Argued, February 25, 2014
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[Copyrighted Material Omitted]
Appeal from the Order entered May 5, 2013, of the Court of Common Pleas, Susquehanna County, Civil Division at No(s): 2011-1736 CP. Before SEAMANS, J.
Paul K. Leary, Jr., Philadelphia, for Elk Mountain Ski Resort, Inc., appellant.
David C. Franceski, Philadelphia, for appellee.
BEFORE: GANTMAN, P.J., DONOHUE, and STABILE, JJ.
Appellant, Elk Mountain Ski Resort, Inc. (Elk) draws water for snowmaking from one of its ponds (Elk Pond), which is connected via a breached berm to the lake (Village Lake) of the Appellee Village of Four Seasons (Village). As part of a larger dispute between Elk and Village, Village moved for an injunction to stop Elk from drawing water from Village Lake. The trial court granted Village's cross-motion for partial summary judgment, enjoined Elk from drawing water, and ordered Elk to close the breach in the berm dividing the two bodies of water. We affirm in part, vacate in part, and remand for further proceedings.
Elk is a ski resort located in Susquehanna County, Pennsylvania. Village is a vacation community located directly below the ski resort. The land on which Elk is located includes Elk Pond, which is a small pond. Similarly, the land on which the Village is located includes a man-made lake, Village Lake. Elk Pond adjoins Village Lake. The two bodies of water are separated by a berm, which includes a breach. Water flows through the breach between the two bodies of water. Elk uses Elk Pond and other bodies of water to make snow for its ski slopes. Village uses Village Lake for recreation, including boating.
This appeal concerns whether Village can prevent Elk from using water from Village Lake. The trial court found Village owns the land beneath Village Lake. Accordingly, the trial court concluded Elk has no riparian right to use the water contained in Village Lake. As a result, the trial court granted Village's cross-motion for partial summary judgment, enjoined Elk from using the Village Lake's water, and further ordered Elk to " physically close the opening in the berm between the Village Lake and the adjoining pond, the Elk [Pond]." Trial Court Order, 6/5/13, at 1. This appeal followed.
On appeal, Elk raises several issues and sub-issues for our review, to wit:
1. Did the trial court commit reversible error in basing its grant of summary judgment on the doctrine that a lake-bed owner owns all the water lying above his lake bed, when the record demonstrates that Elk makes snow from water lying above the lake bed it owns?
2. Did the trial court commit reversible error in granting Village's summary judgment motion even though a reasonable fact-finder could conclude that Village's claims are barred by the reasonable-use doctrine of riparian law, by laches, and by Elk's acquisition of an irrevocable license?
3. Did the trial court commit reversible error in granting Village's summary judgment motion on the ground that Elk could not establish that it had a prescriptive right to use the water in question, when the conclusion was based on the trial court's sua sponte determination ...