands. Thus, the common pleas court erred when it held that PECO's planned importation and discharge of 71 cfs of Delaware River water into the East Branch was a proper riparian use and granted it summary judgment. Summary judgment should have been granted to Appellants,*fn5 but only with respect to that portion of their motion for summary judgment which requested that PECO be enjoined from flowing water across appellants' lands through the channel of the East Branch of Perkiomen Creek. No basis has yet been established for plaintiffs' other request that PECO be enjoined from initiating any eminent domain proceedings for the acquisition of flowage or other rights in the named channel.

We note that the appellants' Amended Complaint, in paragraph b of their request for relief, appeared to acknowledge the possibility of condemnation by their request that PECO be enjoined unless PECO first paid "just compensation for necessary interests. . . ." However, because the trial court ...

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