Commonwealth of Pennsylvania
Water Supply Commission
of Pennsylvania
THE LAW
RELATING TO WATER AND
WATER POWER COMPANIES WITH AN
APPENDIX CONTAINING THE LAW
RELATING TO THE WATER SUP-
PLY COMMISSION, RULES OF
PROCEDURE AND FORMS.
VIRTUR
IBE!
Dup. 1920
D. of D.
Compiled by the
WATER SUPPLY COMMISSION OF PENNSYLVANIA
1909
Revised by the
LEGISLATIVE REFERENCE BUREAU
1919
!

Commonwealth of Pennsylvania
Water Supply Commission
of Pennsylvania
THE LAW RELATING TO WATER AND
WATER POWER COMPANIES WITH AN
APPENDIX CONTAINING THE LAW
RELATING TO THE WATER SUP-
PLY COMMISSION, RULES OF
PROCEDURE AND FORMS.
:

VIRTUE
LIBERTY
AND
Compiled by the
WATER SUPPLY COMMISSION OF PENNSYLVANIA.
1909
Revised by the
LEGISLATIVE REFERENCE BUREAU
1919
( 2 )
TD
224-
P4
A5
191
K
OCT
29 1920
•

UNIVERSITY OF CHICAGO
>
LIBRARIES
266892
MARCH 1930
TABLE OF CONTENTS.
ARTICLE I. HISTORY, CLASSES AND NATURE OF WATER COM-
PANIES.
1. History.
2. Classes.
3. Nature.
ARTICLE II. INCORPORATION.
ARTICLE III.
ARTICLE
4. Acts Providing for Incorporation.
5.
6.
7.
8.
9.
10.
Incorporators.
Contents of Application.
Execution of Application.
Notice.
Granting of Charters.
Recording Application.
GENERAL POWERS.
11.
12.
13.
General Powers of Companies for the Supply of
Water to the Public, and Companies for the Sup-
plies, Storage and Transportation of Water and
Water Power for Commercial and Manufacturing
Purposes.
Additional Powers Given to Companies for the
Supply, Storage and Transportation of Water·
and Water Power for Commercial and Manu-
facturing Purposes.
a.
Power to Determine Character and Design of
Works.
b. Power to Generate and Distribute Electric
Power and Current.
C.
The Public Service Commission has jurisdiction
as to service.
General Powers of Companies Formed Under
Clause 18, section 2, Act of April 29th, 1874.
14. Powers of Corporations Accepting the Constitu-
tion and the Provisions of the Act of April 29,
1874.
IV. TERRITORIAL RIGHTS.
A. TERRITORY IN WHICH WATER MAY BE SUP-
PLIED.
15. Companies for the Supply of Water to the Public,
and Companies for the Supply, Storage and
Transportation of Water and Water Power for
Commercial and Manufacturing. Purposes.
16.
17.
Extension of Territory.
Companies formed under Clause 18, section 2,
Act of April 29th, 1874.
B. SOURCE OF SUPPLY AND LOCATION OF WORKS.
18. Source of Supply of Water.
19.
Location of Works.
ARTICLE V. EXCLUSIVE PRIVILEGES.
ARTICLE VI.
20. Exclusive Privilege Granted.
21. Exclusive Privilege Taken Away.
99
Forfeiture of Exclusive Privileges.
23. Effect of Annexation upon Exclusive I'rivilege.
VI. DUTIES WITH REFERENCE TO QUALITY AND QUAN-
TITY OF WATER AND SERVICE.
24.
25.
26.
27.
28.
29.
Must Furnish a Sufficient Quantity of Pure Water.
The Public Service Commission has Power and
Authority over Disputes as to the Quantity or
Quality of Water Furnished.
What Constitutes Purity.
Remedies when Water Supplied is Impure.
Regulation by Health Department.
Duty to Supply Municipality in which Supply is
Procured.
(3)
4
ARTICLE VII. RATES.
30.
31.
32.
33.
34.
35.
36.
37.
Penalty for Failure.
Duty of Companies for the Supply, Storage and
Transportation of Water and Water Power for
Commercial and Manufacturing Purposes.
Discrimination in Service Unlawful.
The Public Service Commission has Jurisdiction
as to Rates and Service.
Duties of Water Companies.
Powers of Water Companies.
a.
To make Reasonable and Just Rates and Clas-
sifications.
b. To make Reasonable Rules and Regulations.
Municipality Cannot Regulate Rates.
Charter Limitations.
38. Water Companies may not Discriminate.
ARTICLE VIII. EMINENT DOMAIN.
A. COMPANIES FOR THE SUPPLY OF WATER TO THE
PUBLIC AND COMPANIES FOR THE SUPPLY,
STORAGE AND TRANSPORTATION OF WATER
AND WATER POWER FOR COMMERCIAL AND
MANUFACTURING PURPOSES.
39.
40.
Appropriation of land and material authorized.
Extent of Appropriation of Land and Material.
41. Additional Rights Given to Companies for the
Supply of Water to the Public.
42. Appropriation of Water Authorized.
Extent of Appropriation of Water.
ARTICLE
43.
44.
45.
Right to Appropriate Waters Taken Away.
Right to Appropriate Water Must be Forfeited
Upon Consolidation.
46.
Right to Appropriate Waters Must be Forfeited
Upon Purchase and Sale of Property and Fran-
chises.
47. Right to Appropriate Waters Given to Companies
for the Supply of Water to the Public in Cer-
tain Cases.
B. COMPANIES FORMED UNDER CLAUSE 18, SECTION
2, ACT OF APRIL 29TH, 1874.
48. Appropriation of Land and Water Authorized.
49. Right to Appropriate Waters Taken Away.
50.
Right to Appropriate Waters Forfeited Upon Con-
solidation or Upon Purchase and Sale of Fran-
chises and Property.
51. Right to Appropriate either Land or Water may
not Exist at all.
C. PROCEDURE UNDER RIGHT OF EMINENT DOMAIN.
Method of Taking Land, Material and Water.
53. Measure of Damages for Taking Water.
52.
D. RIPARIAN OWNERSHIP.
54. Water Companies as Riparian Owners.
IX. RIGHT TO DAM STREAMS.
55.
56.
Authority.
Companies Formed Under Clause 18, Section 2,
of the Act of April 29th, 1874, and its Amend-
ments.
57. Dams Must Permit the Passage of Fish-Pen-
58.
59.
60.
61.
62.
63.
alties.
·
Duties to Remove Obstructions in Streams.
Draining of and Regulations Concerning Dams.
Commissioner of Fisheries Authorized to Act in
Certain Cases.
Commonwealth to Pay Costs in Certain Cases.
Unlawful to Injure any Dam.
Construction of Dams and Other Water Obstruc-
tions must be Approved by Water Supply Com-
mission.
64. Powers and Duties of Water Supply Commission
Concerning Dams and Other Water Obstructions.
65. When Injunctions are Applicable.
66.
Penalties.
67. Use of Dam.
5
MUNICIPAL RELATIONS.
ARTICLE X.
X.
A.
ENTRY UPON STREETS AND HIGHWAYS.
68. Cities and Boroughs.
69.
70.
Townships of First Class.
Townships of Second Class.
71. Hydro-Electric Companies: Cities, Boroughs and
Townships.
72.
73.
74.
75.
Use of Sidewalks.
Extent of Control by Municipalities.
Reasonableness of License Fees.
Method of Determining Reasonableness of License
Fees in Disputes Between Municipalities and
Water or Water Power Companies.
B. CONTRACT WITH MUNICIPALITIES.
76.
Public Service Commission must Approve.
77. Cities.
78.
79.
Boroughs.
Townships of First Class: For Fire Protection.
80. Townships of Second Class: For Fire Protection.
81. Effect of Contract to Supply Water to a Munici-
pality.
C. PURCHASE OF WORKS BY MUNICIPALITY.
82. Purchase Authorized after Twenty Years.
83. Public Service Company must Approve.
84.
85.
In Cities of the Third Class.
Purchase of Plants of Companies having Exclusive
Franchises.
a. Cities.
b.
Boroughs.
AMENDMENT OF CHARTER.
ARTICLE
XI.
A.
GENERAL AMENDMENTS.
86. Amendment Authorized.
87. Public Service Commission must Approve.
88.
89.
90.
91.
Notice to be Published.
Proceedings to Amend.
Limitations of Amendments.
Extension of Territory.
92. Change of Name.
B. SPECIAL AMENDMENTS.
93.
94.
Extension of Territory of Companies for Supply
of Water to the Public.
Change of Source of Supply.
ARTICLE XII. AMOUNT OF CAPITAL STOCK AND INDEBTEDNESS.
A.
CAPITAL STOCK.
95. Amount Authorized.
97.
98.
+
96. Capital Stock Without Nominal or Par Value.
Capitalization Limited in Certain Cases.
Public Service Commission must Approve-Cer-
tificate of Valuation--Certificate of Notification.
Capital Stock May be Increased to any Amount.
Public Service Commission must Approve Certifi-
cate of Valuation-Certificate of Notification.
Proceedings to Increase Capital Stock.
99.
100.
101.
102.
Waiver of Notice of Elections to Increase Capital
Stock.
103. Capital Stock may be Decreased.
104.
Proceedings to Decrease Capital Stock.
B. INDEBTEDNESS.
105. No Implied Power to Create an Indebtedness Se-
cured by Mortgage Exists.
106.
Authority to Mortgage.
107. Additional Authority to Mortgage Given Water
108.
109.
110.
111.
Power Companies.
Indebtedness may be Increased to any Amount.
Public Service Commission must Approve Certifi-
cate of Valuation-Certificate of Notification.
Proceedings to Increase Indebtedness.
Waiver of Notice of Election to Increase Indebted-
ness.
6
ARTICLE XIII. MERGER AND CONSOLIDATION, SALE, LEASE AND
OWNERSHIP OF STOCK.
A. MERGER AND CONSOLIDATION.
112.
113.
114.
115.
116.
117.
118.
119.
120.
121.
122.
123.
124.
125.
126.
127.
Merger and Consolidation Under Act of 1901.
Merger and Consolidation Under Act of 1874.
Agreement Cannot Extend Territorial Limits of
Exclusive Franchise.
Capitalization of Merged Companies Limited.
Proceedings to Merge and Consolidate.
Agreement Must be Approved by the Public Ser-
vice Commission.
Agreement Must be Approved by Water Supply
Commission.
Agreement Must Designate Future Source of Sup-
ply.
Rights of Eminent Domain over Water Forfeited
upon Consolidation and Merger.
Completion of Merger and Consolidation.
Remedy for Dissenting Stockholders.
What Companies may Merge and Consolidate.
Merger and Consolidation Under Act of 1909.
Agreement Cannot Extend Territorial Limits of
Exclusive Franchise.
Proceedings to Merge and Consolidate.
Agreement must be Approved by the Water Sup-
ply Commission.
128. Agreement must Designate Future Source of Sup-
ply.
129.
Rights of Eminent Domain over Water Forfeited
upon Consolidation and Merger.
130. Completion of Merger and Consolidation.
Remedy for Dissenting Stockholders.
131.
B. SALE.
132.
133.
134.
135.
Sale of Property and Franchises Authorized.
Public Service Commission must Approve.
Proceedings to Sell Property and Franchises.
Future Source of Supply must be Designated and
Approved by Water Supply Commission before
Sale.
136. Right of Eminent Domain over Waters Forfeited
137.
138.
139.
C. LEASE.
140.
141.
upon Sale.
Effect of Sale.
Reorganization after Judicial Sale.
Amount of Capital Stock Limited on Reorganiza-
tion.
Lease Authorized.
Public Service Commission must Approve.
D. OWNERSHIP OF STOCK.
142. Ownership of Stock of Water Companies by other
Water Companies Authorized.
143.
144.
145.
Other Corporations may Own Stock of Companies
for the Supply, Storage and Transportation of
Water and Water Power for Commercial and
Manufacturing Purposes.
Railroad Companies may own Stock of Water Com-
panies.
Public Service Commission must Approve when
Controlling Interest is Acquired by one Public
Service Company in Another Public Service
Company.
ARTICLE XIV. DISSOLUTION AND FORFEITURE.
146.
147.
148.
149.
150.
151.
Voluntary Dissolution by Petition of Company.
Other Forms of Dissolution.
Dissolution by Proclamation of the Governor.
Forfeiture for Mis-User or Non-User.
Jurisdiction in Quo Warranto.
Forfeiture for Failure to Commence or Complete
Works.
152. What Constitutes Commencement of Work.
ARTICLE XV. OFFENCES AGAINST WATER COMPANIES.
153. Taking of Water Without Authority.
154. Injuring Works of a Water Company.
155. Trespass and Pollution of Waters.
APPENDIX.
This appendix contains articles dealing with the creation, organiza-
tion, power and duties, and administration of the Water Supply
Commission, not treated under the law relating to water companies.
ARTICLE I. CREATION, APPOINTMENT OF MEMBERS, OATH OF
OFFICE, VACANCIES AND SALARIES.
ARTICLE II.
ARTICLE III.
ORGANIZATION, POWERS AND DUTIES.
PYMATUNING SWAMP.
ARTICLE IV. FRENCH CREEK.
ARTICLE V. RULES GOVERNING THE PRACTICE BEFORE THE
COMMISSION.
ARTICLE VI. RULES AND INSTRUCTIONS CONCERNING APPLICA-
TIONS AND PLANS FOR THE REPAIR, ALTERATION
AND CONSTRUCTION OF DAMS.
ARTICLE VII.
RULES AND INSTRUCTIONS CONCERNING APPLICA-
TIONS AND PLANS FOR THE CONSTRUCTION,
ALTERATION OR PERMANENT REPAIR OF BRIDGES,
WALLS, WHARVES, FILLS OR OTHER WATER OB-
STRUCTIONS, EXCLUSIVE OF DAMS. .
ARTICLE VIII. FORMS.
(7)
(8)
9
ARTICLE I.
HISTORY, CLASSES AND NATURE OF WATER COMPANIES.
1. HISTORY.
Water companies were originally formed in Pennsylvania wholly
under special acts of the Legislature, which, together with their
supplements, constituted the charters of such corporations and con-
tained all of the corporate rights and powers. Subsequently, a gen-
eral act was passed on March 11th, 1857 (P. L. 77), providing, to-
gether with its supplements, for the regulation and general powers
of water companies incorporated by special acts and made subject to
its provisions. Subsequently the act of March 26th, 1867 (P. L. 44),
authorized the incorporation of water companies by the courts of
common pleas, and several companies so incorporated are still in
existence. The act of February 27th, 1872 (P. L. 20), also authorized
the formation of water companies by the courts of Common Pleas of
the several counties. While these acts were apparently not repealed
by the act of April 29th, 1874, there would be no advantage in form-
ing water companies after that date under said acts. The constitu-
tion of 1873 abolished the formation of water companies under special
acts, and the act of April 29th, 1874, provided for the formation of
water companies under a general act, and also provided for the ac-
ceptance of its provisions by any water company incorporated prior
to its passage and subject to the provisions of any other act. Where
any such company, therefore, has accepted the provisions of the act
of April 29th, 1874, it is, as regards its class and powers, to all in-
tents and purposes, a corporation formed under the provisions of
the said act of April 29th, 1874.
The act of April 29th, 1874, provided in clause 9 of section 2, un-
der corporations for profit, for the formation of companies "for the
supply of water to the public.” This clause was amended by the
act of May 16th, 1889 (P. L. 226), so as to read "for the supply of
water to the public, or the supply, storage or transportation of water
and water power for commercial and manufacturing purposes."
The original act of April 29th, 1874, also provided in clause 18
of section 2, for the formation of companies "for the storage and
transportation of water, with the right to take rivulets and land and
erect reservoirs for holding water." This statement of purpose was
amended by the act of May 21st, 1889 (P. L. 259), so as to read "for
the storage, transportation and furnishing of water, with the right
to take rivulets and land and erect reservoirs for holding water for
manufacturing and other purposes, and for the creation, establishing,
furnishing, transmission and using of water power therefrom.”
A subsequent amendment of July 9, 1901, P. L. 624, added to the
language above cited the following:
10
"And for the creation, establishing, furnishing, transmission and
using of water power therefrom."
The Act of June 3, 1911, P. L. 635, further amended paragraph
eighteen of section two of the Act of 1874, so as to provide that
water companies formed under its provisions should be formed:
"For the creation, establishing, furnishing and transmission for
public use of water power therefrom: Provided, that such last named
corporations
shall be compelled to furnish such power for
*
public purposes."
2. CLASSES.
There are now, therefore, three kinds of water companies which
may be formed under the laws of Pennsylvania:
1. Corporations for the supply of water to the public.
2. For the supply, storage or transportation of water and water
power for commercial and manufacturing purposes.
3. For the storage, transportation and furnishing of water with
the right to take rivulets and land and erect reservoirs for holding
water for manufacturing and other purposes, and for the creation,
establishment, furnishing and transmission for public use of water
power therefrom.
It is apparent that the second and third purposes are practically
the same, but the powers of the companies formed for such purposes
are diferent. The powers of corporations for the first and second
purposes are set out in the thirty-fourth section of the Act of April
29, 1874, P. L. 73, and its amendments. Among these is the power
of exercising the right of eminent domain (as subsequently limited
by the Act of April 13, 1905, P. L. 152) not only for taking private
property, but for occupying highways, etc.
Corporations formed for the first and second purposes are con-
fined to the supplying of water and water power within a single
municipality or township.
Water companies formed for the third purpose have only the
power enumerated in the said eighteenth paragraph of section two
of the Act of 1874, namely, the right to take rivulets and land for
the purposes named. The Act of June 12, 1879, P. L. 177, amending
clause four of section three of the Act of April 29, 1874, P. L. 73,
however, provides, inter alia, as follows:
"That companies organized for any of the purposes set forth in
the eighteenth paragraph of the second section of this act *
and not having for their object the supplying of any village, borough
or city with water shall have all the rights, privileges and powers con-
ferred by the said eighteenth paragraph, and the right to take lands,
waters or rivulets shall be exercised in the manner provided in the
forty-first section of this act."
While the meaning of this clause is rather uncertain in some re-
spects, it is evident that the right of water companies formed for the
third purpose above mentioned is to be exercised as provided by
the forty-first section of said act.
The difference between corporations formed for the second purpose,
and those formed for the third purpose therefore appears to be:
Corporations formed for the first and second purposes may occupy
highways and other public property enumerated in the thirty-fourth
section of the Act of 1874, but they are confined to furnishing water
and water power within a single township or municipality.
11
Corporations formed for the third purpose are confined in their
powers to taking "lands, waters or rivulets," and may not occupy
highways or other public property, but they are not apparently con-
fined to furnishing water and water power within any particular
district, although it has not been customary in the office of the Sec-
retary of the Commonwealth to grant charters to such companies cov-
ering more than a single county.
A kind of water company may also exist by virtue of the provisions
of the act of May 17th, 1901 (P. L. 261), that "any person, corporate
or otherwise, vested with the franchise of constructing, maintaining
and using, for purposes of transportation, canals, or other artificial
highways, may, at any time, convert a portion of the whole of the
water supply theretofore used for such highways, to the uses of do-
mestic, manufacturing and commercial purposes, and may to this
end, from time to time, lease, sell or convey the whole or any por-
tion of the same." (As to the duty of such a company to supply
water to the public-see-Spink vs. Schuylkill Navigation Co. et.
al., 22 D. R. 1025).
3 NATURE.
Companies for the supply of water to the public are formed for a
public purpose and are, therefore, clearly public corporations, with
the right of eminent domain and all other rights that attach to pub-
lic corporations, including an exemption from attachment by me-
chanics liens; Forster v. Fowler, 60 Pa. 27; Guest v. Merion Water
Company, 142 Pa. 610.
So also companies for the supply, storage and transportation of
water and water power for commercial and manufacturing purposes
are public corporations, incorporated for a public use and invested
with the right of eminent domain; Jacobs v. Clearview Water Com-
pany, 220 Pa. 388; and are exempt from local taxation; Conoy Town-
ship v. York Haven Power Company, 222 Pa. 319.
Companies formed under clause 18 of section 2 of the act of April
29th, 1874, are by that clause given the right of eminent domain,
and it would seem, therefore, that it was the intention of the Legisla-
ture to class them as public corporations. It has been held, however,
in Peifly v. Mountain Water Supply Company, 214 Pa. 340; in Jacobs
v. Clearview Water Supply Company, 220 Pa. 388; and in Raystown
Water Company v. Brumbaugh, 246 Pa. 225, 254 Pa. 215; that cor-
porations of this class are presumably corporations for a private use
and cannot constitutionally be vested with the right of eminent do-
main. The burden would, therefore, be upon a corporation of this
class to show that its purpose was in fact a public one, and in event
of its failure to show this it would be classed as a private corpora-
tion. But see section 1 and the Act of June 3, 1911 (P. L. 635), which
is the last amendment of clause 18, section 2, Act of April 29th, 1874
(P. L. 73).
12
ARTICLE II.
INCORPORATION.
4. ACTS PROVIDING FOR INCORPORATION.
Aside from the right given to canal companies to exercise the
privileges of water companies, as provided in the Act of May 17,
1901 (P. L. 261), water companies may be incorporated under the
following clauses of section two of the Act of April 29th, 1874 (P.
L. 73).
The supply of water to the public, or the supply, storage or trans
portation of water and water power for commercial and manufactur-
ing purposes. Paragraph 9, section 2, Act of April 29th, 1874 (P. L.
73), as amended by section 1, Act of May 16, 1889 (P. L. 226).
The carrying on of any mechanical, mining, quarrying or manufac
turing business, including all the purposes covered by the provisions
of the acts of the General Assembly, entitled "An act to encourage
manufacturing operations in this Commonwealth," approved April
seventh, one thousand eight hundred and forty-nine, entitled "An
act relating to corporations for mechanical, manufacturing, mining,
and quarrying purposes," approved July eighteenth, one thousand
eight hundred and sixty-three, and the several supplements to each
of said acts, including the incorporation of grain-elevators, storage-
house and storage-yard companies, also including companies for the
storage, transportation and furnishing of water, with the right to
take rivulets and land and erect reservoirs for holding water, for
manufacturing and other purposes, and for the creation, establish-
ing, furnishing and transmission for public use of water power there-
from: Provided, That such last named corporations, heretofore or
hereafter incorporated, shall be compelled to furnish such power for
public purposes; the construction of dams in any stream, and the
driving and floating of sawlogs, lumber and timber on and over any
streams, not exceeding thirty-five miles in length from their source,
by the usual methods of driving and floating logs, timber and lumber
on streams, and so as not to obstruct the descending navigation by
rafts and boats; also including the manufacturing and brewing of
malt liquors; and also including companies for the transaction of
any lawful business not otherwise specifically provided for by act of
Assembly: Provided, however, That no corporation shall be chartered
under this amendment with the authority to transact more than one
kind of business, which must be set forth in the charter. Paragraph
18, section 2, Act of April 29th, 1874 (P. L. 73), as amended by
section 1, Act of June 3, 1911 (P. L. 635).
10
5
See sections 1 and 2.
INCORPORATORS.
"The charter of an intended corporation must be signed by five
(two) or more persons, three (one) of whom, at least, must be citi-
zens of this Commonwealth:" Act of April 29th, 1874, section 3.
13
"Corporations for profit, embraced within corporations of the
second class, defined in section two (2), and the various supplements
to said section two (2), of the act to which this is a supplement,
may be formed, under the provision of said act, by voluntary asso-
ciation of three or more persons, and the charter of an intended
corporation must be subscribed by two or more persons, one of
whom, at least, must be a citizen of this Commonwealth. All cor-
porations formed under the provisions of the several supplements of
section two (2) of the act of April twenty-ninth, one thousand eight
hundred and seventy-four, by the voluntary association of three or
more persons, and the charter of said corporations having been sub-
scribed by not less than two persons, one of whom was a citizen of
this Commonwealth and in which charters have been granted by the
Covernor of the Commonwealth of Pennsylvania, be and the same are
hereby ratified and confirmed, to the same extent as though the said
several supplements to the act of April twenty-ninth, one thosuand
eight hundred and seventy-four, had been a part and parcel of the
original section two (2) of the act of April twenty-ninth, one thous-
and eight hundred and seventy-four:" Act of May 29th, 1901 (P. L.
326), as amended by Act of April 23rd, 1903 (P. L. 273).
6. CONTENTS OF APPLICATION.
The application for a charter for a water or water power company
shall set forth:
"I. The name of the corporation.
II. The purpose for which it is formed.
III.
The place or places where its business is to be transacted.
IV. The term for which it is to exist.
V.
VI.
VII.
The names and residence of the subscribers and the number of
shares subscribed by each.
The number of its directors and the names and residences of
those who are chosen directors for the first year.
The amount of its capital stock, if any, and the number and
par value of shares into which it is divided." Act of April
29th, 1874, section 3.
"No application for a charter for a corporation for the supply of
water for the public, or for the supply, storage and transportation of
water or water power for commercial and manufacturing purposes,
or for any other water or water power company, shall be approved
by the Governor, nor shall letters patent be issued thereon
unless said application shall contain, in addition to the statements
now required to be made, the name of the river, stream, or other
body of water, from which it is proposed to take or use water or
water power, and, as near as may be, the points on said river, stream,
or other body of water, between which said water or water power is
proposed to be taken or used:" Act June 7th, 1907, section 1, (P. L.
455).
The application "shall also state that ten per centum of the capital
stock thereof has been paid in cash to the treasurer of the intended
corporation, and the name and residence of such treasurer shall he
therein given:" Act April 29th, 1874, section 3.
14
The purpose stated in the application must be a single one, and a
charter will not be approved "for the supply of water to the public
and for the supply, storage and transportation of water and water
power for commercial and manufacturing purposes:" in re Sowego
Water and Power Company, 16 Pa. C. C. 179.
The statement of the purpose of the corporation should be made in
the language of the act, and should not include powers it is intended
the corporation shall have: in re Philadelphia Co., 33 Pa. C. C. 428.
In an application for a charter for a water power company intend-
ing to generate and supply electric power, the words "with the right
to generate electric current and supply the same at any place or
places" should not be added: in re Providence Hydro-Electric Com-
pany, 27 Pa. C. C. 467.
The application for a charter for the supply of water to the public,
or for the supply, storage and transportation of water and water
power, must state the town, township, `borough, city or district in
which it proposes to supply water or water power; in re Perkiomen
Water Storage, &c., Company, 13 Pa. C. C. 124.
The district named in the application should not cover more than
a single municipality, and words to include territory adjacent thereto
should not be added: Bly v. White Deer Mountain Water Company,
197 Pa. 80.
The place where the business of the corporation is to be transacted
is the place where its principal office is to be, not where the water or
water power is to be supplied: in re Mann Mining Company, 2 Chest.
(For further regulations concerning designation of source of
supply see section 28).
90.
Under the act of June 7, 1907, (P. L. 455), section 1, the appli-
cation for a charter for a water company need not state the precise
location of a dam or dams proposed to be built. Pa. Power Company
v. Public Service Commission, 261 Pa. 211.
7.
EXECUTION OF APPLICATION.
The application "shall be acknowledged by at least three (two) of
the subscribers thereto, before the Recorder of Deeds of the county in
which the chief operations are to be carried on, or in which the prin
cipal office is situated, and they shall also make and subscribe an oath
or affirmation before him to be endorsed on the said certificate, that
the statements contained therein are true:" Act April 29th, 1874,
section 3.
"From and after the passage hereof, all certificates of association
or articles of incorporation may be acknowledged and sworn to before
a notary public of the Commonwealth of Pennsylvania, in the same
manner, and with like force and effect as though acknowledged and
sworn to before the recorder of deeds of the proper county:" Act
April 15th, 1891, (P. L. 18).
Since the passage of the act of May 29th, 1901, (P. L. 326), the
application may be acknowledged and sworn to by two persons;
Peoples Gas Light & Fuel Company, 6 Dauph. 60.
S. NOTICE.
"Notice of the intention to apply for any such charter shall be in-
serted in two newspapers of general circulation, printed in the proper
15
county, for three weeks, setting forth briefly the character and object
of the corporation to be formed, and the intention to make appli-
cation therefor:" Act April 29th, 1874, (P. L. 73), section 3.
"Hereafter all notices required to be published by authority of law
in cities of first and second class in this Commonwealth shall, in
addition to the publication thereof in any newspaper of general cir-
culation printed in the English language as provided by law, be pub-
lished in a daily newspaper published in the German language, and
prices shall not exceed usual advertising rates of such newspaper
shall be published in the county in which the said notices are required
to be advertised: Provided, That publication in such German news-
paper shall be made subject to the same stipulations and regulations.
as are imposed on the newspapers published in the English language
for like service:" Act July 2nd, 1895, (P. L. 426).
"In order to avoid existing confusion, arising from the fact that
publication of notices in connection with the formation, amendment,
increase or reduction of capital stock, conduct of business, merger,
transfer of franchises, or dissolution of corporations, joint-stock com-
panies, limited partnerships, and partnership associations are not
required to be published in any designated paper in any county, and
to serve the convenience of members of the bar and others interested
in such notices, hereafter in all cases, where publication is or may
be required by law in connection with the formation, amendment, in-
crease or reduction of capital stock, conduct, of business, merger,
transfer of franchises, or dissolution of corporations, joint-stock com-
panies, limited partnerships, or partnership association, such notice
as is or may be required, as aforesaid, shall be published in the legal
journal, if any, of the proper county, in which court notices usually
appear, which journal for such purposes shall be deemed a newspaper
of general circulation; Provided, That the rates charged for such
publication shall not be in excess of the usual and current rates
charged by such newspapers:" Act May 3, 1909, (P. L. 386).
Twenty-one days must elapse between the first insertion of the
notice and the date upon which the application is made: Shamokin
Coal Co., Op. Atty. Gen., 1895-96, P. 304.
Trade journals are not newspapers of general circulation within
the meaning of the act: New Gas Light Co., 1 Dauph. 22.
Except where publication in a German newspaper is required, such
a newspaper is not within the meaning of the act: Chartiers Ferry
Co., Op. Attorney Gen. 2. Chest. 91.
If publication is made in the Legal Intelligencer it must also be
made in two newspapers of general circulation: Enterprise Mutual
Benefit Association, 10 Phila. 380, 32 Leg. Int. 82; Application for
for Charter, 33 Leg. Int. 158.
9. GRANTING OF CHARTERS.
"The said certificate, accompanied with proof of publication of
notice as hereinbefore provided, shall then be produced to the Gov-
ernor of this Commonwealth, who shall examine the same, and if he
find it to be in proper form and within the purposes named in the
second class, specified in the foregoing section, he shall approve
thereof and endorse his approval thereon, and direct letters patent to
issue in the usual form, incorporating the subscribers and their asso-
16
ciates and successors into a body politic and corporate, in deed and
in law, by the name chosen, and the said certificate shall be recorded
in the office of the Secretary of the Commonwealth, in a book to be
by him kept for that purpose, and he shall forthwith furnish to the
auditor general an abstract therefrom, showing the name, location,
amount of capital stock, and name and address of the treasurer of
such corporation:" Act April 29th, 1874, (P. L. 73), section 3.
"Hereafter no letters patent shall be issued to any company desir-
ing to be incorporated for the purpose of supplying water to the
public, in any community in the Commonwealth, until said appli-
cation is first submitted to and has received the approval of a ma-
jority of the said Water Supply Commission:" Act May 4th, 1905,
(P. L. 385), section 5.
"From and after the passage of this act, no application for a
charter for a corporation for the supply of water for the public or
for the supply, storage and transportation of water and water power
for commercial and manufacturing purposes, or for any other water
or water power company, shall be approved by the Governor, nor
shall letters patent be issued thereon, unless said application is first
submitted to, and has received the approval of a majority of the mem-
bers of The Water Supply Commission of Pennsylvania:" Act June
7th, 1907, (P. L. 455), section 1.
"Upon the approval of the Public Service Commission evidence by
its Certificate of Public Convenience, first had and obtained, and
not otherwise, it shall be lawful for any proposed public service com-
pany-
(a). To be incorporated, organized, or created: Provided, That
existing laws relative to the incorporation, organization, and cre-
ation of such companies shall first have been complied with, prior to
the application to the commission for its Certificate of Public Con-
venience." Art. III, section 2, Act July 26th, 1913, (P. L. 1374).
Before water-works, for the supply of water to the public, are
constructed or extended, the Health Department must approve of the
source of supply. See section 28.
An order of the Public Service Commission approving an appli-
cation for a charter for a water company will not be reversed simply
because the proposed new company would be a competitor in a field
theretofore exclusively occupied by an older company. Penna. Power
Company v. Public Service Commission, 261 Pa. 211.
10. RECORDING APPLICATION.
"The said original certificate, with all of its endorsements, shall
then be recorded in the office for the recording of deeds, in and for
the county where the chief operations are to be carried on, and from
thenceforth the subscribers thereto, and their associates and suc-
cessors, shall be a corporation, for the purposes and upon the terms
named in the said charter:" Act April 29th, 1874, (P. L. 73), section
3.
The corporate existence of a water company dates from the record-
ing of its charter in the county where its "chief operations are to be
carried on," and not from the issuance of letters patent. Borough of
Braddock v. Penn Water Co., et al, 189 Pa. 379; Armstrong Water
Co., v. Reyburn Water Co., 24 Pa. C. C. 13.
17
ARTICLE III.
GENERAL POWERS.
11. GENERAL POWERS OF COMPANIES FOR THE SUPPLY
OF WATER TO THE PUBLIC, AND COMPANIES FOR THE
SUPPLY, STORAGE AND TRANSPORTATION OF WATER
AND WATER POWER FOR COMMERCIAL AND MANU-
FACTURING PURPOSES.
"Companies incorporated under the provisions of this statute for
the supply of water to the public
shall, unless otherwise
provided by this act, from the date of the letters patent creating the
same, have the powers and be managed, governed and controlled as
hereinafter provided:" Act April 29th, 1874, section 34, as amended
by section 1, act June 2nd, 1887, (P. L. 310).
"Where such companies shall be incorporated for the supply of
water to the public, or for storing and transportation or supply of
water and water power for commercial and manufacturing purposes,
they shall have power to provide, erect and maintain all works and
machinery necessary or proper for raising and introducing into the
town, borough, city or district where they may be located a suf-
ficient supply of pure water, or water and water power as afore-
said, and for that purpose may provide, erect and maintain all proper
buildings, cisterns, reservoirs, pipes and conduits, for the reception
and conveyance of water, or water power, and it shall have power
to appropriate so much of the water from the rivers, creeks, canal
water-rights and easements, within or without the limits of the city,
borough or place in which said company may by its charter be lo-
cated, as may be necessary for its purposes, and all damage done
thereby shall be ascertained, recovered and paid as provided for in
the forty-first section of the act to which, this is a supplement; and
it is further authorized and empowered by itself, its agents, en-
gineers, and workmen, and with its and their tools, carts, wagons,
beasts of draught or burden, to enter upon such lands and enclosures,
streets, lanes, alleys, roads and highways and bridges, as may be
necessary to occupy or to obtain materials for the construction of said
works, and to occupy, ditch, and lay pipes through the same, and the
same from time to time to repair, subject to such regulations in re-
gard to streets, roads, lanes and other highways and impairing the
free use thereof as little as possible, and subject to such regulations
as the councils of said borough, town, city or district may adopt in
regard to grades or for the protection and convenience of public
travel over the same, and if any injury be done to private property
the said company shall make compensation therefor in the manner
provided for in the forty-first section of this act (See sec. 52.): Pro-
vided, That this act shall not apply to private springs or private
water supplies:" Act April 29th, 1874, section 34, clause 2, as
amended by Act May 16th, 1889, (P. L. 226).
The right to appropriate water from rivers, creeks, canal water-
rights and easements contained in the above quoted section are not
conferred upon water companies created since the passage of the act
2
18
of April 13th, 1905, (P. L. 152). (See section 44). For definitions of
"town," "village" and "district" see Gring v. Sinking Spring Water
Company 20 D. R. 891.
A provision in the certificate of incorporation of a water company
granting power to supply water in "adjacent territory" is wholly in-
operative and should not have been approved by the Governor. Bly
v. White Deer Mountain Water Company, 197 Pa. 80.
Electricity generated by a water power company may be distri-
buted anywhere. See section 12, Par. b. c.
See also sections 15 and 16.
12. ADDITIONAL POWERS GIVEN TO COMPANIES FOR
THE SUPPLY, STORAGE AND TRANSPORTATION OF
WATER AND WATER POWER FOR COMMERCIAL AND
MANUFACTURING PURPOSES.
a. Power to determine character and design of works.
"Corporations heretofore or hereafter incorporated under the Act
of Assembly, entitled 'An act to provide for the incorporation and
regulations of certain corporations,' approved April twenty-ninth,
one thousand eight hundred and seventy-four, and the supplements
thereto, for the supply, storage or transportation of water and water
power for commercial and manufacturing purposes, be and the same
are hereby authorized and empowered to determine the character,
design and construction of the works and the use to be made of the
water and water power of such companies, in order that the same
may be supplied to the public to the best advantage, and by themselves
their agents, engineers and workmen, cause to be located, constructed,
maintained, repaired and operated under the law and supplements
to which this is a further supplement, the said works, and all ma-
chinery, dams, buildings, cisterns, races, canals, water-ways, reser-
voirs, pipes, conduits, lines, plants, apparatus, fixtures and appliances
deemed necessary, requisite and proper for said purposes, and it
shall and may be lawful for such corporations from time to time to
contract with any individual or corporation of this or any other state
for the construction, operation, use and maintenance of their works
or any part thereof as aforesaid, and to mortgage their said property,
real, personal and mixed, and franchises to any person or corporation
of this State or elsewhere, either directly or as trustee, to secure the
payment of such indebtedness as may be incurred or created for the
purpose of constructing and erecting the said works, or as a guaranty
for the faithful performance of contracts and covenants on the part
of such water and water power company to be performed, including
the guaranty of the payment of the bonds and interest thereon of any
other corporation, party to such contract, and the stock in any com-
pany incorporated for the purposes named in this act may be owned
and held by corporations of this or other States of the United States:"
Act July 2nd, 1895, (P. L. 432).
b. Power to generate and distribute electric power and current.
"Corporations organized, or hereafter to be organized, under the
laws of this State for the purpose of supplying water power to the
public, and other corporations owning or controlling water power,
may develop electric power for commercial purposes by means of
water power, and shall have authority to supply current and power
19
to the public, individuals, firms and corporations at such prices as
may be agreed upon, and shall have authority to make, erect and
maintain the necessary buildings, machinery and apparatus for de-
veloping power and current, and to distribute the same to any place
or places with the right to enter upon any public road, street, lane,
alley or highway for such purposes, and to alter, inspect and repair
its system of distribution: Provided, That no such company shall
enter upon any street or alley in any city, borough or township of
this Commonwealth, until after the consent to such entry of the coun-
cils of the city or borough or supervisors of the township in which
such street or alley may be located shall have been obtained:" Act
of July 2nd, 1895, (P. L. 425).
A water company organized under the provisions of the act of
1874 as amended by the act of 1889 has authority under the act of
1895 to erect a dam for the purpose of generating electricity. In
such a case it is immaterial where the electricity so generated is to
be used: Brumbaugh v. Raystown Water Power Co., 254; Pa. 215. The
corporate activity of a company generating electric current by water
power is no longer limited to the territory described in the charter:
Ryder v. York Haven Water & Power Co., 26 D. R. 14; In re Appli-
cation of York Haven Water & Power Co., 5 Dept. Rep. 1853.
C. The Public Service Commission has jurisdiction as to service.
"The commission shall have general administrative power and
authority, as provided in this act, to supervise and regulate all pub-
lic service companies doing business within this Commonwealth.
Said power and authority shall include the power to inquire into
and regulate the service
; the making of repairs, altera-
tions, and improvements in and to such service; as shall be reasonably
necessary for the accommodation or safety of its patrons, employes,
and the public
*
* * 22
Art. V., sec. 1, Act of July 26, 1913, P. L. 1374.
་
"Upon the approval of the commission evidenced by its Certificate
of Public Convenience, first had and obtained, and not otherwise, it
shall be lawful for any proposed public service company.
(b) To begin the exercise of any right, power, franchise, or privi-
lege under any ordinance, municipal contract, or otherwise."
Art. III, sec. 2, Act of July 26, 1913, P. L. 1374.
13. GENERAL POWERS OF COMPANIES FORMED UNDER
CLAUSE 18, SECTION 2, ACT OF APRIL 29TH, 1874.
Clause 18 of section 2 of the act of April 29th, 1874, as finally
amended by the act of May 21st, 1889, (P. L. 259), the act of July 9th,
1901, (P. L. 624) and the act of June 3rd, 1911, (P. L. 635), providing
for the formation of water companies of this class, also furnishes the
statutory provision for their general powers. It provides that com-
panies may be formed "for the storage, transportation and furnishing
of water, with the right to take rivulets and land and erect reservoirs
for holding water for manufacturing and other purposes, and for the
creation, establishing, furnishing and transmission for public use of
water power therefrom: Provided, That such last named corporation
* shall be compelled to furnish such power for public pur-
*
poses."
Clause 4, section 34 of the act of April 29th, 1874, as amended by
the act of June 12th, 1879, (P. L. 177) also provides "Companies or-
20
ganized for any of the purposes set forth in the eighteenth clause of the
second section of this act whether such companies shall have been
organized under any special act of assembly or under the general acts,
in said eighteenth clause enumerated, and not having for their object
the supplying of any village, borough or city with water, shall have
all the rights, privileges and powers conferred by the said eighteenth
clause."
It would seem that companies of this class had the power to de-
velop electric power for commercial purposes by means of their water
power conferred by the act of July 2nd, 1895, (P. L. 425), upon
"corporations organized
* for the purpose of supplying
water power to the public, and other corporations owning and con-
trolling water power." (See section 12 B).
*
*
A water company organized under the provisions of the act of 1874
as amended by the act of 1889, has authority, under the act of July
2nd, 1895, (P. L. 432) to erect a dam for the purpose of generating
electricity: Brumbaugh v. Raystown Water Power Comapny 254 Pa.
215.
14.
POWERS OF CORPORATIONS ACCEPTING THE CONSTI-
TUTION AND THE PROVISIONS OF THE ACT OF APRIL
29, 1874.
"Any corporation or corporations for any of the purposes named
and covered by the provisions of this act, heretofore created by any
special act or acts, or in existence under the provisions of any gen-
eral law of this Commonwealth, shall be entitled to all the privileges,
immunities, franchises and powers conferred by this act upon cor-
porations to be created under the same, upon filing in the office of the
Secretary of the Commonwealth a certificate of a single corporation,
or a joint certificate, if two or more corporations, incorporated for
and doing the same kind of business, under the seal or seals of said
corporation or corporations, accepting the provisions of the consti-
tution and of this act, duly authorized by a meeting of stockholders
called for that purpose; and upon such acceptance and approval by
the Governor, he shall issue letters patent to said corporation, or if
two or more corporations, to said corporations as one corporation,
under such name as shall be designated by said corporation or cor-
porations in said single or joint certificate, together with the amount
and capital, number of shares and par value thereof as shall be desig-
nated by said corporation or corporations in said certificate: Pro-
vided, That where two or more corporations shall make a joint cer-
tificate as aforesaid, and letters patent shall be issued to said new
corporation, said corporations shall thenceforth be deemed, held and
taken to be merged and consolidated, and be subject to all the limi-
tations and liabilities of this act." Part of section 26, April 29th,
1874, (P. L. 73), as amended by section 6, act of April 17th, 1876 (P.
L. 30).
The incorporation of any association of persons for the purpose
named in this act, or accepting the same, shall be held and taken to
be of the same force and effect as if the powers and privileges con-
ferred, and the duties enjoined, had been conferred and enjoined by
special act of the legislature, and the franchises granted shall be
construed according to the same rules of law and equity as if it
21
had been created by special charter, and no modification or repeal
of this act shall affect any franchise obtained under the provisions
of the same. Section 25, Act of April 29th, 1874, (P. L. 68).
When a water company on September 1, 1893 accepted the pro-
visions of the constitution and of the Act of April 29th, 1874, (P. L.
73), and its supplements, it put itself on par with like water com-
panies chartered immediately subsequent to the passage of said act.
It lost its exclusive franchise granted it by its charter, but it gained,
in lieu thereof, the exclusive privilege given to water companies by
clause 3, section 34, of said Act of April 29th, 1874 (P. L. 73), but, at
the same time it rendered itself amenable to clause 7, of the same sec-
tion of the same act, which provides a method whereby municipalities
can purchase the plants of water companies.
The fact that the water company accepted the provisions of the
constitution and of the act of April 29th, 1874, after the passage of
the act of June 2nd, 1887, abrogating the special privileges of water
companies, does not deprive the company of the exclusive privileges
of the act of 1874. The legislative intent in the passage of the ac-
ceptance section of the act of 1874 was to put all old corporations
accepting the constitution on a par with corporations chartered im-
mediately after its passage, say on April 30th, 1874: Tyrone Gas &
Water Company v. Borough of Tyrone, 195 Pa. 566.
A water company incorporated by private act, which has accepted
in 1888 the provision of the constitution and the act of April 29th,
1874, (P. L. 73), acquires under the act of May 16th, 1889, (P. L..
226), amending the act of 1874, conferring upon water companies
additional powers, the right of eminent domain, in the exercise of
which it may appropriate so much of the waters of a river, as may
be necessary for its corporate purposes, and does not by accepting
the provisions of the act of 1874, lose or surrender its franchise to
supply five boroughs, designated in its charter, and was not thereby
required to confine its supply of water to one of the five boroughs
mentioned: Blauch v. Johnstown Water Company, 247 Pa. 71; Croyle
v. Johnstown Water Company 259 Pa. 484.
ARTICLE IV.
TERRITORIAL RIGHTS.
A. TERRITORY IN WHICH WATER MAY BE SUPPLIED.
15. COMPANIES FOR THE SUPPLY OF WATER TO THE PUB-
LIC, AND COMPANIES FOR THE SUPPLY, STORAGE
AND TRANSPORTATION OF WATER AND WATER
POWER FOR COMMERCIAL AND MANUFACTURING
PURPOSES.
The act of April 29th, 1874, as amended by the act of May 16th,
1889, (P. L. 226), provides that water and water power companies
shall have power to supply water in "the town, borough, city or dis-
22
trict where they may be located." Under this language it has been held
that such water company is limited in the territory which it may sup-
ply to a single municipal division-a city, borough or township or a
part thereof. Two or more municipalities, or a municipality and “ad-
jacent" territory, however, may not be joined: Bly v. White Deer
Mountain Water Co., 197 Pa. 80.
But a water company formed under the act of 1874 for the pur-
pose of supplying water to residents of a "village" and territory ad-
jacent thereto has authority to supply water to residents of a dis-
rict within the township in which the village is located, made up of
the village and territory adjacent thereto: Gring v. Sinking Spring
Water Co., 20 D. R. 891.
A riparian property owner on a stream from which a water com-
pany takes its supply has no standing under the act of June 19th,
1871, (P. L. 1360), to restrain such company from delivering water
within the limits of the township it is authorized to supply to a
railroad company, though the railroad company carries the water so
received beyond the limits of such township in its own pipes; Bland
v. Tipton Water Co., 222 Pa. 285. Also Fahey v. Kennett Square
Borough, 42 Pa. Super. Ct. 460.
Nor has a city the right to restrain a water company from so de-
livering water within the limits of the township it is authorized to
supply to a railroad company, and carried by the railroad company
in its own pipes into such city for its own use, even though the city
has the exclusive privilege of supplying its inhabitants with water:
Harrisburg v. Pennsylvania Railroad Co. et al., 33 Pa. C. C. 641.
A water company incorporated by a private act accepting the con-
stitution and the provisions of the act of 1874 does not lose or sur-
render its franchise to supply five boroughs, designated in its charter,
and was not thereby required to confine its supply of water to one
of the five boroughs mentioned therein: Blauch v. Johnstown Water
Company 247 Pa. 71; Croyle v. Johnstown Water Company, 259 Pa.
484.
Where the taking of water by a water company is mainly for the
purpose of supplying citizens within the proper territorial limits of
the company, the furnishing of a small supply to persons outside of
the limits is a mere incident of the main purpose and the taking will
not be enjoined. Where the taking is to furnish a territory beyond
the original charter limits, such question can be inquired into only
by the Commonwealth, and not by a bill in equity by a private person:
Croyle v. Johnstown Water Company, 259 Pa. 484; Mier v. Citizens
Water Company, 250 Pa. 536; Blauch v. Johnstown Water Company,
247 Pa. 71.
But in Bly v. White Deer Mountain Water Company, 197 Pa. 80,
the court held that a land owner who is threatened with injury, be
cause of the excessive appropriation of water by a water company,
has a standing under the act of June 19th, 1871, (P. L. 1360), in
equity for an injunction to restrain such act. Likewise, in Raystown
Water Power Company v. Brumbaugh, 246 Pa. 225, the court held a
land owner may raise the question of the water company's right to
condemn land unnecessarily, under the act of June 19th, 1871, (P. L.
1360), and without applying to the Attorney General to institute the
proceedings.
23
16. EXTENSION OF TERRITORY.
"Any company heretofore incorporated or hereafter to be incor-
porated for the purpose of supplying water to the public in any town,
borough or city, may, upon the written request of the owners of a
majority of the lots of land in any tract or district adjacent to such
town, borough or city, have power and authority to extent its plant
or works for the supply of water into such tract or district, with such
rights and subject to such duties within such tract or districts as may
have been conferred and imposed by its charter, within the town,
borough or city therein designated: Provided, That such written re-
quest shall contain a description of such tract or district, and be re-
corded in the office of the recorder of deeds in and for the proper
county, and thereupon a certified copy of the record of such pro-
ceedings as appears of record in the office of the recorder of deeds
shall forthwith be transmitted to and filed in the office of the Secre-
tary of the Commonwealth:" Act May 21st, 1901, (P. L. 270).
The act of May 21st, 1901, (P. L. 270), does not enable a water
company, chartered under the act of April 29th, 1874, (P. L. 73), to
supply one municipal division, to secure, by petition, the right to
supply the whole of another municipal division. The act provides for
extension of service to an adjacent "tract or district," which does not
mean another municipality: Water Companies, 25 D. R. 571.
The right to supply a district adjacent to the charter territory of
a water company cannot be secured merely by a petition of residents
in such district, under the act of May 21st, 1901, (P. L. 270): Bens-
creek Water Company, 44 Pa. C. C. 160.
The act of May 28th, 1907, (P. L. 278), (See Par. 25), requiring a
water company obtaining its water supply, or any part thereof, from
a source lying within the corporate limits of any municipality, city,
borough or township in the Commonwealth to furnish such munici-
pality and the inhabitants thereof with water, would seem to operate
as an extension to the territory of a water company which procured
its supply from a point without the district which it was incorporated
to supply.
It would also seem that the acts authorizing the merger and con-
solidation of two or more water companies, and the purchase by one
water company of the property and franchise of another, would
operate as an extension of the territory in which the company so
formed by merger and consolidation, or in which the company so
purchasing the property and franchises of another water company,
would be authorized to supply water: Greensburg Borough v. West-
moreland Water Company, 240 Pa. 481. (See section 12 c).
17. COMPANIES FORMED UNDER
ACT APRIL 29TH, 1874.
CLAUSE 18, SECTION 2,
Companies formed under clause 18 of section 2 of the act of April
29th, 1874, are not required to confine their operations to a single
city, borough or district: In re Portland Water and Power Co., Op.
Atty. Gen., 1903-04, p. 34.
24
B. SOURCE OF SUPPLY AND LOCATION OF WORKS.
18. SOURCE OF SUPPLY OF WATER.
Section 34 of the act of April 29th, 1874, as amended by the act of
May 16th, 1889, (P. L. 226), provides that companies formed under
its provisions "shall have power to appropriate so much of the water
from the rivers, creeks, canal water-rights and casements within or
without the limits of the city, borough or place in which said com-
pany may, by its charter, be located as may be necessary for its
purposes.'
The act of April 13th, 1905, (P. L. 152), took away the right to ap-
popriate waters conferred by the act of May 16th, 1889, (P. L. 226),
but the right to go outside of the city, borough or district in order
to procure the supply remains.
19. LOCATION OF WORKS.
Under the provisions of the act of May 16th, 1889, (P. L. 226), a
water company may locate its works, and condemn the land there-
for, outside of the city, borough or district to be supplied: Keller
v. Riverton Water Company, 161 Pa. 421.
ARTICLE V.
EXCLUSIVE PRIVILEGES.
26. EXCLUSIVE PRIVILEGE GRANTED.
"The right to have and enjoy the franchises and privileges of such
corporation within the district or locality covered by its charter shall
be an exclusive one; and no other company shall be incorporated for
that purpose until the said corporation shall have from its earnings
realized and divided among its stockholders during five years a divi-
dend equal to eight percentum per annum upon its capital stock:"
Act April 29th, 1874, section 34, clause 3. (See section 21).
This exclusive privilege is possessed by those companies that were
incorporated prior to the passage of the act of June 2nd, 1887, (P.
L. 310); and also by those companies that were incorporated before
the passage of the act of April 29th, 1874, (P. L. 73), and later ac-
cepted its provisions and the provisions of the Constitution of 1874.
Where a water company was incorporated by special act prior to
April 29th, 1874, with an exclusive privilege, and accepted the act
of April 29th, 1874, subsequently to the passage of the act of June
2nd, 1887, it acquired the exclusive privilege granted by clause 3 of
section 34 of the act of April 29th, 1874. Where such a company
has a contract expressed or implied with a borough to furnish water
for fire protection, the borough has no power, after the company has
accepted the constitution and act of 1874, to erect a water-works of
its own: Tyrone Gas & Water Co. v. Borough of Tyrone, 195 Pa.
566.
25
The exclusive privileges granted by clause 3 of section 34 of the
act of April 29th, 1874, do not exist as against individuals who have
been given authority by a municipality to lay pipes in the streets
and supply the inhabitants with water: Freeport Water Co., v.
Prager, 129 Pa. 605, nor as against a municipality: Lehigh Water
Co.'s App. 102 Pa. 515.
Where water is supplied by a water company to a railroad com-
pany within the limits of the district of the water company, and by
the railroad company piped out into an adjoining district, a city,
there is no infringement of the exclusive privilege which the city has
to furnish its inhabitants with water: Harrisburg v. Pennsylvania
Railroad Co., et al., 33 Pa. C. C. 641.
21. EXCLUSIVE PRIVILEGE TAKEN AWAY.
Clause 3 of section 34 of the act of April 29th, 1874, (P. L. 73),
was amended on June 2nd, 1887, (P. L. 310) and again on June 24th,
1895, (P. L. 267). These amendments eliminated the provision giv-
ing an exclusive privilege to water companies.
Section 3 of the act of June 2nd, 1887, (P. L. 310), amended clause
3 of section 34 of the act of April 29th, 1874, so as to give exclusive
privileges only to corporations for the manufacture and supply of gas
for light only to the public, and this by implication repeals the pro-
visions of the statute granting exclusive privileges to water com-
panies: Luzerne Water Co. v. Toby Creek Water Co., 148 Pa. 568;
Center Hall Water Co. v. Center Hall Borough, 186 Pa. 74; Boyertown
Water Co. v. Boyertown Borough, 200 Pa. 394.
Companies formed, therefore, prior to June 2nd, 1887, and which
have not realized and declared dividends equal to eight per centum
per annum for a period of five years now have exclusive privileges,
but companies formed subsequently to that time do not have such ex-
clusive privileges.
A water company chartered in March, 1887, but which failed to
record its charter in the county where its operatinos were to be car-
ried on until May 3rd, 1888, did not acquire an exclusive privilege:
Borough of Braddock, v. Penn. Water Co., et al., 189 Pa. 379.
Where a water company has entered a borough under a municipal
ordinance and laid its pipes in the streets and continues to furnish
water according to the terms of its contract with the borough, the
company cannot be evicted before the end of the term, even if it was
incorporated subsequent to the act of June 2nd, 1887, (P. L. 310),
and does not have an exclusive franchise: Penn Water Co., v. Pitts-
burgh, 226 Pa. 624.
Where a water company enters upon the borough streets to furnish
water to the inhabitants of a borough, without any inducement from
the municipal authorities, the borough is not thereby precluded from
subsequenly furnishing its own supply of water to the inhabitants:
Water Co. v. Tarentum Borough, 230 Pa. 148.
A contract between a water company and a borough to furnish
water to the inhabitants of the borough cannot be implied from the
acts of the company, and where there is no express contract for that
purpose the borough cannot be enjoined from erecting its own water-
works to supply its inhabitants: City Water Co. v. Bethlehem Bor-
ough, 231 Pa. 454.
1
26
22. FORFEITURE OR EXCLUSIVE PRIVILEGES.
Clause 3 of section 34 of the act of April 29th, 1874, conferring
exclusive privileges upon water companies incorporated before the
passage of the act of June 2nd, 1887, provides that such privilege
shall be exclusive until the company "shall have from its earnings
realized and divided among its stockholders during five years a divi-
dend equal to eight per centum per annum upon its capital stock."
The realizing and dividing of such dividend, therefore, forfeits, the
exclusive privilege of the company: Phillipsburg Water Co. v. Citi-
zens Water Co., 18 Pa. C. C. 625, affirmed in 189 Pa. 23.
In computing such dividends the capital stock is to be taken at
the amount paid in without considering increases of capital made
from earnings, but it is immaterial whether the earnings are paid in
cash or in stock: Phillipsburg Water Co. v. Citizens Water Co., 18
Pa. C. C. 625.
A water company incorporated prior to the passage of the act of
June 2nd, 1887, which has paid dividends at the rate of ten per
cent, per annum for twenty years, has no exclusive privilege to sup-
ply water in a borough: Dorrance v. Bristol Borough, 224 Pa. 464.
23. EFFECT OF ANNEXATION UPON EXCLUSIVE PRIVI-
LEGE.
When a borough by contract has given a water company the ex-
clusive privilege of supplying water, and the company has laid pipes
and supplied the inhabitants of such borough, the fact that the bor-
ough was subsequently annexed to a city does not give the city the
right to lay pipes and supply water within the territory formerly
included within the borough, and the water company may restrain
the city from doing so: Pennsylvania Water Works Co. v. Pitts-
burgh, 56 Pitts. 177.
•
ARTICLE VI.
DUTIES WITH REFERENCE TO QUALITY AND QUANTITY OF
WATER AND SERVICE.
24. MUST FURNISH A SUFFICIENT QUANTITY OF PURE
WATER.
The proviso in clause 3 section 34 of the act of April 29th, 1874,
(P. L. 73) as amended by acts of June 2nd, 1887, (P. L. 310) and
June 24th, 1895, (P. L. 267), made it a duty of a water company to
furnish pure water and authorized any citizen to "make complaint
of impurity or deficiency in quantity, or both, to the court of common
pleas of the proper county
This provision was extend-
ed to all water companies by the act of June 10th, 1881, (P. L. 112).
* ""
27
This original proviso in the act of 1874 was repealed by the Public
Service Company act of July 26th, 1913, (P. L. 1374), which con-
tains the following:
"It shall be the duty of every public service company-
(a). To furnish and maintain such service, including facilities,
as shall in all respects be just, reasonably adequate, and practically
sufficient for the accommodation and safety of its patrons, employees,
and the public, and in conformity with such reasonable regulations
or orders as may be made by the commission." Art. II, section 1,
Act of July 26, 1913, (P. L. 1374).
25.
THE PUBLIC SERVICE COMMISSION HAS POWER AND
AUTHORITY OVER DISPUTES AS TO THE QUANTITY
OR QUALITY OF WATER FURNISHED.
"The commission shall have general administrative power and
authority, as provided in this act, to supervise and regulate all pub-
lie service companies doing business within this Commonwealth.
Said power and authority shall include the power to inquire into
****** the safety, adequacy, and sufficiency of the facilities,
plant, and equipment for the carrying on of their business by said
public service companies; the quantity or quality of water, gas,
electricity, or light,
Part of section 1, Art. V, Act
of July 26, 1913, (P. L. 1374).
26.
""
WHAT CONSTITUTES PURITY.
The water need not be chemically pure, but must be ordinarily and
reasonably so. When the company has procured a proper source of
supply it is bound to exercise diligence in the effort to preserve the
water from pollution and to deliver it to the public in no worse con-
dition than that in which it is taken from the source of supply:
Brymer v. Butler Water Co. 172 Pa. 489.
When the water is found to be "wholesome, but not pure," the law
has been sufficiently complied with: Commonwealth v. Towanda
Water Works, 22 W. N. C. 429.
Ordinarily pure and wholesome water naturally means such as is
reasonably clean from dirt and discoloration and odors, reasonably
clear from bacteria and coli, or any other infection or contamina-
tion which renders the water unfit for domestic use and unsafe and
dangerous to individuals. Modern investigation and scientific attain-
ments demonstrate that water from polluted sources can by proper
filtration be made reasonably safe and pure, and, therefore, the
standard of purity as fixed by the well-recognized authorities must
be secured: Peffer v. Pennsylvania Water Co., 221 Pa. 578.
A water company is not complying with the law where the evi-
dence shows that its pipe line was connected with a mill pond into
which the sewage of the town was discharged, and that during five
years, at periods of low water, and where fire occurred, water from
the pond was pumped into the main service lines of the company, and
that such water polluted the other water, and frequently rendered
it injurious and unwholesome and unfit for drinking or cooking, and
even for washing; and the fact that the connection with the pond
was maintained under agreement with the borough is immaterial:
Commonwealth v. Potter County Water Co., 212 Pa. 463.
28
27. REMEDIES WHEN WATER SUPPLIED IS IMPURE.
In addition to the remedy given, by the act of July 26th, 1913, (P.
L. 1374) and its amendments, to individual users of water, by com-
plaint to the Public Service Commission (see section 25) when the
water furnished is impure, the Commonwealth may proceed by quo
warranto to forfeit the charter of the company: Commonwealth v.
Towanda Water Works, 22 W. N. C. 429; Commonwealth v. Potter
County Water Co., 212 Pa. 463.
The Commonwealth at the relation of the Attorney General may
proceed in equity to restrain an oil operator from polluting with
salt, water used by a water company for public supply: Common-
wealth v. Russel, et al., 172 Pa. 506.
A water company which has title by purchase may restrain the
pollution of a stream caused by an upper riparian owner: Scranton
Water Co. v. Hall, 9 Lack. L. N. 80.
A borough which is a user of water may make complaint concern-
ing impurity the same as an individual user: DuBois Borough v.
DuBois City Water Works Co., 176 Pa. 430.
When a water company furnishes water unfit for domestic use
or steam purposes it may be restrained by the court from collecting
water rents, but the court cannot decree that the company must ob-
tain its supply from some other designated point. The company has
the option of going out of business or seeking a new source of sup-
ply: Brymer v. Butler Water Co., 172 Pa. 489.
A court may, however, where on bill in equity it has found the
water to be impure, and enters a decree directing the company to
provide pure water, also direct the company to file a statement within
a specified time showing what it proposes to do to comply with the
law: Peffer v. Pennsylvania Water Co., 221 Pa. 578.
Where a water company for a time has supplied water unfit for
consumption, equity will restrain the collection of water rates or the
enforcement of penalties for this period: New Castle v. Water Co.,
250 Pa. 341.
On question of damages resulting from the furnishing of impure
water, see Hohlmeyer v. Water Co., 58 Super. Ct. 63.
28. REGULATION BY HEALTH DEPARTMENT.
"Every municipal corporation, private corporation, company, and
individual supplying or authorized to supply water to the public,
within the State, shall, within sixty days after the passage of this
act, file with the Commissioner of Health a certified copy of the plans
and surveys of the waterworks, with a description of the source from
which the supply of water is derived; and no additional source of sup-
ply shall thereafter be used, without a written permit from the Com-
missioner of Health, as hereinafter provided:" Act of April 22nd,
1905, section 2, (P. L. 260).
"No municipal corporation, private corporation, company, or in-
dividual shall construct waterworks for the supply of water to the
public within the State, or extend the same, without a written per-
mit to be obtained from the Commissioner of Health if, in his judg-
ment, the proposed source of supply appears to be not prejudicial to
the public health. The application for such permit must be accom-
panied by a certified copy of the plans and surveys for such water-
29
works, or extension thereof, with a description of the source from
which it is proposed to derive the supply; and no additional source
of supply shall subsequently be used for any such waterworks without
a similar permit from the Commissioner of Health. When applica-
tion shall be made for a permit, under either of the above provisions
of this section, it shall be the duty of the Commissioner to proceed
to examine the application without delay and as soon as possible,
he shall make a decision in writing; and, within thirty days after such
decision, the corporation, company, or individual making such ap-
plication may appeal to any court of common pleas of the county, and
said court shall, without delay, hear the appeal, and shall make an
order approving, setting aside, or modifying such decision, or fixing
the terms upon which said permit shall be granted. The penalty for
failure to file copies of plans, surveys and descriptions of existing
waterworks within the time hereinbefore fixed, and for the construc-
tion or extension of water works, or for the use of an additional
source of supply, without a permit from the Commissioner of Health,
shall be five hundred dollars, and further penalty of fifty dollars per
day for each day that the works are in operation contrary to the
provisions of this act, recoverable by the Commonwealth, at the suit
of the Commissioner of Health, as debts of like amount are recover-
able by law:" Act of April 22nd, 1905, section 3, (P. L. 260).
"The term 'waters of the State' wherever used in this act, shall in-
clude all streams and springs, and all bodies of surface and of ground
water, whether natural or artificial, within the boundaries of the
State:" Act of April 22nd, 1905, section 1, (P. L. 260).
The Public Service Commission and the Water Supply Commission
must approve charter for a water company before it is granted by the
State. See section 9.
29.
See sections 6-94-119.
DUTY TO SUPPLY MUNICIPALITY IN WHICH SUPPLY IS
PROCURED.
"Any water company obtaining its water supply, or any part
thereof, from a source lying within the corporate limits of any munici-
pality, city, borough, or township, in this Commonwealth, shall furn-
ish such municipality and the inhabitants thereof with water or
otherwise forfeit its right to a sufficient quantity of water, from
such source, as will supply the needs of such municipality, city, bor-
ough, or township, and the inhabitants thereof:" Act of May 28th,
1907, section 1, (P. L. 278).
30. PENALTY FOR FAILURE.
"Should any water company fail to furnish water to any munici-
pality, city, borough, or township, or the inhabitants thereof, un-
der the conditions described in section one of this act, it shall be
the duty of the city or borough council, the commissioners or super
visors of the township, as the case may be, to pass a resolution
setting forth the fact that the municipality and the inhabitants there-
of are not being served with water, and that they desire the same; a
copy of which resolution shall be served on the president, secretary,
or attorney of the water company having its source of supply within
the corporate limits of the municipality thus affected; whereupon it
30
•
shall be the duty of such water company to prepare a statement,
setting forth in full its reason for its failure to supply water to the
affected district; which statement must also include any plans in con-
templation, if there be any, to supply at some future time to such
district, stating when such supply may be expected; which statement
must be verified by oath or affirmation by the president or secretary
of such water company, and filed with the State Water Supply Com-
mission, at Harrisburg, within thirty days from the date of service
of the original notice on such water company by the municipality
affected.
"Failure on the part of the president or secretary of such water
company to file a statement, as above directed, shall be deemed a
misdemeanor on their part, and, upon conviction thereof, they shall
be sentenced to undergo an imprisonment not exceeding six months,
and pay a fine not exceeding one thousand dollars, or either or both,
at the discretion of the court. If, in the judgment of the State Water
Supply Commission, the reasons filed are of such a character as to
indicate that no relief will be given the municipality complaining, in
the way of a water supply, within a reasonable time, then said State
Water Supply Commission may recommend to the Governor that
letters patent be issued and a charter granted to any association of
individuals who may legally form a water company, and who may
apply for the same, and who will agree, in their application for a
charter, to supply water to the municipality, city, borough or town-
ship thus affected, and the inhabitants thereof, and for that purpose
to have the right to condemn, take, or appropriate a sufficient quan-
tity of water from any source of supply lying within the corporate
limits of any municipality, city, borough, or township thus affected,
as is adequate to supply the needs of such municipality, city, borough,
or township, and the inhabitants thereof: Provided, however, That
any municipality, where conditions prevail such as are described in
sections one and two of this act, shall have the right, with the con-
sent and approval of the State Water Supply Commission, to con-
demn, take or appropriate a sufficient quantity of water, from any
source of supply lying within the corporate limits of any municipality
or municipalities affected, as is adequate to meet the needs of such
municipality or municipalities, and the inhabitants thereof, and no
damages shall be collected by, or allowed to, any water company for
any water appropriated under the provisions of this act:" Act of
May 28th, 1907, section 2, (P. L. 278).
31. DUTY OF COMPANIES FOR THE SUPPLY, STORAGE AND
TRANSPORTATION OF WATER AND WATER POWER
FOR COMMERCIAL AND MANUFACTURING PURPOSES.
It is the duty of a company formed for the supply, storage and
transportation of water and water power for commercial and manu-
facturing purposes to supply all citizens of the district in which it
is authorized to operate that demand it with water and water power
for such purposes: Jacobs v. Clearview Water Supply Co., 220 Pa.
388.
But it cannot be required to do so on the petition of a few appli-
cants who own property of small value in a remote or distant part
of the town, with no assurance of receiving an adequate return. No
31
obligation rests on a company to deliver water except on a contract
in such cases: Porter et al., v. Tionesta Water Supply Co., 22 D. R.
410.
The extension of water mains connected with a municipal plant is
wholly within the jurisdiction of the borough authoriites: Walter
v. Mahaffey, et al., 24 D. R. 954.
It is the duty of a private water company to construct pipe lines
and convey water to points of delivery: Sinking Spring Water Co.,
v. Wyomissing Borough, 22 D. R. 716.
66 * *
The act of July 26th, 1913, P. L. 1374, Art. V., section 13 pro-
vides:
*The commission shall also have power, after
hearing had upon its own motion, or upon complaint, to require pub-
lic service companies to make all such repairs, changes, alterations,
additions, extensions, and improvements, in and about their facilities
and service, as shall be reasonably necessary and proper for the
safety, accommodaton, convenience, and service of their patrons, em-
ployees, and the public."
See sections 33 and 12 C.
32. DISCRIMINATION IN SERVICE UNLAWFUL.
It is unlawful for any public service company-
"(b). To make or give any undue or unreasonable preference or
advantage in favor of or to any person or corporation or any locality,
or any particular kind or description of traffic or service, in any re-
spect whatsoever; or to subject any particular person or corporation
or locality, or any particular kind or description of traffic or service,
to any undue or unreasonable prejudice or disadvantage in any re-
spect whatsoever." Art. III, section 8, Act of July 26, 1913, (P. L.
1374).
See section 33.
ARTICLE VII.
33. THE
RATES.
PUBLIC SERVICE COMMISSION HAS JURIS-
DICTION AS TO RATES AND SERVICE.
"The commission shall have general administrative power and
authority, as provided in this act, to supervise and regulate all pub-
lic service companies doing business within this Commonwealth.
*
Said power and authority shall include the power to inquire into.
and regulate the service, rates, fares, tolls or charges of any and all
public service companies including individual and joint rates:
**the making of repairs, alterations, and improvements in and to
such service; as shall be reasonably necessary for the accommodation
* the
or safety of its patrons, employees and the public;
·
safety, adequacy, and sufficiency of the facilities, plant, and equip-
32
B
* *
ment for the carrying on of their business by said public service com-
panies; the quantity or quality of water,
or power, sup-
plied; and, as specifically provided in this act, the issuing of stocks.
trust certificates, bonds, notes or other evidences of indebtedness or
other securities by public service companies." Art. V, section 1, Act
of July 26th, 1913, (P. L. 1374).
So much of clause 7, section 34, of the act of April 29th, 1874, (P.
L. 73) as conferred upon the courts, the power to determine ques-
tions relating to the reasonableness or unreasonableness of water
rates has been repealed by the act of July 26th, 1913, (P. L. 1374)
which conferred this power upon the Public Service Commission:
Bellevue Boro. v. The Ohio Valley Water Co.; 245 Pa. 114.
On an appeal from an order of the Public Service Commission fix-
ing a schedule of rates to be charged by a water company, the Su-
perior Court cannot inquire into the wisdom or expediency of the
order: Ben Avon Boro. v. Ohio Valley Water Co., 260 Pa. 289.
On an appeal from the order of the Public Service Commission fix-
ing a schedule of water rates, the Superior Court will not disturb the
findings of the commission when there is sufficient evidence to sup-
port such findings, even if the conclusion of the court differ from the
conclusion of the commission: Beaver Valley Water Co. v. The Pub-
lic Service Commission, 71 Super. Ct. 43.
A water company cannot collect increased rates from a borough
pending approval of the public service commission. Surburban
Water Co., v. Boro., 67 P. L. J. 265; 10 M. L. R. 233.
The Public Service Commission has no authority to regulate the
crection of dams or the development of the water power resources of
the State; that is a matter within the jurisdiction of the Water Sup-
ply Commission: Pa. Power Company v. Public Service Commission,
261 Pa. 211.
See sections 34-35-36-37 and 38.
34. DUTIES OF WATER COMPANIES.
"It shall be the duty of every public service company-
(b). To render and furnish all such service at prices, charges,
rates, tolls, fares, or compensation that shall be just and reasonable,
and in conformity with such reasonable regulations or orders as may
be made by the (Public Service) Commission." Art. II, section 1,
Act of July 26, 1913, (P. L. 1374).
Rates of a water company must be reasonable, but a system of
charges that yield only sufficient income to maintain the plant, pay
fixed charges and operating expenses, provide a suitable sinking fund
for the payment of indebtedness, and pay a fair profit to the stock-
holders, is not unreasonable and will not be set aside by the courts:
Brymer v. Butler Water Co.; 179 Pa. 231.
Where the total income of a water company amounted to about
$7,000 from a population of 6,000, a demand of $3,000 for fire hy-
drants was reduced to $1,100.00: Leechburg Borough v. Leechburg
Water Works Co., 219 Pa. 263.
In an action by a water company against a customer to recover
for water supplied, the record of the water meter is not conclusive
upon the defendant, although the company offers proof that the meter
was of standard design, properly made and duly tested after the
dispute with the defendant had arisen: Scranton Gas & Water Co.,
v. Sturgess 47, Pa. Super. Ct. 203.
33
Where the ordinance of a borough grants to a water company a
franchise to lay and maintain water pipe lines "for a period of ten
years or until such time as said works may be purchased by said
borough," the duration of the franchise is uncertain and indetermi-
nate as to time. The acceptance by a company of such an ordinance
will not estop it from advancing its rates within a period of ten years,
if it appear that such advance does not amount to more than a reason-
able rate: Mt. Union Boro. v. Mt. Union Water Co., 256 Pa. 516;
Turtle Creek Borough v. Penna Water Co., 243 Pa. 415. And this
is permissible even though the contract is for a definite period:
Leiper v. Balto. & Phila. Railroad Co., et al., 262 Pa. 328. Ordinance
contracts may be changed or entirely annulled by subsequent legisla-
tion: Boro of East Pittsburgh v. Penna Water Co., 5 Dept. Rep. 1758.
A contract between a water company and a borough specifying
that certain rates shall be charged the borough and its inhabitants,
unlimited by its terms as to time cannot be enforced indefinitely and
the water company is not thereby precluded from raising its rates,
if its necessities so require.
So much of clause 7, section 34 of the act of April 29th, 1874, (P.
L. 73), as conferred upon the courts the power to determine the
reasonableness of water rates, has been repealed by the act of July
26th, 1913, (P. L. 1374), which conferred this power upon the Public
Service Commission: Bellevue v. Ohio Valley Water Co., 245 Pa. 114.
The presumption is that the rates fixed by the schedule of a water
company are reasonable, and the burden of showing the contrary is
on the party who alleges it: Mechanicsburg Boro. v. Gas and Water
Co., 246 Pa. 232.
Where a water company and a borough agree on certain fixed
rates, and no provision is made for a minimum rate, the court may
reform the contract to meet certain changed conditions and circum-
stances, and allow increased rates so as not to work a confiscation of
the company's property: Wilkinsburg Borough v. Water Co., 56
Pitts. 135.
Water rates established by a court of equity under the act of April
29th, 1874, (P. L. 73), section 34 must not be confiscatory and must
be such as to yield a fair return upon a just valuation of the plant:
Turtle Creek Boro. v. Penna. Water Co., 243 Pa. 401.
See sections 33, 35, 36, 37, and 38.
*
**
"(d). Whenever and in the form required by the commission to
file with the commission tariffs and schedules, showing prices,
charges, rates, fares, tolls or other compensation asked, demanded,
or received for any service rendered or furnished by said company;
* * it shall be the duty of every public service company to
post and publish such tariffs and schedules, * *
** in every of-
fice or station of said public service company open to the public,
where payments are made by
consumers, users, or patrons,
in such manner, form and place in such office or station as to be
readily accessible, and so that the said tariffs and schedules may be
conveniently inspected by the public, and, similarly, in such other
places as the commission may require. * * * * Every public ser-
*
*
*
vice company shall also file with, and as a part of, such tariffs and
schedules, and post as directed, all rules and regulations that in any
manner affect the said prices, charges, rates, fares, tolls or other
3
34
compensation,
B
motive power, or other facilities. Upon
application, the commission may limit and restrict the number and
character of such tariffs and schedules, and the number of offices or
stations at which the same are required to be posted, as aforesaid."
Art. II, section 1, Act of July 26th, 1913, (P. L. 1374).
"It shall be unlawful for any public service company after the
first day of January, one thousand nine hundred and fourteen to
render or furnish, or to offer to render or furnish, within this Com-
monwealth, any service of the kind or character rendered or furnished
by it, until it shall have filed and posted its tariffs and schedules
in accordance with the provisions of sub-section (d) of section one
of article two." Art. III, section 7, Act of July 26th, 1913, (P. L.
1374).
"(e). Where any public service company jointly acts or partici-
pates or connects with any other public service company in the per-
formance of any service, to make and file with the commission, when
so required by it, and post and publish as hereinbefore provided, the
tariffs or schedules of the joint rates, prices, charges, fares, or tolls
adopted or in force between them (including, when directed, the rules
and regulations, contracts and practices affecting or relating to the
same), which must be just and reasonable, and not more in the ag-
gregate nor in the apportionment thereof between said companies,
than may be prescribed by any order of the commission:-
Provided, however, That the tariffs or schedules of such joint rates,
prices, charges, fare, or tolls need only be filed by one of the said
public service companies; and the other company or companies, with
the consent and approval of the commission, need only file such evi-
dence of concurrence therein or acceptance thereof as may be re-
quired by the commission: Provided, That whenever any public ser-
vice company shall file any tariffs or schedules under the provisions
of this act, or shall participate in any such tariff or schedules so
filed, the rates, fares, and charges, and the rules, regulations and
practices, therein contained, as against such public service company,
its officers, agents, and employees, shall be deemed to be the legal rate,
fare, or charge, and the rules, regulations, and practices; otherwise,
the published rate, rules, regulations, and practices if any, shall be
the legal rate, fare or charge, rules, regulations and practices." Art.
II, section 1, Act of July 26th, 1913, (P. L. 1374).
•
•
"(f). To make no change in any tariff or schedule, which shall
have been filed or published or posted by any public service company
in compliance with the preceding sections, except after thirty days'
notice to the commission and to the public, posted and published in
the manner, form, and places required with respect to the original
tariffs or schedules, which shall plainly state the exact changes pro-
posed to be made in the tariffs or schedules then in force, and whether
an increase or decrease, and the time when the proposed changes will
go into effect; and all such changes shall be shown by filing, posting,
and publishing new tariffs or schedules, or shall be plainly indicated
upon the tariffs or schedules in force at the time, and kept open to
the public inspection: Provided, That the Commission may, in its
discretion and for good cause shown, allow changes in such tariffs or
schedules upon less than thirty days' notice herein specified, or
upon other conditions: And provided, further, That no rate, prac-
tice, or classification which shall have been determined by the com-
35
mission shall be changed or discontinued by the public service com-
pany, directly or through any change in classifications, rules, regu-
lations, contracts, or practices, within a period of three years after
such determination, without application to and the approval of the
commission, of which application thirty days' prior notice shall be
given in the said tariffs or schedules to the public: And provided
further, That it shall be the duty of every public service company,
when required by the commission, to issue to its shippers, consumers
or other patrons a certificate or other evidence of payments made by
them to it in excess of the prior established rate, of an increase in
which rate notice has been given to the commission and the public
as aforesaid." Art. II, section 1, Act of July 26, 1913, (P. L. 1374).
The posting and publishing of a schedule changing the rates of a
public service company are a condition precedent to the taking effect
of the changed rate, and where the schedule of change is not properly
posted in rooms to which the public had access, the Public Service
Commission may restrain a railway from putting the rate into ef
fect: City of Pittsburgh v. Pittsburgh Railways Co., 259 Pa. 558.
"(w). If a gas corporation, water corporation, or other public
service company, furnishing its service or product upon meter or
other similar measurement, or electric corporation, to provide, and
keep in and upon its premises, suitable and proper apparatus, to be
approved from time to time and stamped or marked by the commis-
sion, for testing and proving the accuracy of gas, water, electric, or
other meters furnished by it for use; and by which apparatus every
meter may be tested, upon the written request of the consumer to
whom the same shall be furnished, and in his presence if he shall
so desire. If the meter so tested shall be found to be accurate,
within such commercially reasonable limits as the commission may,
by general or special order, fix for such meters, or class of meters,
a reasonable fee, to be fixed by the commission by standing order,
sufficient to cover the cost of such test, shall be paid by the con-
sumer requiring such test; but, if not so found, then the cost thereof
shall be borne by the public service company furnishing said meter."
Art. II, section 1, Act of July 26th, 1913, (P. L. 1374).
35. POWERS OF WATER COMPANIES.
A. TO MAKE REASONABLE AND JUST RATES AND CLASSI-
FICATIONS.
"It shall be lawful for every public service company-
(a). To demand, collect, and receive fair, just and reasonable
prices, rates, fares, tolls, charges, or other compensation for each
and every service rendered or to be rendered by it to any person
or corporation, or to any other public service company with whom
it interchanges facilities and services.
To establish a sliding scale of rates, fares, or charges; provided
that a schedule showing such scale of rates, fares, or charges shall
first have been filed with the commission and approved by it." Art.
III, section 1, Act of July 26th, 1913, (P. L. 1374).
"(b). To employ, in the conduct and management of its business,
suitable and reasonable classifications of its service, patrons, and
rates; and such classification may, in any proper case, take into
account the nature of, the use, and quantity used, the time when used,
36
the purpose for which used, the kind, bulk, value, and facility of
handling of commodities, and any other reasonable consideration."
Art. III, section 1, Act of July 26th, 1913, (P. L. 1374).
B. TO MAKE REASONABLE RULES AND REGULATIONS.
"(c). To have reasonable rules and regulations, subject to exist-
ing law and the provisions of this act, governing the conduct of its
business and the conditions under which it shall be required to render
service.
It may require the payment of charges in advance, the making of
reasonable minimum payments and deposits to secure future pay-
ments of such charges; or it may allow discounts for prompt pay-
ments of the same, or impose penalties for failure to pay promptly:
Provided, That such advance charges, minimum payments, deposits,
discounts, or penalties are reasonable and apply equally and without
discrimination or preference to all shippers, consumers, and patrons,
under like conditions and under similar circumstances." Art. III,
section 1, Act of July 26th, 1913, (P. L. 1374).
A water company has the right to make reasonable rules and regù-
lations in regard to the use of water and to enforce payment therefor:
Brumm's Appeal, 22 W. N. C. 137; Miller v. Wilkes-Barre Gas Co.,
206 Pa. 254. But the Public Service Commission has authority to
determine whether such rules and regulations are reasonable: Beaver
Valley Water Co. v. Public Service Commission, 70 Super. Ct. 621.
In the latter case the court held that a rule requiring arrearages
of water rents for service to a former owner to be paid by a successor
in title as a condition precedent to service was unreasonable since
the end sought to be attained may be secured by other equally ef-
fective rules. Previous to this decision the courts have held that a
water company may shut off the water supply for failure to pay law-
ful rents due; Smith v. Scranton Gas & Water Co., 5 Lack. L. N. 235;
Sinking Spring Water Co., v. Wyomissing Borough 22 D. R. 716;
even though arrears are due from former owner whose title was sold
at sheriff's sale: Brumm's Appeal, 22 W. N. C. 137; Kohler v. Reitz
46 Pa. Super. Ct. 350; or, it would seem, any predecessor in title;
Miller v. Wilkes-Barre Gas Co., 206 Pa. 254; and to do so has the
right, subject to reasonable regulations, to make excavations in the
streets. A permit must be granted by the municipality where it es-
tablishes this as a regulation: Riverton Consolidated Water Co.,
v. Camp Hill Borough, 24 D. R. 453. But a water compnay has no
right either to shut the water off or to refuse to turn it on at one
house because of arrears due for another house of the same owner:
Springfield Consolidated Water Co., v. Griffith 27 D. R. 343.
But in order to place the liability for the unpaid bills of a former
owner of the property upon a subsequent owner, and to enable the
company to shut off the supply for failure of such subsequent owner
to pay the same, it would seem that there must have been either
actual notice that he would be required to pay such bill, or construc-
tive notice by a resolution or by law of the company: Miller v.
Wilkes-Barre Gas Co., 206 Pa. 254.
When the charter of a water company fixes the maximum price
that may be charged for water the company may not shut off the
water supply for failure of the consumer to pay more than such maxi-
mum amount: Trimmer v. White Haven Water Co., 4 Kulp. 293.
37
The allowing of a discount for payment in advance, or for payment
on or before a certain day, and the imposing of a penalty for non-
payment on a certain day, would seem to be reasonable rules: Mount
Holly Water Co., v. Borough of Mount Holly Springs, 10 Super. Ct.
162. See also Bower v. United Gas Improvement Co., 37 Super. Ct.
113.
A water company may receive payments of rents in advance:
Mount Holly Water Co. v. Borough of Mount Holly Springs, 10
Super. 162; Trimmer v. White Haven Water Co., 4 Kulp. 293.
A water company may allow a discount for payment in advance
or for payment on or before a certain day, or may impose a penalty
for non-payment upon a certain day: Mt. Holly Water Co., v. Bor-
ough of Mt. Holly Springs, 10 Sup. 162.
On this point see also Bower v. United Gas Improvement Co., 15
Dist. 152; Bower v. United Gas Improvement Co., 15 Dist. 409.
Rules of a water company allowing a discount for prompt payment,
or imposing a penalty for non-payment, evidently intended to apply
to private consumers, cannot be construed as applicable to a munici-
pality having a contract with the company for water for hydrants
and fire plugs, entered into prior to the adopting of the rules by the
company: Mt. Holly Water Co., v. Borough of Mt. Holly Springs,
10 Sup. 162.
See sections 68, 73, 74 and 75.
36. MUNICIPALITY CANNOT REGULATE RATES.
A city or borough council has no authority to fix by ordinance the
rates to be charged by a water company, nor can this be done as a
condition upon which the company is allowed the use of the streets
and highways: Schroeder v. Scranton Gas & Water Co., 20 Sup. Ct.
255. But it would seem that this may be done by agreement with
the company: Wilkinsburg Borough v. Water Co., 56 Pitts. 135.
A bill in equity to restrain a water company from raising its rates
for water on the ground that the new rates are unreasonable and in
violation of a contract with the borough, where the evidence fails
to sustain the allegations, will not be sustained: Atticks v. Water
Co., 232 Pa. 551.
Although the act of June 27th, 1913, (P. L. 568), provides for the
regulation and inspection of public service companies by cities of
the third class, they have no power to determine the reasonableness
of rates charged by such companies, nor to prescribe regulations
relating to facilities, service and business of such corporations.
These are functions of the Public Service Commission: Water Com-
pany v. York, 250 Pa. 115.
See sections 33, 34, 35, 37 and 38.
37. CHARTER LIMITATIONS.
Where a water company formed under special act prior to the
passage of the act of April 29th, 1874, is limited by its charter in
the amount it can charge for water, it cannot charge more than
such amount, even though it subsequently accepts the Constitution
and the act of April 29th, 1874: White Haven Borough v. White
Haven Water Co., 209 Pa. 166; Trimmer v. White Haven Water Co.,
4 Kulp 293.
\
See section 36.
38
38. WATER COMPANIES MAY NOT DISCRIMINATE.
"It shall be unlawful for any public service company-
(a). To charge, demand, collect, or receive, directly or indirectly,
by any special rate, rebate, drawback, abatement, or other device
whatsoever, from any person or corporation, for any service rendered
or to be rendered, a greater or less compensation or sum than it shall
demand, charge, collect, or receive from any other person or corpora-
tion for a like and contemporaneous service under substantially
similar circumstances and conditions." Art. 111, section 8, Act of
July 26th, 1913, (P. L. 1374).
A company has no right to establish a schedule of rates whereby
one consumer will be compelled to pay at a higher rate than another
for the same service. Such a system of charges amounts to an un-
just discrimination and will be prevented by mandamus: Long v.
Springfield Water Co., 8 Del. Co., 151.
A water company's charge for borough hydrants for fire protection
must be in reasonable proportion to rates established for other de-
mands; and where the total income of a water company was about
$7,000.00 from a population of 6,000 a demand of $3,000 for fire
hydrants was reduced to $1,100.00: Leechburg Borough v. Leechburg
Waten Works Co., 219 Pa. 263.
It is not an unreasonable discrimination for a water company to
charge owners of a boarding house additional rates for each five
boarders or roomers, or fraction thereof, after the first five in the
house: Herlacher v. Borough, 8 Dauph. 148.
Certain free service to a municipality by a water company in re-
turn for the use of the streets of the municipality by the water com-
pany, as provided by ordinance, is unlawful discrimination: Borough
of East Pittsburgh v. Penna. Water Co., 5 Dept. Rep. 1758.
ARTICLE VIII.
EMINENT DOMAIN.
A. COMPANIES FOR THE SUPPLY OF WATER TO THE PUB-
LIC, AND COMPANIES FOR THE SUPPLY, STORAGE
AND TRANSPORTATION OF WATER AND WATER
POWER FOR COMMERCIAL AND MANUFACTURING
PURPOSES.
39. APPROPRIATION OF LAND AND MATERIAL AUTHOR-
IZED.
"Where such companies shall be incorporated for the supply of
water to the public, or for storing and transportation or supply of
water and water power for commercial and manufacturing purposes,
39
*
they shall have power to provide, erect and maintain all works and
machinery necessary or proper for raising and introducing into the
town, borough, city, or district where they may be located, a sufficient
supply of pure water, or water and water power as aforesaid, and
for that purpose may provide, erect and maintain all proper build-
ings, cisterns, reservoirs, pipes and conduits, for the reception and
conveyance of water or water power
* and it is further
authorized and empowered by itself, its agents, engineers, and work-
men, and with its and their tools, carts, wagons, beasts of draught
or burden, to enter upon such lands and enclosures, streets, lanes,
alleys, roads and highways and bridges as may be necessary to oc-
cupy, or to obtain materials for the construction of said works, and
to occupy, ditch and lay pipes through the same, and the same from
time to time to repair, subject to such regulations in regard to
streets, roads, lanes and other highways and impairing the free use
thereof as little as possible, and subject to such regulations as the
councils of said borough, town, city or district may adopt in regard
to grades or for the protection and convenience of public travel over
the same, and if any injury be done to private property the said com-
pany shall make compensation therefor in the manner provided for in
the forty-first section of this act." See section 52, Act of April 29th,
1874; section 34, clause 2, as amended by Act of May 16th, 1889,
(P. L. 226).
The act of May 16th, 1889, confers upon companies for the supply
of water to the public, the right of eminent domain, and under it to
take, when agreement cannot be made with the owner thereof, the
land necessary for the proper construction and operation of their
works: Keller v. Riverton Water Co., 161 Pa. 422.
Where, however, such a company admits that it intends to supply
a railroad company only, it will be restrained by injunction from
taking a private property under the right of eminent domain: Watson
v. Water Co., 9 Lack. 171.
The said act of May 16th, 1889, also confers upon companies "for
the supply, storage and transportation of water and water power
for commercial and manufacturing purposes" the right of eminent
domain over land and material in as much as the Legislature clearly
intended by said act to confer upon such companies the same rights,
privileges and powers as those possessed by companies chartered for
the supply of water to the public. The fact that the principal con-
sumer of such a company will be a railroad company, and that owing
to the nature of the country very few citizens are engaged in com-
mercial and manufacturing enterprises such as will require water
or water power, is immaterial: Jacobs v. Clearview Water Co., 220
F'a. 388.
A company chartered under the act of April 29th, 1874, (P. L. 73),
as amended by the act of May 16th, 1889, (P. L. 226), "for the storage,
transportation and supplying of water and water power for com-
mercial and manufacturing purposes" is invested with the right of
eminent domain and can occupy public roads: Manufacturers' Water
Company's Petition 19 D. R. 728; Raystown Water Power Co., v.
Brumbaugh 246 Pa. 225.
A water company incorporated by a private act, which has accepted
the provisions of the Constitution of 1874 and the act of April 29th,
40
1874, (P. L. 73), acquires under the act of May 16th, 1889, (P. L.
226), the right of eminent domain: Blauch v. Johnstown Water Co.
247 Pa. 71; Croyle v. Johnstown Water Co., 259 Pa. 484.
To enable a water company to turn off the water at a house or
other place, a water company has the right, subject to reasonable
regulations, to make excavations in the streets. A permit must be
granted by the municipality where it prescribes this as a regulation:
Riverton Consolidated Water Co., v. Camp Hill Borough 24 D. R.
453.
"Before any such water company shall proceed to occupy any land
er enclosure, or to obtain and use any material therefrom for the
purpose mentioned in this section, it shall be lawful for them to
agree with the owner or owners thereof for the purchase of so much
thereof as may be necessary, or as to the amount of injury sustained
thereby; but in case they cannot agree, proceedings shall be had as
provided in section forty-one of this act." See section 52: Act of
April 29th, 1874, section 34, clause 4, amended by Act of June 12th,
1879, (P. L. 177).
40. EXTENT OF APPROPRIATION OF LAND AND MATERIAL.
The land appropriated by a water company for the proper construc-
tion and operation of its works may be within or without the dis-
trict which it has been chartered to supply with water:
Riverton Water Co., 161 Pa. 422.
Keller v.
Under the act of May 16th, 1889, water companies have the power
to condemn franchises and property held for public use and are not
limited merely to private property: Independent Gas Co., v. Butler
Water Co., 210 Pa. 177. To do this there must, however, exist a
necessity so absolute that without the right the grant will be de-
feated: Philadelphia Water Supply Co., v. Susquehanna Canal Co.,
4 Dist. 637.
It would seem, however, that the right to condemn franchises
and property held for a public use cannot extend to a practical de-
struction of another public corporation: Philadelphia Water Sup-
ply Co., v. Susquehanna Canal Co., 4 Dist. 637.
A water company does not exhaust its power of eminent domain
over land by a single taking: Keller v. Water Co., 34 Super. Ct. 301.
Where a water company has once exercised the right of eminent
domain in the location of its pipe line, it may not lay out an en-
tirely new and additional line over the same land, no matter how
convenient such new line may be. It may enlarge its existing line,
but not re-locate one: McKay v. Pennsylvania Water Co., 6 Dist.
364.
Property and franchises of a water company may be condemned by
a city and the appraisement must include the fair valuation of the
water works, property, rights and franchises of the company. In such
a proceeding the entire cost is payable by the city: Monongahela
Water Co.'s case, 223 Pa. 323.
Land formerly appropriated by a water company for a reservoir
may also be condemned for road purposes: Road in Herrick & Ararat
Townships 16 Super. Ct. 579.
A water company which owns an extensive tract of land compris-
ing a watershed, but which has not formally appropriated such land
41
to public use nor made actual use of it, and shows no present or
future necessity for it, cannot restrain a railroad from appropriating
so much of it as may be necessary to straighten its roadway: Scran-
ton Water Co. v. Railroad, 9 Lack. 37.
A water company or water power company cannot condemn more
land than is reasonably necessary to conduct the business of the
corporation: Raystown Water Power Co., v. Brumbaugh 246 Pa. 225.
41.
ADDITIONAL RIGHTS GIVEN TO COMPANIES FOR THE
SUPPLY OF WATER TO THE PUBLIC.
"Whenever any water company incorporated for the purpose of sup-
plying water to the public shall have found, or shall find it neces-
sary in storing water to occupy and flow with water portion of any
turnpike or any public road in the Commonwealth, the said com-
pany shall cause the same to be reconstructed forthwith, at their own
proper expense, on a favorable location to be approved by the court
of quarter session of the proper county, and in as perfect a manner
as the original road, and are authorized to condemn land for that pur-
pose whenever an agreement as to price cannot be had with the
owners." Act of May 26th, 1893, section 1, (P. L. 158).
"Any such water company shall be and is hereby empowered to
acquire and hold by purchase, or condemnation, such lands along
and contiguous to streams of water, or reservoirs from which water
is taken for public use, as may be necessary to preserve them from
contamination: Provided, That no land shall be taken for the uses
mentioned in this act until just compensation shall have been made
for property taken, injured or destroyed, which shall be paid or se-
cured before such injury or destruction: And provided further, That
any owner of land along said streams shall have the use of the
water for farming and domestic purposes with free ingress and
egress at all times to such streams." Act of May 26th, 1893, section
2, (P. L. 159).
"The damage incurred in changing the location of any turnpike or
public road as authorized by the first section of this act, and in
acquiring lands to preserve water supply from contamination, as
authorized by the second section of this act, shall be ascertained and
paid by such water company in the same manner as is provided for
in regard to the taking of lands, waters, materials, property and
franchises, for the public purposes of such water company, and no
lands, property or franchises, shall be taken for the uses mentioned
in this act until just compensation shall have been paid or secured
therefor." Act of May 26th, 1893, section 3, (P. L. 159).
Whenever a company chartered under act of April 29th, 1874, (P.
L. 73), as amended by act of May 16th, 1889, (P. L. 226), occupies or
floods any portion of a public road, it must reconstruct the same at
its own expense: Manufacturer's Water Company's Petition, 19 D.
R. 728.
The court will not grant the prayer of the petition to change a
road on an ex parte hearing but will determine from the facts
whether or not the proposed road is in a favorable location: Butler
Water Company's Petition, 27 D. R. 357.
Whenever any water company incorporated for the purpose of
supplying water to the public shall have heretofore acquired any
42
lands in this Commonwealth, by purchase or by lease, along or con-
tiguous to streams of water or reservoirs from which water is taken
for public use, that may be necessary to preserve the water supply
of such water company from contamination, the said company shall
hold the said lands to them, their successors and assigns in fee simple,
or for the term for which the said lands may have been granted or
leased to them, subject, however, to any reservation, limitation or
condition under or upon which such lands may have been conveyed
or leased. Section 1, Act of June 18th, 1895, (P. L. 195, No. 116).
42.
APPROPRIATION OF WATER AUTHORIZED.
The act of May 16th, 1889, (P. L. 226), amending clause 2 of sec-
tion 34 of the act of April 29th, 1874, in addition to extending the
right to condemn land theretofore conferred upon companies for the
supply of water to the public, to companies for the supply, storage,
and transportation of water and water power for commercial and
manufacturing purposes, also conferred upon both classes of water
companies the right to appropriate waters, providing that such com-
panies "shall have power to appropriate so much of the water from
the rivers, creeks, canal water rights and easements, within or with-
out the limits of the city, borough, or place in which said company
may by its charter be located, as may be necessary for its purposes,
and all damage done thereby shall be ascertained, recovered and paid
as provided for in the forty-first section of the act to which this is
a supplement." See section 49 *
"Provided, That this act
shall not apply to private springs or private water supplies."
A "private water supply is one which is such from its source to
its end. It cannot be divided up into sections, calling one a private
supply and another not a private supply:" Sinking Spring Water
Co., v. Gring, 26 D. R. 867.
For further definition of "private water supplies" see Catharine
Gring v. Sinking Spring Water Company, 7 Pa. Super. Ct. 63.
The taking of a stream of water by condemnation at a given level,
although it includes all the water at that point, is but a partial taking
of the stream; and a subsequent taking of it at a higher level, con-
sidering the pressure and the supply affected by it, is in every ordi-
nary and proper sense an additional taking: Sinking Spring Water
Co., v. Gring, 26 D. R. 867.
Such company will not be restrained by injunction from diverting
the water of a river, from the channel through which it would
naturally flow in front of the premises of the plaintiff before it has
exercised its right of cendemnation. Plaintiff must proceed by
action of trespass to recover damages for the unlawful diversion
of the water. The measure of damages would be the difference in the
market value of the land affected before and after the injury: Rider
v. York Haven Water and Power Company 26 D. R. 14.
43.
EXTENT OF APPROPRIATION OF WATER.
The act of May 16th, 1889, authorizing the appropriation of water
from rivers, creeks, canal water rights and easements, does not
authorize the appropriation of the rivers, creeks, and canals them-
selves: Philadelphia Water Supply Co. v. Susquehanna Canal Co.,
4. dist. 637.
43
A company accepting the provisions of the Constitution and the
act of 1874 may appropriate so much of the waters of a river as may
be necessary for its corporate purposes: Blauch v. Johnstown Water
Company 247 Pa. 71. Not only for present purposes but for future
needs also: Croyle v. Johnstown Water Co., 259 Pa. 484.
It has been held that a special act authorizing a water company
to "appropriate such spring or springs, stream or streams of water
as it may select," applied also to artificial water courses; City of
Reading v. Althouse, 93 Pa. 400.
Inasmuch as a water company has no right to supply water to
territory adjacent to its district, it has no authority under the right
of eminent domain to condemn and appropriate water for that pur-
pose: Bly v. White Deer Mountain Water Co., 197 Pa. 80.
Section 34 of the act of April 29th, 1874, authorizing water com-
panies to appropriate the waters of a stream, contemplates a single
taking and one assessment of damages. Where, therefore, it was
shown that the company's intention was to appropriate the entire
stream, evidence that the water of a stream was not entirely ex-
hausted is immaterial: Miller v. Windsor Water Co., 148 Pa. 429.
See section 42.
44. RIGHT TO APPROPRIATE WATERS TAKEN AWAY.
"No water company, hereafter incorporated under any law shall
have powers or exercise the right of eminent domain, as respects the
appropriation of the streams, rivers or waters of this Commonwealth,
or any of them, nor the land covered thereby." Act of April 13th,
1905 (P. L. 152).
This act affects all water companies incorporated subsequently to
its passage, but companies incorporated before April 13th, 1905, still
have the same power to appropriate water conferred by the Act of
May 16th, 1889, unless the right is forfeited.
The provision of the act refers to all waters within the State,
whether flowing over lands owned by the State or by private owners:
Bushkill Water Co., 18 Dist. 360; 36 Pa. C. C. 193.
45. RIGHT TO APPROPRIATE WATER MUST BE FORFEITED
UPON CONSOLIDATION.
Section 2 of the act of June 7th, 1907, (P. L. 455), provides that no
"agreement of merger and consolidation shall be approved by the
said Water Supply Commission of Pennsylvania, nor by the Governor
until each of the corporations, parties thereto, shall have filed in the
office of the Water Supply Commission of Pennsylvania a written ac-
ceptance, under the seal of said corporation and authorized by a ma-
jority of the stockholders thereof, both of this act and of the act ap-
proved April 13th, 1905, entitled 'An act providing that the right of
eminent domain, as respects the appropriation of streams, rivers or
waters or the land covered thereby, shall not be exercised by water
companies incorporated under law,' agreeing to be subject to and
bound by the provisions of both of said acts, with like effect as if
said corporation had been formed subsequently to the passage of both
of said acts; and shall, also, have filed a certified copy of said ac-
ceptance in the office of the Secretary of the Commonwealth."
44
46. RIGHT TO APPROPRIATE WATERS MUST BE FOR-
FEITED UPON PURCHASE AND SALE OF PROPERTY
AND FRANCHISES.
Section 3 of the act of June 7th, 1907, (P. L. 455), after providing
that no sale of the franchises and property of one water company to
another should be valid until a certificate filed by the company so
purchasing, designating the future sources of supply, shall have been
approved by a majority of the members of the Water Supply Com-
mission, provides that "no such certificate shall be approved by the
said Water Supply Commission of Pennsylvania until the corpora-
tion so purchasing shall have filed in the office of the Water Supply
Commission of Pennsylvania a written acceptance, under the seal
of said corporation and authorized by a majority of the stockholders
thereof, both of this act and of the act approved April 13th, 1905,
entitled 'An act providing that the right of eminent domain as respects
the appropriation of streams, rivers, or waters or the land covered
thereby, shall not be exercised by water companies, incorporated un
der law,' agreeing to be subject to and bound by the provisions of both
of said acts, with like effect as if said corporation had been formed
subsequently to the passage of both of said acts, and shall have filed
a certified copy of said acceptance in the office of the Secretary of
the Commonwealth."
47. RIGHT TO APPROPRIATE WATERS GIVEN TO COMPA-
NIES FOR THE SUPPLY OF WATER TO THE PUBLIC
IN CERTAIN CASES.
The act of May 28th, 1907, (P. L. 278), which requires any water
company to furnish a sufficient supply to the inhabitants of any city,
borough or township in which it obtains its supply, or to furnish the
Water Supply Commission with its reasons for not doing so, further
provides: "If in the judgment of the State Water Supply Commis-
sion, the reasons filed are of such a character as to indicate that no
relief will be given the municipality complaining, in the way of a
water supply, within a reasonable time, then said State Water Sup-
ply Commission may recommend to the Governor that letters patent
be issued and a charter granted to any association of individuals
who may legally form a water company, and who may apply for the
same, and who will agree, in their application for a charter, to sup-
ply water to the municipality, city, borough, or township thus af-
fected, and the inhabitants thereof, and for that purpose to have
the right to condemn, take or appropriate a sufficient quantity of
water, from any source of supply lying within the corporate limits
of any municipality, city, borough, or township thus affected, as is
adequate to supply the needs of such municipality, city, borough or
township, and the inhabitants thereof."
B. COMPANIES FORMED UNDER CLAUSE 18, SECTION 2,
ACT OF APRIL 29TH, 1874.
48. APPROPRIATION OF LAND AND WATER AUTHORIZED.
Companies formed under the 18th paragraph of section 2 of the
act of April 29th, 1874, as finally amended by the act of May 21st,
1889, (P. L. 259), the act of May 9th, 1901, (P. L. 624) and the
45
act of June 3rd, 1911, (P. L. 635) whose purpose as stated in the
said paragraph, is "the storage, transportation and furnishing of
water *
for manufacturing and other purposes, and for the
creation, establishing, furnishing and transmission for public use
of water power therefrom," are given by that paragraph "the right
to take rivulets and land;" and by clause 4 of section 34 of the act
of April 29th, 1874, it is provided with regard to such companies that
"the right to take lands, waters or rivulets shall be exercised in the
manner provided in the forty-first section of this act." See section 49.
49. RIGHT TO APPROPRIATE WATERS TAKEN AWAY.
Whatever right to appropriate water may have been given to com-
panies of this class exists only in companies incorporated prior to
April 13th, 1905, companies incorporated since that time having no
such right by virtue of the act of April 13th, 1905, (P. L. 152), taking
away from water companies the right of eminent domain over waters.
See section 41.
The act of April 13th, 1905, (P. L. 152), cannot be so construed as
to prevent a water company from exercising its right of eminent
domain as to the land lying outside the bed of the stream, which is
necessary to enable the company to discharge its corporate functions:
Brumbaugh v. Raystown Water Power Co., 254 Pa. 215.
50. RIGHT TO APPROPRIATE WATERS FORFEITED UPON
CONSOLIDATION OR UPON PURCHASE AND SALE OF
FRANCHISES AND PROPERTY.
or
Whatever rights to appropriate waters exists in such companies.
must be forfeited, as in the case of companies of the other two
classes, upon merger and consolidation with another company,
upon the purchase or sale of the property and franchises of one com-
pany by or to another by virtue of sections 2 and 3 of the Act
of June 7th, 1907, (P. L. 455). See sections 42 and 43.
51.
RIGHT TO APPROPRIATE EITHER LAND OR WATER
MAY NOT EXIST AT ALL.
In Peifly v. Mountain Water Supply Co., 214 Pa. 340, and in Jacobs
v. Clearview Water Supply Co., 220 Pa. 388, it was held that a cor-
poration formed for "the purpose of storing, transporting and fur-
nishing of water, with the right to take rivulets and land, and erect
reservoirs for holding water for manufacturing and other purposes,
and for the creation, estáblishing, furnishing, transmission and using
water power therefrom" under paragraph 18 of section 2 of the Act
of April 29th, 1874, and its supplements, "is presumably a corpora-
tion for private uses which cannot constitutionally be invested with
the right of eminent domain." It would seem, therefore, that before
any company of this class can be said to have the right to appro-
priate either land or water, the burden is upon it to show, in each
particular case, that it is a public corporation for public use.
C. PROCEDURE UNDER RIGHT OF EMINENT DOMAIN.
52. METHOD OF TAKING LAND, MATERIAL AND WATER.
"That in all cases in which, under the provisions of this act, any
corporation is permitted to take waters, streams, lands, property,
46
materials or franchises for the public purposes thereof, and the said
corporation cannot agree with the owner or owners of any such
waters, streams, lands, materials or franchises, for the compensa-
tion proper for the damage done or likely to be done to or sustained
by any such owner or owners of such waters, streams, land or ma-
terials which such corporation may enter upon, use or take away,
in pursuance of the authority herein given, or by reason of the ab-
sence or legal incapacity of any such owner or owners, no such com-
pensation can be agreed upon, the court of common pleas of the
proper county, on application thereto, by petition, either by said cor-
poration or by the owner or owners or any one in behalf of either,
shall appoint three discreet and disinterested freeholders of the
proper county, and appoint a time not less than ten nor more than
twenty days thereafter, for said viewers to meet at or upon the prem-
ises where the damages are alleged to be sustained, or the property
taken, of which time and place five days' notice shall be given by the
petitioner to the said viewers and the other party; and the said
viewers having been first duly sworn or affirmed, faithfully, justly
and impartially to decide and true report to make concerning all
matters and things to be submitted to them, and in relation to which
they are authorized to inquire in pursuance of the provisions of this
act, and having viewed the premises, they shall estimate and deter-
mine the quantity, quality and value of said lands, streams or prop-
ezty so taken or occupied, or to be taken or occupied, or the ma-
terials so used or taken away, as the case may be, and having a due
regard to and making a just allowance for the advantages which may
bave resulted, or which may seem likely to result to the owner or
owners of said streams, land or materials, in consequence of the mak-
ing the improvements or conducting the operations of such corpora-
tion or of the construction of works (for) which the property is to
be taken; and after having made a fair and just comparison of said
advantages and disadvantages, they shall estimate and determine
whether any, and if any, what amount of damages has been or may
be sustained, and to whom payable, and make report thereof to the
said court; and if any damages be awarded, and the report be con-
firmed by the said court, judgment shall be entered thereon; and if
the amount thereof be not paid within thirty days after the entry of
such judgment, execuion may then issue thereon, as in other cases
of debt, for the sum so awarded, and the costs and expenses incurred
shall be defrayed by the said corporation; and each of the said view-
ers shall be entitled to one dollar and fifty cents per day for every
day necessarily employed in the performance of the duties herein pre-
scribed, to be paid by such corporation.
"In all cases where the parties cannot agree upon the amount of
damages claimed, or by reason of the absence or legal incapacity of
such owner or owners no such agreement can be made, either for
lands, streams, water, water-rights, franchises or materials, the cor-
poration shall tender a bond with at least two sufficient sureties to
the party claiming or entitled to any damages, or to the attorney or
agent of any person absent, or to the guardian or committee of any
one under legal incapacity, the condition (of) which shall be that the
said corporation will pay, or cause to be paid, such amount of damages
as the party shall be entitled to receive after the same shall have been
agreed upon by (the) parties, or assessed in the manner provided for
47
by this act: Provided, That in case the party or parties claiming
damages refuse or do not accept the bond as tendered, the said cor-
poration shall then give the party a written notice of the time when
the same will be presented for filing in court, and thereafter the said
corporation may present said bond to the court of common pleas of
the county where the lands, streams, water or materials are, and if
approved the bond shall be filed in said court for the benefit of those
interested, and recovery may be had thereon for the amount of dam-
ages assessed, if the same be not paid or cannot be made by execution
on the judgment in the issue formed to try the question.
"The viewers provided for in this section may be appointed be-
fore or after the entry for constructing said work or taking materials
therefor, and after the filing of the bond hereinbefore provided for,
and upon the report of said viewers being filed in said court, either
party, within thirty days thereafter, may file his, her or their appeal
from said report to said court. After such appeal either party may
put the cause at issue in the form directed by said court, and the
same shall then be tried by said court and a jury, and after final
judgment, either party may have a writ of error thereto from the
supreme court, in the manner prescribed in other cases; the said court
shall have power to order what notices shall be given connected with
any part of the procedings, and may make all such orders connected
with the same as may be deemed requisite. If any exceptions be
filed with any appeal to the proceedings, they shall be speedily dis-
posed of; and if allowed, a new view shall be ordered, and if dis-
allowed, the appeal shall proceed as before provided:" Act of April
29th, 1874, section 41 as amended by the act approved May 5th, 1911,
(P. L. 112).
Where a water company has instituted condemnation proceedings,
and has given a bond which has been accepted, it will not be allowed
to discontinue the proceedings, for the reason that there has been a
permanent taking: Weatherly Water Co's Petition, 7 Dist. 561; 21
P'a. C. C. 330.
Where a water company has appropriated water for its corporate
use, the right of the land owner to commence proceedings by petition
for viewers under section 41 of the act of April 29th, 1874, does not
depend either upon the filing of a bond by the company or the mak-
ing of a specific appropriation of a definite quantity of water which
the company intended to use: Bowers v. Citizens Water Co., 162 Pa. 9.
On the question of filing a bond see also Blauch v. Johnstown Water
Co., 247 Pa. 71.
Where there has been a taking under the right of eminent domain
by a water company, or an injury which amounts to à taking for
which compensation must be made, and the property and franchises
of the company were sold at judicial sale before the compensation
was made, the purchaser at judicial sale takes the property and
franchises subject to the claim for compensation: Lycoming Gas
& Water Co., v. Moyer, 11 W. N. C. 443.
Where the adaptability of land intended for use by a water com-
pany is obvious, preliminary entry and survey are not necessary;
Keller v. Water Co., 34 Super. Ct. 301.
48
53. MEASURE OF DAMAGES FOR TAKING WATER.
The measure of damage for the appropriation of water is the dif-
ference in value of the whole property before and after the taking;
the difference between what the property would have sold for when
unaffected by taking and what it would sell for when so affected.
To arrive at this the jury may consider the use to which the property
is put: Miller v. Windsor Water Co., 148 Pa. 429.
The measure of damage to a mill owner on a stream below the
point where water is taken is the depreciation in value of the mill
property: How much less the property was worth to the owner or
a bona fide intending purchaser after the appropriation than before:
Lee et al., v. Springfield Water Co., 176 Pa. 223.
In ascertaining the amount of damages sustained by a riparian
owner, the average condition of the stream for a number of years is
the proper basis, and not its condition in one particular season:
Philipsburg Water Co. v. Citizens Water Co., 43 W. N. C. 382.
Where a water company condemns water the damages are to be
estimated as of the time of the taking and must include the amount
of water, the right to divert which is taken, irrespective of the
amount actually diverted: James v. West Chester Borough, 220 Pa.
490.
In a proceeding against a water company to assess damages, for
injury to a mill property, witnesses for the plaintiff, who are millers
or manufacturers, familiar with the property in question and in a
general way with the market value of property in the neighborhood,
may express their opinion as to the value of the condemned property,
and also that there has been a decrease in the supply of water to
the mill affecting the operation of the plant: Mengell's Ex'rs v. Mohn-
ville Water Co., 224 Pa. 120.
D. RIPARIAN OWNERSHIP.
54. WATER COMPANIES AS RIPARIAN OWNERS.
Where a water company has the right of eminent domain, but takes
water from a stream for its corporate purposes not by virtue of that
right, but by virtue of its right as riparian owner, it has no other
or higher right than any other riparian owner, regardless of its
business needs: Philadelphia & Reading Railway Co. v. Pottsville
Co., 182 Pa. 418: Dubs v. Hanover & McSherrystown Water Co.,
53 Pa. Super. Ct. 470.
Where a water company takes water from a stream as riparian
owner without having condemned it, it has no standing to enjoin
a new company from taking water from the same stream, at a point
higher up, where it appears that the stream furnishes twenty times
the water which the first company takes; its rights are only those
of a riparian owner: Philipsburg Water Co. v. Citizens Water Co.,
189 Pa. 23.
A water company which is the owner of land upon which there is
a spring of water cannot divert the stream flowing from such spring
without proceeding under the right of eminent domain, and making
compensation to the lower riparian owners for the loss caused by such
diversion: Lord v. Meadville Water Co., 135 Pa. 122.
49
Where a water company has title by purchase it has the same
rights as other owners to restrain the pollution of a stream: Scran-
ton Water Co. v. Hall, 9 Lack. L. N. 80.
The mere non-riparian use of water by a water company through
pipes gives rise to no inference of riparian possession; and where a
water company takes water through pipes from a reservoir which it
has never acquired by condemnation or by purchase, it has no right
as a lower riparian owner to restrain the pollution of a stream above.
In such a case a water company cannot restrain the maintenance
along the watershed of a hog farm or slaughter house from which the
refuse percolates to a stream which feeds the reservoir: Scranton
Water Co. v. Hall, 8 Lack. L. N. 348.
ARTICLE IX.
55. AUTHORITY.
RIGHT TO DAM STREAMS.
There does not appear to be any special authority vested in com-
panies for the supply of water to the public, or for the supply, storage,
and transportation of water and water power for commercial and
manufacturing purposes, as such, to dam public or navigable rivers
or streams. As regards private streams such companies of course,
stand in the same position as other corporations or individuals where
they are riparian owners, and as regards public or navigable streams
the only authority which they appear to have is that which in gen-
eral belongs to all other corporations or individuals. Section 1 of the
Act of March 23rd, 1803, (4 sm. 20), provides that, "All and every
person or persons owning lands adjoining any navigable stream of
water declared by law, a public highway, except the rivers Delaware,
Lehigh and Schuylkill, be and they or either of them are hereby
authorized to erect a dam or dams for a mill or mills or other water
works upon any such stream of water adjoining their own lands and
to keep the same in good repair and also to lead off thereby on his
or their own land so much of the water of such stream as may be
necessary for his or their mill, or mills, or other water works; Pro-
vided, That the said person or persons, his or their heirs and assignees
in erecting the said dam or dams, or keeping them in repair, shall not
obstruct or impede the navigation of such stream or prevent fish from
passing up the same; And, provided also, That the person or persons
so erecting said dam or dams shall not infringe on or injure the
rights and privileges of the owner or possessor of any private prop-
erty on such stream.”
This act licenses only such erections in a river as is subservient to
the use of water power, and, hence, does not justify making a pool for
rafts: Commonwealth v. Church, 1 Pa. 105.
4
50
It does not authorize the erection of a dam for the purpose of
creating an artificial flood to carry logs down the stream: DuBois
v. Glaub, 52 Pa. 238.
The right conferred by this act in respect of the great rivers of
the State which are navigable, by nature, and, therefore, public high-
ways at the common law, is merely a license which may be revoked
whenever the paramount interests of the public shall require it: New
York & Erie Railroad Co. v. Young, 33 Pa. 175.
The act of July 2nd, 1895, (P. L. 432), providing that corporations
for the supply, storage or transportation of water and water power
for commercial and manufacturing purposes be authorized and em-
powered to determine the character, design and construction of the
works and the use to be made of the water and water power, provides
that such companies may "by themselves, their agents, engineers, and
workmen cause to be located, constructed, maintained, repaired and
operated under the law and supplements to which this is a further
supplement, (Act of April 29th, 1874), the said works and all ma-
chinery, dams, buildings, cisterns, races, canals, waterways, reservoirs,
pipes, conduits, lines, plants, apparatus, fixtures and appliances,
deemed necessary." It is doubtful, however, if this act was intended,
er could be construed, to authorize corporations of this class to
build dams in public or navigable rivers, the provision more likely
referring to the building of such dams as a corporation may be from
some other source authorized to build, that is, dams in private
streams, of which they are the owners, or dams which they in com-
mon with other corporations and individuals, may be authorized to
build by virtue of the act of May 28th, 1803.
Under the provisions of the act of June 25th, 1913, (P. L. 555),
a permit from the Water Supply Commission is necessary before a
dam or other obstruction in any stream can be either built or re-
paired. See sections 63 and 64.
56. COMPANIES FORMED UNDER CLAUSE 18, SECTION 2, OF
THE ACT OF APRIL 29TH, 1874, AND ITS AMEND-
MENTS.
Clause 18, section 2 of the act of April 29th, 1874, as finally
amended by the act of June 3rd, 1911, (P. L. 635), authorizes the
formation of companies "for the storage, transportation and furnish-
ing of water, with the right to take rivulets and land and erect reser-
voirs for holding water, for manufacturing and other purposes, and
for the creation, establishing, furnishing and transmission for public
use of water power therefrom: * *
the construction of dams
*
in any stream, and the driving and floating of sawlogs, lumber and
timber on and over any streams, not exceeding thirty-five miles in
length
from their source, by the usual methods of driv-
ing and floating logs, timber and lumber on streams.” Section 2 of
the Act of June 22nd, 1883, (P. L. 156), as amended by the act of
June 10th, 1893, (P. L. 412) provides, "That corporations organized
for the purpose of erecting reservoirs for the storage of water, con-
struction of dams, transmission of power and the driving and floating
of logs, timber and lumber on streams not exceeding thirty-five miles
in length, or on the heads of all streams not exceeding thirty-five
miles in length from their source, shall have power to clear out,
51
improve and use any stream or the head of any stream not exceeding
in length thirty-five miles from its source, to purchase dams and
erect new dams thereon, may straighten, deepen, crib and widen such
stream, or the head of any stream for the distance aforesaid as they
deem proper, and may generally use and manage the streams and the
head of streams for the distance aforesaid and their improvements
thereon, for the floating of logs, lumber and timber thereon, by both
natural and artificial floods in their discretion, but in such manner
as not to obstruct the descending navigation by rafts and boats."
See section 12 (b).
57. DAMS MUST PERMIT THE PASSAGE OF FISH-PEN-
ALTIES.
Any person now or hereafter erecting or maintaining a dam in
the waters of this Commonwealth shall immediately, on a written
order from the Commissioner of Fisheries, erect therein such chutes,
slopes, fishways, gates, or other devices, as the Board of Fishery Com-
missioners may deem necessary to enable the fish to ascend and
descend the waters at all seasons of the year. Section 85, Act of
July 28th, 1917, (P. L. 1215).
See sections 55, 63 and 64.
No person shall place any device or object in the waters within this
Commonwealth in such a manner as to obstruct the migration or
passage of fish therein, or to obstruct any fishway. Any person violat-
ing the provisions of this section is guilty of a misdemeanor and, on
conviction as provided in article thirteen, shall be sentenced to pay
a fine of one hundred dollars. Section 95, Act of July 28th, 1917, (P.
L. 1215).
Any person neglecting or refusing to comply with sections 85 and
86 of this article within three months from the date of notice provided
in section 85 of this act, shall forfeit and pay the sum of one hun-
dred dollars for every month such person so refuses or neglects. Such
sum shall be recovered by civil suit or process in the name of the
Commonwealth. Section 88, Act of July 28th, 1917, (P. L. 1215).
58. DUTY TO REMOVE OBSTRUCTIONS IN STREAMS.
Any obstruction in the streams of this Commonwealth, not per
mitted by law, shall, when found, be immediately removed by any
fish commissioner, fish-warden, sheriff, or other peace officer. Section
96, Act of July 28th, 1917, (P. L. 1215).
59.
DRAINING OF AND REGULATIONS CONCERNING DAMS.
Every such chute, slope, fishway, gate or other device shall be main-
tained, open and in good order and repair, by the person owning or
maintaining such dam, until said dam is removed, raised or rebuilt.
Section 86, Act of July 28th, 1917, (P. L. 1215).
Any chute, fishway, or other device aforesaid may be closed for re-
pairs at the time of low water, but such closing shall only be for a
period of thirty days at any one time. Section 87, Act of July 28th,
1917, (P. L. 1215).
No person owning, leasing, or maintaining a dam, holding back
waters inhabited by fish, shall draw off such waters without first ap-
plying for written permission from the Department of Fisheries; nor
52
shall any such person obstruct the flow of water through any such
dam, without allowing sufficient water, at all times, to flow in the
natural stream on which such dam is located, to enable the fish to
live. Any person violating the provisions of this section is guilty of
a misdemeanor, and, on conviction as provided in article thirteen
of this act, shall be sentenced to pay a fine of one hundred dollars
for each offense. Section 91, Act of July 28th, 1917, (P. L. 1215).
Any person owning or maintaining a raceway, flume, or inletpipe,
leading to a water-wheel, turbine, pump, or canal, shall immediately,
upon receipt of a written order from the Commissioner of Fisheries,
place and maintain a bar-rack, of not less than one-half inch nor
more than an inch and a half space between the bars, in or near such
raceway, flume, or inlet-pipe, sufficient to prevent fish from entering
therein. Any person refusing or neglecting to comply with such
order for a period of one month shall forfeit and pay the sum of one
hundred dollars, which shall be recovered by civil suit and process
in the name of the Commonwealth. Section 93, Act of July 28th,
1917, (P. L. 1215).
60. COMMISSIONER OF FISHERIES AUTHORIZED TO ACT
IN CERTAIN CASES.
If, after the lapse of three calendar months from the date of notice
provided by section 85 of this act, the person owning or maintaining
said dam neglects or refuses to erect or place or maintain, un-
changed, open, and in good order and repair, the appliance as di-
rected by the Commissioner of Fisheries, said commissioner is author-
ized to enter upon such dam and erect such slope, chute, fishway, or
gate or make such repairs, as may have been directed as aforesaid.
The cost thereof shall be charged against the person owning or main-
taining such dam, by the Commissioner of Fisheries, and may be re-
covered by civil suit and process in the name of the Commonwealth.
Section 89, Act of July 28th, 1917, (P. L. 1215).
If, one month after the notice provided in section 92 (3) of this
act, the person owning or operating such raceway, flume, or inlet-pipe
has not placed such bar-rack as may have been directed, the Com-
nissioner of Fisheries is authorized to enter upon such raceway,
flume, or inlet-pipe, and place a bar-rack, of not less than one-half
inch nor more than an inch and a half space between the bars.
cost thereof shall be charged against such owner or operator, and if
not promptly paid may be recovered by civil suit and process in the
name of the Commonwealth. Section 94, Act of July 28th, 1917, (P.
L. 1215).
61.
The
COMMONWEALTH TO PAY COSTS IN CERTAIN CASES.
Where, by reason of any dam having been constructed prior to any
requirements by law of the placing of chutes, slopes, or fishways
therein, or for any other reasons the owner or person maintaining
such dam cannot be compelled by law to pay the cost of erecting
such chute, slope, or fishway, as directed by the Commissioner of
Fisheries, such cost shall be paid by the Commonwealth of Pennsyl-
vania out of such funds as may be appropriated therefor. Section
90, Act of July 28th, 1917, (P. L. 1215).
53
€2.
UNLAWFUL TO INJURE ANY DAM.
That any person or persons who shall maliciously, after the passage
of this act, break down, destroy or remove, or in any manner what-
soever injure, impair or damage, in whole or in part, any rip-rap,
wall, dam, bank or breakwater, built or formed or composed of stone,
cinders or other materials, along property fronting or abutting on
any river or stream within this Commonwealth, or who shall remove,
carry away or tear up any stones, cinders, or other materials of which
such rip-rap, wall, dam, bank or breakwater shall be in whole or in
part, composed, shall be deemed guilty of a misdemeanor, and shall
on conviction thereof in the court of quarter sessions of the county
in which the offense shall have been committed be fined for each
offense not exceeding two hundred dollars, or imprisonment in the
county jail or work-house not exceeding six months: Provided, That
prosecutions under this act shall be begun within two years from
the time of the commission of the offense: And provided further,
That the provisions of this act shall not apply to counties having a
population of over five hundred thousand inhabitants. Section 1, Act
of May 19th, 1879, (P. L. 65, No. 71).
63.
CONSTRUCTION OF DAMS AND OTHER WATER OB-
STRUCTIONS MUST BE APPROVED BY WATER SUP-
PLY COMMISSION.
"From and after the passage of this act, it shall be unlawful for
any person or persons, partnership, association, corporation, county,
city, borough, town or township to construct any dam or other water
cbstruction; or to make or construct, or permit to be made or con-
structed, any change therein or addition thereto; or to make or per-
mit to be made, any change in or addition to any existing water ob-
struction; or in any manner to change or diminish the course, current
or cross section of any stream or body of water, wholly or partly
within, or forming a part of the boundary of this Commonwealth,
except the tidal waters of the Delaware River and its navigable trib-
utaries, without the consent or permit of the Water Supply Commis-
sion of Pennsylvania, in writing, previously obtained, upon written
application to said commission therefor." Section 2, Act of June
25th, 1913, (P. L. 555).
Sections 1 and 2 of the act of June 25th, 1913, (P. L. 555), sup-
plies the Act of May 28th, 1907, (P. L. 299).
See sections 55 to 62.
"The term 'water obstruction,' as used in this act, includes any
dam, wall, wing-wall, wharf, embankment, abutment, projection, or
similar or analogous structure, or any other obstruction whatsoever,
in, along, across, or projecting into any stream or body of water
wholly or partly within, or forming part of the boundary of, this
Commonwealth, except the tidal waters of the Delaware River and
of its navigable tributaries.
"The word 'construct' shall be taken to mean construct, erect, build,
place or deposit." Section 1, act of June 25th, 1913, (P. L. 555).
"Each application for the consent or permit required by the second
section of this act shall be accompanied by complete maps, plans,
profiles, and specifications of such water obstruction, or of the said
54
changes or additions proposed to be made, and such other data and
information as the commission may require." Section 3, Act of June
25th, (P. L. 555).
"The provisions of this act shall not prohibit the placing in any
purely private stream, having a drainage area of less than one-half
square mile, of any dam or obstruction that cannot in any way im-
peril life or property located below or above such dam or obstruction;
nor shall the provisions of this act prohibit the making of neces-
sary temporary repairs to any water obstruction." Section 9, Act
of June 25th, 1913, (P. L. 555).
The Public Service Commission has no authority to regulate the
erection of dams or the development of the water power resources
of the State; that is a matter within the jurisdiction of the Water
Supply Commission: Pa. Power Co., v. Public Service Commission,
261 Pa. 211.
In 1911 Attorney General Bell advised the Water Supply Com-
mission that, the compact between the States of New Jersey and
Pennsylvania for concurrent jurisdiction over the Delaware River
being continued in force, the Pennsylvania Water Supply Commission
has no jurisdiction to approve plans for a dam over that river; 21
D. R. 319.
The act of May 28th, 1907, (P. L. 299), has given to the Water
Supply Commission jurisdiction over all public rivers; over all pri-
vate rivers, which are in fact navigable, although not declared pub-
lic highways by acts of Assembly; and over all private streams which
have been declared public highways.
If the construction of a dam or other obstruction in a purely pri-
vate non-navigable stream would have the effect of changing or di-
minishing the course, current or cross-section of any public or navi-
gable river or stream heretofore declared a public highway, the com-
mission, under the act of 1907, would have jurisdiction to regulate
the construction of such dam or other obstruction: Cassleman River,
40 Pa. C. C. 457.
Where a riparian owner on the western shore of a river obstructs
the channel
* of the stream so as to divert the water natur-
ally flowing along the eastern shore to the injury of the riparian
owner thereof, a decree of a court of equity directing the removal
of the obstructions will be sustained.
In such a case the decree cannot be given the effect of depriving
the defendant of any rights, powers or privileges to which it may be
entitled under Mill Dam act of March 3rd, 1803, (4 Sm. Laws 20)
or under the Water Supply Commission acts of May 4th, 1905, (P.
L. 385), and May 28th, 1907, (P. L. 299), or which it may enjoy as a
public service corporation vested with the right of eminent domain:
Rider v. York Haven Water and Power Co., 242 Pa. 141.
64. POWERS AND DUTIES OF WATER SUPPLY COMMISSION
CONCERNING DAMS AND OTHER WATER OBSTRUC-
TIONS.
"The commission shall have power to grant or withhold such con-
sent or permit, or may incorporate in and make a part of said con-
sent or permit such conditions, regulations, and restrictions as may
be deemed by it advisable. It shall be unlawful to construct or be-
55
gin the construction of any such water obstruction, or to make
or begin any change or addition aforesaid, except in accordance with
the terms, conditions, regulations, and restrictions of such consent or
permit, and such rules and regulations, with regard to said con-
structions, changes, or additions, as may be prescribed by the com-
mission." Section 4, Act of June 25th, 1913, (P. L. 555).
"Upon complaint, or upon its own initiative, the commission shall
have power to cause an investigation or examination to be made of
any dam, or other water obstruction now existing or hereafter con-
structed. If the commission shall determine that such dam or water
obstruction is unsafe or needs repair, or should be removed as being
unsafe and not susceptible of repair, the commission shall, in writ
ing, notify the owner or owners thereof to repair or remove the same,
as the exigencies of the case may require; such work to be commenced
and proceeded with to completion within such reasonable time as
may be prescribed in such notice by the commission. And it shall
thereupon be and become the duty of such owner or owners to comply
with the provisions of such notice. If said owner or owners, notified
as aforesaid, shall neglect or refuse to make such repairs or to cause
such removal, or if said owner or owners cannot be found or deter-
mined, then it shall be and become the duty of the commission to
make such repairs or cause such removal; and the commission may
thereafter recover, in the name of the Commonwealth, from the owner
or owners, the said cost or expense, in the same manner as debts are
now by law recoverable." Section 5, act of June 25th, 1913, (P. L.
555).
"If the condition of any dam or other water obstruction be so
dangerous to the public safety as not to permit of the giving of the
notice, hereinabove provided, to the owner or owners of such ob-
struction to remove such dangerous condition, the commission shall
have power to remedy such condition by repair, removal, or other-
wise, and may recover the cost and expense thereof from the owner
or owners as debts are now by law recoverable." Section 6, act of
June 25th, 1913, (P. L. 555).
"Nothing in this act contained shall be construed to vest in the
said Water Supply Commission any powers or authority heretofore
vested by law in the directors of the Department of Wharves, Docks,
and Ferries, of cities of the first class, or in the Board of Commis-
sioners of Navigation for the River Delaware and its Navigable Tribu-
taries; but the said directors and the said board shall have the power
and authority over the river Delaware and its navigable tributaries
heretofore conferred." Part of section 10, act of June 25th, 1913,
(P. L. 555).
65.
WHEN INJUNCTIONS ARE APPLICABLE.
"Upon application of the commission, verified by oath or affirma-
tion, the court of common pleas of any county, sitting in equity, may,
by injunction, enforce the compliance with, or restrain the violation
of, any order or notice of the commission made pursuant to the pro-
visions of this act, or restrain the violation or attempted violation
of any of the provisions of this act." Section 8, act of June 25th,
1913, (P. L. 555).
Where loss is caused to a lower riparian owner because of the dis-
56
repair of a dam the upper riparian owner will be restrained by in-
junction from allowing the water to be wasted by lack of proper
repair: Allentown Portland Cement Co., v. Huy et al., 27 D. R. 396.
66. PENALTIES.
"Any person or persons, partnership, association or corporation,
county, city, borough, town or township, that shall do or cause to be
done; or that shall fail, neglect or refuse to do, or cause to be done,
any act or thing contrary to the provisions of this act; or that shall
violate, or fail to comply with, any order of the commission, of
which due notice shall be given; or that shall violate any of the pro-
visions of this act, shall be guilty of a misdemeanor; and, upon con-
viction thereof, shall be sentenced to pay a fine of not more than
one thousand dollars, or, in the discretion of the court such person
or persons, or the members of such partnership, or association, or the
officers and directors of such corporation, or the officers of such
county, city, borough, town or township, as the case may be, sen-
tenced to undergo an imprisonment in the county jail for a period
not exceeding one year, either or both, in the discretion of the court.”
Section 7, act of June 25th, 1913, (P. L. 555).
67. USE OF DAM.
Where a water company is authorized to build a dam, and has done
so, it is not ultra vires to lease it to an ice company for a long term
of years: McKay v. Pennsylvania Water Co., 6 Dist, 364.
ARTICLE X.
MUNICIPAL RELATIONS.
A. ENTRY UPON STREETS AND HIGHWAYS.
68. CITIES AND BOROUGHS.
A company for the supply of water to the public, or for the supply,
storage and transportation of water and water power for commercial
and manufacturing purposes is "authorized and empowered by itself,
its agents, engineers and workmen, and with its and their tools, carts,
wagons, beasts of draught or burden, to enter upon such lands and
enclosures, streets, lanes, alleys, roads and highways and bridges, as
may be necessary to occupy or to obtain materials for the construc-
tion of said works, and to occupy, ditch and lay pipes through the
same, and the same from time to time to repair, subject to such regu-
lations in regard to streets, roads, lanes and other highways and
impairing the free use thereof as little as possible, and subject to
such regulations as the councils of said borough, town, city or district
may adopt in regard to grades or for the protection and convenience
of public travel over the same:" Act April 29th, 1874, section 34,
clause 2, as amended by act May 16th, 1889, (P. L. 226).
57
"Reasonable municipal regulations" is not limited to the control of
the mere surface; it extends to the soil beneath to whatever extent
may be necessary for the health and safety of the public. Mountain
Water Co. v. Emaus Borough, 43 Pa. Super. Ct. 179.
An ordinance is unreasonable and void which provides "that no
rights and privileges be granted to said water company to lay pipes.
and fixtures on any streets, lanes or alleys in said territory until the
same are regularly adopted, located and opened by ordinances and
graded to the required grade under the rules and regulations of the
borough." Such an ordinance would be not a regulation, but a pro-
hibition for an indefinite period in certain cases, and a court of
equity can grant relief by injunction. Mountain Water Co. v. Emaust
Borough, 43 Pa. Super Ct. 179.
A water company chartered under the general laws of the Com-
monwealth is not compelled to obtain the consent of the municipal
council before it may lay its pipes in the streets, or open the streets
in order to obtain access to its pipes for a necessary purpose, and a
municipality exceeds its powers, when, as to such a company, it
undertakes to make the exercise of the chartered rights of the com-
pany dependent upon the consent of the municipal council. Shryock
v. North Braddock Borough, 43 Pa. Super Ct. 508; New Cumberland v.
Riverton Water Co., 232 Pa. 531, or refuses a permit to open the
street to repair the pipes, Riverton Consolidated Water Co. v. Camp
Hill Borough 24 D. R. 453.
A water company created under the act of April 29, 1874, (P. L.
73), and its supplements, exercises its franchise and maintains its
property in the streets of any borough subject to the paramount right
of such municipality to change the grade of the street in which its
lines are located. Under such circumstances the water company is
forced to lower its own pipes. Springfield Water Co. v. Philadelphia
& Garrettford Railway Company, 45 Pa. Super. Ct. 516. Likewise the
State Highway Department, under the act of May 31, 1911, P. L. 468,
may compel such company to relocate or remove its pipes or other
structures at its own expense. State Highway Department, 22 D. R.
117.
See sections 73 and 74.
69. TOWNSHIPS OF FIRST CLASS.
"No water company, gas company or electric light company shall
enter upon or occupy, in any manner whatever, any street or high-
way within any township of the first class of this Commonwealth,
without first making application, in writing, to the proper author-
ities of such township of the first class, and obtaining its consent or
permission, which shall be given by ordinance only, and upon such
conditions, stipulations, and regulations as the municipal authorities
may deem proper:" Act June 6th, 1907, (P. L. 417).
70. TOWNSHIPS OF SECOND CLASS.
A water company may enter upon and occupy the streets, lanes or
highways of a township of the second class subject to reasonable
regulations by the township supervisors in regard to grades, or for
the protection and convenience of public travel over the same: Bryn
Mawr Water Co. v. Lower Merion Township, 4 Dist. 157. A town-
58
ship of the second class has no authority through its supervisors to
impose restrictions and conditions on opening of highways for laying
pipes: Easton Township v. Gas and Electric Co., 35 Pa. C. C. 497;
18 Dist. 400.
Where a water company lays its pipes under a township road with-
out making any compensation to the owner of the land, and there-
after, the owner, a coal company, removes the coal in its mining
operations, and the surface of the road subsides and injures the
pipes, the water company cannot recover damages from the coal com-
pany for the injuries sustained. Spring Brook Water Supply Co. v.
Penna. Coal Co. 54 Pa. Super Ct. 380.
71. HYDRO-ELECTRIC
AND TOWNSHIPS.
COMPANIES:
CITIES, BOROUGHS
The act authorizing water power companies to develop electric
power for commercial and manufacturing purposes, provides that
such companies "shall have authority to make, erect and maintain
the necessary buildings, machinery and apparatus for developing
power and current, and to distribute the same to any place or places
with the right to enter upon any public road, street, lane, alley or
highway for such purposes; and to alter, inspect and repair its sys-
tem of distribution: Provided, That no such company shall enter
upon any street or alley in any city, borough or township of this
Commonwealth, until after the consent to such entry of the coun-
cils of the city or borough or supervisors of the township in which
such street or alley may be located shall have been obtained:" Act
July 2nd, 1895, (P. L. 425).
72. USE OF SIDEWALKS.
Where a water company has the right to occupy a street with its
pipes, it may lay them under the sidewalk without subjecting itself
to any other liability to the owner of the abutting property than for
such damages as may be done in laying the pipes, interrupting access,
etc.: Provost v. New Chester Water Co., 162 Pa. 175.
73. EXTENT OF CONTROL BY MUNICIPALITIES.
The Act of July 26, 1913, P. L. 1374, in Article III, provides as
follows:
"Section 2. Upon the approval of the commission evidenced by
its Certificate of Public Convenience, first had and obtained, and
not otherwise, it shall be lawful for any proposed public service com-
pany-
(b). To begin the exercise of any right, power, franchise, or privi-
lege under any ordinance, municipal contract, or otherwise.'
""
"Section 11. No contract or agreement between any public service
company and any municipal corporation shall be valid unless ap-
proved by the commission: Provided, That, upon notice to the local
authorities concerned, any public service company may apply to the
commission, before the consent of the local authorities has been
obtained, for a declaration by the commission of the terms and con-
ditions upon which it will grant its approval of such contract or
agreement, if at all."
59
See Wilkes-Barre Co. vs. Public Service Commission 70 Super Ct.
464.
By the act of June 6th, 1907, (P. L. 417), no entry can be made
on any street or highway of a township of the first class by any water
company without the consent of the supervisors of such township
having first been given by ordinance.
So, also, by the act of July 2nd, 1895, (P. L. 425), no water com-
pany generating and distributing electric power shall make any
entry upon any street or alley in any city, borough or township with-
cut the consent of the councils of the city or borough, or the super-
visors of the township. The necessity for such companies, however,
obtaining consent exists only where it is intended to distribute elec-
tric power or current, and such company with regard to its right
to distribute water stands in the same position as any other water
company: Forty Fort Borough v. Forty Fort Water Co., 9 Kulp, 241.
In all other cases of the entry upon the streets, alleys or highways
of cities, boroughs or townships of the second class there is no pro-
vision of law requiring the company to obtain consent, or prohibiting
their making such entry until such consent is obtained, the act of
May 16th, 1889, (P. L. 226), merely providing that such companies.
shall have the right to enter upon such streets and highways "sub-
ject to such regulations as the councils of such borough, town, city
or district may adopt in regard to grades or for the protection and
convenience of public travel over the same." It was formerly held by
a court of Common Pleas in Lehigh-Coplay Water Co. v. Coplay Bor-
ough, 11 Dist. 602, that consent of the municipality was necessary.
On the other hand, it was held by another court of common pleas in
Forty Fort Borough v. Forty Fort Water Co., 9 Kulp, 241, that
such consent is not necessary. It has now, however, been decided by
the Supreme Court that such municipalities cannot require water
companies to obtain permission to lay pipes in the streets: Dorrance
v. Bristol Borough, 224 Pa. 464. But the councils of such city or
borough, and the supervisors of such township, have control over
water companies in so far as it is necessary to protect the rights of
the traveling public and to enforce reasonable police regulation:
Dorrance v. Bristol Borough, 224 Pa. 464; Landsdowne Borough v.
Springfield Water Co., 16 Super. Ct. 490; Beaver Valley Water Co.
v. Conway Borough, 213 Pa. 225.
While, however, it is not necessary for a company to procure the
consent of a municipality to its entry on the streets thereof, it is
competent for the municipality to require a water company to pro-
cure a permit for the purpose of opening the streets to make con-
nections or repairs, and to pay a tax therefor: Landsdowne Borough
v. Springfield Water Co., 16 Super. Ct. 490; Beaver Valley Water Co.
v. Conway Borough, 213 Pa. 225, Springfield Water Co. v. Borough of
Darby, 199 Pa. 400. Such permit cannot be refused by a municipality.
Riverton Consolidated Water Co. v. Camp Hill Borough, 24 D. R.
453.
Such municipality also has power to levy an annual mileage license
tax or fee on pipes of a water company: Kittanning Borough v. Arm-
strong Water Co. 35 Super. Ct. 174; Kittanning Borough v. Garretts
Run Gas Co., 35 Super. Ct. 167; Kittanning Borough v. Consolidated
Natural Gas Co. 219 Pa. 250.
In its regulation of a water company such municipality may com-
pel the company to raise or lower its pipes in order to conform to a
60
new grade of a street: Scranton Gas & Water Co. v. Scranton, 214
Pa. 586; In re Kerlin Street, 12 Dist. 467. This same conclusion
has also been reached with regard to townships: Bryn Mawr Water
Co. v. Lower Merion Township, 4 Dist. 157. The same power exists
in the State Highway Department under the act of May 31, 1911, (P.
I. 468). State Highway Department, 22 D. R. 117.
See sections 35b, 68, 74 and 75.
74. REASONABLENESS OF LICENSE FEES.
A borough ordinance maintaining a fee of $2.00 for opening an
unpaved street, $6.00 for opening a street paved with Belgian block
or macadamized, and $8.00 for opening a street paved with asphalt
or granolithic pavement is not unreasonable, and the fees so charged
are not so grossly disproportioned to the expense of issuing a permit
and the probable expense of proper inspection, regulation and police
surveillance as to warrant the court in declaring them unreasonable:
Landsdowne Borough v. Springfield Water Co., 16 Super. Ct. 490.
A fee of $3.00 for opening a street is reasonable: Springfield Water
Co. v. Borough of Darby, 199 Pa. 400.
Where a water company in repairing its line digs up and re-paves
streets and alleys, and police have been engaged to watch for leaks,
unfilled ditches and obstructions and to place danger signals where
necessary, the charge by a borough of a fee of $30.00 per mile for
six miles is not unreasonable, and payment of the tax cannot be
avoided because it subsequently appears that it was somewhat in
excess of the actual expense of supervision: Kittanning Borough v.
Armstrong Water Co., 35 Super. Ct. 174.
It would also seem that an annual license fee of $30.00 per mile
for inspection, regulation and police surveillance of the proper line
of a water company was not unreasonable: Kittanning Borough v.
Consolidated Natural Gas Co., 219 Pa., 250.
75. METHOD OF DETERMINING REASONABLENESS
*
OF
LICENSE FEES IN DISPUTES BETWEEN MUNICIPALI-
TIES AND WATER OR WATER POWER COMPANIES.
"Whenever, hereafter, any dispute shall arise between any town-
ship, city, borough, or other municipal corporation of this State, hav-
ing authority under the law to charge a license fee against *
any light, power
or water company, occupying the high-
ways of such municipality with its poles, wires, conduits, or cables,
as to whether or not the amount of license fee, named in any ordi-
nance of said municipal corporation, for the inspection and regulation
of the said poles, wires, conduits, or cables, under its police power,
is or is not reasonable, either party may apply, by petition, to the
court of common pleas of the county where said municipal corpora-
tion is situated, to determine the said dispute. Upon the filing of
said petition, setting forth the nature and character of the dispute,
and the facts bearing upon the question thus raised, the said court
shall issue a citation to the respondent, commanding it to appear
and answer the said petition at a time named, and to abide by and
obey the order of the court. Said citation and a copy of said petition
shall be served upon the respondent, not less than fifteen days before
the time fixed for answering. To said petition the respondent shall
61
make answer within the time fixed, or such extension thereof as the
court shall allow, specifically answering the facts set forth in said
petition, and averring such other or further facts as it shall deem
necessary for the proper determination of the said dispute. At any
time after the return day fixed in the said citation, the said court
shall, upon application of either party, fix a date for the hearing of
the issue raised by said petition and answer, and thereupon shall
take the evidence and decide the said dispute in the way and manner
provided by law for the hearing of cases in equity." Section 1, Act
of April 17, 1905, (P. L. 183), as amended by section 1, Act of July
26, 1913, (P. L. 1371).
This act is constitutional as to section one: Petition of Pennsyl-
vania Gas Co. 258 Pa. 234, as to constitutionality of act of 1905,
generally see West Chester Borough v. Postal Telegraph Cable Co.,
227 Pa., 384.
"Said court shall have power to allow any pleading to be amended,
to make all necessary, general or special rules or orders for the pro-
duction of evidence and to expedite the said hearing, and may hear
and determine the matter ex parte if the respondent fails to answer
or appear at the time fixed for the hearing." Section 2, Act of
April 17, 1905, (P. L. 183, No. 132).
"The said court, in its decision of said dispute, shall determine
the amount of annual license fees which should be paid to the said
municipal corporation in order to properly compensate it for the
necessary cost of the services performed, or to be performed, by it,
for the inspection and regulation of the poles, wires, conduits, cables,
pipe or mains of the said telegraph, telephone, light, power, street
passenger railway, motor traction, gas, or water company; and the
amount thus determined shall be the maximum sum which the said
municipal corporation shall be authorized to charge as license fees
against such petitioning corporation." Section 3, Act of April 17,
1905, (P. L. 183), as amended by section 2, Act of June 23, 1917, (P.
L. 643).
A license fee cannot be a tax for revenue for general purposes.
Petition of Pennsylvania Gas Co. 258 Pa. 234.
"Either party shall have the right of appeal from the order of the
court, to the Supreme or Superior Court, as in other cases." Section
4, Act of April 17, 1905, (P. L. 183).
"The amount of such annual license fees, as determined by the
final order of the court, shall continue until altered by the court
ftself; but no application shall be made for that purpose oftener than
once in every two years." Section 5, Act of April 17, 1905, (P. L.
183).
"Nothing in this act contained shall be so construed as to alter
or affect the duty of said telegraph, telephone, light, power, street
passenger railway, motor traction, gas, or water company to properly
erect, or construct and maintain, its poles, wires, conduits, cables,
pipes or mains, or to relieve it from liability for negligence in re-
gard thereto, either primarily to the person injured or secondarily
to the municipal corporation, if judgment is recovered against it by
the person injured by reason of such negligence." Section 6, Act of
April 17, 1905, (P. L. 183), as amended by section 3, Act of June 23,
1917, (P. L. 643).
62
B. CONTRACT WITH MUNICIPALITIES.
76. PUBLIC SERVICE COMMISSION MUST APPROVE.
"Upon the approval of the commission evidence by its certificate
of public convenience, first had and obtained, and not otherwise, it
shall be lawful for any proposed public service company”—
"(b) To begin the exercise of any right, power, franchise, or privi-
lege under any ordinance, municipal contract, or otherwise." Article
III, section 2, Act of July 26, 1913, (P. L. 1374).
"No contract or agreement between any public service company
and any municipal corporation shall be valid unless approved by the
commission: Provided, That, upon notice to the local authorities
concerned, any public service company may apply to the commission,
before the consent of the local authorities has been obtained, for a
declaration by the commission of the terms and conditions upon
which it will grant its approval of such contract or agreement, if
at all." Article III, section 11, Act of July 26, 1913, (P. L. 1374)
The Public Service Commission Act of July 26, 1913, (P. L. 1374),
is a proper exercise of the police power of the State, and is consti-
tutional.
The fact that a light, heat and power company has secured the
consent of borough authorities to the use of the borough streets, does
not relieve it from the necessity of securing a certificate of public con-
venience from the Public Service Commission: Relief Electric L. H.
& P. Company's Petition, 63 Pa., Sup. Ct. 1; Jenkins Township v.
Public Service Commission, 65 Pa., Sup. Ct. 122.
77. CITIES.
The act governing cities of the second class confers upon such
cities the exclusive right to supply the city with water, or, "to make
contracts with, and authorize any person, company or association so
to do, and to give such person, company or association the privilege
of furnishing water, as aforesaid, for any length of time, not exceed
ing ten years:" Act of March 7th, 1901, article XIX, section 3,
clause XL, (P. L. 20, 45).
Similarly the act governing cities of the third class confers upon
such cities the exclusive right to supply the city with water, or "to
make contracts with, and authorize any person, company or associa-
tion so to do, and to give such person, company or association the
privilege of furnishing water, as aforesaid, for any length of time,
not exceeding ten years:" Act of May 23rd, 1889, article V, section
3, Clause XLIII, (P. L. 277, 293), now re-enacted in the Act of
June 27th, 1913, (P. L. 568), article V, section 3, clause 43.
The supplying of water by a municipality is not a municipal duty,
and if it assumes the performance of that function it acts under
authority merely as a business corporation and not under municipal
obligation: Kohler v. Reitz, 46 Pa. Super. Ct. 350.
78. BOROUGHS.
"Boroughs may receive bids from incorporated water companies,
authorized to do business within such borough, for the supply of
water for fire protection and for other municipal purposes, and may
contract therefor with such company." Section 21, article XVII,
chapter VI, Act of May 14, 1915, (P. L. 312).
63
"Boroughs, may provide, a supply of water for the use of the pub-
lic within such borough, by erecting and operating water-works, by
purchasing and operating water-works, by entering into contract
with persons or corporations authorized to supply water within the
limits of such boroughs, or partly by the erection or purchase and
operation of water-works and partly by entering into a contract."
Section 1, article XVII, chapter VI, of the Act of May 14, 1915, (P.
L. 312), as amended by section 16, of the act of July 6, 1917 (P. L.
704).
"No contract for the supply of water hereafter entered into by any
borough with any person or corporation shall, in any wise, abridge
the power of the borough to construct and operate water-works as
provided in section one of this article, but such power shall remain
in force as though such contract had not been made." Section 2,
article XVII, chapter VI, Act of May 14, 1915, (P. L. 312).
79. TOWNSHIPS OF FIRST CLASS: FOR FIRE PROTECTION.
In the enumeration of powers conferred upon townships of the
first class is the following:
"To enter into contracts with any person or corporation to supply
water for fire protection for a period not exceeding twenty years. No
such contract shall be exclusive as against the right of any other
water company nor interfere with the right of such township to
erect, maintain and operate its own water works." Act of July 14,
1917, (P. L. 840), chapter VII, article I, section 381, clause 17.
A water company cannot be compelled by a township of the first
class to furnish free fire plugs: Springfield Township v. North
Springfield Water Co. 29 Pa. C. C. 616; 20 Mont. 109.
86. TOWNSHIPS OF SECOND CLASS: FOR FIRE PROTEC-
TION.
In townships of the second class the township supervisors have
power:
"On the petition of the owners of a majority of the lineal feet
frontage along any highway or portion thereof in any village within
the township, to enter into contract with water companies for the
placing of fire-hydrants along said highway, for the protection of
property from fire." Act of July 14, 1917, (P. L. 840), chapter VII,
article II, section 386, clause 3.
81. EFFECT OF CONTRACT TO SUPPLY WATER TO A
MUNICIPALITY.
Cities of the second and third classes are given by the Act of March
7th, 1901, (P. L. 45), and May 23rd, 1889, (P. L. 277), as re-enacted
in the Act of June 27th, 1913, (P. L. 568), respectively, the exclusive
right to supply the inhabitants with water, and this right may be
exercised either by the erection of their own water works, or by con-
tract with a water company. Where, however, such a city exercises
its right by entering into a contract with a water company, it cannot
thereafter exercise that right in a different manner by the erection of
its own works: White v. City of Meadville, 177 Pa. 643.
This same conclusion was also reached with regard to boroughs:
Metzgar v. Borough of Beaver Falls, 178 Pa. 1; Wilson, et al., v.
64
Borough of Rochester, 180 Pa. 509; Nelson v. Warren Borough, 200
l'a. 504; and this is so even when the company failed properly to per-
form its contract: Troy Water Co. v. Troy Borough, 200 Pa. 453.
Nor is the borough allowed to accomplish the same result indirectly
by making a contract with a new water company, whose plant it in-
tends to purchase: Welsh v. Borough of Beaver Falls, 186 Pa. 578.
Neither can a borough, authorized by its charter to own stock and
participate in the management of a water company, by selling its
stock and divesting itself of any of the management of the company,
acquire the right to make a new contract with another water com-
pany: Carlisle Gas & Water Co., et al., v. Carlisle Water Co., et al.,
188 Pa. 51.
To prevent the municipality from erecting its own works, however,
there must have been a contract. The mere grant of a right to use
the streets of a borough is not the making of such a contract: Hast-
ings Water Co. v. Hastings Borough, 216 Pa. 178. The mere supply
of water to the residents of a municipality by a water company, not
having an exclusive franchise, does not prevent such municipality
from building its own works: Center Hall Water Co. v. Center Hall
Borough, 186 Pa. 74. Nor does a charter requirement to furnish the
municipality with free water for fire protection prevent the erection .
by the municipality of its own works: Boyertown Water Co. v.
Boyertown Borough, 200 Pa. 394.
These conclusions represent the law as affecting water companies
operating in boroughs prior to the passage of the Act of May 3rd,
1901 (P. L. 140), section 2 of which provides: "No contract for the
supply of water, entered into by any borough, with any person, per-
sons or corporations, shall in any wise affect or abridge the power of
said borough to construct and operate water works as hereinbefore
provided, but such power shall remain in full force and effect as
though such contract had not been made.”
Contracts entered into with a borough since May 3rd, 1901, can-
not, therefore, deprive the borough of the right at any time to erect
its own works, but where the contract was made prior to that date
the act does not give the borough the right to erect water works:
Potter County Water Co. v. Austin Borough, 206 Pa. 297.
The Act of May 3rd, 1901, (P. L. 140), section 2, was repealed
by the Act of May 14, 1915, (P. L. 312), which re-enacted said section
2 so as to provide "no contract for the supply of water hereafter enter-
ed into by any borough-"
Where, however, a water company lays its pipes in the streets
of a borough without permission of the borough, and without any
contract with the borough at the time, but afterwards agrees to fur-
nish water for fire purposes alone for a term of years, but without
new construction, and without any liability on the part of the com-
pany for failure or neglect to provide supply, and thereafter, the
borough by change of its charter acquires the right, which it did not
theretofore possess, to construct water works of its own, the borough
cannot be enjoined from the construction of such works: Dorrance
v. Bristol, 224 Pa. 464.
With regard to townships of the first class, the Act of July 14,
1917, (P. L. 840), chapter VII, article I, section 381, clause 17,
authorizing the township commissioners of such townships to contract
with water companies for water for fire protection, adds the pro-
65
viso, that "No such contract shall be exclusive as against the right
of any other water company, nor interfere with the right of such
township to erect, maintain, and operate its own water-works."
C. PURCHASE OF WORKS BY MUNICIPALITY.
82. PURCHASE AUTHORIZED AFTER TWENTY YEARS.
* *
"It shall be lawful at any time after twenty years from the in-
troduction of water * * * into any place as aforesaid, for the
town, borough, city or district into which the said company shall
be located, to become the owners of said works, and the property
of said company, by paying therefor the net cost of erecting and
naintaining the same, with interest thereon at the rate of ten per
centum per annum, deducting from said interest all dividends there-
tofore declared:" Act April 29th, 1874, section 34, clause 7.
See sections 84 and 85.
Section 34, clause 7, of the Act of April 29, 1874, (P. L. 73), is
not repealed by the Act of May 31, 1907, (P. L. 355).
The act of 1874 provides a compulsory method of acquiring ad-
versely the property of a water company. The act of 1907 simply
provides a method of ascertaining the price to be paid in cases where
the parties reach an agreement of sale and purchase.
Article 3 of the Act of July 26, 1913, (P. L. 1374), does not apply
to proceedings begun before the first day of January, 1914: Reynolds-
ville v. Water Co. 247 Pa. 26.
The right to purchase the property of a water company at the
expiration of twenty years carries with it no right of interference
by a municipality in the management of the company: Monessen
Boro. v. Water Co. 243 Pa. 53.
The proper method for compelling a water company to furnish a
municipality with information as to net cost and interest of works
under this section is by mandamus and not by bill in equity: Wil-
liamsport v. Water and Gas Co. 232 Pa. 232.
Proceedings to compel a water company to sell its plant to a
borough should be by mandamus and not by bill in equity: New
Cumberland v. Water Co. 232 Pa. 525.
Where a municipality desires to purchase the property of a water
company the latter is not obliged to furnish a statement of the net
cost of maintenance and construction of its plant, but may be com-
pelled by mandamus to permit an investigation of its books and
plant for the purpose of ascertaining such cost.
Under the Act of July 26, 1913, (P. L. 1374), the approval of the
Public Service Commission is necessary before a municipality can
acquire the property of a public service company: New Brighton
Boro. v. Water Co. 247 Pa. 232.
83. PUBLIC SERVICE COMPANY MUST APPROVE.
"Upon like approval of the (Public Service) Commission first had
and obtained, as aforesaid, and upon compliance with existing laws,
and not otherwise, it shall be lawful"—
"(d). For any municipal corporation to acquire, construct, or be-
gin to operate, any plant, equipment or other facilities for the render-
LO
5
66
ing or furnishing to the public of any service of the kind or character
already being rendered or furnished by any public service company
within the municipality.
Provided, however, That nothing herein contained shall interfere
with or affect the right or power of a municipal corporation to con-
tinue the operation of its municipal plant, or to extend the same,
within the territory of such municipal corporation, or any part
thereof, which is not then being supplied by a public service com-
pany rendering or furnishing service of a like kind or character:"
Article III, section 3, Act of July 26, 1913, (P. L. 1374).
A city of the third class cannot, without the approval of the Pub-
lic Service Commission, extend its water system to recently an-
nexed territory, in which a water company has been furnishing water
to the public prior to the annexation and contiues such service: The
Heights Water Co. v. City of Lebanon, 28 D. R. 118.
Where a contract between a water company and a borough, pro-
vides that at the expiration of ten years the borough shall have the
right to purchase the water works at a price that shall be mutually
agreed upon between the parties, the public service commission has
no jurisdiction over the proposed acquisition until the borough has
signified its intention to purchase: Huntingdon Boro. v. Huntingdon
Water Supply Co. 258 Pa. 309.
See section 82.
84. IN CITIES OF THE THIRD CLASS.
* *
"The councils of any city of the third class are hereby authorized
and empowered to purchase, for such price as may be agreed upon
by the councils of a city and a majority of the stockholders of the
company, all the real, personal and mixed estate of any water
company or companies in such city, or adjacent thereto,
and thereupon the said city shall possess and exercise all the rights,
power, privileges and franchises by law belonging or pertaining to
such company or companies:" Act May 23rd, 1889, article XII,
section 1, (P. L. 308).
This act would appear to repeal the provisions of clause 7 of sec-
tion 34 of the act of 1874, in so far as companies formed subsequently
to May 23rd, 1889, to supply water in a city of the third class are
concerned: White v. City of Meadville, 177 Pa. 643, 654.
85. PURCHASE OF PLANTS OF COMPANIES HAVING EX-
CLUSIVE FRANCHISES.
A. CITIES.
"The several cities and boroughs of this Commonwealth, desirous
of owning and operating the water works, plants, or system for the
supply of water to any such municipality and the inhabitants thereof,
which water works, plants, or system is now, or may hereafter be,
owner by a private corporation, firm or individual, may petition the
court of common pleas of the proper county, setting forth that the
said municipality is desirous of owning said water plant or system,
owned by such corporation, firm or individual, and that it will be
necessary, in order to make payments therefor, to issue bonds, se-
cured by such plant or system of water works, and that therefore a
value should be placed upon such water works, plant, or system, in-
67
cluding all property, real or personal, used in connection therewith
and reasonably necessary for its purposes:" Act of May 31, 1907,
section 1, (P. L. 355). Repealed so far as relates to boroughs by Act
of May 14, 1915, (P. L. 312). See (b) in this section.
The petition need not aver the financial ability of the city
without incurring an indebtedness exceeding the limit set by the
constitution, article IX, section 8. Fleetwood Water, Co. v. Fleet-
wood Borough, 19 D. R. 418.
The act of 1907 simply provides a method of ascertaining the price
to be paid in cases where the parties reach an agreement of sale and
purchase. Reynoldsville v. Water Co. 247 Pa. 26.
So far as it affects water companies not appearing to have ex-
clusive privileges, the act is not in conflict with the constitution of
Pennsylvania or of the United States: Fleetwood Water Co. v.
Borough, 1 Berks 69; s. c. 19 D. R. 418.
Where a water company is incorporated under the Act of April
29, 1874, (P. L. 73), which provides a method of determining the
price at which municipalities can take over the properties of water
companies, it cannot be deprived of its contract rights thereunder
by subsequent legislation, and the Act of May 31, 1907, (P. L. 355),
is not applicable as to such companies, as it would be contrary to
the constitutional provision prohibiting the relation of a contract.
Manheim Boro. v. Manheim Water Co. 229 Pa. 177.
Where a borough institutes proceedings under the Act of May 31,
1907, (P. L. 355), to acquire the plant of a water company, and the
latter files a disclaimer consenting that the borough may install a
plant with like force and effect as if the proceeding had been prose-
cuted to completion, the water company cannot thereafter maintain
a bill in equity to prevent the construction of the borough water
works. Clear Springs Water Co. v. Catasauqua Borough, 231 Pa.
290, affirming 3 Lehigh 319.
"The said court shall thereupon appoint three disinterested civil
engineers as appraisers, to value and appraise such plant or system
and the property used in connection therewith, and reasonably neces
sary for its purposes, who shall file their report in the office of the
prothonotary of the proper court within three months after their
appointment, unless such time be extended by the court:" Act
May 31, 1907, section 2, (P. L. 355).
Where a water company files a paper disclaiming exclusive priv-
ileges and stating that it will not sell its plant to the borough, the
court will not appoint appraisers: Catasauqua Borough's Petition,
3 Lehigh 48.
In such case if the borough proceeds to install a plant, and issue
bonds therefor, the company cannot enjoin it, even though the course
of dealings between the company and the borough might have pre-
cluded the borough from erecting its own plant if the disclaimer had
not been made. Water Co. v. Catasauqua, 3 Lehigh 319.
"The appraisers so appointed shall have full access to the books
and records of the private corporation, firm, or individual owning
said water works or system, to inform themselves as to the income
and value thereof. They shall have power to administer oaths, and
are hereby authorized to hear and consider the testimony of witnesses
and other legal proofs. Their report shall be final, if not appealed
from within ten days after notice of the filing thereof shall have been
68
served on the mayor or burgess of the city or borough, and upon the
corporation, firm, or individual owning the water works. Within
said ten days either party may appeal from such appraisement, al-
leging an under or over valuation of the property thereby, and pray-
ing for a hearing before the court; and the said court shall thereupon,
upon application of either party, fix a time when said appeal may
be heard, of which time at least ten days' notice shall be given to the
parties; upon such hearing the court shall have power, after hearing.
legal proofs and arguments, to increase or lower such appraisement,
or otherwise, and modify the same as the facts may warrant, sub-
ject, however, to the right of appeal by either party to the proper
appellate court, as in other cases in equity:" Act May 31, 1907,
section 3, (P. L. 355).
"After such value is finally determined, the municipality is author-
ized to buy said water plant at the valuation so fixed and determined;
and the said corporation, firm, or individual, owning same, shall,
within ten days' notice of such determination, and a request by the
municipality so to do, file in said court a paper indicating its con-
sent and election to sell and convey its plant, system, and property
so appraised, to the municipality, at the valuation fixed as afore-
said: and, in default whereof, such corporation, firm, or individual
shall cease to have any exclusive privilege of supplying said munici-
pality, or the citizens thereof, with water, and said municipality may
install or cause to be installed such plant or system as the authori-
ties may deem necessary and expedient for the accommodation of
the public:" Act May 31, 1907, section 4, (P. L. 355).
It may be that the provision of the act of 1907 taking away the
exclusive privileges of water companies which by charter or contract
have such, upon their refusal to sell to the municipality at the de-
termined value, runs counter to article I, section 10, of the federal
constitution as involving an impairment of the obligation of con-
tracts. But this provision cannot affect the validity of the statute
so far as it may relate to companies not having exclusive privileges:
Fleetwood Water Co. v. Fleetwood Borough, 19 D. R. 418.
"Should there be at the time of the passage of this act, a contract
or agreement, in writing, existing between any corporation, firm, or
individual owning the water plant or system, and a municipality then
being supplied with water by such corporation, firm, or individual,
establishing or adjusting or fixing the manner in which such water
plant or system may be appraised, purchased, or acquired, then, and
in that case, appraisers shall be selected, and the appraisement made
in accordance with the terms of such contract, and to the respective
parties to such contract shall, in lieu of the preceding provisions of
this act, carry out the terms of said contract in arriving at the value
of said water-plant or system." Section 7, Act of May 31, 1907, (P.
L. 355).
B.
BOROUGHS.
"Whenever any person, firm, or any corporation, shall own any
water-works or system, and a borough is desirous of owning and
operating such water-works or system, such borough may present
its petition to the court of common pleas of the county, setting
forth that the borough is desirous of owning such water-works or
69
system, and that it will be necessary to issue bonds to be secured
by such water-works or system, and that a value should be place
upon such water-works or system, including all property, real and
personal, used in connection therewith." Section 7 of article XVII,
chapter VI, of the Act of May 14, 1915, (P. L. 312), as amended by
section 17 of the Act of July 6, 1917, (P. L. 704).
See (a) in this section.
The fact that the water company owns property outside of the
borough is not material, if the borough chooses to purchase the prop-
erty located in the borough: Greensburg Boro. v. Westmoreland
Water Co. 240 Pa. 481.
"The court shall thereupon appoint three civil engineers as ap-
praisers, to value and appraise such water-works or system, and the
property used in connection therewith, and the contracts or agree-
ments with municipalities or townships, who shall file their report
in the court within three months after their appointment, unless such
time be extended by the court:" Section 8 of article XVII, chapter
VI, of the Act of May 14, 1915, (P. L. 312).
"The appraisers shall have access to the books and records of the
person, firm, or corporation owning such water-works or system, to
inform themselves as to the income and value thereof. They shall
have power to administer oaths and are authorized to take the testi-
mony of witnesses. Their report shall be final if not appealed from."
Sectino 9 of article XVII, chapter VI, of the Act of May 14, 1915,
(P. L. 312).
"Within ten days after notice of the filing of any report, either
party may appeal from such appraisement, alleging an undervalua-
tion or overvaluation of the property, and praying for a hearing be-
fore the court. The court shall thereupon fix a time when such ap-
peal may be heard, of which time at least ten days' notice shall be
given to the parties, and upon such hearing the court shall have
power to modify such report, and either party may appeal from
the final confirmation of such report to the Superior or Supreme
Court." Section 10 of article XVII, chapter VI, of the Act of May
14, 1915, (P. L. 312).
"After the value is finally determined, the borough is authorized
to buy such water-works or system at the valuation so fixed; and
the person, firin, or corporation owning the same, shall, within ten
days after notice, filè in court its consent to sell and convey its water-
works or system and property to the borough at the valuation fixed;
and, in default thereof, such person, firm, or corporation shall cease
to have any exclusive privilege of supplying the borough or the citi-
zens thereof with water, and the borough may install such water-
works or system as may be necessary for the accommodation of the
public." Section 11 of article XVII, chapter VI, of the Act of May
14, 1915, (P. L. 312).
"Should there be, at the time of the passage of this act, a contract
or agreement, in writing, existing between any person, firm, or cor-
poration, owning such water-works, or system, and a borough, dated
prior to May thirty-first one thousand nine hundred and seven, es-
tablishing or fixing the manner in which such water-works or sys-
tem may be appraised ad acquired, then the appraisement shall be
made in accordance with the terms of such contract, and the respec-
70
tive parties to such contract shall, in lieu of the provisions of sec-
tions seven, eight, nine, ten, and eleven of this article, carry out the
terms of such contract in arriving at the value of such water-works
or system." Section 16, of article XVII, chapter VI, of the Act of
May 14, 1915, (P. L. 312).
ARTICLE XI.
AMENDMENT OF CHARTER
A. GENERAL AMENDMENTS
86. AMENDMENT AUTHORIZED.
"When any corporation, formed for any of the purposes named in
the second class of section two of the act to which this is a supple-
ment, or embraced in that class by any of its supplements, and which
shall have been or may hereafter be incorporated under the pro-
visions of that act or its supplements, as also any corporation of
the second class which has heretofore or may hereafter accept the
provisions of said act and the several supplements thereto, and the
Constitution of this Commonwealth in the manner provided by law,
shall desire to improve, amend or alter the article and conditions of
the charter or instrument upon which said corporation is formed
and established, it shall and may be lawful for such corporation to
apply to the Governor of this Commonwealth for such improvement,
amendment or alteration in the manner provided by this act:" Act
June 13th, 1883, section 1 (P. L. 122).
87. PUBLIC SERVICE COMMISSION MUST APPROVE.
"Upon like approval of the (public service) commission first had
and obtained, as aforesaid, and upon compliance with existing laws.
and not otherwise, it shall be lawful—
(a) For any public service company to renew its charter, or ob-
tain any additional rights, powers, franchises, or privileges, by any
amendment or supplement to its charter, or otherwise:" Article
III, section 3, Act of July 26, 1913, (P. L. 1374).
SS. NOTICE TO BE PUBLISHED.
"The corporation desiring such improvement, amendment or altera-
tion shall give notice of the intention to apply therefor, in two news-
papers of general circulation, printed in the county wherein the
principal office or place of business of said corporation is located,
once a week for three weeks, setting forth briefly the character and
objects of the desired improvements, amendments or alterations, and
the intention to make application therefor:" Act June 13th, 1883,
section 2, (P. L. 122).
71
As to when publication in German newspapers is required, see
section 8.
As to publication in legal journals, see section 8.
89. PROCEEDINGS TO AMEND.
"The said corporation shall prepare a certificate under its cor-
porate seal, setting forth the character and objects of the proposed im-
provement, amendment or alteration of their charter or the instru-
ment upon which the said corporation is formed or established; also,
that all reports required by the Auditor General of the Common-
wealth have been filed, and all taxes due the Commonwealth of Penn-
sylvania have been paid; acknowledged by the president and secre-
tary of said corporation, and before the recorder of deeds of the
county wherein such corporation has its principal office or place
of business, which certificate, together with proof of publication of
notice, as provided in section two of the supplement to an act of
which this is an amendment, shall then be produced to the Governor
of the Commonwealth, who shall examine the same, and if he find it
to be in proper form, and that such improvements, amendments or
alterations are or will be lawful and beneficial, and not injurious to
the community, and are in accord with the purpose of the charter,
and that all reports required by the Auditor General of the Com-
monwealth have been duly filed, and that all taxes due the Common-
wealth of Pennsylvania have been paid, he shall approve thereof and
endorse his approval thereon, and direct letters patent to issue in
the usual form, reciting the said improvements, amendments or alter-
ations, and the said certificate shall then be recorded in the office
of the Secretary of the Commonwealth, and with all its endorse-
ments shall then be recorded in the office for the recording of deeds
in and for the proper county where the principal office or place of
business of said corporation is located, and from thenceforth the
same shall be deemed and taken to be a part of the charter or in-
strument upon which said corporation was formed or established to
all intents and purposes, as if the same had originally been made a
part thereof:" Act June 13th, 1883, section 3, (P. L. 122), as
amended by Act March 31st, 1905, (P. L 94).
90. LIMITATIONS OF AMENDMENTS.
"Nothing in this act contained shall be construed to repeal or
authorize the repeal of any of the requirements or restrictions of the
said Act of April twenty-ninth, one thousand eight hundred and
seventy-four and its supplements, nor to dispense with any of the pro-
visions of the said act, nor to authorize the right of eminent domain
to be given to any corporation by amendment of its charter, nor to
permit any change in the objects and purposes of such corporation
as shown by its original charter:" Act June 13th, 1883, section
4, (P. L. 123).
91.
EXTENSION OF TERRITORY.
Section 3 of the Act of June 13th, 1883, as amended by the Act
of March 31st, 1905, contains this proviso: "That nothing herein
contained shall authorize the amendment, alteration, improvement
72
or extension of the charter of any
*
water company so as
to interfere with or cover territory previously occupied by any other
*
* * water company:"
The territorial limits of a water company may, however, be ex-
tended under this act if such extension does not interfere or cover
the territory previously occupied by another company: In re Sayre
Water Co., Op. Atty. Gen., 1895-96, p. 398; and if the extension is
not made beyond the limits of a single municipality: In re Monon-
gahela Water Co., 9 Pa. C. C. 57.
92. CHANGE OF NAME.
Prior to the Act of June 13th, 1883, the name of a corporation
was changed by the courts of common pleas. Subsequently to the
passage of that act, however, it was held that the name of a cor-
poration may be changed under the Act of June 13th, 1883, the right
of the courts of common pleas to change the name being taken away
thereby Fort Pitt Building and Loan Assn. v. Model Plan Building
and Loan Assn., 159 Pa. 308; In re Wetheral Steel Casting Co., 5 Pa.
C. C. 337; In re Excelsior Oil Co., 3 Pa. C. C. 184. The method of
changing the name of a corporation is now, however, provided for
by a separate act:
"It shall be lawful for any corporation of this Commonwealth,
heretofore or hereafter created by any general or special law, to
change its corporate title by resolution of its Board of Directors,
adopted by a two-thirds vote thereof, approved at any annual meet-
ing, or special meeting duly called, of the stockholders by a two-
thirds vote thereof. Upon such approval by the stockholders, it
shall be the duty of the President of said corporation to file in the
office of the Secretary of the Commonwealth a certificate, under the
seal of the company, setting forth the resolution adopted by the
Board of Directors and approved by the stockholders, the date of
the adoption of such resolution by the Board of Directors and the
date of its approval by the stockholders, the date of the original in-
corporation of the company, the act of assembly under which the
said corporation was created, the name under which the said cor-
poration was originally incorporated and all subsequent changes
therein, and the name which the corporation desires to adopt. The
Secretary of the Commonwealth shall examine the records in his
office, and, if he finds that the name desired by said corporation does
not conflict with the name of any corporation appearing upon said
records, he shall require the said certificate to be recorded, and shall
issue to the said corporation a certificate, under his hand and the
seal of his office, granting to said corporation the use of said new
corporate title. The Secretary of the Commonwealth shall, upon
the issuing of any such certificate, require the same to be recorded
in a book kept for that purpose, and certify to said change in the
corporate title to the Auditor General of this Commonwealth: Pro-
vided, That any corporation, required to record the original certifi
cate of incorporation in the office for the recording of deeds, shall,-
before being entitled to use the new corporate title, record in the
office for the recording of deeds, where the original certificate of in-
corporation was recorded, the said certificate granted by the Secre-
73
tary of the Commonwealth authorizing the use of the new corporate
title: Provided, also, That this act shall not apply to corporations
not for profit:" Act of April 22nd, 1903, (P. L. 251).
B. SPECIAL AMENDMENTS.
93. EXTENSION OF TERRITORY OF COMPANIES FOR SUP-
PLY OF WATER TO THE PUBLIC.
"Any company heretofore incorporated or hereafter to be incor-
porated for the purpose of supplying water to the public in any
town, borough or city, upon the written request of the owners of a
majority of the lots of land in any tract or district adjacent to such
town, borough or city, have power and authority to exend its plant
or works for the supply of water into such tract or district, with
such rights and subject to such duties within such tract or districts
as may have been conferred and imposed by its charter, within the
town, borough or city therein designated: Provided, That such
written request shall contain a description of such tract or district,
and be recorded in the office of the recorder of deeds in and for the
proper county, and thereupon a certified copy of the record of such
proceedings as appears of record in the office of the recorder of
deeds shall forthwith be transmitted to and filed in the office of the
Secretary of the Commonwealth." Act May 21st, 1901, (P. L.
270).
94. CHANGE OF SOURCE OF SUPPLY.
"That any corporation for the supply of water to the public, or
for the supply, storage and transportation of water and water power
for commercial and manufacturing purposes; or any other water or
water power companies formed or created subsequently to the pas
sage of this act, or subject to its provisions, requiring a new or ad-
ditional source of supply for its water or water power, may make
application therefor by filing in the office of the Secretary of the
Commonwealth a certified copy of a resolution of its stockholders,
under the seal of said corporation-a duplicate of which shall also
be filed in the office of the Water Supply Commission of Pennsyl-
vania—setting forth the necessity for such new or additional source
of supply, and the river, stream or other body of water, and, as near
as may be, the points on said river, stream or other body of water,
between which it is desired to take or use water or water power; and
if the application shall be approved by a majority of the members of
The Water Supply Commission of Pennsylvania, it shall then be pro-
duced to the Governor, for his approval or disapproval; and if he shall
approve the same, the Secretary of the Commonwealth shall issue a
certificate that such new or additional source of supply has been
duly authorized and the said certificate shall then be recorded in the
office of the Secretary of the Commonwealth, and in the office for the
recording of deeds in and for the county in which said river, stream
or other body of water, or the portion thereof so authorized to be
used, is situated, and shall thenceforth be deemed and taken to be
part of the charter or instrument on which said corporation was
formed or created, to all intents or purposes as if the same had
originally been a part thereof: Provided, That the rights or privil-
eges granted under or by the provisions of this act shall in no wise
74
prevent or prejudice the occupation of such source of supply of
water by the State, for the purpose of promoting any system of in-
land navigation: And provided, further, That nothing in this act
shall be construed to relieve any water company from complying
with the requirements of the Act of April twenty-second, one thou-
sand nine hundred and five, entitled 'An act to protect the purity of
the waters of the State, for the protection of the public health:'" Act
June 7th, 1907, section 4, (P. L. 455).
See section 28.
ARTICLE XII.
AMOUNT OF CAPITAL STOCK AND INDEBTEDNESS.
A. CAPITAL STOCK.
95. AMOUNT AUTHORIZED.
"The capital stock of every such corporation that has or requires
capital stock, shall consist of not more than one million dollars, ex-
cept companies incorporated for the purpose of supplying the pub-
lic with water, whose capital stock shall not exceed two million
dollars, and shall be divided into shares of not more than one hun-
dred dollars each; and all subscriptions to the capital stock shall be
paid in such installments and at such time as the directors may re-
quire, and if default be made in any payment the person or persons
in default shall be liable to pay, in addition to the amount so called
for and unpaid, at the rate of one-half of one per centum per month
for the delay of such payment, and the directors may cause suit to
be brought for the recovery of the amount due, together with a pen-
alty of one-half of one per centum per month, as aforesaid, or the
directors may cause the stock to be sold in the manner provided in
clause two of section thirty-nine of this act; and no stockholder
shall be entitled to vote at any election, or at any meeting of the
stockholders, on whose share or shares any installments or arrearages
may have been due and unpaid for the period of thirty days im-
mediately preceding such election or meeting. The shares of the
capital stock of every such company may be transferred on the books
of the company, in person or by attorney, subject to such regulations.
as the by-laws may prescribe; but the provisions of this section shall
not apply to corporations in which by this act different and other
rules and provisions are enacted for their regulation and govern-
ment:" Act April 29th, 1874, section 11, as amended by Act of May
9th, 1889, (P. L. 180).
See sections 97 and 139 for amount of capital stock authorized on
reorganization after sale or merger.
ом
96. CAPITAŁ STOCK WITHOUT NOMINAL OR PAR VALUE.
"Upon the formation or reorganization, under the laws of this
Commonwealth now or hereinafter in force, of any stock corporation,
other than building and loan associations and corporations authorized
75
by law to transact a banking or an insurance business, or upon the
merger or consolidation thereunder of two or more such corporations,
other than as aforesaid, provision may be made for the issuance of
shares of preferred stock of any or all classes, or common stock of
any class, or both preferred and common stock, without any nominal
or par value, by stating in the certificate of incorporation or re-organi-
zation or in the joint agreement of merger or consolidation, in lieu of
the statements now prescribed by law as to the amount of the cor-
poration's capital stock and the number and par value of shares into
which it is divided.
(a) The number of shares with nominal or par value, and the
number of shares without nominal or par value, that may be issued
by the corporation, and the classes, if any, into which such shares are
divided.
(b) The nominal or par value of shares of stock other than shares
which it is stated are to have no nominal or par value.
(c) The amount of capital with which the corporation will be-
gin business:" Section 1, Act of July 12, 1919, (P. L. 914).
"No corporation authorized to issue shares of stock without nomi-
nal or par value in pursuance of the provisions of this act shall be-
gin to carry on business, or shall incur any indebtedness, until the
amount of its capital, stated in pursuance of section one of this act,
shall have been fully paid in cash or in property taken at its actual
value:" Section 2, Act of July 12, 1919, (P L. 914).
"Preferences, rights, limitations, privileges, and restrictions author-
ized by the Constitution and laws of this Commonwealth may be
stated in dollars or cents per share in respect to shares of stock is-
sued in pursuance of the provisions of this act:" Section 4, Act of
July 12, 1919, (P. L. 914).
"Such corporation may issue and may dispose of its authorized
shares having no nominal or par value, from time to time, for such
consideration as may be prescribed in the certificate of incorporation
or reorganization or the joint agreement of merger or consolidation,
or, if not so prescribed, then for such consideration as may be fixed
by the stockholders of such corporation at any annual meeting thereof
or at any special meeting thereof duly called and held for the pur-
pose, or by the board of directors acting under authority of such
stockholders given in like manner:" Section 5, Act of July 12, 1919,
(P. L. 914).
"Except as to any preferences, rights, limitations, privileges, and
restrictions, lawfully granted or imposed with respect to any stock
or class thereof, shares of stock without nominal or par value shall
be deemed to be an aliquot part of the aggregate capital of the cor-
poration issuing the same, and equal to every other share of stock
of the same class:" Section 10, Act of July 12, 1919, (P. L. 914).
"For the purposes of this act, the 'stated capital' of a corporation
issuing shares without nominal or par value shall be the capital
with which the corporation will begin business, as stated in the cer-
tificate of incorporation or reorganization or the joint agreement of
merger or consolidation, plus any net additions thereto, or minus
any net deductions therefrom: Provided, That 'stated capital' shall
not include any net profits or surplus earnings so long and during such
period as the same may be paid out in the form of dividends under
the provisions of section eight of this act: And provided further,
76
That 'stated capital' shall not be larger in amount than the excess, as
shown by the books of the corporation of its assets over and above
its liabilities, other than liabilities on account of shares of stock is-
sued or to be issued by such corporation. In the case of a corpora-
tion having outstanding shares with a nominal or par value, as well
as shares without a nominal or par value, for the purpose of this
act, the portion of 'stated capital' applicable to the shares without
a nominal or par value shall be the excess of 'stated capital' over and .
above the total par value of outstanding shares having a nominal
or par value:" Section 3, Act of July 12, 1919, (P. L. 914).
"For the purpose of any statutory provisions limiting the amount
of capital stock which a corporation may have, or the relation be-
tween indebtedness and capital stock, or prescribing the portion or
amount or par value of stock or capital which must be paid in cash
or otherwise, whether at the time of formation, before commencing
to do business, or from time to time subsequent thereto, the 'stated
capital' of a corporation having shares without nominal or par value
shall be deemed to be its capital stock or the amount thereof. Noth-
ing in this act contained shall be construed as excepting or relieving
a corporation from any requirement of law as to the amount in dol-
lars of paid in capital, in cash or otherwise, which it must have at
any time:" Part of section 11, Act of July 12, 1919, (P. L. 914).
97. CAPITALIZATION LIMITED IN CERTAIN CASES.
"It shall be unlawful for any public service company-
(a) To capitalize its franchises, rights, powers, privileges, or
right to own and operate or enjoy any such franchises, rights, powers,
or privileges, in excess of the amount paid to the Commonwealth or
any political subdivision thereof as the consideration for the grant
thereof; or to capitalize any lease, or contract of sale, or contract
for consolidation or merger of two or more public service companies;
or to issue by way of substitution any capital stock, trust certificates,
bonds, notes, or other evidences of indebtedness or other securities,
for any consolidated or merged company, exceeding the aggregate
values of the properties of the companies so consolidated or merged,
and any additional sum actually paid in, in cash, and any additional
property or labor actually contributed: Provided, That any such
public service company or companies may apply to the commission
to determine such consideration or value, aforesaid." Article III,
section 6, Act of July 26, 1913, (P. L. 1374).
See section 139.
98., PUBLIC SERVICE COMMISSION MUST APPROVE-CER-
TIFICATE OF VALUATION-CERTIFICATE OF NOTIFI-
CATION.
"The commission shall have general administrative power and
authority, as provided in this act, to supervise and regulate all pub-
lic service companies doing business within this Commonwealth.
Said power and authority shall include the power to inquire into
and regulate the * * * * issuing of stocks, trust certificates,
bonds, notes, or other evidences of indetebdness or other securities
by public service companies." Article V, section 1, Act of July 26,
1913, (P. L. 1374).
77
"It shall be lawul for any public service company—
(a) To issue stocks, trust certificates, bonds, notes, or other evi-
dences of indebtedness or other securities, or make any increase in
the issue thereof, in the manner prescribed by law, for and only for
money, labor done, or money or property actually received, in accord-
ance with the requirements of the Constitution and the laws of the
Commonwealth.
All stocks, trust certificates, bonds, notes, or other evidences of in-
debtedness or other securities, issued in violation of this subsection,
and all fictitious increase of stock, trust certificates, bonds, notes,
or other indebtedness or securities, shall be void.
Application as hereinafter provided may be made by such public
service companies to the commission for a certificate of valuation,
to the effect that the provisions of this section have been compiled
with as to any stocks, trust certificates, bonds, notes, or other evidences
of indebtedness or other securities, issued after the passage of this
act; such application shall certify as to the number and amount
thereof to be issued and the purpose of such issue, and shall con-
tain such other facts and detailed information, and be in such form,
as the commission shall determine and prescribe, and shall be signed
and verified by the affidavit of the treasurer, auditor, controller, or
other acting fiscal head of the public service company.
(b) Every public service company shall file with the commission,
on or prior to the date of issuance of any stock, trust certificates,
bonds, notes, or other evidences of indebtedness or other securities,
payable at periods of more than twelve months after the date thereof,
and now or hereafter to be authorized (unless, upon application as
aforesaid, a certificate of valuation shall have been obtained in ac-
cordance with the provisions of this act), a certificate to be known as
a Certificate of Notification, in such form as the commission may,
from time to time, determine and prescribe, which, among other
things that may be required by the comission, shall show-
I. The total amount thereof.
II. The number and amount thereof outstanding prior to the date
of such certificate, the amount thereof theretofore retired, the amount
thereof theretofore undisposed of, and whether such amount is held
in the treasury of the public service company as a free asset or pledge,
and, if pledged, the terms and conditions of such pledge.
III. The number and amount thereof to be issued and the pur-
pose of such issue, and whether to be sold, pledged, or held in the
treasury of the public service company as a free asset; if such securi-
ties are to be sold, the terms of sale if a contract for such sale has
been made, and, if any part of the consideration to be received there-
for is other than money, an accurate and detailed description thereof;
if such securities are to be pledged, the terms and conditions of such
pledge.
IV. The number and amount thereof remaining unissued.
V. If the issue is of shares of stock, the certificate shall also
show the par value thereof, and the number of then outstanding
shares previously issued.
VI. The preference or privilege granted to the holders of any such
shares of stock, the dates of maturity, rates of interest of any such
bonds, notes or other evidences of indebtedness or other securities,
78
and any conversion rights granted to the holders thereof, and the
price, if any, at which such shares or such securities may be re-
deemed.
(c) Whenever any securities, set forth and described in any Cer-
tificate of Notification as pledged or held as a free asset in the
treasury of the public service company, shall, subsequent to the filing
of such certificate, be sold or repledged or otherwise disposed of by
the public service company, such company shall file a further Certifi-
cate of Notification to that effect, setting forth therein all such facts
as are required by subdivision III, subsection (b), of section four.
(d) All Certificates of Notification furnished to the commission
shall be signed and verified by the affidavit of the treasurer, auditor,
controller, or other acting fiscal head of the public service company.
Such Certificates of Notification shall at all times be deemed to be
public records, and open to inspection, and may be given such further
publicity as the commission may deem to be for the public interest
or welfare.
The provisions of this act contained in regard to Certificates of
Valuation, and, unless so required by the commission in regard to
Certificates of Notification, shall not apply to the issuance of bonds,
notes, or other evidences of indebtedness payable at periods of
twelve months or less, nor to the pledging or repledging of stocks,
trust certificates, bonds, or other evidences of indebtedness to secure
such bonds, notes, or evidences of indebtedness, payable at periods
of twelve months or less; but if such bonds, notes or other evidences
of indebtedness, shall, in whole or in part, directly or indirectly, be
refunded by any issue of bonds, notes, or other evidences of indebted-
ness running for more than twelve months, then the said mentioned
provisions with regard to Certificates of Notification and Valuation
shall apply.
Neither the filing with the commission of any Certificate of Noti-
fication, nor the issuing by the commission of any Certificate of Pub-
lic Convenience or Certificate of Valuation, and nothing therein or in
this act contained, nor any hearing had, nor finding nor order nor
decree made by the commission, nor any act or thing done by any
public service company in pursuance thereof, nor any act or thing
done by the commission under the provisions of this act, shall in
anywise affect the invalidity, if any, of any stocks, trust certificates,
bonds, notes, or other evidences of indebtedness or other securities,
issued or assumed or guaranteed, prior to the date when this act
shall become effective, by any public service company." Article III,
section 4, Act of July 26, 1913, (P. L. 1374).
99.
CAPITAL STOCK MAY BE INCREASED TO ANY AMOUNT.
"The capital stock or indebtedness, or both, of any corporation
created by general or special law may, with the consent of the per-
sons or bodies corporate holding the larger amount in value of its
stock, be increased to such an amount in the aggregate of each, with-
out regard to the amount of the other, and regardless of any limita-
tion upon the amount of either, prescribed in any general or special
law regulating any such corporation, as it shall deem necessary to
accomplish and carry on and enlarge the business, and purposes of
79
such corporation Such increase of either may be made at once or
from time to time, as the majority in interest of the stockholders shall
determine, as aforesaid; and upon the authorizing of any such in-
crease of indebtedness by the stockholders of such corporation, in
the manner hereinafter provided, it shall be lawful for such cor-
poration to secure the payment of the principal or interest, or both,
of all or any part of such indebtedness, by mortgage, deed of trust,
or other pledge or conveyance, by way of security, of all or any part
of its real and personal property, rights, privileges, and franchises,
and in such manner and upon such terms as its board of directors
may determine:" Act February 9th, 1901, (P. L. 3), section 1, as
amended by Act April 22nd, 1905, (P. L. 280).
See section 115 for increase of capital stock on merger by agree-
ment.
*
"Any corporation having shares without any nominal or par value,
in pursuance of this act, may increase *
* the number of
shares which it may issue, in the manner and subject to the terms and
conditions now provided by law for the increase *
* of the
capital stock of a similar corporation having shares with a par value."
Section 9, Act of July 12, 1919, (P. L. 914).
See section 96.
"That corporations, created under and by virtue of the said act,
for the purpose of supplying water to the public in cities of the first
and second class, shall have the right to increase the amount of their
capital, from time to time, to such amount as shall be found requisite
and eligible for purposes thereof: Provided, That the amount of
capital stock, so authorized, shall not exceed twenty millions of dol-
lars." Section 1, Act of May 25, 1887, (P. L. 269).
It would seem that this act is in effect repealed by the Act of
February 9th, 1901, (P. L. 3).
100. PUBLIC SERVICE COMMISSION MUST APPROVE-CER-
TIFICATE OF VALUATION-CERTIFICATE OF NOTIFI-
CATION.
See section 98.
101. PROCEEDINGS TO INCREASE CAPITAL STOCK.
"Any corporation desirous of increasing its capital stock or in-
debtedness, or both, as authorized by this act, shall by resolution of
its board of directors, adopted by a majority of the entire number
thereof, declare such purpose, and thereupon by resolution, similarly
adopted, direct that the question of such proposed increase shall be
submitted to the stockholders of such corporation for their consent;
either
"(A) At any prescribed regular annual meeting or adjournment
thereof, the notice whereof, stating inter alia that such subject would
be considered thereat, shall have been published once a week for
sixty days prior to such meeting in at least one newspaper published
in the county, city or borough wherein the chief office or place of
business of the corporation is situate. At said meeting the question
shall be submitted to the stockholders, and it shall be the duty of the
president and secretary of said meeting, by such agencies or methods.
as to them may seem meet, to ascertain whether the persons and
SO
bodies corporate holding the larger amount in value of the stock of
said corporation shall have consented to such increase and upon being
so satisfied to certify in duplicate the fact, under oath duly admin-
istered: Provided, That should a stock vote be duly demanded at
said meeting, it shall be the duty of the president and secretary, in
ascertainment of the fact of the consent, to cause such vote to be taken
at the same time and place, by the same persons and in the same
manner, as the vote for directors or managers of such corporation
shall be taken, or,
"(B) At a special meeting of the stockholders, notice of the time,
place and object of which shall have been published once a week for
sixty days prior to said meeting in at least one newspaper published
in the county, city or borough wherein such office or place of busi-
ness is situated. At such meeting thus called, or any adjournment
thereof, an election of the stockholders shall be taken for or against
such increase which shall be conducted by three judges, stockholders
of such corporation, appointed by the board of directors to hold said
election, and if one or more of said judges be absent the judge or
judges present shall appoint a judge or judges who shall act in the
place of the judge or judges absent; and said judges shall respectively
take and subscribe an oath or affirmation before an officer authorized
by law to administer the same, well and truly and according to law
to conduct such election to the best of their ability; and the said
judges shall decide upon the qualifications of voters, and when the
election is closed count the number of shares voted for and against
such increase, and declare whether the persons and bodies corporate
holding the larger amount of the stock of such corporation have con-
sented to such an increase or refused to consent thereto, and shall
make out duplicate returns of said election, stating the number of
shares of stock that voted for such increase and the number that
voted against such increase, and subscribe and deliver the same to
one of the chief officers of said company. Each ballot shall have en-
dorsed thereon the number of shares thereby represented but no
share or shares transferred within sixty days shall entitle the holder
or holders thereof to vote at such election or meeting; nor shall any
proxy be received, or entitle the holder to vote, unless the same shall
bear date and have been executed within four months (two months,
Act March 5th, 1903, P. L. 14), next preceding such election or
meeting; and it shall be the duty of such corporation to furnish the
judges, at said meeting, with a statement of the amount of its capital
stock, with the names of persons or bodies corporate holding the
same, and number of shares by each respectively held, which state-
ment shall be signed by one of the chief officers of such corporation,
with an affidavit thereto annexed that the same is true and correct
to the best of his knowledge and belief:" Act February 9th, 1901,
section 2, (P. L. 3).
As to when publication of notice in German newspapers is required,
see section 8.
As to publication in legal journals, see section 8.
"It shall be the duty of such corporation, if consent is given to
such increase, to file in the office of the Secretary of the Common-
wealth, within thirty days after such election, one of the copies of the
certificates of the president and secretary of the annual meeting, or
81
one of the copies of the return of such election at the special meeting
hereinbefore provided for, with a copy of the resolution and notice
calling the same thereto annexed; and thereafter the increase may be
made at such time or times as shall be determined by the directors.
Upon the actual increase of the capital stock or indebtedness of such
corporation, made pursuant thereto, it shall be the duty of the presi-
dent or treasurer of such corporation, within thirty days thereafter,
to make a return to the Secretary of the Commonwealth, under oath,
of the amount of such increase actually made, and concurrently
therewith such corporation shall pay to the State Treasurer, for the
use of the Commonwealth, such bonus on the actual increase shown
by said return as shall then be prescribed by law. In case of neglect
or omission to make said return, such corporation shall be subject to
a penalty of five thousand dollars, in addition to the bonus, which
penalty shall be collected on an account settled by the Auditor Gen-
eral and State Treasurer as accounts for taxes due the Common-
wealth are settled and collected; and the Secretary of the Common-
wealth shall cause said return to be recorded in a book for that
purpose and furnish a copy of the same to the Auditor General:"
Act February 9th, 1901, section 3, (P. L. 5).
102. WAIVER OF NOTICE OF ELECTION TO INCREASE
CAPITAL STOCK.
The constitutional provision that sixty days' notice of a meeting
for the election upon a proposed increase of capital stock shall be
given, may be waived: In re Bellefonte & Buffalo Run Railroad Co.,
2 Chest. Co. 128; Op. Atty. Gen., 1895-96, 387; but the holding of the
meeting itself cannot be waived: In re Tally-on-Top Salesbook Co.,
17 Pa. C. C. 199.
103. CAPITAL STOCK MAY BE DECREASED.
"The capital stock of any corporation created by general or special
law may be reduced from time to time by the consent of the persons
or bodies corporate holding the larger amount in value of the stock
of such corporation, provided that such reductions shall not be be-
low the minimum amount of capital stock required by law for the
formation of corporations formed for similar purposes:" Act
June 8th, 1893, section 1, (P. L. 351), as amended by Act April
22nd, 1905, (P. L. 264).
"Any corporation created under the provisions of this act, and any
corporation of the classes named in the second section hereof, that is
now in existence by virtue of any law of this Commonwealth, may
reduce its capital stock or alter and change the par value of the
shares thereof, by a vote of the stockholders taken in the manner and
under the regulations prescribed in the eighteenth, nineteenth, twen-
tieth, twenty-first and twenty-second sections of this act:
Section 23, act of April 29, 1874, (P. L. 73), as amended by section 1,
act of June 2, 1915, (P. L. 724).
* *
"Any corporation having shares without any nominal or par value,
in pursuance of this act, may
* reduce the number of shares
which it may issue, in the manner and subject to the terms and con-
6
82
Sec-
ditions now provided by law for the * * * * * reduction of the capital
stock of a similar corporation having shares with a par value:"
tion 9, act of July 12, 1919, (P. L. 914).
See section 96.
104. PROCEEDINGS TO DECREASE CAPITAL STOCK.
"Any corporation desirous of reducing its capital stock as pro-
vided by this act shall, by a resolution of its board of directors, call
a meeting of its stockholders therefor, which meeting shall be held
in its chief office or place of business in this Commonwealth, and
notice of the time, place and object of said meeting shall be published
once a week for sixty days prior to such meeting in at least one news-
paper published in the county, city or borough wherein such office or
place of business is situate:" Act June 8th, 1893, section 2, (P. L.
352).
As to when publication of notice in German newspapers is required,
see section 8.
As to publication of notice in legal journals, see section 8.
"At the meeting called pursuant to the second section of this act,
an election of the stockholders of such corporation, shall be taken
for or against such reduction, which shall be conducted by three
judges, stockholders of said corporation, appointed by the board of
directors to hold said election, and if one or more of said judges be
absent, the judge or judges present shall appoint a judge or judges
who shall act in the place of the judge or judges absent, and who
shall respectively take and subscribe an oath or affirmation before
an officer authorized by law to administer the same well and truly
and according to law, to conduct such elections to the best of their
ability, and the said judges shall decide upon the qualification of
voters, and when the election is closed count the number of shares
voted for and against such reduction, and declare whether the per-
sons or bodies corporate holding the larger amount of the stock of
such corporation have consented to such reduction or refused to
consent thereto, and shall make out duplicate returns of said elec-
tion, stating the number of shares of stock that voted for such re-
duction and the number that voted against such reduction, and sub-
scribe and deliver the same to one of the chief officers of said com-
pany:" Act June 8th, 1893, section 3, (P. L. 352).
"Each ballot shall have endorsed thereon the number of shares
thereby represented, but no share or shares transferred within sixty
days shall entitle the holder or holders thereof to vote at such elec-
tion or meeting, nor shall any proxy be receive or entitle the holder
to vote unless the same shall bear date and have been executed within
three months" (two months, Act March 5th, 1903, P. L. 14), "next pre-
ceding such election or meeting, and it shall be the duty of such
corporation to furnish the judges at said meeting with a statement of
the amount of its capital stock with the names of persons or bodies
corporate holding the same, and number of shares by each respectively
held, which statement shall be signed by one of the chief officers of
such corporation with an affidavit thereto annexed that the same is
true and correct to the best of his knowledge and belief:" Act June
8th, 1893, section 4, (P. L. 352).
"It shall be the duty of such corporation, if consent is given to
such reduction, to file in the office of the Secretary of the Common-
83
wealth, within thirty days after such election or meeting, one of the
copies of the return of such election provided for by the third section
of this act, with a copy of the resolution and notice calling the same
thereto annexed, and upon the reduction of the capital stock of such
corporation made pursuant thereto, it shall be the duty of the pre-
sident or treasurer of such corporation, within thirty days there-
after, to make a return to the Secretary of the Commonwealth, under
oath, of the amount of such reduction, and in case of neglect or omis-
sion so to do, such corporation shall be subject to a penalty of five
thousand dollars, which penalty shall be collected on an account
settled by the Auditor General and State Treasurer as accounts for
taxes due the Commonwealth are settled and collected, and the
Secretary of the Commonwealth shall cause said return to be re-
corded in a book kept for that purpose and furnish a certified copy
of the same to the Auditor General:" Act June 8th, 1893, section
5, (P. L. 352).
B. INDEBTEDNESS.
105. NO IMPLIED POWER TO CREATE AN INDEBTEDNESS
SECURED BY MORTGAGE EXISTS.
Companies exercising public franchises, including water companies
have no implied power to mortgage their franchises, nor the prop-
erty essential to the exercise thereof, and they can consequently not
do so without express statutory authority: Steiner's Appeal, 27 Pa.
313; Wood v. Bedford & Bridgeport Railroad Co., 8 Phila. 94. They
nay, however, mortgage such property as is not essential to the en-
joyment of their public franchises: Plymouth Railroad Co. v. Col-
well, 39 Pa. 337.
106.
AUTHORITY TO MORTGAGE.
"It shall be lawful for all corporations to borrow money or to
secure any indebtedness created by them, by issuing bonds, with or
without coupon attached thereto, and to secure the same by a mort-
gage or mortgages to be given and executed to a trustee or trustees,
for the use of the bondholders, upon their real estate and machinery,
or on their real estate alone, to an amount not exceeding one-half of
the capital stock of the corporation paid in, and at a rate of interest
not exceeding six per centum: Provided, That it shall be lawful for
such corporations as belong to the classes named in clauses four,
five, six, seven, nine and eleven of corporations for profit, of the
second class, as set forth in section two of the act of which this is a
supplement, and also for such corporations as belong to the class
named in clause twenty-four, section two, of the act of assembly ap-
proved April seventeenth, one thousand eight hundred and seventy-
six, so to borrow money and so to secure the payment of the same, by
a mortgage or mortgages on its property and franchises, to the
amount not exceeding double the amount of the capital stock of the
corporation actually paid in, and at a rate of interest not exceeding
six per centum, and this section shall not be construed to prevent
mortgages for a greater amount and at a higher rate of interest,
where the power to make the same is expressly given by the terms
of this statute to certain classes of corporations, or is contained in
84
the character of any private corporations accepting this act, or in the
statutes under which certain other classes thereof are by the pro-
visions of this statute to be controlled, governed and managed:"
Act April 29th, 1874, section 13, as amended by Act May 21st, 1889,
(P. L. 257).
“It shall be lawful for any gas company or water company, incor-
porated under the provisions of the act of the general assembly of
this commonwealth, entitled 'An act to provide for the incorporation
and regulation of certain corporations,' approved the twenty-ninth
day of April, Anno Domini one thousand eight hundred and seventy-
four, to borrow any sums of money not exceeding in the aggregate
one-half of the capital stock of such company paid in, at a rate of
interest not exceeding amounts now allowed by law, and issue bonds
therefor with coupons or interest warrants attached, and secure the
payment of such bonds and interest warrants by a mortgage to a
trustee or trustees of all its real and personal property, rights, pri-
vileges and franchises." Section 1, act of March 24, 1877, (P. L.
39, No. 35).
107. ADDITIONAL AUTHORITY ΤΟ MORTGAGE
WATER POWER COMPANIES.
GIVEN
The act of July 2nd, 1895, (P. L. 432), provides that corporations
for the supply, storage or transportation of water and water power
for commercial and manufacturing purposes be and they are author-
ized and empowered "to mortgage their said property, real, personal
and mixed and franchises to any person or corporation of this state
or elsewhere, either directly or as trustee, to secure the payment of
such indebtedness as may be incurred or created for the purpose of
constructing and erecting the said works, or as a guaranty for the
faithful performance of contracts and covenants on the part of said
water and water power company to be performed, including the
guaranty of the payment of the bonds and interest thereon of any
other corporation party to such contract.”
108. INDEBTEDNESS MAY BE INCREASED TO ANY AMOUNT.
"The capital stock or indebtedness, or both, of any corporation
created by general or special law may, with the consent of the per-
sons or bodies corporate holding the larger amount in value of its
stock, be increased to such an amount in the aggregate of each, with-
out regard to the amount of the other, and regardless of any limi-
tation upon the amount of either, prescribed in any general or special
law regulating any such corporation, as it shall deem necessary to
accomplish and carry on and enlarge the business and purposes of
such corporation. Such increase of either may be made at once or
from time to time, as the majority in interest of the stockholders
shall determine, as aforesaid; and upon the authorizing of any such
increase of indebtedness by the stockholders of such corporation, in
the manner hereinafter provided, it shall be lawful for such cor-
poration to secure the payment of the principal or interest, or both,
of all or any part of such indebtedness, by mortgage, deed of trust,
or either pledge or conveyance, by way of security, of all or any
part of its real and personal property, rights, privileges, and fran-
$5
chises, and in such manner and upon such terms as its board of direc-
tors may determine:" Act February 9th, 1901, (P. L. 3), section 1,
as amended by Act April 22nd, 1905, (P. L. 280).
109.
PUBLIC SERVICE COMMISSION MUST APPROVE CER-
TIFICATE OF VALUATION-CERTIFICATE OF NOTI-
TIFICATION.
See section 98.
110.
PROCEEDINGS TO INCREASE INDEBTEDNESS.
The proceedings to increase indebtedness are identical with the
proceedings to increase capital stock, as outlined in sections 2 and 3
of the act of February 9th, 1901, (P. L. 3). (See section 101).
111.
WAIVER OF NOTICE OF ELECTION TO INCREASE IN-
DEBTEDNESS.
While it has been held that the sixty days' notice of a meeting for
the election to increase capital stock may be waived, it has been held
that the notice of the meeting for an election to increase indebtedness
may not be so waived: Mass. v. Poughkeepsie & N. E. R. R. Co., 1
Mona. 497.
ARTICLE XIII.
MERGER AND CONSOLIDATION, SALE, LEASE AND OWNER-
SHIP OF STOCK.
112.
A. MERGER AND CONSOLIDATION.
(1)
MERGER AND CONSOLIDATION UNDER ACT OF 1901.
"It shall be lawful for any corporation now or hereafter organized
under, or accepting the provisions of, the act, entitled, 'An act to
provide for the incorporation and regulation of certain corporations,'
approved April twenty-ninth, one thousand eight hundred and seventy-
four, or of the supplements thereto, or of any other Act of Assembly
authorizing the formation of corporations, to buy and own the capital
stock of, and to merge its corporate rights, powers and privileges
with and into those of, any other corporation, so that by virtue of
the act such corporations may consolidate, and so that all the prop-
erty, rights, franchises and privileges then by law vested in either of
such corporations, so merged, shall be transferred to and vested in
the corporation with which such merger shall be made:" Act May
29th, 1901, section 1, (P. L. 349).
See sections 124 to 131.
*
86
113. MERGER AND CONSOLIDATION UNDER ACT OF 1874.
"Any corporation or corporations for any of the purposes named
and covered by the provisions of this act, heretofore created by any
special act or acts, or in existence under the provisions of any general
law of this commonwealth, shall be entitled to all the privileges, im-
munities, franchises and powers conferred by this act upon corpora-
tions to be created under the same, upon filing in the office of the
secretary of the commonwealth a certificate of a single corporation,
or a joint certificate if two or more corporations incorporated for
and doing the same kind of business, under the seal or seals of said
corporation or corporations, accepting the provisions of the con-
stitution and of this act, duly authorized by a meeting of stockholders
called for that purpose; and upon such acceptance and approval by
the Governor, he shall issue letters patent to said corporations, or if
two or more corporations, to said corporations as one corporation,
under such name as shall be designated by said corporation or cor-
porations in said single or joint certificate, together with the amount
and capital, number of shares and par value thereof, as shall be
designated by said corporation or corporations in said certificate:
Provided, That where two or more corporations shall make a joint
certificate as aforesaid, and letters patent shall be issued to said
new corporation, said corporations shall thenceforth be deemed, held
and taken to be merged and consolidated, and be subject to all the
limitations and liabilities of this act:" Part of section 26, act of
April 29, 1874, (P. L. 73), as amended by section 6, act of April 17,
1876, (P. L. 30).
114. AGREEMENT CANNOT EXTEND TERRITORIAL LIMITS
OF EXCLUSIVE FRANCHISE.
The act of May 29th, 1901, (P. L. 349), section 1, authorizing the
merger and consolidation, further provided that "nothing in this act
contained shall extend or enlarge beyond its former territorial limits
the exclusive franchise of any
water company."
*
115. CAPITALIZATION OF MERGED COMPANIES LIMITED.
"It shall be unlawful for any public service company—
To capitalize its franchises, rights, powers, privileges or right
to own and operate or enjoy any such franchises, rights, powers, or
privileges, in excess if the amount paid to the Commonwealth or any
political subdivision thereof as the consideration for the grant
thereof; or to capitalize any lease, or contract of sale, or contract for
consolidation or merger of two or more public service companies;
or to issue by way of substitution any capital stock, trust certificates,
bonds, notes, or other evidences of indebtedness or other securities,
for any consolidated or merged company, exceeding the aggregate
values of the properties of the companies so consolidated or merged,
and any additional sum actually paid in, in cash, and any additional
property or labor actually contributed: Provided, That any such
public service company or companies may apply to the commission
to determine such consideration or value, aforesaid:" Clause (a),
section 6, article III, act of July 26, 1913, (P. L. 1374).
87
An agreement of consolidation and merger, under the provisions of
the act of May 29th, 1901, (P. L. 349), cannot increase capital stock
of a new company over the combined capital stocks of the underlying
companies: In re Bellevue & Perrysville Street Railway Co. and
Howard & East Street Railway Co., Op. Atty, Gen., 1903-04, p. 42;
Bellevue & Derry Street Railway Co. and Bradenville & Derry Street
Railway Co., Op. Atty. Gen. 1903-04, p. 56; Stroudsburg, etc., Tele-
phone Co. and Monroe Telephone Co.'s Consolidation, 33 Pa. C. C.
321; 10 Dauph, 70, 16 Dist. 601.
116. PROCEEDINGS TO MERGE AND CONSOLIDATE.
"Said merger or consolidation shall be made under the conditions,
provisions and restrictions, and with the powers herein set forth,
to wit:
"I. The directors of each corporation may enter into a joint
agreement, under the corporate seal of each corporation, for the
merger and consolidation of said corporations; prescribing the terms
and conditions thereof, the mode of carrying the same into effect, the
name of the new corporation, the number and names of the directors
and other officers thereof, and who shall be the first directors and of-
ficers and their places of residence, the number of shares of the
capital stock, the amount or par value of each share, and the manner
of converting the capital stock of each of said corporations into the
stock of the new corporation, and how and when directors and officers
shall be chosen, with such other details as they shall deem necessary
to perfect the said consolidation and merger; but said agreement
shall not be effective unless the same shall be approved by the stock-
holders of said corporations, in the manner hereinafter provided.
"II. Said agreement shall be submitted to the stockholders of each
of said corporations, at separate special meetings, of the time, place
and object of which respective meetings due notice shall be given by
publication, once a week for two successive weeks before said respec-
tive meetings, in at least one newspaper in the county or each of the
counties in which the principal offices of said respective corporations
shall be situate; and at said meetings the said agreement of the direc-
tors shall be considered, and a vote of the stockholders in person or
by proxy shall be taken, by ballot, for the adoption or rejection of the
same, each share of stock entitling the holder thereof to one vote; and
if a majority in amount of the entire capital stock of each of said
corporations shall vote in favor of said agreement, merger and con-
solidation, then that fact shall be certified by the secretary of each
corporation, under the seal thereof, and said certificates, together
with the said agreement or a copy thereof, shall be filed in the office
of the Secretary of the Commonwealth, whereupon the said agree-
ment shall be deemed and taken to be the act of consolidation of said
corporations:" Act May 29th, 1901, (P. L. 349), Section 2.
It is doubtful if the publication of notice for two weeks can be
waived: In re Bellevue & Perryville Street Railway Co., 32 Pa. C. C.
243; 15 Dist. 510; 8 Dauph. 281.
As to when pulleation of notice in German newspapers is required,
see section 8.
As to publication of notice in legal journals, see section 8.
88
117. AGREEMENT MUST BE APPROVED BY THE PUBLIC
SERVICE COMMISSION.
"Upon like approval of the (Public Service) Commission first had
and obtained, as aforesaid, and upon compliance with existing laws,
and not otherwise, it shall be lawful—
"(c) For any public service company to sell, assign, transfer,
lease, consolidate, or merge its property, powers, franchises, or pri-
vileges, or any of them, to or with any other corporation or person:"
Article III, section 3, act of July 26, 1913, (P. L. 1374).
118. AGREEMENT MUST BE APPROVED BY WATER SUPPLY
COMMISSION.
"From and after the passage of this act, no agreement for the
merger and consolidation of two or more corporations heretofore or
hereafter formed for the supply of water to the public, or for the
supply, storage, and transportation of water and water power for
commercial and manufacturing purposes, or of any other water or
water power companies, shall be approved by the Governor, nor shall
letters patent be issued creating and erecting the parties to said
agreement into a new corporation, unless said agreement is first sub-
mitted to, and has received the approval of, a majority of the mem-
bers of the Water Supply Commission of Pennsylvania:" Act June
7th, 1907, section 2, (P. L. 455).
119.
AGREEMENT MUST DESIGNATE FUTURE SOURCE OF
SUPPLY.
The above quoted act of June 7th, 1907, (P. L. 455), section 2,
further provides that such agreement shall not be approved by the
Governor "unless said agreement shall designate the river, stream or
other body of water from which it is proposed to take or use water
or water power thereafter, and also, as near as may be, the points on
said river, stream or other body of water, between which said water
or water power is proposed to be taken or used; nor unless said agree-
ment shall stipulate that the right heretofore existing in any of the
corporations, parties to said agreement, to take or use water or water
power from any river, stream or other body of water, or portions
thereof, not so designated, shall be and are thereby forfeited and
surrendered, and shall revert to this Commonwealth."
See section 28.
120. RIGHTS OF EMINENT DOMAIN OVER WATER FOR-
FEITED UPON CONSOLIDATION AND MERGER.
"No such agreement of merger and consolidation shall be approved
by the said Water Supply Commission of Pennsylvania, nor by the
Governor, until each of the corporations, parties thereto, shall have
filed in the office of The Water Supply Commission of Pennsylvania,
a written acceptance, under the seal of said corporation and author-
ized by a majority of the stockholders thereof, both of this act and
of the act approved April thirteenth, one thousand nine hundred and
five, entitled 'An act providing that the right of eminent domain, as
respects the appropriation of streams, rivers, or waters, or the land
covered thereby, shall not be exercised by water companies incorpo-
89
rated under law,' agreeing to be subject to and bound by the provisions
of both of said acts, with like effect as if said corporations had been
formed subsequently to the passage of both of said acts; and shall,
also, have filed a certified copy of said acceptance in the office of the
Secretary of the Commonwealth:" Act June 7th, 1907, section 2,
(P. L. 455).
121.
COMPLETION OF MERGER AND CONSOLIDATION.
"Upon the filing of said certificates and agreement, or copy of
agreement, in the office of the Secretary of the Commonwealth, the
said merger shall be deemed to have taken place, and the said cor-
porations to be one corporation under the name adopted in and by
said agreement, possessing all the rights, privileges and franchises
theretofore vested in each of them, and all the estate and property,
real and personal, and the rights of action of each of said corpora-
tions, shall be deemed and taken to be transferred to and vested in
the said new corporation without any further act or deed: Provided,
That all rights of creditors and all liens upon the property of each
of said corporations shall continue unimpaired, and the respective
constituent corporations may be deemed to be in existence to pre-
serve the same; and all debts, duties and liabilities of each of said
constituent corporations shall thenceforth attach to the said new cor-
poration, and may be enforced against it to the same extent and by
the same process as if said debts, duties and liabilities had been con-
tracted by it. But such merger and consolidation shall not be com-
plete, and no such consolidated corporation shall do any business of
any kind, until it shall have first obtained from the Governor of the
Commonwealth new Letters Patent, and shall have paid to the State
Treasurer a bonus of one-third of one per centum on all its corporate
stock in excess of the amount of the capital stock of the several cor-
porations so consolidating, upon which the bonus required by law
had been theretofore paid: And provided further, that new letters
patent of such consolidated corporation shall not be issued by the
Governor of the Commonwealth until each and every corporation,
entering and forming the consolidated corporation, shall have filed
with the Secretary of the Commonwealth a certificate from the Audi-
tor General of the Commonwealth, setting forth that all reports re-
quired by the Auditor General of the Commonwealth have been duly
filed, and that all taxes due the Commonwealth of Pennsylvania have
been paid:" Act May 29th, 1901, section 3, (P. L. 349), as amended
by Act March 31st, 1905, (P. L. 96).
"A certified copy of said certificate and agreement or copy of agree-
ment, so to be filed in the office of the Secretary of the Common-
wealth, shall be evidence of the lawful holding and action of such
meetings, and of the merger and consolidation of said corporations:"
Act May 29th, 1901, section 4, (P. L. 349).
The agreement of consolidation and merger need not be recorded in
the office of the Recorder of Deeds: Keller v. Water Co., 34 Super. Ct
301.
90
122. REMEDY FOR DISSENTING STOCKHOLDERS.
"If any stockholder or stockholders of any corporation which shall
become a party to an agreement of merger and consolidation here-
under, shall be dissatisfied with or object to such consolidation, and
shall have voted against the same at the stockholders' meeting, it
shall and may be lawful for any such stockholder or stockholders,
within thirty days after the adoption of said agreement of merger and
consolidation by the stockholders as herein provided, and upon reason-
able notice to said corporation, to apply by petition to any court of
common pleas of the county in which the chief office of such corpora-
tion may be situate, or to a judge of said court in vacation, if no such
court sits during said period, to appoint three disinterested persons
to estimate and appraise the damages, if any, done to such stock-
holder or stockholders by said consolidation. Upon such petition, it
shall be the duty of said court, or judge, to make such appointment;
and the award of the persons so appointed, or of a majority of them,
when confirmed by the said court, shall be final and conclusive; and
the persons so appointed shall also appraise the share or shares of
said stockholders in the said corporation, at the full market value
thereof, without regard to any appreciation or depreciation in con-
sequence of the said consolidation, which appraisement, when con-
firmed by the said court, shall be final and conclusive; and the said
corporation may, at its election, either pay to the said stockholder or
stockholders the amount of damages so found and awarded, if any,
or the value of the stock so ascertained; and upon the payment of the
value of the stock as aforesaid; the said stockholder or stockholders
shall transfer the stock so held by them to the said corporation, to be
disposed of by the directors thereof or to be retained for the benefit
of the other stockholders; and in case the value of said stock, as afore-
said, shall not be so paid within thirty days after the said award
shall have been confirmed by said court, the damages so found and
confirmed shall be a judgment against said corporation, and may be
collected as other judgments in said court are by law recoverable:"
Act May 29th, 1901, section 5, (P. L. 349).
Where a dissenting stockholder has not voted against the agree
ment of merger and consolidation his remedy is by bill in equity.
Barnett v. Philadelphia Market Co., 218 Pa. 649.
Where a dissenting stockholder has voted against the agreement of
merger and consolidation he is not obliged to proceed under Section
5 of the Act of May 29th, 1901, but may proceed by bill in equity:
Barnett v. Philadelphia Market Co., 218 Pa, 649.
123. WHAT COMPANIES MAY MERGE AND CONSOLIDATE.
The act of May 29th, 1901, (P. L. 349), authorizing the merger and
consolidation of corporations, is general in its terms, and would seem
from its wording to authorize the merger and consolidation of any
corporation with any other corporation of whatever kind. It was
held by Governor Pennypacker, however, in re Hummelstown Water
Co. and Hummelstown Electric Light, Heat and Power Co., 15 Dist.
532, that this was not the proper construction of the act, but that it
was intended to apply only to corporations, engaged in the same or a
similar kind of business, and that, therefore, a water company could
not be merged and consolidated with an electric light, heat and power
91
company. It would seem, however, that water companies, although
of different classes, may merge and consolidate with one another, be-
cause engaged in the same general or a similar kind of business.
Thus, it has been held that under the act a company for the manufac-
ture and supply of gas for light, one for the manufacture and supply
of gas for fuel, and one for the supply of light by means of electricity,
may merge and consolidate. In this case the Supreme Court held that
the corporations could merge and consolidate their "rights, privi-
leges, and franchises, which are alike in their general features, and
authorized to be exercised by the same general law, in one body
politic by a different name, but for the same purposes, in the same
territorial limits:" Motter v. Kennett Gas Light Co., et al., 212 Pa.
613.
124. MERGER AND CONSOLIDATION UNDER ACT OF 1909.
(2) ·
"It shall be lawful for any corporation, now or hereafter organized
under the provisions of any general or special act of Assembly, author-
izing the formation of any corporation or corporations, to merge its
corporate rights, franchises, powers, and privileges with and into
those of any other corporation or corporations transacting the same
or a similar line of business, so that by virtue of this act such cor-
porations may consolidate, and so that all the property, rights,
franchises, and privileges then by law vested in either of such cor-
porations, so merged, shall be transferred to and vested in the cor-
poration into which such merger shall be made:" Act May 3rd, 1909,
section 1, (P. L. 408).
See sections 112 to 123.
125. AGREEMENT CANNOT EXTEND TERRITORIAL LIMITS
OF EXCLUSIVE FRANCHISE.
The act of May 3rd, 1909, (P. L. 408), section 1, authorizing the
merger and consolidation, further provides that "nothing in this act
contained shall extend or enlarge beyond its former territorial limits
the exclusive franchise of any
water company."
126.
PROCEEDINGS TO MERGE AND CONSOLIDATE.
"Said merger or consolidation shall be made under the conditions,
provisions, and restrictions, and with the powers, herein set forth;
to wit:
"I. The directors of each corporations shall enter into a joint
agreement, under the corporate seal of each corporation, for the
merger and consolidation of said corporations; prescribing the terms
and conditions thereof, the mode of carrying the same into effect,
the name of the new corporation, the number and names of the direc-
tors and other officers thereof, and who shall be the first directors
and officers, and their places of residence, the number of shares of the
capital stock, the amount or par value of each share and the manner
of converting the capital stock of each of said corporations into the
stock of new corporation, and how and when directors and officers
shall be chosen, with such other details as they shall deem necessary
to perfect the said consolidation and merger; but said agreement
shall not be effective unless the same shall be approved by the stock-
holders of said corporations. in the manner hereinafter provided.
92
!
"II. Said agreement shall be submitted to the stockholders of
each of said corporations, at separate special meetings or at any an-
nual meetings, of the time, place and object of which respective meet-
ings due notice shall be given by publication, once a week for two
consecutive weeks before said respective meetings, in at least one
newspaper in the county or in each of the counties in which the prin-
cipal office of said respective corporations shall be situate, excepting
in the case of the merger or consolidation of corporations which,
upon their original incorporation, are required by the Constitution to
publish notice of intention to incorporate for a longer period than
two weeks, in which case notice by publication shall be as required by
the Constitution,-and at said meetings the said agreement of the di-
rectors shall be considered, and a vote of the stockholders in person
or by proxy shall be taken, by ballot, for the adoption or rejection
of the same, each share of stock entitling the holder thereof to one
vote; and if a majority in amount of the entire capital stock of each
of said corporations shall vote in favor of said agreement, merger
and consolidation, then that fact shall be certified by the secretary
of each corporation, under the corporate seal thereof, and said cer-
tificates, together with the said agreement or a copy thereof, shall
be filed in the office of the Secretary of the Commonwealth, who shall
forthwith present the same to the Governor for his approval, and
when approved by the Governor the said agreement shall be deemed
and taken to be the act of consolidation of said corporation:" Act
of May 3rd, 1969, section 2, (P. L. 409).
·
As to when publication of notice in German newspapers is re-
quired, see section 8.
As to publication of notice in legal journals, see section 8.
127. AGREEMENT MUST BE APPROVED BY THE WATER
SUPPLY COMMISSION.
"From and after the passage of this act, no agreement for the
merger and consolidation of two or more corporations heretofore
or hereafter formed for the supply of water to the public, or for the
supply, storage, and transportation of water and water power for
commercial and mnaufacturing purposes, or of any other water or
water power companies, shall be approved by the Governor, nor shall
letters patent be issued creating and erecting the parties to said
agreement into a new corporation, unless said agreement is first sub-
mitted to, and has received the approval of, a majority of the mem-
bers of the Water Supply Commission of Pennsylvania:" Act
June 7th, 1907, section 2, (P. L. 455).
128.
AGREEMENT MUST DESIGNATE FUTURE SOURCE OF
SUPPLY.
The above quoted Act of June 7th, 1907, (P. L. 455), section 2,
further provides that such agreement shall not be approved by the
Governor "unless said, agreement shall designate the river, stream
or other body of water from which it is proposed to take or use
water or water power thereafter, and also, as near as may be, the
points on said river, stream or other body of water, between which
said water or water power is proposed to be taken or used; nor un-
less said agreement shall stipulate that the right heretofore existing
93
in any of the corporations, parties to said agreement, to take or use
water or water power from any river, stream or other body of water,
or portions thereof, not so designated, shall be and are thereby for-
feited and surrendered, and shall revert to this Commonwealth.”
See section 28.
129.
RIGHTS OF EMINENT DOMAIN OVER WATER FOR-
FEITED UPON CONSOLIDATION AND MERGER.
"No such agreement of merger and consolidation shall be approved
by the said Water Supply Commission of Pennsylvania, nor by the
Governor, until each of the corporations, parties thereto, shall have
filed in the office of The Water Supply Commission of Pennsylvania
a written acceptance, under the seal of said corporation and author-
ized by a majority of the stockholders thereof, both of this act and of
the act approved April thirteenth, one thousand nine hundred and
five, entitled 'An act providing that the right of eminent domain, as
respects the appropriation of streams, rivers, or waters, or the land
covered thereby, shall not be exercised by water companies incor-
porated under law,' agreeing to be subject to and bound by the pro-
visions of both of said acts, with like effect as if said corporations
had been formed subsequently to the passage of both of said acts;
and shall, also, have filed a certified copy of said acceptance in the
office of the Secretary of the Commonwealth:" Act June 7th,
1907, section 2, (P. L. 455).
130.
COMPLETION OF MERGER AND CONSOLIDATION.
"Upon the filing of said certificates and agreement, or copy of the
agreement, in the office of the Secretary of the Commonwealth, and
upon the issuing of new letters patent thereon by the Governor, the
said merger shall be deemed to have taken place, and the said cor-
porations to be one corporation under the name adopted in and by
said agreement, possessing all the rights, privileges, and franchises
theretofore vested in each of them; and all the estate and property,
real and personal, and rights of action, of each of said corporations,
shall be deemed and taken to be transferred to and vested in the
said new corporation, without any further act or deed: Provided, That
all rights of creditors and all liens upon the property of each of said
corporations shall continue unimpaired, limited in lien to the prop-
erty affected by such liens at the time of the creation of the same,
and the respective constituent corporations may be deemed to be in
existence to preserve the same; and all debts not of record, duties,
and liabilities of each of said constituent corporations shall thence-
forth attach to the said new corporation, and may be enforced against
it to the same extent and by the same process as if said debts, duties,
and liabilities had been contracted by it. But such merger and con-
solidation shall not be complete, and no such consolidated corpora-
tion shall do any business of any kind, until it shall have first ob-
tained from the Governor of the Commonwealth new letters patent,
and shall have paid to the State Treasurer a bonus, as prescribed
by law, upon all its capital stock in excess of the amount of capital
stock of the several corporations so consolidating, upon which the
bonus required by law has been theretofore paid: And provided
further, That new letters patent of such consolidated corporation
94
shall not be issued by the Governor of the Commonwealth, until each
corporation entering into and forming the consolidated corporation
shall have filed with the Secretary of the Commonwealth, a certificate
from the Auditor General of the Commonwealth, setting forth that
all reports required by the Auditor General of the Commonwealth
have been duly filed to the date of the proposed merger, and that
all taxes due the Commonwealth of Pennsylvania have been paid, up
to and including said date:" Act of May 3rd, 1909, (P. L. 408),
section 3, as amended by Act of April 29th, 1915, (P. L. 205).
"A certified copy of said certificate and agreement, or copy of
agreement, so to be filed in the office of the Secretary of the Common-
wealth, shall be evidence of the lawful holding and action of such
meetings, and of the merger and consolidation of said corporations:
Act of May 3rd, 1909, section 4, (P. L. 408).
131.
REMEDY FOR DISSENTING STOCKHOLDERS.
If any stockholder or stockholders of any corporation, which shall
become a party to an agreement of merger and consolidation here-
under, shall be dissatisfied with or object to such consolidation, and
shall have voted against the same at the stockholders' meeting, it
shall and may be lawful for any such stockholder or stockholders,
within thirty days after the adoption of said agreement of merger
and consolidation by the stockholders, as herein provided, and upon
reasonable notice to said corporation, to apply by petition to any
court of common pleas of the county in which the chief office of such
corporation may be situate, or to a judge of said court in vacation,
if no such court sits during said period, to appoint three disinterested
persons to estimate and appraise the damages, if any, done to such
stockholder or stockholders by said consolidation. Upon such pe
tition, it shall be the duty of said court or judge to make such ap-
pointment, and the award of the persons so appointed, or of a ma-
jority of them when confirmed by the said court, shall be final and
conclusive; and the persons so appointed shall also appraise the share
or shares of said stockholders, in the said corporation, at the full
market value thereof, without regard to any appreciation or de-
preciation in consequence of the said consolidation; which appraise-
ment, when confirmed by the said court, shall be final and conclusive;
and the said corporation may, at its election, either pay to the said
stockholder or stockholders the amount of damages so found and
awarded, if any, or the value of the stock so ascertained; and upon
the payment of the value of the stock, as aforesaid; the said stock-
holder or stockholders shall transfer the stock so held by them to
the said corporation, to be disposed of by the directors thereof or to
bc retained for the benefit of the other stockholders; and in case the
value of said stock, as aforesaid, shall not be so paid within thirty
days after the said award shall have been confirmed by said court,
the damages so found and confirmed shall be a judgment against
said corporation, and may be collected as other judgments in said
court are by law recoverable:" Act of May 3rd, 1909, section 5, (P. L.
408.)
95
B. SALE.
132. SALE OF PROPERTY AND FRANCHISES AUTHORIZED.
"Any corporation created under the provisions of this act, and
any corporation of the classes named in the second section hereof,
that is now in existence by virtue of any law of this Commowealth,
may reduce its capital stock or alter and change the par value of the
shares thereof, by a vote of the stockholders taken in the manner and
under the regulations prescribed in the eighteenth, nineteenth, twen-
tieth, twenty-first and twenty-second sections of this act; and it shall
be lawful for any corporation in the same manner to sell, assign,
dispose of and convey to any corporation created under or accepting
the provisions of this act, its franchises, and all its property, real,
personal and mixed, and thereafter such corporation shall cease to
exist, and the said property and franchises not inconsistent with
this act, shall thereafter be vested in the corporation so purchasing
as aforesaid: Provided, That the returns required by said section
shall not be filed in the office of the Secretary of the Commonwealth
until each and every corporation, so selling, assigning, disposing, and
conveying such franchises and property, shall have filed with the Sec-
retary of the Commonwealth a certificate from the Auditor General
of the Commonwealth, setting forth that all reports required by the
Auditor General of the Commonwealth have been duly filed to the
date of the proposed sale, assignment, disposition and conveyance;
and that all taxes due the Commonwealth of Pennsylvania have been
paid up to and including such date:" Act April 29th, 1874, (P.
L. 73), section 23, as amended by the Acts of April 17th, 1876, sec-
tion 5, (P. L. 30), and June 2nd, 1915, (P. L. 724).
Under this act all water companies, whether created before or
after the Act of April 17th, 1876, may sell, assign, dispose of and
convey their franchises and property to other water companies, and
such property and franchises will thereupon become vested in the
purchasing company: Hey v. Springfield Water Co., 207 Pa. 38.
This act is express legislative authority for one water company
to purchase the franchises and property of another. The purchasing
water company may acquire the franchises and property of other
water companies whose territory is not included in the charter of the
purchasing company. Greensburg Boro. v. Westmoreland Water Co.
240 Pa. 481.
133. PUBLIC SERVICE COMMISSION MUST APPROVE.
"Upon like approval of the (Public Service) Commission first had
and obtained, as aforesaid, and upon compliance with existing laws,'
and not otherwise, it shall be lawful:
"(c) For any public service company to sell, assign, transfer,
lease, consolidate, or merge its property, powers, franchises, or
privileges, or any of them, to or with any other corporation or per-
son:" Article III, section 3, Act of July 26, 1913, (P. L. 1374).
134. PROCEEDINGS TO SELL PROPERTY AND FRANCHISES.
The above quoted section 23 of the Act of April 29th, 1874, as
amended, providing for the sale, assignment, disposition and con-
veyance of the property and franchises of one corporation to another,
96
provides that such sale shall be made in the manner and under the
regulations prescribed in the nineteenth, twentieth, twenty-first and
twenty-second sections of the Act of April 29th, 1874. The said sec-
tions were the original method under the Act of April 29th, 1874, of
increasing the capital stock or indebtedness of a corporation, and
while they have been superseded by the provisions of the Act of Feb-
ruary 9th, 1901, (P. L. 3), for such purposes, they still provide the
method for the sale of the property and franchises of one corporation
to another, and their provisions are as follows:
"Any such corporation desirous of increasing its capital stock or
indebtedness as provided by this act, shall, by a resolution of its
board of directors, call a meeting of its stockholders therefor, which
meeting shall be held at its chief office or place of business in this
Commonwealth; and notice of the time, place and object of said
meeting shall be published once a week for sixty days prior to such
meeting, in at least one newspaper published in the county, city or
borough wherein such office or place of business is situate:" Act
April 29th, 1874, section 19, (P. L. 73).
As to when publication of notice in German newspapers is re-
quired, see section 8.
"At the meeting called, pursuant to the nineteenth section of this
act, an election of the stockholders of such corporation shall be taken
for or against such increase, which shall be conducted by three
judges, stockholders of said corporation, appointed by the board of
directors to hold said election, and if one or more of said judges be
absent, the judge or judges present shall appoint a judge or judges,
who shall act in the place of the judge or judges absent, and who
shall respectively take and subscribe an oath or affirmation before
an officer authorized by law to administer the same, well and truly,
and according to law, to conduct such election to the best of their
ability; and the said judges shall decide upon the qualification of
voters, and when the election is closed count the number of shares
voted for and against such increase, and declare whether the persons
or bodies corporate holding the larger amount of the stock of such
corporation have consented to such increase, or refused to consent
thereto, and shall make out duplicate returns of said election, stating
the number of shares of stock that voted for such increase, and the
number that voted against such increase, and subscribe and deliver
the same to one of the chief officers of said company:" Act April
29th, 1874, section 20, (P. L. 73).
"Each ballot shall have endorsed thereon the number of shares
thereby represented, and be signed by the holder thereof, or by the
person holding a proxy therefor, but no share or shares transferred
within sixty days shall entitle the holder or holders thereof to vote
at such election or meeting, nor shall any proxy be received, or en-
title the holder to vote, unless the same shall bear date and have
been executed within three months" (two months, Act March 5th,
1903, P. L. 14), "next preceding such election or meeting; and it
shall be the duty of such corporation to furnish the judges at said
meeting with a statement of the amount of its capital stock, with
the names of persons or bodies corporate holding the same, and num-
ber of shares by each respectively held, which statement shall be
signed by one of the chief officers of such corporation, with an af-
97
fidavit thereto annexed, that the same is true and correct to the best
of his knowledge and belief:" Act April 29th, 1874, section 21,
(P. L. 73).
"It shall be the duty of such corporation, if consent is given to
such increase, to file in the office of the Secretary of the Common-
wealth, within thirty days after such election or meeting, one of the
copies of the return of such an election provided for by the twentieth
section of this act, with a copy of the resolution and notice calling
same thereto annexed; and upon the increase of the capital stock or
indebtedness of such corporation made pursuant thereto, it shall be
the duty of the president or treasurer of such corporation, within
thirty days thereafter, to make a return to the Secretary of the Com-
monwealth, under oath, of the amount of such increase and terms of
the same, that is to say, the terms on which additional stock is is-
sued; and in case of neglect or omission so to do, the corporation
shall be subject to a penalty of five thousand dollars, which penalty
shall be collected on an account settled by the Auditor General and
State Treasurer, as accounts for taxes due the Commonwealth are
settled and collected; and the Secretary of the Commonwealth shall
cause said returns to be recorded in a book to be kept for that pur-
pose, and furnish a certified copy of the same to the Auditor Gen-
eral, and the corporation shall have the right to recover the same
from the officer neglecting or omitting to file the return as aforesaid:"
Act April 29th, 1874, section 22, (P. L. 73).
135.
FUTURE SOURCE OF SUPPLY MUST BE DESIGNATED
AND APPROVED BY WATER SUPPLY COMMISSION
BEFORE SALE.
"From and after the passage of this act, no sale, assignment, dis-
position, transfer, and conveyance of the franchises, and all the prop-
erty, real, personal, and mixed, of any corporation heretofore or
hereafter formed for the supply of water to the public, or for the
supply, storage, and transportation of water and water power for
commercial and manufacturing purposes, or of any other water or
water power company, to any other such corporation, shall be valid
until a certificate, authorized by a majority of the stockholders of
the corporation so purchasing, and duly executed by the president and
secretary thereof, under the seal of said corporation, designating the
river, stream, or other body of water, and, as near as may be, the
points on the said river, stream, or other body of water, between
which it is proposed to take or use water or water power thereafter,
and stipulating that the right heretofore existing in either the cor-
poration so purchasing or the corporation so selling to take or use
water or water power from any river, stream, or other body of water,
or portions thereof, not so designated, shall be and are hereby for-
feited and surrendered and shall revert to this Commonwealth, shall
have been approved by a majority of the members of The Water Sup-
ply Commission of Pennsylvania and filed in the office of the Sec-
retary of the Commonwealth." Act June 7th, 1907, section 3,
(P. L. 455).
See section 28.
7
9S
136. RIGHT OF EMINENT DOMAIN OVER WATERS FOR-
FEITED UPON SALE.
The above quoted section 3 of the Act of June 7th, 1907, further
provides that "No such certificate shall be approved by the said
Water Supply Commission of Pennsylvania, until the corporation so
purchasing shall have filed in the office of The Water Supply Commis-
sion of Pennsylvania a written acceptance, under the seal of said cor-
poration and authorized by a majority of the stockholders thereof,
both of this act and of the act approved April thirteenth, one thou-
sand nine hundred and five, entitled 'An act providing that the right
of caninent domain, as respects the appropriation of streams, rivers,
or waters, or the land, covered thereby, shall not be exercised by
water companies incorporated under law,' agreeing to be subject to
and bound by the provisions of both of said acts, with like effect as
if said corporation had been formed subsequently to the passage of
both of said acts, and shall have filed a certified copy of said accep-
tance in the office of the Secretary of the Commonwealth."
137. EFFECT OF SALE.
Where a water company sells and by proper deed conveys all of
its franchises to another company, the company so selling ceases to
exist: Com. v. Lumber City Water Co., 225 Pa. 317.
128. REORGANIZATION AFTER JUDICIAL SALE.
"That whenever material, rolling-stock or property, whether lo-
cated wholly or partly within this State, and franchises, or all or any
part of such material, rolling-stock, property and franchises, of any
gas, water, coal, iron, steel, lumber, oil, or mining or manufacturing,
transportation cr telegraph company, or any railroad, canal, turn-
pike, bridge, or plank road, or of any corporation created by or un-
der any law of this State, or of this and any other State or States,
shall be sold and conveyed, under and by virtue of any process or
decree of any court of this State or of the United States, or under or
by virtue of a power of sale contained in any mortgage or deed of
trust, without any process or decree of a court in the premises, the
person or persons for or on whose account such material, rolling-
stock, property, and franchises of any gas, water, coal, iron, steel,
lumber, oil, or mining, or manufacturing, transportation or telegraphi
company, or any railroad, canal, turnpike, bridge, or plank road, or of
any corporation created by or under any law of this State, or of this
State and any other State or States, so sold and conveyed, may be
purchased, shall be and they are hereby constituted a body politic and
corporate, and shall be vested with all the right, title, interest,
property, possession, claims, and demand, in law and equity, of, in
and to such material rolling-stock, property, or franchise, so sold
and conveyed of any gas, water, coal, iron, stecl, lumber, oil, or
mining, or manufacturing, transportation, or telegraph company, or
any railroad, canal, turnpike, bridge or plank road, cr of any cor-
poration created by or under any law of this State, or of this State
and any other State or States, with the appurtenances, and with all
the rights, powers, immunities, privileges, and franchises of the cor-
porations as whose the same may have been sold, and which may have
been granted to or conferred thereupon by any act or acts of As-
99
sembly whatsoever, in force at the time of such sale and conveyance,
and subject to all the restrictions imposed upon such corporation by
any such act or acts, except so far as the same are modified hereby,
or have been by any amendments or supplements thereto or modifi-
cations thereof; and with all the rights, powers, immunities, privi-
leges, and franchises granted to or conferred by acts now existing upon
corporations of a similar kind, and subject to all restrictions imposed
by statute, except as subsequently modified, or modified hereby; and
the person or persons purchasing, for or on whose account any such
material, rolling-stock, property, and franchises of any gas, water,
iron, steel, lumber, oil, or mining, or manufacturing, transportation
or telegraph company, or any railroad, canal, turnpike, bridge, or
plank road, or of any corporations created by or under any law of
this State, or of this State and other State or States, so sold and
conveyed, may have been purchased, shall meet, within thirty days
after the conveyance thereof shall be delivered.-public notice of the
time and place of such meeting having been given, at least once a week
for two weeks, in at least one newspaper published in the city or
county in which such sale may have been held, and organize said
new corporation by electing a board of directors, consisting of not
less than five nor more than fifteen (to continue in office until the
first Monday succeeding such meeting, when, and annually there-
after on the said day, a like election for directors shall be held, the
directors so elected to serve for one year and until their successors
are elected, unless the directors shall be divided into not more than
four classes, in which case the term of office of one class shall ex-
pire on each first Monday of May thereafter), and shall adopt a
corporate name and common seal, determine the amount of the capi-
tal stock thereof, without being restricted to the amount theretofore
issued by the corporation whose property and franchises had been sold.
Not in excess, however, of the aggregate amount of the capital stock
authorized to be issued by the corporation whose property and frau-
chises had been sold, together with the amount of the bonded in-
debtedness of such corporation outstanding at the time of the sale,
and of any receiver's certificate or other receiver's indebtedness neces-
sary to be paid, and the amount that will represent all further moneys
contributed to such new or reorganized corporation. The said stock
thus issued by the said new corporation may consist wholly of com-
mon stock, or partly of common stock and partly of preferred stock;
and the whole, or any part thereof, may be issued as fully paid
stock, in payment or part payment for the property so purchased.
Said new corporation shall have power and authority to make and
issue certificates therefor, in shares of not more than one hundred
dollars each; and may at any time thereafter create and issue pre-
ferred stock to such an amount and on such terms as such corpora-
tion may deem necessary; and, from time to time, may issue bonds to
any amount, and may secure the same by one or more mortgages upon
the real and personal property and corporate rights and franchises,
or either, or any part or parts thereof: Provided, That no coal, iron,
steel, lumber, or oil, or mining, manufacturing, transportation or
telegraph company, shall have the benefit of this act, unless it shall
have previously filed with the Secretary of State its acceptance of all
100
the provisions of the Constitution as provided by law:" Section j
of the Act of April 8th, 1861, (P. L. 259), as finally amended by Act.
of June 20th, 1911, (P. L. 1092).
See section 95.
"That whenever any person or persons are, or shall be at the date
of the passage of this act, the owner or owners, in good faith, for
valuable consideration, of material,
or property, whether
*
located wholly or partly within this State, and franchises, or all or
any part of such material, * *
property, and franchises, which
* water,
were formerly owned and exercised by any
*
canal,
*
* *
* *
*
company, or any
or any corporation, created
by or under any law of this State or of this and any other State
or States, and which shall have been sold and conveyed under and by
virtue of any process or decree of any court of this State or of the
United States, or under or by virtue of a power of sale contained in
any mortgage or deed of trust without any process or decree of a
court in the premises, whether such person or persons shall hold such
material, *
property, and franchises by direct sale and con-
veyance as aforesaid, or under, through and by a predecessor in title
who held under such sale and conveyance, and whenever such person
or persons is, or shall be at the date of the passage of this act, in
good faith holding and exercising such material *
* property,
and franchises, as aforesaid, the holding, ownership and exercise
thereof by such person or persons shall not be deemed, held, or ad-
judged invalid, defective, or insufficient in law, by reason of the
failure of such person or persons or their predecessor or predecessors
in title to comply with the provisions of the act of Assembly, en-
titled 'An act concerning the sale of railroads, canals, turnpikes,
bridges, and plank roads,' approved the eighth day of April, Anno
Domini one thousand eight hundred sixty-one, and the supplements
and amendments thereto, with respect to the reorganization of the
corporation whose material,
property, and franchises have
been sold as aforesaid, but the holding, ownership, and exercise
thereof, by such person or persons, shall be as good, valid and ef
fectual, in law and in fact, as if such person or persons or their
predecessors in title had complied with the provisions of said act;
and such person or persons shall be, and they are hereby constituted,
a body politic and corporate, and shall be vested with all the right.
title, interest, property, possession, claims, and demand, in law and
equity, of, in, and to such material, * * * *´*
* * * * * property, or franchises:
Provided, Such person or persons shall not later than the first day
of October one thousand nine hundred nineteen proceed to a full com-
pliance with the requirements of the said act of assembly for the
reorganization and perpetuation of such corporation or body politic:"
Section 1, Act of May 23, 1919, (P. L. 240).
139.
AMOUNT OF CAPITAL STOCK LIMITED ON REORGANI-
ZATION.
"It shall be unlawful for any public service company-
"(b) In the case of any reorganization under the provisions of
the act of Assembly approved the eighth day of April, Anno Domini
one thousand eight hundred and sixty-one, entitled 'An act concern-·
ing the sale of railroads, canals, turnpikes, bridges, and plank roads,'
or any supplement thereto or amendment thereof, to issue any stock,
101
trust certificates, bonds, notes, or other evidences of indebtedness or
other securities, in excess of the amount paid or agreed to be paid
to the Commonwealth or any political subdivision thereof, as the
consideration for the grant of any franchises, rights, powers, or
privileges, and the value of the property of such reorganized cor-
poration (and any additional sum actually paid in cash, and any ad-
ditional property or labor actually contributed): Provided, That any
such public service company may apply to the commission to deter-
mine such consideration or value, aforesaid:" Article III, section 6,
Act of July 26, 1913, (P. L. 1374).
See section 97.
C. LEASE.
140. LEASE AUTHORIZED.
*
"It shall and may be lawful for any corporation, organized under
the provisions of this act, either for the purpose of carrying on any
manufacturing business, or for the supply of water, or for the manu-
facture or supplying of light
* to enter into contracts for
the use or lease of the corporate property, real, personal, or mixed,
of such company, upon such terms as may be agreed upon with the
company or companies owning the same, and to run, use and operate
such property in accordance with such contract or lease:" Act
April 29th, 1874, section 12, as amended by Act June 26th, 1895,
(P. L. 369), as re-enacted by Act of March 24th, 1905, (P. L. 56).
Under this act a water company may lease its property and fran-
chises to another water company organized under the same act:
Moore v. Chartiers Valley Water Co., 216 Pa. 457.
A water company organized under the act of 1874 may lease the
property and franchises of another water company, and thereby ac-
quires the lessee company's charter powers. The lessee company ex-
ercises its powers by virtue of the authority granted to it by the
State and as its agent and not as the agent of another corporation.
Gring v. Sinking Spring Water Co., 20 D. R. 891.
141. PUBLIC SERVICE COMMISSION MUST APPROVE.
"Upon the approval of the (Public Service) Commission first had
and obtained, as aforesaid, and upon compliance with existing laws,
and not otherwise, it shall be lawful-
"(c) For any public service company to sell, assign, transfer,
lease, consolidate, or merge its property, powers, franchises, or
privileges, or any of them, to or with any other corporation or per-
son:" Article III, section 3, Act of July 26, 1913, (P. L. 1374).
D. OWNERSHIP OF STOCK.
142. OWNERSHIP OF STOCK OF WATER COMPANIES BY
OTHER WATER COMPANIES AUTHORIZED.
"It shall, and may be, lawful for any corporation, organized un-
der the provisions of this act, either for the purpose of carrying on
any manufacturing business or for the supply of water, or for the
manufacture or supplying of light, to subscribe for, take, purchase,
hold or dispose of the bonds or stock in any company of the same
character incorporated under the provisions of this act or its sup-
102
plements, or guarantee the payment of said bonds and the interest
thereon, or either principal or interest:" Act April 29th, 1874,
section 12, as amended by Act June 26th, 1895, (P. L. 369), as
amended by Act of March 24th, 1905, (P. L. 46).
"That hereafter any corporation, organized for profit, created by
general or special laws, may purchase, hold, sell, assign, transfer,
mortgage, pledge, or otherwise dispose of, the shares of the capital
stock of, or any bonds, securities, or evidences of indebtedness created
by, any other corporation or corporations of this or any other State,
and while the owner of said stock may exercise all the rights, powers
and privileges of ownership, including the right to vote thereon:"
Act July 2nd, 1901, (P. L. 603).
143.
OTHER CORPORATIONS MAY OWN STOCK OF COM-
PANIES FOR THE SUPPLY, STORAGE AND TRANS-
PORTATION OF WATER AND WATER POWER FOR
COMMERCIAL AND MANUFACTURING PURPOSES.
The Act of July 2nd, 1895, (P. L. 432), conferring further powers
upon corporations "for the supply, storage and transportation of
water and water power for commercial and manufacturing purposes."
also provides that "the stock in any company incorporated for the
purpose named in this act may be owned and held by corporations
of this State, or of other states of the United States."
144.
RAILROAD COMPANIES MAY OWN STOCK OF WATER
COMPANIES.
"In order to enable railroad companies of this Commonwealth to
secure an adequate supply of water for their necessary corporate
purposes, they are hereby authorized, from time to time, to acquire,
own, and hold, pledge, sell or otherwise dispose of, the stock, bonds
and other securities, or either, and to guarantee the stock, bonds and
other securities, or either, of water companies:" Act April 22nd,
1905, (P. L. 264).
145. PUBLIC SERVICE COMMISSION MUST APPROVE WHEN
CONTROLLING INTEREST IS ACQUIRED BY ONE
PUBLIC SERVICE COMPANY IN ANOTHER PUBLIC
SERVICE COMPANY.
"It shall be unlawful for any public service company—
"(c) To purchase, acquire, take or hold, either in absolute owner-
ship or in pledge, or as collateral security, directly or indirectly, any
controlling right, title, or interest, legal or equitable, in the capital
stock, bonds, trust certificates, or other evidences of indebtedness or
other securities, issued by, or other controlling right, title, or interest
whatsoever in, any other public service company, conducting busi-
ness within this Commonwealth, without the consent and approval of
the commission; but the purchase, taking and holding, aforesaid, of any
right, title, or interest in any such capital stock, bonds, trust cer-
ificates, or other evidences of indebtedness or other securities, or of
any other right, title, or interest in any other public service com-
pany, which shall amount to less than the aforesaid controlling right,
title, or interest, of any nature or kind, shall be lawful without the
approval of the commission, so far as the same may be lawful under
108
existing laws: Provided, however, That nothing in this act shall
be construed to affect the holding of stock, bonds, trust certificates,
or other evidences of indebtedness or other securities, heretofore
legally acquired and held; or in any way diminish, lessen, or im-
pair the rights of any public service company, in virtue of the hold-
ing by said company of such stocks, trust certificates, bonds, notes,
or other evidences of indebtedness or other securities, heretofore ac-
quired and held; or to prevent the future acquisition of such stocks,,
trust certificates, bonds, notes, or other evidences of indebtedness or
other securities of a public service company, where the major in-
terest therein has been acquired and held by a public service com-
pany prior to the date when this act shall become effective; or to
prevent the future acquisition, Holding, or cancellation by a public
service company of trust certificates, bonds, notes, or other evidences
of indebtedness or other securities secured by stock, theretofore
legally acquired and owned by a public service company and pledged
as security therefor:" Article III, section 6, Act of July 26, 1913,
(P. L. 1374).
ARTICLE XIV.
DISSOLUTION AND FORFEITURE.
146. VOLUNTARY DISSOLUTION BY
PANY.
PETITION OF COM-
"It shall be lawful for any court of Common Pleas of the proper
county to hear the petition of any corporation, under the seal thereof,
by, and with, the consent of a majority of a meeting of the corpora-
tors, duly convened, praying for permission to surrender any power
contained in its charter, or for the dissolution of such corporation; and
if such court shall be satisfied that the prayer of such petition may
be granted without prejudice to the public welfare, or the interests
of the corporators, the court may enter a decree in accordance wib
the prayer of the petition, whereupon such power shall cease, or such
corporation be dissolved: Provided, That the surrender of any such
power shall not in any wise remove any limitation or restriction in
such charter; and that the accounts of the managers, directors or
trustees of any dissolved company shall be settled in such court and
be approved thereby; and dividends of the effects shall be made
among any corporators entitled thereto, as in the case of the ac-
counts of assignees and trustees: Provided, further, That no prop-
erty devoted to religious, literary or charitable uses shall be diverted
from the objects for which they were given or granted: Provided,
That the decree of said court shall not go into effect until a certified
• copy thereof be filed and recorded in the office of the Secretary of
the Commonwealth:" Act April 9th, 1856, (P. L. 293).
104
The equity power to dissolve corporations involves a further pro- .
ceeding to the extent of a distribution of the assets of such corpora-
tions among those legally entitled thereto. Titusville Oil Exchange's
Dissolution, 10 Pa. Super. Ct. 496.
"The 'proper county' intended by said act, the Act of April 9th,
1856, approved as aforesaid, may be, at the option of any corpora-
tion praying for permission to dissolve, either the county in which
the principal operations of the corporations are conducted, or that
county in which its principal office or place of business is located;
Provided, That notice of such application shall be given, by publica-
tion in two newspapers in the county in which the principal opera-
tions are conducted, and that in which the principal office is located:"
Act April 4th, 1872, (P. L. 40).
"No corporation, company, joint stock association, association or
limited partnership, made taxable by this act, shall hereafter be dis-
solved by the decree of any court of Common Pleas, nor shall any
judicial sale be valid or a distribution of the proceeds be made un-
til all taxes due the Commonwealth have been fully paid into the
State Treasury and the certificate of the Auditor General, State
Treasurer and Attorney General to this effect filed in the proper
court with the proceedings for dissolution or sale:" Act June 1,
1889, section 32, (P. L. 437).
147. OTHER FORMS OF DISSOLUTION.
1. The consolidation and merger of two or more corporations us-
ually works a dissolution of the corporations so merging, and the
creation of a new one having the rights and franchises of the con-
stituent companies: Pennsylvania Railroad Co. v. Ohio River Junc-
tion Railroad Co., 204 Pa. 356.
2. The sale of all the property and franchises of a corporation to
another works a dissolution of the corporation so selling: Common-
wealth v. Lumber City Water Co., 225 Pa. 317.
3. The sale of the property and franchises of a corporation at ju-
dicial sale works a dissolution of the corporation, the purchasers
thereof having the right to reorganize and form a new corperation,
whose existence dates from the completion of such reorganization:
Reifler v. Honesdale & Delaware Plank Road Co., 1 Pa. C. C. 64.
4. The expiration of the time for which the company was in-
corporated works a dissolution.
148. DISSOLUTION BY PROCLAMATION OF THE GOVERNOR.
"If the officers of any limited partnership association, joint stock
association, or corporation, or any of them, shall intentionally neg-
lect or refuse to furnish the Auditor General with the report and
appraisement, as required by law, for three successive years, he or
they shall be guilty of a misdemeanor, and on conviction thereof
shall be sentendced to pay a fine of five hundred dollars, and undergo
an imprisonment not exceeding one year, or both or either, at the
discretion of the court: And provided further, That the Auditor
General shall report the fact to the Governor, who, if he shall be
satisfied that such failure was intentional, shall thereupon by proc-
lamation declare the charter of said corporation or company for-
feited and its chartered privileges at an end; whereupon the same
105
shall cease, end, and be determined, saving, however, the rights of
the creditors and stockholders in and to any property, assets, claims,
or demands of the corporation or company:" Section 22, Act of June
1, 1889, (P. L. 420), as amended by Act of June 2, 1915, (P. L. 728).
149. FORFEITURE FOR MIS-USER OR NON-USER.
The charter of a corporation may be forfeited by a proceeding of
quo warranto by the Attorney General on behalf of the State for mis-
user or non-user of franchises in regard to matters which are of the
essence of the contract between the corporation and the State where
the acts or omissions complained of, have been repeated and wilfull:
Commonwalth v. Commercial Bank, 26 Pa. 389; Clineclamouche Lum-
ber Co. v. Commonwealth, 100 Pa. 438.
"Writs of quo warranto in the form and manner hereinafter pro-
vided may also be issued by the several courts of common pleas (con-
currently with the Supreme Court) in the following cases, to wit:
"V. În case any corporation, as aforesaid, shall forfeit by mis-
user or non-user its corporate rights, privileges or franchises or shall
do, suffer or omit to do, any act, matter or thing whereby a forfeiture
thereof shall by law be created, or shall exercise any power, privilege
or franchise not granted or appertaining to such corporation.
"In any such case the writ aforesaid may be issued upon the sug-
gestion of the Attorney General, or his deputy in the respective
county, or of any person or persons, desiring to prosecute the same:"
Act June 14th, 1836, section 2, (P. L. 621).
Notwithstanding the provision of the Act of June 14th, 1836, that
a writ of quo warranto may be issued upon the suggestion of any
person or persons desiring to prosecute the same a writ will not
lie at the relation of a private citizen to forfeit the charter of a cor-
poration. While the act authorizes the writ to issue on the relation
of any one desiring to prosecute the same, the courts will allow no
ond to desire at law that in which he has no interest: Common-
wealth v. Allegheny Bridge Co., 20 Pa. 185; Murphy v. Farmers Bank,
20 Pa. 415; Commonwealth v. Philadelphia, Germantown and Norris
town Railway Co., 20 Pa. 518; Commonwealth v. Farmers Bank, 2
Grant 392; Commonwealth v. Dillon, 81 Pa. 41.
"Whenever the Attorney General shall have reason to believe that
any association as aforesaid has acted as a corporation or exercised
any of the franchises or privileges thereof without lawful authority
or if any corporation has forfeited its corporate rights, privileges, or
franchises as aforesaid or exercised any power, privilege or franchise
not granted or appertaining to such corporation, it shall be his duty
to file or cause to be filed a suggestion as aforesaid, and to proceed
thereon for the determination of the matter:" Act June 14th, 1836,
section 3, (P. L. 621).
"Whereas, Water and water-power companies incorporated under
the laws of the Commonwealth of Pennsylvania are required to begin
the construction of their works within two years after the date of
their incorporation, and to complete the same within five years there-
after;
"Whereas, Water and water-power companies which have not be-
gun their works or completed the same within the time set by law
may apply to the court of common pleas for an extension of said
time;
106
"Whereas, The general corporation act of one thousand eight hun-
dred and seventy-four and its supplements are indefinite as to the
method by which water and water-power companies which have failed
to comply with the requirement of beginning or completing works
within the time set by law, shall become defunct;
"Whereas, It is decidedly to the best interest of the water-supply
of the Commonwealth that the charters of such water and water
power companies be annulled:-
"Subsequent to the passage of this act any water company or
water-power company, heretofore or hereafter incorporated under
the laws of this Commonwealth, which shall not have begun the
construction of its works within two years after the date of its in-
corporation, or which shall not have completed the same or placed
the same in operation within five years thereafter, may, at any time
previous to the expiration of said two years, or five years thereafter,
make application to the Water Supply Commission of Pennsylvania
for an extension of such time, as herein provided. Such application
shall be made upon a petition, under the common seal of such cor-
poration and verified by its president or other presiding officer, set-
ting forth the grounds of the application, and that the same is made
pursuant to a resolution of the board of directors of said company,
at a meeting called for the purpose-a duly certified copy of which
shall be annexed to said petition. Thereupon it shall be the duty of
said commission to hold a hearing upon said petition, at such date
as it may decide, and, after due hearing and examination, said com-
mission may approve said petition, subject to such limitations and
restrictions as it may sce fit, and file in the office of the Secretary of
the Commonwealth a duly certified copy of an order setting forth
its approval of said application for extension. In the event of the
refusal to approve by the Water Supply Commission, appeal may be
taken by such company, within ten days thereafter, to the court
of common pleas of the county in which said corporation shall have
its principal office; whereupon said court shall review the papers in
the case, and testimony at the hearing before the Water Supply
Commission; and, in the event of said court finding that such com-
pany had procceded with due diligence and good faith, it may order
the reversal of the order of the commission, setting forth the limit
of such extension of the time granted, and file a copy of such order
with the Secretary of the Commonwealth.
"In the event of the refusal of the Water Supply Commission to ap-
prove such petition for extension of time, and if an appeal shall not
be taken within ten days thereafter, said commission shall, on the
expiration of the said period of two years or five years, issue a de-
cree declaring such company defunct and its charter void, and it
shall be stricken from the books of the Secretary of the Cominou-
wealth and the Auditor General:" Section 1, Act of June 15th,
1911, (P. L. 990).
"The Water Supply Commission of Pennsylvania may on its own
initiative, or in response to petition, inquire into the standing of any
water or water-power charter; and in such event it may hold a hear-
ing, after due notice to the president cr secretary of such company,
addressed to the principal office of the company as indicated by its
latest report filed with the Auditor General or Secretary of the Com-
monwealth, to determine whether such company has commenced
107
work on its plant or completed the same within the time set by law.
If, afer due hearing and consideration, said commission shall be of
the opinion that such company has not proceeded with due diligence
and with bona fide intent to fulfill the requirements of law, it may
certify the facts in the case to the Attorney General, requesting him
to institute quo warranto proceedings against said company for the
annulment and revocation of its charter:" Section 2, Act of June
15th, 1911, (P. L. 990).
150.
JURISDICTION IN QUO WARRANTO.
"The court of common pleas of Dauphin county is hereby clothed
with jurisdiction, throughout the State, for the purpose of hearing
and determining all suits, claims and demands whatever, at law and
in equity, in which the Commonwealth may be the party plaintiff, for
accounts, unpaid balances, unpaid liens, taxes, penalties, and all other
causes of action, real, personal and mixed:" Section 1, Act of April
7th, 1870, (P. L. 57).
The court of common pleas of Dauphin county has jurisdiction in
all suits and proceedings in which the Commonwealth is the real
plaintiff.
The words "all other causes of action, real, personal and mixed,"
confer jurisdiction on the court of common pleas of Dauphin county
to issue a writ of quo warranto, in which the Commonwealth is the
real plaintiff, against a corporation not having its place of business,
and not excercising, or claiming to have or exercise, any powers, priv-
ileges, or franchises within said county. Com. v. Penna. Slatington-
and New England R. R. Co., 14 W. N. C., 60.
"The courts of common pleas of the several counties of this Com-
monwealth are hereby clothed with jurisdiction in all cases in which
the Commonwealth is a party: Provided that nothing in this act
shall be construed to apply to tax cases to which the Commonwealth
is a party:" Section 1, Act of July 10, 1901, (P. L. 637).
151.
FORFEITURE FOR FAILURE TO COMMENCE OR COM-
PLETE WORKS.
"If any company incorporated under this act, or any of its sup-
plements, shall not proceed in good faith to carry on its work and
costruct or acquire its necessary buildings, structures, property or
improvements within the space of two years from the date of its let-
ters patent, and shall not, within the space of five years thereafter
complete the same, the rights and privileges thereby granted to sail
corporation shall revert to the Commonwealth: Provided, however,
That it shall be lawful for any such corporation who shall have
proceeded in good faith as aforesaid, at any time before the expira-
tion of the said period of five years, or of any extension thereof, to
apply to the court of common pleas in and for the county in which
said corporation shall have its principal office for an extension of
such time as herein provided. Such application shall be made upon
a petition, under the common seal of such corporation and verified
by its president or other presiding officer, setting out the grounds
of the application, and that the same is made pursuant to a resolu-
tion of the board of directors of said company at a meeting called
for that purpose, a duly certified copy of which resolution shall be
108
annexed to said petition. Thereupon it shall be the duty of such
court to set down said petition for hearing before it upon some day
to be fixed by said court, and to direct that notice of such petition
shall be given by publication or otherwise, as the court shall direct.
Upon the day so fixed, or upon such subsequent day or days as the
matter may be adjourned to, said court shall proceed to a hearing
of said petition, and it being made to appear to said court that the
order of notice herein provided for has been complied with, said court
may, by order, adjudge and direct that the time of such corporation
to complete its necessary buildings, structures, property or improve-
ments shall be extended for a period not exceeding five years beyond
the time fixed by law for the completion thereof, and thereupon,
upon filing a duly certified copy of such order in the office of the Sec-
retary of the Commonwealth, the time of such corporation to complete
its necessary buildings, structures, property or improvements shall
be extended as provided in such order: Provided, further, That when
said buildings, structures, property or improvements are wholly
within one county, said application shall be made to the court of
common pleas in, and, for said county:" Act of April 17th, 1876, sec-
tion 11, (P. L. 37), as amended by Act May 16th, 1889, section 2,
(P. L. 242).
"Any corporation of the second class, created under the provisions
of the act to which this is a supplement, or any of its supplements,
that shall not, within two years, from the date of its letters patent,
proceed in good faith to organize and to do the things contemplated
by its charter, and have paid up at least, one-fourth of its capital
stock, shall be held and deemed to have forfeited its charter, and the
Attorney General shall, on the application of any citizen, take the
proper legal steps to forfeit and vacate its said charter, but any cor-
poration now in existence shall have two years from the date of this
act to do, and perform, the things by this section required:" Act
June 13th, 1883, section 5, (P. L. 123).
It has been held by the Supreme Court, that under the provisions
of section 11 of the Act of April 17th, 1876, which are identical with
the provisions of the Act of May 16th, 1889, that the general rule
of law, that a corporation is not dissolved for mis-user or non-user
of its franchises without a proceeding on the part of the State for
that purpose, did not apply, but that if the company failed to do
anything toward the building of its works within two years or to
complete the same within five years thereafter, its franchise reverted
to the State without a judgment of court: Commonwealth v. Lykens
Water Co., 110 Pa. 391.
Notwithstanding this decision, which was given after the passage
of the Act of June 13th, 1883, it has been held by the court of com-
mon pleas of Dauphin county, and also by the Attorney General's
Department, that before a forfeiture of a charter of a corporation
occurs there must be action by the Attorney General, as provided
by the said Act of June 13th, 1883: Lebanon Water Co.'s Petition,
4 Dauph. 228; Unorganized Trust Cos., 10 Dauph., 74; 33 Pa. C. C.
353.
In a later common pleas case it has been decided that even though
the court could not, in a collateral proceeding determine a forfeiture
for failure to commence or complete the work within the time pre-
scribed, it could determine that a corporation had no right to exer-
109
cise a particular franchise where it appeared that the franchise had
been lost by reason of the company's failure to commence or com-
plete work: Chester County Gas Co. v. Merion & Radnor Gas and
Electric Co., 16 Dist. 214.
The five years within which it is provided by the Act of May 16th,
1889, a corporation must complete its works dates from the end
of the two years within which it is allowed to commence. Degan
v. Meadow Brook Water Co., 3 Lack. Jur. 233; in re Petition of
Meadow Brook Water Co., 1 Lack, L. N. 143.
152. WHAT CONSTITUTES COMMENCEMENT OF WORK.
It has never been decided just what is a commencement of work
necessary to prevent a forfeiture of a charter with reference to a
water company or any company formed under the Act of April 29th,
1874. It has, however, been decided with a reference to a street rail-
way company under a statutory provision similar to that contained
in the Act of April 17th, 1876, that a distribution and location of
ties, rails and other materials along the bed of a highway upon
which the street railway is to be constructed, followed by the dig-
ging up of the highway to a depth of eleven inches to receive the
ties and rails is a beginning of the work of construction: Upper
Providence v. Trappe & Limerick Electric Street Railway Co., 20
Mont. 167.
It has also been held with reference to a gas and electric company
formed by the consolidation of a number of companies incorporated
under the Act of April 29th, 1874, that the commencing of work in a
single district covered by the charter of any one of the constituent
companies, even though before the consolidation, is a commencing
of work within the whole district covered by the consolidated com-
pany, if it is the intention to supply gas and electricity in the entire
district: Chester County Gas Co. v. Merion & Radnor Gas & Electric
Co., 16 Dist. 214.
ARTICLE XV.
OFFENCES AGAINST WATER COMPANIES.
153. TAKING OF WATER WITHOUT AUTHORITY.
"If any person or persons shall open a communication into the
water or gas main or other pipe of said company, without authority
from the inspector or other authorized agent of said company, or
shall let on the water or gas, after either shall have been stopped
by order of said inspector or authorized agent of said company for
repairs or any other cause or purpose, or shall put up any hydrants,
pipes or burners, in addition to those originally put up and inspected,
and introduce into them, water and gas, as the case may be without
authority as aforesaid, he, she or they shall be subject to a penalty
of not less than ten, nor more than one hundred dollars, recoverable
110
before any alderman or justice of the peace of the proper courty,
as debts of like amount are by law recoverable, one-half to be paid to
the informer, and one-half to the company:" Clause 5, section 34,
Act of April 29th, 1874, (P. L. 73).
The imposing of a penalty for turning on or taking the water of
a water company without authority is a legitimate exercise of the
police power of the Commonwealth, and is intended to protect the
interests of the public by investing those who have undertaker to
discharge a duty to the public with the absolute control of the in-
strumentalities for discharging that duty, and the officers or agents
of a borough have no more authority to turn on and take the water
of a water company than a private individual, and should they do so,
eyen under cover of a resolution of the borough council, they are in-
dividually liable to the penalty: Tyrone Gas & Water Co., v. Burley
19 Superior Court, 348.
154.
INJURING WORKS OF A WATER COMPANY.
"If any person shall wilfully or maliciously do, or cause to be
done, any act or acts whatever, whereby any building construction,
reservoir or works of said company, or any water or gas pipe, gas
post, burner or reflector, or any matter or thing appertaining to the
same shall be stopped or obstructed, injured, contaminated or de-
stroyed, the person or persons so offending shall be considered guilty
of a misdemeanor, and may therefor be indicted in the court of
quarter sessions of the proper county, and on conviction thereof, shali
be punished by a fine not exceeding five hundred dollars, or be im-
prisoned not exceeding one year, or both, at the discretion of the
court: Provided, That such criminal prosecution shall not in any
way impair the right of said company to a full compensation in dan-
ages by civil suit:" Clause 6, section 34, Act of April 29th, 1874,
(P. L. 73).
*
*
*
"If any person shall wilfully and maliciously injure, or destroy,
or attempt to injure or destroy, any well sunk for the production of
water, or any reservoir, standpipe, or tank intended or
used for the storage
* * of water, or any pumping-station,
valve, or pipe-line intended or used for the transportation of * * * *
water, or any power-house, substation, cable or wire intended or used
for the manufacture or transportation of electric current, or any
machinery connected with such wells, tanks, lines of pipe, reservoirs,
standpipes, pumping-stations, compressing stations, power-houses,
substations, cables, or wires, he shall be guilty of a misdemeanor; and
upon being thereof convicted shall be sentenced to pay a fine not
exceeding one thousand dollars, and undergo imprisonment not ex-
ceeding three years, or both or either, at the discretion of the court.”
Section 1, Act of June 23rd, 1885, (P. L. 145) as amended by Act of
July 6th, 1917, (P. L. 748).
155. TRESPASS AND POLLUTION OF WATERS.
"That any person who shall wilfully enter upon the enclosed land
of any company incorporated under the laws of this Commowealth
for the purpose of supplying water to the public for drinking par
poses, on which land is erected a dam, reservoir, pond or other arti-
ficial means for storing water, and pollute or attempt to pollute the
1
111
water on such land, shall be deemed, and the same is hereby declared
to be a misdemeanor, and may be prosecuted and convicted as such
under the laws of this Commonwealth, and conviction thereof in the
court of quarter sessions of the proper county, shall be fined not
exceeding fifty dollars and imprisonment not exceeding sixty days:"
Act June 24th, 1895, section 1, (P. L. 231).
"That any duly constituted watchman of any such water company,
or any constable or policeman, is hereby authorized and empowered.
upon his own view of any such trespass, to make arrests and bring
before any alderman or magistrate of the proper county, offenders
found viclating the provisions of this act:" Act June 24th, 1895,
section 2, (P. L. 231).

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APPENDIX
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( 113 )

(111)
APPENDIX.
This appendix contains articles dealing with the creation, organ-
ization, power and duties, and administration of the Water Supply
Commission, not treated under the law relating to water companies.
ARTICLE I. CREATION, APPOINTMENT OF MEMBERS, OATH OF
OFFICE, VACANCIES AND SALARIES.
ARTICLE II.
ARTICLE III.
ORGANIZATION, POWERS AND DUTIES.
PYMATUNING SWAMP.
ARTICLE IV. FRENCH CREEK.
ARTICLE V. RULES GOVERNING THE PRACTICE BEFORE THE
COMMISSION.
ARTICLE VI. RULES AND INSTRUCTIONS CONCERNING APPLICA-
TIONS AND PLANS FOR THE REPAIR, ALTERATION
AND CONSTRUCTION OF DAMS.
ARTICLE VII. RULES AND INSTRUCTIONS CONCERNING APPLICA-
TIONS AND PLANS FOR THE CONSTRUCTION, AL-
TERATION OR PERMANENT REPAIR OF BRIDGES,
WALLS, WHARVES, FILLS OR OTHER WATER OB-
STRUCTIONS, EXCLUSIVE OF DAMS.
ARTICLE VIII. FORMS.
WATER SUPPLY COMMISSION OF PENNSYLVANIA.
ARTICLE I.
CREATION; APPOINTMENT OF MEMBERS; OATH OF OF-
FICE; VACANCIES AND SALARIES.
(a) CREATION OF COMMISSION, APPOINTMENT OF MEM-
BERS.
"That there is hereby created the Water Supply Commission of
Pennsylvania to consist of five members, three of whom shall, within
thirty days after the passage of this act, be appointed by the Gov-
ernor, by and with the consent of the Senate, to serve for four years
from the time of their appointment, and the two remaining members
of the commission shall be the Commissioner of Forestry and the
Commissioner of Health, to be called and known as the Water Sup-
ply Commission of Pennsylvania." Section 1, Act of May 4, 1905,
(P. L. 385).
( 115 )
116
(b) OATH OF OFFICE AND FILLING OF VACANCIES.
"The members of the Commission shall, before entering upon the
discharge of their duties, take and subscribe to the oath of office
provided by the Constitution, and file the same in the office of the
Secretary of the Commonwealth. All vacancies occurring in the
Commission shall be filled by appointment of the Governor for four
years." Section 2, Act of May 4th, 1905, (P. L. 385).
(c) SALARIES OF MEMBERS.
"Each member of the Commission shall receive a salary of three
thousand dollars per annum which shall be paid quarterly by a war-
rant drawn by the Auditor General, upon the State Treasurer, out
of moneys not otherwise appropriated, except the Commissioner of
Forestry and the Commissioner of Health, who shall serve without
salary, but shall be allowed necessary expenses." Section 6, Act
of May 4th, 1905, (P. L. 385).
ARTICLE II.
ORGANIZATION, POWERS AND DUTIES.
(a) ORGANIZATION AND APPOINTMENTS.
"Immediately after the appointment and qualification of the mem-
bers of the Commission, they shall proceed to organize by electing a
chairman and secretary
*** Section 3, Act of May 4, 1905,
(P. L. 385).
*
"It shall be the further duty of the Commissioners, that they are
hereby authorized to appoint a competent engineer, at a salary of
two thousand five hundred dollars per annum, and a competent
clerk, who shall also be a stenographer, at a salary of one thousand
two hundred dollars per annum, to assist them in their labors." Sec-
tion 4, Act of May 4th, 1905, (P. L. 385).
(b) POWERS AND DUTIES.
1. AS TO
*
INVESTIGATIONS—INVENTORIES-REPORTS-
RECOMMENDATIONS.
It shall be the duty of the Commission to procure,
as speedily as may be, all the data and facts necessary to advise
them thoroughly of the situation of the water supply of the State,
and adopt such ways and means of utilizing, conserving, purifying
and distributing such water supplies in such a way that the various
communities of the State shall be fairly and equitably dealt with in
such distribution: Provided, however, That the local distribution of
water within the limits of an incorporated village, town or city, is
not to fall within the jurisdiction of this commission." Section 3,
Act of May 4th, 1905, (P. L. 385).
117
"It shall be the further duty of the said Commission to collect
such information relative to the existing conditions of the water sup-
ply of the State, and to make an annual report to the Governor and
the Legislature, based upon such investigation, recommending such
future legislation as in its opinion is necessary for the conservation,
development, purification, equitable distribution and the supply of
the waters of the State, and in particular to such communities as are
now greatly in need of extended facilities for this purpose." Section
7, Act of May 4th, 1905, (P. L. 385).
"That the term 'water resources' as used in this act, includes all
rivers, streams, and underground waters, and all bodies of surface
water, either in whole or in part, within this State." Section 1,
Act of July 25th, 1913, (P. L. 1233).
"It shall be the duty of the Water Supply Commission of Penn-
sylvania to make a complete inventory of all the water resources of
the Commonwealth; and collect all pertinent data, facts, and in-
formation in connection therewith; and to classify, tabulate, record,
and preserve the same; and, upon the basis thereof, to determine the
points at which reservoirs may be constructed for the purpose of
ininimizing floods, of storing and conserving water for power, and
other utilization and distribution of water and water-power, of in-
creasing the low water flow of rivers and streams for the purpose
of navigation; and generally, to devise all possible ways and means
to conserve and develop the water supply and water resources of the
Commonwealth, for the use of the people thereof. To the end an
object aforesaid, the said Commission shall study, consider, and de-
termine upon a public policy with regard to the marketing and equi-
table distribution of the water to be derived from the water resources
of the Commonwealth; to the restoration, development, and improve-
ment of transportation by water; to the supply of water for domestic
and industrial use, and to the conservation of water resources by
the aid of forestation. The Commission shall present a report, in
writing, to the next session of the General Assembly setting forth
the result of such inventory, together with such recommendations
and suggestions for legislation, upon the basis thereof, as to it may
seem expedient and advisable. The said Commission is hereby
authorized and directed to publish, and have printed for general dis-
tribution, five thousand copies of such report." Section 2, Act of
July 25th, 1913, (P. L. 1233).
"Whereas the amelioration of flood conditions on the rivers of
this Commonwealth is a matter of vital importance because of the
severe damage suffered annually by reason of floods on such rivers,
and
"Whereas the Government of the United States is desirous of co-
operating with the Commonwealth of Pennsylvania in making investi-
gations, examinations and surveys on rivers of this Commonwealth
and on tributaries of such rivers, whether the same be wholly within
or partly within and partly without or wholly without this Com-
monwealth and in preparing plans and estimates of costs for the
purpose of devising and carrying into effect plans for the control of
the flood waters of rivers being either in whole or in part within this
Commonwealth, and
"Whereas it is to the best interests and welfare of this Common-
wealth to co-operate with the Government of the United States for
this purpose, therefore
118
"Section 1. Be it enacted by the Senate and House of Represen-
tatives of the Commonwealth of Pennsylvania in General Assembly
met, and it is hereby enacted by the authority of the same, That the
sum of *
* is hereby made available to the Water Supply
Commission of Pennsylvania or the Department of Conservation for
the purpose of co-operating with the Government of the United States
in making examinations, investigations and surveys on rivers of this
Commonwealth and on tributaries of such rivers whether the same
be wholly within or partly within and partly without or wholly with-
cut this Commonwealth and in preparing plans and estimates of cost
with a view to devising and carrying into effect plans for controlling
the flood waters of rivers which are either in whole or in part within
this Commonwealth. For the purpose of such co-operation the Water
Supply Commission of Pennsylvania or the Department of Conser-
vation is hereby authorized on behalf of the Commonwealth of Penn-
sylvania to enter into such contracts and agreements with the Sec-
retary of War or other proper officer, bureau, department, or agency
of the Government of the United States duly authorized thereto as
to the said Water Supply Commission of Pennsylvania or the Depart-
ment of Conservation may seem proper." Act of July 18th, 1919--
(Appropriation act No. 406 A).
2. AS TO EMPLOYEES AND SUPPLIES.
"The Water Supply Commission of Pennsylvania shall employ such
persons, expert or otherwise, as may be needed for the purpose of
making the said inventory and report, as aforesaid, and for the pur-
pose of carrying on any and all of its work heretofore authorized,
or that may be hereafter authorized, and at such compensation as
may be fixed by the said Commission." Section 3, Act of July 25th,
1913. (P. L. 1233).
"The Water Supply Commission of Pennsylvania is hereby author-
ized and empowered to purchase such supplies and material, of any
and every kind, as may be incidental to or necessary in the prosecu-
tion of its work, if, in its judgment, it is necessary in order to ex-
pedite, and more efficiently carry on its work." Section 3, Act of
July 25th, 1913, (P. L. 1233).
3. AS TO EMINENT DOMAIN.
"In the performance of the work hereby authorized, the members
of the Water Supply Commission, and any agent or employee thereof,
are authorized to enter and re-enter upon any land or premises, and
may make any survey or measurement, or collect any data deemed
necessary. Any person who shall prevent, or attempt to prevent,
any such entry or re-entry, or any such work aforesaid, or who shall
destroy, or deface or disturb any mark, stake, device, or apparatus
used, or intended to be used, in carrying on said work, shall, upon
conviction thereof, in a summary proceeding before any alderman,
magistrate or justice of the peace of the county, be sentenced to pay
a fine of not more than twenty-five dollars, with costs of prosecution,
or, in default thereof, shall be sentenced to undergo an imprisonment
in the jail of the county for a period not exceeding ten days." Sec-
tion 5, act of July 25th, 1913, (P. L. 1233).
119
"In the exercise of the powers, or in the performance of the duties
now or hereafter conferred or imposed by law on the said commis-
sion, the said commission, or any of the members thereof, its en-
gineers, employees, or any other agent or person appointed by it,
shall have the right to enter and re-enter upon any land or premises.
and have free access to the works, structures, buildings or grounds.
of any person or persons, partnership, association, municipality,
township or corporation, within this Commonwealth, and to make
any survey or measurement and collect any data of information which
the Commission may deem necessary.
Any person who shall prevent or obstruct, or attempt to prevent
or obstruct, the exercise of the right of entry, access or examination
aforesaid, shall be guilty of a violation of the provisions of this act,
and, upon conviction thereof, in a summary proceeding before any
magistrate or justice of the peace of the proper county shall be
sentenced to pay a fine of not less than fifty dollars, nor more than
one hundred dollars, or to undergo an imprisonment in the jail of
such county for a period not exceeding thirty days." Section 3 of
act of July 7th, 1913, (P. L. 688).
4. AS TO WATER GAUGES.
"That the Water Supply Commission of Pennsylvania is hereby
anthorized to establish and to maintain such gauging stations on
the principal rivers and tributaries thereof as, in the judgment of
the commission, may be necessary for the determination of the daily
height of water in such streams and tributaries thereof, as well as
the amount of water flowing therein." Section 1, act of May 23rd,
1913, (P. L. 347).
"The Commission shall, during freshet and flood conditions, issue
Lulletins, to be telegraphed or telephoned to such municipalities in
the Commonwealth where flood damage is likely to be caused, fore-
casting the probable maximum gauge heights expected to be reached,
and the probable time of the arrival of such gauge heights." Section
2, Act of May 23rd, 1913, (P. L. 347).
5. AS TO THE ACQUIREMENT BY THE UNITED STATES OF
NATIONAL FOREST RESERVES TO PROTECT WATER-
SHEDS OF NAVIGABLE STREAMS.
"That the United States of America is hereby empowered to acquire
by purchase, cr by making adequate compensation under condemna-
tien proceedings, such lands in Pennsylvania as in the opinion of the
Federal Government may be needed for the establishment of National
Forest Reserves in this State, in accordance with an act of Congress,
entitled, 'An act to enable any State to co-operate with any other
State or States, or with the United States, for the protection of the
watersheds of navigable streams, and to appoint a commission for
the acquisition of lands for the purpose of conserving the naviga-
bility of navigable rivers,' approved the first day of March, one thou-
sand nine hundred and eleven: Provided, That the approval of the
State Forestry Reservation Commission and the Water Supply Com-
mission shall be first had and obtained:
Provided further, That if at any time in the future, after the es-
tablishment by the Federal Government of such National Forest Re-
120
serves in the Commonwealth of Pennsylvania, the Commonwealth
shall desire to resume complete ownership and control over said
lands, it may do so by appropriate legislative action, providing
therein for the repayment to the United States of America of all
moneys which may have been spent in acquiring lands the ownership
of which is to be resumed, and interest thereon at the rate of two
per centum per annum: And provided further, That the Common-
wealth of Pennsylvania shall retain a concurrent jurisdiction with
the United States in and over such lands, so far that civil process, in
all cases, and such criminal process as may issue under the authority
of the Commonwealth of Pennsylvania against any persons charged
with the commission of any crime, without or within said jurisdic-
tion, may be executed thereon in like manner as if this act had not
been passed." Section 1, Act of May 11, 1911, (P. L. 271).
6. AS TO CONSENT TO BUILD TUNNELS UNDER NAVIGA-
BLE STREAMS TO COAL LANDS.
"From and after the passage of this act, whenever the power or
manufacturing plant of any company, heretofore or hereafter in-
corporated under the laws of the Commonwealth of Pennsylvania, is
situated upon or near the bank of any navigable stream within this
Commonwealth, and such company has the right, either as the owner
in fee or by lease or other arrangements, to mine coal from or under
lands adjoining or adjacent to the opposite bank of said navigable
stream, or is the owner of a majority of the capital stock of any
company that has the right, either as owner in fee or by lease or other
arrangement, to mine coal from or under lands adjoining or adjacent
to such opposite bank of said navigable stream such company shall
have the right and lawful authority to construct, operate, and main-
tain tunnels under said navigable stream, so as to connect said coal
lands, and any mine operated in connection with said coal lands,
with said power plant of said company: Provided, however, Before
any company begins the construction of any tunnel, it shall make ap-
plication to, and secure the approval of, the Water Supply Commis-
sion of the Commonwealth of Pennsylvania or such other authority
as shall, at the time of such application have jurisdiction over
navigable streams under the laws of the Commonwealth of Penn-
sylvania the same as now vested in said Water Supply Commission:
Provided, however, That said corporation or corporations, construct-
ing said tunnel or tunnels, shall pay to the Commonwealth of Penn-
sylvania the fair market value for all coal mined in constructing
said tunnel or tunnels." Act of July 8th, 1919, (P. L. 759).
7. AS TO HEARINGS AND PROCEDURE.
"That the Water Supply Commission of Pennsylvania is hereby
authorized to prepare and publish rules and regulations, defining the
procedure to be followed in all matters pertaining to or coming
within its powers or authority. All hearings shall be public, and
the Commission may at its discretion require that notice of any ap-
plication presented to it, shall be published by the applicants, in at
least one newspaper of general circulation in the proper county, two
weeks prior to the hearing. Said notice shall include the purpose of
the application, names of the applicants, location of the proposed
121
work, and the date of the hearing. Sufficient proof of the publication
thereof, shall be filed with the Commission prior to the hearing. The
Commission is hereby empowered to subpoena witnesses to appear
before it at any time, and to require under subpoena the production
of books, papers, and records on any matter coming within its powers
or authority. Witnesses may be required to testify under cath or
affirmation, which may be administered by any member of the Com-
mission; and any person wilfully swearing falsely in any proceeding
before the Commission shall be guilty of perjury," Section 1, Act
of July 7th, 1913, (P. L. 688).
"Any person who shall appear at any hearing or investigation held
by the Commission, who shall refuse to be sworn, or, being sworn,
shall refuse to give testimony or produce any documentary evidence
in his possession or custody at such hearing or investigation, shall
be guilty of a misdemeanor, and upon conviction thereof, shall be
sentenced to pay a fine not exceeding five hundred dollars, or undergo
an imprisonment in the county jail, not exceeding one year, or both
at the discretion of the court." Section 2, Act of July 7th, 1913, (P.
L. 688).
ARTICLE III.
PYMATUNING SWAMP.
"That the Water Supply Commission of Pennsylvania is hereby
directed to survey the Pymatuning Swamp in Crawford County,
Pennsylvania, and lands contiguous or adjacent thereto, and to
examine into the feasibility of constructing a dam or dams across
the outlet or outlets of said swamp, whereby the waters entering the
same may be conserved, to regulate the flow of water in the Shenango
and Beaver Rivers. The said Commission shall prepare maps, plans
and estimates, and report in writing to the Legislature of one thou-
sand nine hundred and thirteen, giving the results of such survey and
examination, and such additional information and recommendations
as the Commission shall deem proper." Section 1, Act of June 14th,
1911, appropriation acts No. 721.
"Whereas, By an act approved the fourteenth day of June, one
thousand nine hundred eleven, entitled 'An act providing for a sur-
vey of Pymatuning Swamp, and an examination into the feasibility
of constructing a. reservoir therein to conserve the waters draining
into said swamp, and making an appropriation therefor,' the Water
Supply Commission was directed to survey Pymatuning Swamp, in
Crawford County, and the lands contiguous or adjacent thereto, and
to examine into the feasibility of constructing a dam or dams across
the outlet or outlets of said swamp, whereby the waters entering the
same might be conserved, and the flow of water regulated in the
Shenango and Beaver Rivers; and
122
"Whereas, In pursuance of said act, the Water Supply Commis-
sion caused said survey to be made, and has presented its report
thereon; and
"Whereas, in said report the Water Supply Commission states
that the project is a feasible one, that a portion of said Pymatuning
Swamp can be converted into a storage reservoir by constructing
a dam across the valley of the Shenango river, that the low water
flow in the Shenango river would thereby be increased about two
hundred seventy-five million agllons per diem, that the reservoir
would eliminate any considerable contribution to floods from the
territory above the dam, that the proposed reservoir would improve
the sanitary conditions of the Shenango and Beaver rivers and of
the swamp, that approximately two thousand primary horsepower
would be added to existing water power in the Beaver river, that
the construction of the dam and reservoir would cause a benefit
along the Shenango and Beaver valleys more than commensurate
the cost of the project, that the industrial development would be in-
creased, and that the communities in the vicinity of the reservoir
would be benefited through improved highways, the creation of an
attractive lake, increased water transportation, and better sanitary
conditions; therefore,-
"Be it enacted, &c., That the Water Supply Commission of Penn-
sylvania is hereby authorized and directed to cause a dam to be con-
structed across the cutlet to Pymatuning Swamp, in Crawford
County, for the purpose of establishing a reservoir and of conserving
the water entering said swamp, and for the purpose of regulating
the flow of water in the Shenango and Beaver rivers. The dam shall
be constructed and the reservoir established in accordance with
plans and specifications which shall be prepared by, or under the di-
rection of, the commission, and shall be so constructed and established
as to conserve said waters in a safe and practical manner, and to
regulate the flow therefrom so as to maintain throughout the year
as regular a flow of water as possible in said rivers." Section 1, Act
of July 25th, 1913, (P. L. 1270).
"In carrying out said plans, the commission may acquire, in the
name of this Commonwealth by purchase, condemnation, or other-
wise, such lands and materials as may be needed in carrying out the
provisions of this act." Section 2, Act of July 25th, 1913, (P. L. 1270).
"In acquiring any of said lands or materials, if the commission
cannot agree with the owners thereof, or if the owner cannot be
found or is not sui juris, the commission may file its petition in the
court of common pleas of the county wherein the lands or materials
are situated, praying for the appointment of viewers to ascertain the
fair value of such land or material. Thereupon the court shall ap-
point, from among the members of the board of viewers of the county,
three viewers, who, by personal inspection and otherwise of the lands
or materials proposed to be acquired, shall ascertain and fix the fair
value thereof. The court shall fix a time, not less than ten days nor
more than twenty days thereafter, for the viewers to meet, either upon
said lands or otherwise. Notice of the time and place of meeting of
such viewers shall be given, where practicable, by personal service
upon the owner, or by such other service as the court may direct.
When the viewers shall have completed their labors, they shall file
123
their report in writing in the said court. If no exceptions shall be
filed thereto within thirty days from the filing of the report, or if no
appeal therefrom be filed within said time demanding a trial by jury,
the said report shall be confirmed absolutely. After final judgment
on any appeal from the award of viewers, an appeal may be had to
either the Supreme Court or Superior Court, as the case may re-
quire. Except as is otherwise hereinafter provided, in all pending
proceedings and proceedings hereafter instituted, the compensation
of the viewers, together with all the costs of the proceedings, shall
be paid from any of the appropriations heretofore or hereafter made
by the Commonwealth of Pennsylvania to the Water Supply Commis-
sion and available for the purchase of said lands and for otherwise
carrying out the provisions of this act; and in no such case shall the
compensation of any of such viewers or the costs of any of such pro-
ceedings be assessed against or ordered to be paid by the county in
which the proceedings are instituted; but if, upon any appeal, the
award of the viewers is not increased or modified in favor of the
appellant, the entire cost of the proceedings subsequent to such award
shall be paid by the appellant. In so far as practicable the commis-
sion may include in one petition proceedings for the condemnation
of all land in one county proposed to be acquired.
"In any proceedings under this section the court may appoint
such guardian or committees or trustees as the case may require; and
may in all cases prescribe the form and manner of service of any
notice required in any proceedings under this act." Section 3, Act
of July 25th, 1913, (P. L. 1270), as amended by the Act of July 15th,
1919, (P. L. 959).
"The commission is hereby authorized to obtain from the owners
of the lands which will be submerged or injured in the State of
Ohio, by reason of the construction and operation of the said dam
and reservoir, a release or releases of damages which shall result
to said land by reason of the construction and operation of the said
dam and reservoir, for which releases the commission is hereby
authorized to pay such sums of money as it shall deem to be reason-
able. All contracts, options and releases shall be in such form as
shall be approved by the Attorney General. The Commission shall
proceed to the acquisition of the lands necessary for the construction
and operation of the said dam and reservoir within the State of Penn-
sylvania, either by purchase or condemnation, in the manner here-
inbefore provided; which lands, in the State of Pennsylvania, may
be acquired when, and as deemed advisable by, said commission; and
the work of constructing said dam and reservoir may be started as
soon as the commission shall deem advisable." Section 4, Act of
July 25th, 1913, (P. L. 1270), as amended by the Act of June 18th,
1915, appropriation act No. 592.
"That whenever property in Pennsylvania is injured or destroyed
by reason of the erection and maintenance of the dam and reservoir
provided for in the act to which this is a supplement, and the Water
Supply Commission cannot agree with the owner of such property as
to the amount of such damages, the said damages shall be ascertained
on the petition of the Water Supply Commission or any person in-
terested, in the manner provided by the act to which this is a sup-
plement for ascertaining damages for property acquired under
124
authority of said act." Section 1, Act of July 20th, 1917, (P. L. 1128).
"The commission may agree with any person, partnership, associa-
tion or corporation for the removal, relocation, elevating, lowering,
or otherwise changing of any railroad, railway, telegraph line, tele-
phone line, electric light, heat or power line, gas line, road, highway,
street or bridge, or any part thereof. If such agreement cannot be
made, then such removal, relocation, elevation, lowering, or chang-
ing may be done by the commission, and the damages, if any, sus-
tained thereby shall be fixed as in said condemnation proceedings."
Section 5, Act of July 25th, 1913, (P. L. 1270).
"No land shall be purchased by the commission until the titles
thereto have been approved by the Attorney General."
"When the said dam is completed and said reservoir established,
it shall be maintained and operated at the expense of this Common-
wealth under the direction of the Water Supply Commission." Sec-
tions 6 and 7 of the Act of July 25th, 1913, (P. L. 1270).
ARTICLE IV.
FRENCH CREEK.
"That the Water Supply Commission is authorized and directed
to deepen, widen, and improve French Creek in the city of Meadville
and in the townships of Hayfield, Vernon, West Mead, Union and
East Fairfield, Crawford County, in such manner as to prevent, if
possible, said creek from overflowing its banks and causing damages
to the highways in the vicinity. Said work shall be performed in
accordance with plans and specifications which shall be prepared
by or under the direction of the commission, and shall be performed
in such a manner as to obviate so far as possible any danger of flood
in the vicinity of said creek in the city and townships aforesaid.
The work may include, in the direction of the commission, the deep-
ening or removal of any obstruction in the stream, and the construc-
tion or repair of retaining walls, or changing the course of the chan-
nel wherever it may be found necessary or advisable." Section 1,
Act of July 25th, 1917, (P. L. 1191).
"In carrying out said plans the commission may take, injure, or
destroy, in the name of this Commonwealth, by purchase, condem-
nation or otherwise, such lands and materials as may be needed in
carrying out the provisions of this act." Section 2, Act of July 25th,
1917, (P. L. 1191).
"In taking, injuring, or destroying any of said lands or material,
if the commission cannot agree with the owners thereof, or if the
owner cannot be found or is not sui juris, the commission may file
its petition in the court of common pleas of the county wherein the
lands or materials are situated, praying for the appointment of
viewers to ascertain the fair value of such land or material. There-
upon the court shall appoint from among the members of the board
of viewers of the county three viewers, who, by personal inspection
125
and otherwise of the lands or materials proposed to be taken, injured
or destroyed, shall ascertain and fix the fair value thereof. The court
shall fix a time, not less than ten days nor more than twenty days
thereafter, for the viewers to meet, either upon the lands or otherwise.
Notice of the time and place of meeting of such viewers shall be given
where practicable by personal service upon the owner, or by such other
service as the court may direct. When the viewers shall have com-
pleted their labors they shall file their report in writing in the said
court. If no exceptions shall be filed thereto within thirty days
from the filing of the report, or if no appeal therefrom be filed within
said time demanding a trial by jury, the said report shall be con-
firmed absolutely. After final judgment on any appeals from the
award of viewers, an appeal may be had to either the Supreme or
Superior Court, as the case may require. If upon any appeal the
award of the viewers is not increased or modified in favor of the ap-
pellant, the entire cost of the proceedings subsequent to such award
shall be paid by the appellant. In so far as practicable the commis-
sion may include in one petition proceedings for the condemnation of
all land to be taken, injured, or destroyed under this act.
"In any proceedings under this section the court may appoint such
guardians or committees or trustees as the case may require, and
may in all cases prescribe the form and manner of service of any
notice required in any proceeding under this act." Section 3, Act of
July 25th, 1917, (P. L. 1191).
"When the entire costs of said lands and materials, including ex-
penses, and the cost of said improvement, shall have been ascertained
and fixed, as nearly as may be, the Commission may take possession
of said lands or materials in the name of this Commonwealth, after
giving the sixty days' notice thereof by publication in the counties
wherein said lands or materials are located. No part of said lands
or materials shall be taken over by the commission, in the name of
the Commonwealth, until by agreement with the owner, or by pro-
ceedings in condemnation as provided for in this act. The entire cost
of all said lands and materials shall be ascertained and fixed as
nearly as may be." Section 4, Act of July 25th, 1917, (P. L. 1191).
"The commission may agree with any person, copartnership, asso-
ciation, or corporation for the removal, relocation, elevating, lower-
ing or otherwise changing, of any railroad, railway, telegraph line,
telephone line, electric-light, heat, or power line, gas line, road, high-
way, street, or bridge, or any part thereof. If such agreement cannot
be made, than such removal, relocation, elevation, lowering, or
changing may be done by the commission, and the damages, if any,
sustained thereby shall be fixed as in said condemnation proceedings."
Section 5, act of July 25th, 1917, (P. L. 1191).
"No land shall be purchased by the commission until the titles
thereto have been approved by the Attorney General." Section 6,
act of July 25th, 1917, (P. L. 1191).
126
ARTICLE V.
The following rules, governing the practice before the Commission,
are submitted for the guidance of those interested:
RULES CONCERNING WATER AND WATER POWER COM-
PANIES. NOTICES.
Twenty-one days' notice of the intention to apply for a charter must
be given by advertisement in two newspapers of general circulation,
printed in the county or counties where the water or water power
is to be supplied and water or water power is to be obtained.
Notice of such intention to apply for a charter should give the
names of at least three incorporators, designate the time when appli-
cation for said charter will be made to the Governor, the Act of As-
sembly under which it is made, the purpose proposed, and the district
proposed to be supplied.
Proof of the publication of such notice must be filed in the office
of the Secretary of the Commonwealth before the application is pre-
sented to the Governor or the Commission, and no application will
be acted upon by the Commission until such proof is filed.
FILING OF PAPERS, MAPS, ETC.
All applications for charters, agreements for the merger and con-
solidation of two or more companies, and certificates designating the
source of supply of a company proposing to purchase the property
and franchises of another company, should be filed in the office of the
Secretary of the Commonwealth, and a copy thereof should be fur-
nished this Commission.
Application for charters should be on file in the office of the Secre-
tary of the Commonwealth during the period of publication of notice.
Application for a new or additional source of supply should be
filed in the office of the Secretary of the Commonwealth and a dupli-
cate of such application should be filed in the office. of this Commis-
sion.
No application for a charter, or for the approval of an agreement
for the consolidation and merger, or for the approval of a source of
supply by a company proposing to purchase the property and
franchises of another company, or of an application for a new or
additional source of supply, will be considered by the Commission
until all fees and bonus required by law shall have been paid.
Applicants for charters for water or water power companies, or
for a new or additional source of supply, or for the approval of an
agreement of merger and consolidation, or of the purchase of the
property and franchises of one company by another shall furnish the
commission with maps and plans in sufficient detail to show in the
case of proposed water supply companies the source of the water,
method of collection, and distribution and community or communi-
127
ties to be supplied. In the case of proposed water power companies,
said maps and plans should show the stream or streams to be used
for water power, the method of development and the destination of
the power. They shall also submit a written description of the pro-
posed works, authentic data concerning the character and volume of
the water to be used, and such other information as the Commission
Lay deem necessary for intelligent disposition of the application.
Lists of questions concerning proposed water power developments
and proposed water supply systems are furnished applicants upon re-
ceipt of applications for charters.
All applications for the incorporation of water and water power
companies, or for a new or additional source of supply, or for the
approval of an agreement of merger and consolidation, and all cer-
tificates designating the source of supply of a water company pro-
posing to purchase the property and franchises of another company,
together with all plans and information required in connection with
the same, must be on file in the office of the Commission at least ten
days, in order to permit of investigation and report by its Engineer-
ing Division.
In all applications for the incorporation of water and water power
companies, or for a new or additional source of supply, and in all
agreements of merger and consolidation and all certificates designat-
ing the source of supply of a company proposing to purchase the prop-
erty and franchises of another company, the proposed source of supply
must be stated specifically by reference in measured distance from
some known and permanent point.
All approvals by the Commission are conditioned upon, and sub-
ject, to a compliance with the rules of the Department of Health, rela-
tive to the purity of water.
PROTESTS, PETITIONS AND HEARINGS.
A protest against the approval of any application for a charter, or
of the merger and consolidation of two or more companies, or of the
purchase of the property and franchises of one company by another,
or of a new or additional source of supply, should clearly and specif-
ically set forth the ground for such protest and the interest of the
protestants, giving the full and correct name of the company or
companies against whose application for a charter, or for a new or
additional source of supply, or against whose merger and consolida-
tion, or purchase, it is filed, and in case of an application for a
charter, designate the date when the application is advertised to be
made, and should be verified by affidavit. A day for hearing will
then be appointed at which time all parties will be heard by counsel
or in person.
Matters relating to the utilizing, conserving or distributing the
waters of the State may be brought to the attention of the Commis-
sion by petition verified by affidavit, which shall fully set forth all
the facts and the names of the persons, firms or corporations affected
thereby, and such persons, firms or corporations will be given an
opportunity of being heard relative to the matters alleged.
Answers to complaints against a water company by a municipality,
under the provisions of the act of May 28th, 1907, shall be made in
writing, under the seal of the corporation, and shall be verified by
128
oath or affirmation of the president or secretary of such company,
and be filed with the Commission, within thirty days after service of
notice upon the company by the municipality. If deemed necessary
a day for a hearing will be fixed, at which time the parties will be
heard by counsel or in person.
RULES CONCERNING THE CONSTRUCTION AND REGULA-
TION OF DAMS, OR OTHER STRUCTURES OR OBSTRUC-
TIONS, IN, ALONG, ACROSS OR PROJECTING INTO ANY
STREAM OR BODY OF WATER WHOLLY OR PARTLY
WITHIN, OR FORMING PART OF THE BOUNDARY OF,
THE COMMONWEALTH OF PENNSYLVANIA.
Applications for the consent or permit of the Water Supply Com-
mission for the construction of any dam or other water obstruction,
or any change therein, or addition to an existing water obstruction
or to change or diminish the course, current or cross-section of any
stream or body of water, wholly or partly within, or forming part of
the boundary of, this Commonwealth, must be made upon blanks
which will be furnished by the Commission upon request. Applicants
shall furnish the Commission with complete maps, plans, profiles and
specifications of the proposed work, which shall accompany the ap-
plication, and shall also furnish the Commission with such other
information and data relating thereto as the Commission may require
and such application must be on file in the office of the Commission
at least ten days previous to the regular meeting at which such ap-
plication will be considered.
When required by the Commission, public notice of application to
be presented to the Water Supply Commission, shall include the pur-
pose of the application, names of the applicants, location of the pro-
posed work and the date of hearing.
In the event of the approval of such application by the Commis-
sion, a permit will be issued to the applicant, granting consent and
permission to construct, erect, build and maintain said water ob-
struction, or to make a change in or addition to said water obstruc-
tion, subject to such conditions, limitations and regulations as may
be prescribed by the Commission, and providing, of course, that full
lawful authority exists for making such obstruction.
All maps, plans, profiles and specifications, information and data,
submitted with the application, will remain on file in the office of the
Commission.
Subsequent to the issuance of a permit by the Water Supply Com-
mission for the construction of any dam or other water obstruction,
or any change therein, or addition to an existing water obstruction,
or to change or diminish the course, current or cross-section of any
stream or body of water, wholly or partly within, or forming part
of the boundary of, this Commonwealth, no change or modification
in the plans or specifications, as approved, or deviation from the
conditions prescribed by the Commission in the permit issued, shall
be made without first making application for and receiving the ap-
proval of the Commission in writing therefor.
Protests against applications for the consent or permit of the Com-
mission for the construction of any dam or other water obstruction,
or any change therein, or addition to an existing water obstruction
129
or to change or diminish the course, current or cross-section of any
stream or body of water wholly or partly within, or forming part of
the boundary of, this Commonwealth, may be filed with the Com-
mission by any party in interest, and should clearly set forth the
ground of the protest and the interest of the protestants, giving fully
and correctly all the necessary facts, verified by affidavit. A day for
hearing will be fixed, if deemed necessary by the Commission, at
which time all parties interested will be heard by counsel or in per-
son.
The Commission has the power, upon complaint, or upon its own
initiative, to cause an investigation or examination to be made of
any dam, or other water obstruction now existing or hereafter con-
structed. The complainant should set forth all the facts and circum-
stances and the name of the person or persons, partnership, associa-
tion, corporation, county, city, borough, town or township causing
such obstruction or change, the name of the river, stream or body of
water so affected, the place at which the obstruction or change is
being made, the character thereof and the damage, or probable
damage, occasioned, or to be occasioned, thereby. Said complaint.
should be verified by affidavit.
Violations of the law by the unlawful obstruction of any body of
water, or change in the course, current or cross-section thereof, may
be brought to the attention of the Commission in writing, setting
forth all the facts and circumstances, and the name of the person,
corporation or municipality causing such obstruction or change, the
name of the river or stream so affected, the place at which the
obstruction, or change, is being made, the character thereof, and the
damage or probable damage, occasioned, or to be occasioned, thereby.
Address all communications to "The Water Supply Commission of
Pennsylvania," Harrisburg, Pennsylvania.
ARTICLE VI.
DAM DIVISION.
The following rules and instructions concerning applications and
plans for the repair, alteration and construction of dams, are sub-
mitted for the guidance of those interested. See article V in appen-
dix.
In accordance with the provisions of the Second Section of the
Act of the General Assembly, approved June 25th, 1913, (P. L. 555),
it is unlawful to construct any dam or other water obstruction, or
to make any change in or addition to an existing dam "without the
consent or permit of the Water Supply Commission of Pennsylvania,
in writing previously obtained, upon written application to said Com-
mission therefor."
Section 3 provides as follows:-"Each application for the consent
or permit required by the second section of this act shall be accom-
9
130
panied by complete maps, plans, profiles and specifications of such
water obstruction, or of the said changes or additions proposed to be
made, and such other data and information as the Commission may
require."
APPLICATION.
Application for a permit shall be made on a blank form which
will be furnished upon request, and shall be signed by the owner or
owners of the proposed or existing dam. If privately owned, the in-
dividual owner, or each member of a partnership shall sign the ap
plication. If owned by a corporation, it shall be signed by the presi-
dent or vice-president, attested by the secretary and the corporate
seal affixed; and if owned by a municipality or county it shall be
signed by the chief officer or commissioners, attested by the clerk and
the municipal or county seal affixed.
PLANS AND SPECIFICATIONS.
The plans and specifications to be submitted with each applicacion
should illustrate and describe in detail the proposed structure and
the methods to be employed in its construction, and should include
the following:-
(a) Location plan, including tributary drainage area;
(b) General plan of dam and reservoir;
(c) Longitudinal section of dam, or cross-section of valley at site
of dam;
(d) Typical cross-section of dam;
(e) Detailed plans of spillway, waste-way or over-flow;
(f)
Detailed plans of outlet or controlling works;
(g) For all masonry dams, diagrams of forces showing the re-
sults of analyses;
(h) For reinforced concrete dams, detailed reinforcement plans.
(a). The location plan or map should show the stream on which
the dam is to be built, the tributary drainage area and the principal
topographical features of the surroundings country, such as streams,
roads, railroads, cities, towns, etc. The scale of such a plan should
be about one inch to the mile, unless this scale would make a plan
of inconvenient or unwieldy size, in which case a different scale may
be used.
(b). The general plan of the dam and reservoir should show ac-
curately the position of all essential details, such as spillway or
waste-way, its point of discharge into the stream, pipes through the
dam, inlets, outlets, screen chamber, gate or valve house, headrace,
canal, mill or power plant, tail race, etc. The area of the water sur-
face of the pond or reservoir should be shown in acres, and the ca-
pacity indicated in cubic feet or gallons.
(c). The longitudinal section of the dam or cross-section of the
valley at the site of the dam should show the elevation of the crest
of the dam, the elevation of the flow line of the reservoir, the original
surface of the ground, the nature and depth of the underlying strata,
and the probable depth of excavation for the foundation or cut-off.
Note. Sub-surface investigations should be made at the site of the dam, by
means of test pits or borings.
131
(d) The typical cross-sections, which should be drawn to a scale
of not less than 1 inch=10 feet, should include a maximum section
of the dam. They should show the original surface of the ground,
and sub-surface conditions as disclosed by test pits or borings, the
probable depth of excavation for foundations or cut-offs, the elevation
of the crest of the dam, and the elevation of the flow line or normal
water surface in the reservoir. If the dam is of earth the depth of
stripping should be shown, the position, material and dimensions of
the cut-off or core-wall, the width of crest, the slope protection, the
position and dimensions of ontlet pipes or culverts and cut-offs to
prevent seepage along such structures, the disposition of different
qualities of earth, if of varying quality, and the methods and manner
of construction. If of masonry, the cross-sections should show all
dimensions and should indicate the position and kinds of masonry to
be included in the structure.
(e) The detailed plans of the spillway, waste-way or overflow
should show the depth of the opening and its length, together with
the width and shape of the crest, grade and shape of the approach and
discharge channels, if any, methods of protecting the toe of the dam
or end of the discharge channel from erosion; and should give the di-
mensions of all walls, floors, paving, etc.
Note. Inasmuch as a large percentage of dam failures is due to lack of adequate
spillway capacity, special attention should be paid to this feature of the design.
(f) The detailed plans of the outlets or controlling works should
show the location and dimensions of all valves or sluice gates, in-
takes, screen chambers, racks, outlet towers, and gate-houses and
appurtenances.
(g) The diagrams of forces for masonry dams should show the
results of the graphical or mathematical analyses, together with the
weights and different conditions assumed, and the maximum pressures
under these conditions.
(h) For reinforced concrete dams, in addition to the above, de-
tailed plans should be submitted showing the sizes and spacing of
all reinforcement, expansion joints, dimensions, etc.
SPECIFICATIONS.
The specifications should describe carefully and in detail the prepa-
ration of the site of the dam, the materials to be employed in its
construction, their arrangement in the structure, the methods to be
used and the results to be obtained.
If stone or concrete masonry is to be used the different kinds or
classes should be carefully described, and the materials and propor
tions accurately specified.
If an earth embankment forms an essential portion of the dam.
the quality or qualities of material should be specified, and the
manner of depositing in the embankment; and if in layers, the thick-
ness of the layers, weight and kind of roller to be used, manner of
sprinkling, size of stone to be allowed to remain in the material, etc..
should be specified. The slopes to be used on the upstream and down-
stream sides should be indicated, as well as the manner of protecting ·
each slope from erosion.
132
REPAIRS.
If it is proposed to make changes in or alterations to an existing
dam, or to use flash-boards, or to make repairs, other than ordinary
maintenance work, an application for a permit should be filed with
the Commission. The plans accompanying applications in such cases
should show in detail the existing conditions as well as the proposed
changes.
SPECIMEN PLANS.
The following plans are specimen plans only, and are intended to
show the scope of information desired rather than to indicate a pref-
erence for any particular type of dam or of construction details on
the part of the Commission.
PROCEDURE.
Upon receipt by the Commission of an application accompanied
by complete plans and specifications, it is referred to the Engineering
Department for investigation and report. An examination of the site
of the proposed dam is then made by a representative of the Commis-
sion, in company with the owner or his engineer. A complete analysis
and study of the design is made, and such deficiencies as may be
found to exist are called to the attention of the applicant in order
that revised plans may be prepared. If the design is satisfactory a
report is written and submitted to the Commission. Not less than
ten days should be allowed for examination and report by the En-
gineering Department.
CONDITIONS ATTACHED TO PERMITS.
When an application for a permit to construct or repair a dam
is approved by the Commission the following general conditions are
made a part of the permit, together with such other conditions as are
considered necessary in the particular case under consideration:—
1. That the Commission shall be notified in advance of
the proposed time of commencement of work upon the dam and
of the time of the preparation of the foundation for the same;
that work shall not be started upon the foundation subsequent
to this notice until the said foundation has been approved by
the Engineer of the Commission or his representative;
2.
That the dam shall be built under the direction of a
competent engineer, and that he or his representative shall
be on the ground daily (or frequently, depending upon the im-
portance of the project) during construction to interpret and
enforce the plans and specifications;
3. That a detailed report upon the status of the construc-
tion shall be furnished to the Engineer of the Commission on
the 15th and last days of each month;
Note. The object of this condition is to enable the Commission to have accurate
knowledge of the progress of construction, and these reports should be make regu-
larly until the work is completed, even when a representative of the Commission
lias made a recent visit.
4. That the construction of the dam shall at all times be
subject to inspection by representatives of the Commission,
and that no changes in the plans as approved shall be made
except with the written consent of the Commission or its
Engineer. The Commission reserves the right to require such
changes as may be deemed necessary during the progress of
construction.
1

To Elkton
Drainage Area-? Sq.Mi
Pine
To Millville
Crech
Note Specimen Plan to show Scope of Information Desired
PLATE I.
i
To Mayville
LOCATION PLAN
PROPOSED
LAUREL RUN DAM
OF THE
·GREEN CITY WATER·CO·
SCALE
linch-feet
DATE
PROPOSED LAUREL RUN RESERVOIR
Laurel
Run
Green City
10000000
0000
0000
100
Q&QRR
Mill
River
To Cherry

་
Flow Line Elev. ?Ft.
Laurel
Run
Area at Elev. 960 Ft=? Acres
Capacity = ? Gallons
Note-Specimen Plan to show Scope of Information Desired
PLATE II.
uny
Fourids
-970-
960
·950-
240
-930
930-
Center Line of Proposed Dam
-970
-980
Tow Line Elev
Ft
950
·096
PROPOSED
LAUREL RUN RESERVOIR
OF THE
· GREEN CITY WATER.CO.
•SCALE.
linch=-feet
DATE:

990
980
970
Too of Dam Elev. 966.Ft.
Top of Core Wall Elev. 961.11.
Spillway E1960
960
Top Soil
Borehole No. 1
Borehole NO.3
Open seam
Red Sandstone
950
Red Sandstone-
Open seam
940
Test Pit NoT
WS Eley 925.1
Red Shale
Shale
Gray Sandstone
Original Surface
Sand and Gravel
Approximate top of rack
Test Pit
Red Shale
930
Borehole No. 2
No2
920
910
Probable depth of excavation
for Core Wall
Red Sandstone
900
•
890.
Elevation above Mean Tide 880 Ft.
880
Red Shale
LONGITUDINAL SECTION
PROPOSED
LAUREL RUN DAM
OF THE
GREEN CITY WATER CO:
SCALE
•HORIZONTAL·lin'=-ft.
VERTICAL.lin-ft.
DATE
Note Specimen Plan to show Scope of Information Desired
PLATE III.

·0001
-086-
066
970
re
-096
950
11
#
940
"
Construction Qutlet
Gate House
י
930
Supply
Size
Construction Outlet
Size ?·
Laurel
1
1
1
1
uny
Flow Line Elev. ? Ft.
Top of Dam Elev. ? Ft.
Top of Core Wall: Fley? F
Note Specimen Plan to show Scope of Information Desired
PLATE IV.
930
}』
- 2
Channel
Wasteway
940
950-
excavated to Elev. ? Ft.
Approach to Spillway
Spillway Elev.?F
GENERAL PLAN
PROPOSED
LAUREL RUN RESEVOIR
OF THE
·GREEN CITY WATER CO.
SCALE INCH-FEET
DATE
990
980
970
960

Slope I on?
Elev. 966 Ft
+ slope
·Material?
Outlet Pipe Size
Outlet-Pipe Size?////////
Are Pipes encased in Concrete or Masonry
Batter
Foundation
ས
Slope lon?
Protection
Material:
Flow Line Elev. 960 Ft
Original Surface
Natural Surface to be
prepared for Embankment ?
CROSS SECTION
A-B
PROPOSED
LAUREL RUN DAM
OF THE
GREEN CITY WATER·CO:
SCALE
linch=-feet
-DATE-
Note Specimen Plan to show Scope of Information Desired
PLATE V.
1
Elev. ? Ft.
Elev ? Ft.
10
!
9
8
7
6
5
4
3
2
Elev? Ft.
VAVAAY
Elev. ? Ft._
Curvature
Limit of Middle Third
Line of Pressure Case II
Line of Pressure Case III
Limit of Middle Third
Line of Pressure Case I
? Ft.
?Ft:
TYPICAL CROSS SECTION
MASONRY DAM
SCALE 1"L
•
Radius ? Ft -----
ASSUMPTIONS
Weight of Water ? lbs. per Cu.ft.
"}
"Masonry
}} "}
"}
Analyses to show Resultant
Lines of Pressure for
Case I Reservoir empty
Note-Specimen Plan to show Scope of Information Desired
PLATE VI.
Case II
full
Case III
"}
full,Upward
Pressure considered
Ice Pressure?

| Elev? Ft.
Elev? Ft.
Rock
133
ARTICLE VII.
ENCROACHMENT DIVISION.
The following rules and instructions concerning applications and
plans for the construction, alteration or permanent repair, of bridges.
walls, wharves, fills or other water obstructions, exclusive of dams,
are submitted for the guidance of those interested. Section two of
the Act of General Assembly, P. L. 555, approved June 25th, 1913,
makes it unlawful to construct or make any change in or addition to
any water obstruction (wall, wing-wall, wharf, embankment, abut-
ment, projection or similar or analogous structure or any other water
obstruction), in, along, across or projecting into any stream or body
of water "without the consent or permit of the Water Supply Com-
mission of Pennsylvania, in writing, previously obtained upon writ-
ten application to said Commission therefor."
Section three provides that "Each application for the consent or
permit required by the second section of this act shall be accompanied
by complete maps, plans, profiles and specifications of such water
obstruction, or of the said changes or additions proposed to be made,
and such other data and information as the Commission may re-
quire."
APPLICATION.
Application for a permit shall be made on a blank form, which
will be furnished upon request, and shall be signed by the owner or
owners of the proposed water obstruction. If privately owned, the
individual owner, or each member of a partnership, shall sign the
application. If owned by a corporation, it shall be signed by the
president or vice-president, attested by the secretary and the cor-
porate seal affixed; and, if owned by a municipality, township or
county, it shall be signed by the chief officer, supervisors or commis-
sioners, attested by the clerk and the municipal or county seal af-
fixed.
A concise statement is required, giving the nature of the work for
which application is made, the name of the stream and accurately
locating the obstruction by distance from the mouth, county, town-
ship or municipal boundary, and describing the purpose of and neces-
sity for the proposed obstruction.
PLANS AND SPECIFICATIONS.
Applications must be accompanied by complete maps, plans, pro-
files and cross-sections, indicating the nature, location, extent and
dimensions of the proposed obstruction, and a copy of the specifi-
'cations, when prepared in connection therewith.
The appended plates are intended to show the scope of the infor
mation desired and the data essential for the thorough study of the
proposed water obstruction, rather than to indicate a preference for
any particular type or detail of construction.
134
In addition to the above general requirements, the following more
specific information is necessary in the consideration of the various
forms of water obstructions:
BRIDGES AND CULVERTS.
For such structures the following information is required: draw-
ings, as indicated on Plate I, to include location plan; cross-section.
at proposed bridge site; cross-section of present bridge (if one exists),
profile of stream for a reasonable distance above and below bridge
site, showing slopes of bed, normal water surface and flood water
surface. If the bridge is on a skew, give the angle and the direction
of the line of flow.
In addition to the above, the following information, when sub-
mitted, will expedite action upon application; total drainage area
above bridge site; description of watershed; length of stream from
source to bridge site and to the mouth; character of stream bed and
banks; extent and depth of overflow during floods; effect of previous
floods upon bridges along same stream, giving location of such bridges,
their span and clearance; whether bridge will be within backwater
influence of parent stream.
Photographs of the bridge site, including the stream channel and
roadway approaches, will help the Commission in acting upon appli-
cations. The reverse side of the prints should contain a description
of the photograph, giving date, location and object.
135
FILLS.
Plate II shows typical drawings required in connection with ap-
plications for fills. The plan should show the stream for a distance
of at least several hundred feet above and below the limits of the
proposed fill and to points well behind the limits of maximum high
water on each bank. Top and bottom of proposed and existing banks
should be clearly indicated and if harbor lines have been established
they should be shown on both plan and cross-sections, as should also
the pool full elevation, when a dam exists below the site. Where pos-
sible, contours and elevations of the stream bed should be indicated.
All proposed work must be referenced to centre lines of railroads,
buildings, or other fixed points.
The cross-sections should be taken entirely across the stream to
above maximum flood water elevation and the height and date of
maximum flood indicated thereon. These sections should be taken at
intervals above, opposite and below the proposed work, particularly
at the narrowest and widest sections, and plotted to the same hor-
izontal and vertical scale. Detail cross-sections of the proposed fill
should be taken at not less than 100 foot intervals and indicate the
existing and proposed slopes, kind of material to be used in the fill
and the method of protecting it from erosion. Excavation proposed
in the stream channel should be clearly indicated.
A profile of the stream should be submitted, showing the slope
of bed and normal and flood surface, between points well above and
below the proposed work.
Much of the information suggested under "Bridges and Culverts,"
will facilitate consideration of applications for fills.
WALLS.
Plate III shows typical drawings required in connection with ap-
plications for walls. The plan, profile and cross-sections should give
the same data as indicated above for fills, and, in addition, detail
cross-sections of the wall are required, in order that analyses may
be made for stability against overturning, sliding, shearing and
crushing. The plans and specifications should indicate the materials
to be used in construction, the methods to be employed and the char-
acter and weight of the material to be used for back-filling. The
character and depth of foundation should be indicated, and if the
wall is to be carried on pile or grill work, details should be submitted
with reference to spacing and size of piles and depth to which they are
to be driven. If the fill or wall is designated to carry dead or live
loads, their intensities should be indicated. In reinforced concrete
design, full details should be submitted, in order to permit of analysis,
and proposed methods of anchoring into the bank, adjacent walls,
or protective work shown. All peculiarities in design or construc-
tion of the wall and banks or channel of the stream should be clearly
set forth. Photographs and general information, as outlined under
"Bridges and Culverts," will be of value.
136
STREAM CHANNEL CHANGE AND PROTECTION.
In connection withe this type of work, plans, profile and cross-sec-
tions are required as outlined under "Fills," these data to be sub-
witted for both the old and new channels. The proposed method of
protecting the banks of the new channel from erosion should be
clearly indicated and the manner of disposing of excavated material
and treatment of old channel set forth.
WHARVES, COAL TIPPLES AND MISCELLANEOUS OBSTRUC-
TIONS.
Plans, profiles and cross-sections should be submitted as outlined
above, modified in accordance with the proposed obstruction. In ad-
dition, detail plans are necessary, giving the dimensions and con-
struction details of the proposed work.
GENERAL.
If not incompatible with the filing system of the applicant, the
Commission would prefer that plans be made in multiples of legal
size document paper. Titles should be attached to each map, giving
clearly the classification of work, date, scale, name of stream and
accurate location. When revised plans are submitted they should
be so marked and dated.
Upon receipt by the Commission of the application, accompanied
by complete plans and specifications, it is referred to the Engineering
Department for investigation and report. An examination of the
site of the proposed encroachment is usually made, in company with
the owner or his engineer, and, after complete study and analysis,
any deficiencies which may be found to exist are called to the atten-
tion of the applicant, in order that the plans may be revised accord-
ingly.
When the application and plans have been approved by the Com-
mission, a permit is forwarded to the applicant. The application,
plans and all data submitted therewith remain on file in the office
of the Water Supply Commission. Not less than ten days should be
allowed for examination and report by the Engineering Department.
PLATE.I.
i

།
Approximate Elevation
of Rock
300
Elev.2978
Elev. 293.5
290
29/3
162
297
280
600
300
400
300
200
310
300
Maximum H. W (Date. Month, Day and Year)
Water Surface, (Date of Survey)
01:062
100
100
PROFILE OF STREAM
SCALE 1″=-HORIZONTAL-I^=----VERTICAL
D
Maximum, HW Elev 297.2 (Date, Month, Day and Year)
290
300
200
100
0
100
289
Cley 2940
Llev. 290.5–
200
300
400
500
600
PROFILE ALONG CENTER LINE
SCALE 1″----HORIZONTAL-I"=----VERTICAL
Present Wooden Truss
C.
C
Center
Line
Elev of Finished
Roadway 3022 ft
-Elev 2993ft
0
A
.0.
Eley 300.0
297 7
200
300
To-Name of Place)-Distance)

PLAN
SCALE INCH-FEET
sta.3+00
Bench Mark,nail in root
of Oak-Elev.300.0ft
Center Line
Old 35ft. Stone Wing Wall to
remain and be joined to New Wing
A
Public
୦୦୧

Str
Island
To- (Name of Place
(Distance
To-Name of Place)-(Distance)

Elev 297.2ft, Maximum High Water
(Date-Month, Day and Year)
Elev 2992ft.
-Elev. 298 ift
Old Span
Pie
63′-6″-
New
(Span 70-0"
Rise 9:0"
Springing Line, Elev 291.0 ft.
Material to be excavated
Water Surface-Date of Survey), Elev 292.0.ft.
Normal Water Surface, Elev. 291.0ft
LONGITUDINAL ELEVATION
SCALE I INCH= ---FEET
B
Note-Old pier and Abutments
to be removed to Elevation
of original Surface
Clear Roadway 16'-0"
Right or Left
Abutment
Wings 10′0″~30 degrees
with Center Line
PROPOSED BRIDGE
• OVER THE ·
·NAME OF STREAM·
AT OR NEAR
NAME OF TOWN, TOWNSHIP AND COUNTY
SCALES AS SHOWN
DATE
137
VIII FORMS.
APPLICATION FOR CHARTER OF WATER COMPANY-INFOR-
MATION AS TO SOURCE OF SUPPLY UNER ACT OF
JUNE 7, 1907, (P. L. 455).
FORM 4.
WATER SUPPLY COMMISSION OF PENNSYLVANIA.
QUESTIONS TO BE ANSWERED BY PROPOSED WATER COMPANIES.
1. Name of Company.
2. Source of supply.
A. Name, location and description of river, creek, pond, lake or
springs or other body of water which will be used.
:
B. What is the approximate storage capacity and area of natural
lake or pond, if one is used?
C. What is the drainage area tributary above the intake; what
is the per cent. of this area which is forest covered, and the
population residing thereon?
•
D. Is this source used at present by any municipality or cor-
poration?
3. How much water do you anticipate drawing from this source per
twenty-four hours, maximum and average?
4.
A. Will water be supplied by gravity or by pumps?
5.
B. Capacity of pumps (if used)?
A. What population do you propose to be prepared to supply?
B. Population at present?
6. Describe the intake of the proposed works.
7. Describe and locate the reservoirs, stating capacity, area, etc.
A. Storage.
B. Distributing.
S. Give name and address of Engineer or Designer:
Signed
Secretary, proposed,
Water Company.
138
APPLICATION FOR CHARTER OF WATER POWER COMPANY
-INFORMATION AS TO SOURCE OF SUPPLY PLANT
FORM 3.
&c. UNDER ACT OF JUNE 7, 1907, (P. L. 455).
WATER SUPPLY COMMISSION OF PENNSYLVANIA.
QUESTIONS TO BE ANSWERED BY PROPOSED WATER POWER COM-
PANIES.
1. Name of Company.
2. Name of stream on which power is to be developed,
A. Location of plant.
B. Area of drainage basin above site of plant.
C. Names and addresses which you know of corporations, firms
or individuals using this stream for water power or water
supply purposes, above and below site of works.
3. Describe the proposed plant.
A. Location of dam or wing wall and intake of headrace.
B. Length of headrace, its cross section and slope.
C. Location of power house.
4. Power development.
A. Amount of power to be developed.
B. Natural fall of stream.
C. Available head on wheels.
D. Size and number of wheels.
E. Record of flow of stream (if any).
F. What percentage of the minimum flow will be deflected over
the wheels?
5. Storage.
A. What storage will be available, in cubic feet, in pool formed
by dam?
B. What area will be flooded?
6. Dam.
A. Length.
PLATE.II.

105
-1007
95
90
1785
80
80
W.S 8217
·100
C-
100
B
95
256 Miles to (Name of Town)
III.
C. of Proposed Tracko
IITTIÖIIIIIIIITIITTTTTTTTTT
-Water Surface Date of Survey) ___8do__
90
10 Miles to (Name of Town).
CL of Existing Track
95
90
ITTT 85 fof
Top of Existing Bank:
85
'9÷0.
IT
ТТТТ TTTTT
80
80
75|0
Top of Proposed Bank
Bottom of Proposed Bank
"NAME OF STREAM
W.581.8
7010
730
76'5
800.
80
815
85
A
B
90
DWL
95
85
88
75
65
55
15
о
20
40
CL of Existing Track.
60
Elevation 88.0.
83
80
100
CL of Proposed Track.
PLAN
SCALE 1 INCH = ---
--FEET
9108
W.S.80.6
W.5.79
D-
CL of Busting Track
·60'-0"-
Elevation 88.0-
Toposed Track
Original Bank
-16'-6"
Eley of Maximum HW 86.5 (Date-Month, Day and Year)_
Water Surface, (Date of Survey)
Top of Existing Bank
80
Ш85
Maximun High Water (Date-Month, Day and Year) —
Note.-
D
Proposed fill indicated by
broken lines, thus TTT
CROSS SECTION
B-B
SHOWING MATERIAL AND
SLOPE FOR FILL AND
METHOD OF PROTECTION
AGAINST EROSION
SCALE "HORIZONTAL"-VERTICAL
80
TTT
50
60
TO
Water Surface taken,(Date~Month, Day and Year)
7510
Elev of Maximum HW 86 5 (Date-Month, Day and Year)
Water Surface,Date of Survey)
Normal Low Water
7/
750
76
120
140
160
18?
200
220
240
260
280
300
320
340
360
380
90
Elev (890
85
Eley 830
80
8/18
8/14
869
W.S. Maximum Flood (Date Month, Day and Year)
aximum
Month, C
Water Surface, (Date of Survey)
8410
79 8
75
Elex 710
70
5
65
100
200
300
400
500
600
700
800
900
1000
1100
1200
1300
PROFILE
Elev 830
Elev 785
NAME OF STREAM
SCALES
B
1400
1500
HORIZONTALI INCH=----FEET
VERTICAL I, INCH=---FEET
820
-57+0".
91
90
D
189
88
Slope on Facelon2,
-W.S. Elev. 81.5 (Date of Survey)
87
86
85
84
83
82
81
180
Fill to be composed of-(State Kind of Material)
To be Paved to Elev of Maximum HW
90
100
110
120
130
140
150

831d
CROSS SECTION
B-B
SCALE~1HORIZONTAL AND VERTICAL
Note-Scale to be Natural Scale
Proposed Fill shown by broken lines.
400
420
440
-460
C
480
500
520

NAME OF COMPANY
PROPOSED FILL
ALONG THE·
NAME OF STREAM
· AT OR NEAR
•
NAME OF TOWN, TOWNSHIP AND COUNTY
SCALES AS SHOWN
DATE
139
7.
B. Height.
C. Log Chute.
D. Fishway.
A. Will power be transmitted or used at site?
B. To what points is it intended to distribute it?
S. Name and address of Engineer.
Signed
Secretary, proposed
J
APPLICATION FOR A NEW OR ADDITIONAL SOURCE OF
SUPPLY OF WATER OR WATER POWER BY COR-
PORATIONS FORMED UNDER THE ACT OF
APRIL 29, 1874, (P. L. 73).
FORM 13.
To the Secretary of the Commonwealth of Pennsylvania:
In compliance with the requirements of an act of the General As-
sembly of the Commonwealth of Pennsylvania, entitled "An act to re-
quire all water and water power companies hereafter incorporated,
or hereafter formed by merger and consolidation, or hereafter pur-
chasing the property and franchises of any other such company, to
designate the exact source of their supply of water or water power;
and to require all existing water and water power companies, merg-
ing and consolidating or purchasing the property and franchises of
any other such company, to accept the provisions of this act, and of
the act approved April thirteenth, one thousand nine hundred and
five, entitled 'An act providing that the right of eminent domain, as
respects the appropriation of streams, rivers, or waters, or the land
covered thereby, shall not be exercised by water companies, incor-
porated under law,' and providing the manner in which water and
water power companies, subject to the provisions of this act, may se-
cure a new or additional source of supply for their water or water
power," approved the 7th day of June, A. D. 1907, we, the under-
signed, president and secretary of the
Company, a corporation of the Commonwealth of Pennsylvania, duly
created on the
day of
A. D. 19 under the
provisions of an act of the General Assembly of the Commonwealth
of Pennsylvania, entitled, "An act to provide for the formation and
regulation of certain corporations," approved the 29th day of April,
A. D. 1874, and the supplements thereto, and the amendments thereof,
140
for the purpose of
hereby certify that the following is a full, true and correct copy of
resolutions passed and adopted by a vote of a majority in interest
of the stockholders of said company, at a meeting of said stock-
holders duly called and held at the office of the company in
day of
on the........
A. D. 19
PLATE.II.

6.57
70
75
80
7512
85
B
100
200
300
400
100
70
60
110
100
90
80
87
- CL. Proposed Siding
Proposed Wall
HC.L. Proposed Siding
Proposed Wall
90
0106
80
70
601
20
40
60
80
僵​僵
​77/2
7/
8310
008
761
Maximum H.W. Elev 870(Date, Month, Dayand Year
Water Surface(Date of Survey)
OL
C
Maximum HW Elev. 86.0 Date (Month, Day and Year)
Water Surface (Date of Survey)
69 2
70
709
70
703
726
789
100
120
140
160
180
200
220
240
260
280
NAME OF COMPANY
PROPOSED WALL
•ALONG THE·
NAME OF STREAM·
AT OR NEAR
NAME OF TOWN, TOWNSHIP AND COUNTY,
870
·SCALES AS SHOWN.
DATE
W.S. Maximum Flood. (Date-Month, Day and Year
74
7055
PROFILE
NAME OF STREAM
SCALES I HORIZONTAL I'VERTICAL
Water Surface,(Date of Survey)
24
500
600
700
6
800
900
1000
1100
1200
7410
861
86 0
300
7510
0 68
90 9
CROSS SECTION. A-A
NATURAL SCALE
1INCH=-FEET-HORIZONTAL AND VERTICAL
8913
916
CROSS SECTION B-B.
1INCH=-FEET-HORIZONTAL AND VERTICAL
1INCH FEE
NATURAL SCALE
Filled Material
Weight per Cuft
Existing Ground Line
Kind of Material
320
340
C.L. of Siding
2007
360
380
?
Elev. 88.0
State Kind of Material
Weight per Cu ft
Weep Holes
Max. H.W Elev 86.5
Date-Month,Day, Year
A 7
вт
001·
95
06
Maximum High Water, Date-Month, Day and Year-
A
70.3
0102
718
70.9
708
6912
7113
Proposed Siding
85
08
-Water Surface(Date of Survey)
75
80
NAME OF STREAM
W.S.743
WS. 74.7
-Proposed Wall
7212
Htt
-100
95
90
85
80
WS75.2
Water Surface(Date of Survey) —
·
Proposed Extension:
Proposed
Bldg
85
Existing Shop
Main Line Railroad
A
36. Miles to(Name of Town
MP88.
·06
80
Maximum
90
High Water
13 Miles to (Name of TOWE
Approx Low Water, Elev 73.5-
D
2
Character of Foundation
DETAIL
CROSS SECTION C-C
SCALE INCH = ---FEET
Material to be removed
PLAN
SCALE-INCH -----FEET
141
IN TESTIMONY WHEREOF we have hereunto set our hands and
the corporate seal of the said.
this
(SEAL.)
ATTEST:
-
day of
Company,
A. D. 19
President.
Secretary.
STATE OF PENNSYLVANIA,
COUNTY OF
}
SS:
Before me......
said, personally came the above named
and
in and for the county afore-
President
Secretary of the
Company,
to me well known, and in due form of law acknowledge that they
signed the foregoing instrument, and affixed the seal of the said
Company
thereto as president and secretary respectively of said company, for
the uses and purposes therein set forth, and that the seal so affixed
is the common or corporate seal of the said.
Witness my hand and
............day of
Company.
Seal this.....
A. D. 19
STATE OF PENNSYLVANIA,
COUNTY OF
Personally appear before me, this
A. D. 19
>
}
SS:
...and......
..day off........
who being duly sworn, according to law, depose and say that the
statements contained in the foregoing instrument and in the resolu-
tions contained therein are true.
Sworn and subscribed before me the day
and year aforesaid.
Filed in the office of the Water Supply Commission of Pennsyl-
vania on the
A. D. 19
day of
Secretary.
142
APPLICATION OF
Company
for a new or additional source of supply of water
or water power.
OFFICE OF
WATER SUPPLY COMMISSION OF
PENNSYLVANIA
Harrisburg,
APPROVED:
EXECUTIVE CHAMBER
Harrisburg,
APPROVED:
19.
Secretary.
19
Governor,
Filed in the office of the Secretary of the Com-
monwealth on the
A. D. 19
day of
Secretary of the Commonwealth.
APPLICATION FOR A NEW OR ADDITIONAL SOURCE OF
SUPPLY OF WATER OF WATER POWER BY COM-
PANIES FORMED UNDER SPECIAL ACT, OR
BY MERGER OR BY PURCHASE.
FORM 14.
To the Secretary of the Commonwealth of Pennsylvania:
In compliance with the requirements of an act of the General
Assembly of the Commonwealth of Pennsylvania, entitled, "An act
to require all water and water power companies hereafter incor-
porated, or hereafter formed by merger and consolidation, or here-
after purchasing the property and franchises of any other such com-
pany, to designate the exact source of their supply of water or water
power; and to require all existing water and water power companies,
merging and consolidating or purchasing the property and franchises
of any other such company, to accept the provisions of this act, and
of the act approved April thirteenth, one thousand nine hundred and
five, entitled, 'An act providing that the right of eminent domain, as
respects the appropriation of streams, rivers, or waters, or the land
covered thereby, shall not be exercised by water companies incor-
143
porated under law,' and providing the manner in which water and
water power companies, subject to the provisions of this act, may
secure a new or additional source of supply for their water or water
power," approved the 7th day of June, A. D. 1907, we, the under-
signed, president and secretary of the
Company, a corporation of the Commonwealth of
Pennsylvania duly created on the
day of
A. D. 19
(Here state fully all facts concerning the formation of the company, including all mergers and
- consolidations, and all purchases of the property and franchises of other companies, giving the
names of the companies so merging and consolidating, or so purchased.)
for the purpose of
and subject to the provisions of the above entitled act of the General
Assembly of the Commonwealth of Pennsylvania, approved June
7th, 1907, hereby certify that the following is a full, true and correct
copy of resolutions passed and adopted by a vote of a majority in
interest of the stockholders of said company, at a meeting of said
stockholders duly called and held at the office of the company in
on the
day of
A. D. 19.
144
IN TESTIMONY WHEREOF we have hereunto set our hands and
the corporate seal of the said
Company, this
(SEAL).
•
ATTEST:
و
day of
A. D. 19
President.
STATE OF PENNSYLVANIA,
COUNTY OF
Before me,
Secretary.
}
SS:
personally came the above named
President, and
in and for the county aforesaid,
Secretary,
of the
Company, to me well known, and in due form of law acknowledged
that they signed the foregoing instrument, and affixed the seal of
the said
Company
thereto as president and secretary respectively of said company, for
the uses and purposes therein set forth, and that the seal so affixed
is the common or corporate seal of the said.
Witness my hand and
Company.
Seal this
day of
A. D. 19
STATE OF PENNSYLVANIA,
COUNTY OF
Personally appeared before me, this
A. D. 19
2
SS:
and
day of........
who being duly sworn, according to law, depose and say that the
145
statements contained in the foregoing instrument and in the reso-
lutions contained therein are true.
Sworn and subscribed before me the day
and year aforesaid.
Filed in the office of the Water Supply Commission of Pennsyl-
vania on the
A. D. 19
day of
APPLICATION OF
Secretary.
Company
for a new or additional source of supply of water
or water power.
OFFICE Or
WATER SUPPLY COMMISSION OF
PENNSYLVANIA
Harrisburg,
APPROVED:
19
EXECUTIVE CHAMBER
Harrisburg,
19.
APPROVED:
Secretary.
Governor.
Filed in the office of the Secretary of the Com-
monwealth on the
day of..
A. D. 19
Secretary of the Commonwealth.
APPLICATION FOR PERMIT TO ERECT, CHANGE, REPAIR OR
EXTEND A WATER OBSTRUCTION, UNDER THE ACT
OF JUNE 25, .1913, (P. L. 555).
FORM 15.
To the Water Supply Commission of Pennsylvania:
10
Penn'a,
19
146
In compliance with the provisions of an Act of the General As-
sembly of the Commonwealth of Pennsylvania, entitled, "An act
providing for the regulation of dams, or other structures or obstruc-
tions, as defined herein, in, along, across or projecting into all
streams and bodies of water wholly or partly within, or forming
part of the boundary of, this Commonwealth; vesting certain powers
and duties in the Water Supply Commission of Pennsylvania, for
this purpose; and providing penalties for the violation of the pro-
visions hereof," approved the 25th day of June, A. D. 1913,
(Here state name of person or persons, partnership, association, corporation, county, city, bor-
ough, town or township.)
hereby makes aplication for the consent or permit of the Water Sup-
ply Commission of Pennsylvania to construct a
or to make a change in or addition to a.
in, along or across
at a point
(Here state name of stream or other body of water. )
(Here give location, by distance from mouth of stream, county, township or municipal boundary.)
for the purpose of
(Here state fully the purpose, necessity and description of the proposed obstruction.)
147
•
in accordance with the complete maps, plans, profiles and specifica-
tions filed with this application and made a part hereof.
SEAL:
(Address)
ATTEST:
NOTE. This application, together with all maps, plans, profiles and speci-
fications, and all papers, information and data filed in connection therewith, will
remain on file in the office of the Water Supply Commission of Pennsylvania.
OFFICE OF THE
WATER SUPPLY COMMISSION OF PENNSYLVANIA.
Approved the
day of .....
WATER SUPPLY COMMISSION OF
PENNSYLVANIA.
APPLICATION
OF
for the consent or permit to
A. D. 19..
Filed in the office of the Water Supply Com-
mission of Pennsylvania on the
day of
A. D. 19.......
....
Plan No.
File Clerk.
148
PERMIT FOR ERECTION, ALTERATION, REPAIR OR EXTEN
SION OF DAM, UNDER ACT OF JUNE 25,
Form No. 16......Dams
1913, (P. L. 555).
File No.........
COMMONWEALTH OF PENNSYLVANIA
THE WATER SUPPLY COMMISSION
PERMIT
The Water Supply Commission of Pennsylvania, under authority
of an act of the General Assembly of the Cominonwealth of Penn-
sylvania, entitled, "An act providing for the regulation of dams, or
other structures or obstructions, as defined herein, in, along, across,
or projecting into all streams and bodies of water wholly or partly
within, or forming part of the boundary of, this Commonwealth;
vesting certain powers and duties in the Water Supply Commission
of Pennsylvania, for this purpose; and providing penalties for the
violation of the provisions hereof," approved the 25th day of June,
A. D. 1913, hereby issues this permit to
giving its consent to the.
of a dam
in and across.
19........
This permit is issued in response to an application filed in the of-
fice of the Water Supply Commission of Pennsylvania on the
day of
A. D. 19.…………………….., and with the
understanding that the work shall be performed in accordance with
the maps, plans, profiles and specifications filed with and made part
of the application,
149
subject, however, to the provisions of the Act of June 25, 1913, P. L.
555, and the following conditions, regulations and restrictions:
1. That this permit does not give any property rights, either in
real estate or material, nor any exclusive privileges; neither does it
authorize any injury to private property nor invasion of private
rights, nor any infringement of Federal, State or local laws or regu-
lations; nor does it obviate the necessity of obtaining Federal as-
sent, where necessary;
2. That the work shall at all times be subject to supervision and
inspection by representatives of the Commission, and that no changes
in the maps, plans, profiles and specifications as approved shall be
made except with the written consent of the Commission. The Com-
mission, however, reserves the right to require such changes or modi-
fications in the maps, plans,. profiles and specifications as may be
considered necessary.
The Commission further reserves the right
to suspend or revoke this permit at any time, should such action be
deemed necessary in the interest of public safety;
3. That the work shall be under the direction of a competent en-
gineer, and that he or a competent representative shall be on the
ground
during construction and un-
til the completion of the dam;
4. That the Commission shall be notified in advance of the pro-
posed time of commencement of this work; that no material shall
be placed on any portion of the foundation until such portion of the
foundation has been approved, in writing, by the Engineer of the
Comission, or his representative;
5. That a detailed report upon the status of the construction shall
be mailed to the "Water Supply Commission of Pennsylvania, Har-
risburg, Pa.," on the 1st and 16th days of each month until the work
upon the dam has been completed;
6.
That if this work is not completed on or before the
""
day of
A. D. 19, this permit, if not previously
revoked or specifically extended, shall cease and be null and void;
and if, upon the expiration or revocation of this permit, the work
shall not be completed, the permittee shall, at his own expense and
to such extent and in such time and manner as the said Commission
may require, remove all or any portion of the incompleted work and
restore the watercourse to its former condition. No claim shall be
made against the Commonwealth of Pennsylvania on account of any
such removal or alteration.
150
WITNESS my hand as Chairman of the Water Supply Commission
of Pennsylvania this
day of
A. D. 19.......
."
WATER SUPPLY COMMISSION OF PENNSYLVANIA.
To
For
Engineer.
Commonwealth of Pennsylvania
THE WATER SUPPLY COMMISSION
PERMIT
Chairman.
151
PEHMIT FOR ENCROACHMENTS ON STREAMS, (EXCLUSIVE
OF DAMS), UNDER ACT OF JUNE 25, 1913.
Form No. 17-Encroachments
File No.
COMMONWEALTH OF PENNSYLVANIA
THE WATER SUPPLY COMMISSION
PERMIT
The Water Supply Commission of Pennsylvania, under authority
of an act of the General Assembly of the Commonwealth of Penn-
sylvania, entitled, "An act providing for the regulation of dams, or
other structures or obstructions, as defined herein, in, along, across,
or projecting into all streams and bodies of water wholly or partly
within, or forming part of the boundary of, this Commonwealth;
vesting certain.powers and duties in the Water Supply Commission
of Pennsylvania, for this purpose; and providing penalties for the
violation of the provisions hereof," approved the 25th day of June,
A. D. 1913, hereby issues this permit to
giving its consent to the
This permit is issued in response to an application filed in the of
fice of the Water Supply Commission of Pennsylvania on the
day of
A. D. 19.….………....., and with the
understanding that the work shall be performed in accordance with
the maps, plans, profiles and specifications filed with and made part
of the application,
152
subject, however, to the provisions of the Act of June 25, 1913, P. L.
555, and the following conditions, regulations and restrictions:
1. That this permit does not give any property rights, either in
real estate or material, nor any exclusive privileges; neither does it
authorize any injury to private property nor invasion of private.
rights, nor any infringement of Federal, State or local laws or regu-
lations; nor does it obviate the necessity of obtaining Federal assent,
where necessary;
2. That the work shall at all times be subject to supervision and
inspection by representatives of the Commission, and that no changes
in the maps, plans, profiles and specifications as approved shall be
made except with the written consent of the Commission. The Com-
mission, however, reserves the right to require such changes or modi-
fications in the maps, plans, profiles and specifications as may be
considered necessary. The Commission further reserves the right
to suspend or revoke this permit at any time, should such action
be deemed necessary in the interest of public safety;
3. That all construction debris, excavated material, brush, rocks
and refuse incidental to this work shall be removed entirely from the
stream channel and placed either on shore above the influence of
flood waters, or at such dumping ground as may be approved by the
Commission;
4. That there shall be no unreasonable interference with the free
discharge of the river or stream nor with navigation during con-
struction;
That if future operations by the Commonwealth of Pennsyl-
vania require modification of the structure or work, or if, in the
opinion of the Water Supply Commission of Pennsylvania, it shall
cause unreasonable obstruction to the free passage of floods or navi-
gation, the permittee shall, upon due notice from the Water Supply
Commission of Pennsylvania, remove or alter the structural work or
obstructions caused thereby, without expense to the Commonwealth
of Pennsylvania, so as to increase the flood carrying capacity of the
channel or render navigation reasonably free, easy and unobstructed,
in such manner as the said Commission may require; and if, upon
the expiration or revocation of this permit, the work shall not he com-
pleted, the permittee, at his own expense and to such extent and in
such time and manner as the said Commission may require, shall re-
move all or any portion of the incompleted work and restore the water-
course to its former condition. No claim shall be made against the
Commonwealth of Pennsylvania on account of any such removal or
alteration;
6. That the permittee shall notify the Water Supply Commission
of Pennsylvania when this work is commenced and at least two weeks
before the probable time of completion;
7. That if this work is not completed on or before the
9
day of
A. D. 19......., this permit, if not previously
revoked or specifically extended, shall cease and be null and void.
158
WITNESS my hand as
sion of Pennsylvania this
19.............
Chairman of the Water Supply Commis-
….............. day of
A. D.
WATER SUPPLY COMMISSION OF PENNSYLVANIA.
To
For
Engineer.
Commonwealth of Pennsylvania
THE WATER SUPPLY COMMISSION
PERMIT
Chairman.
154
ACCEPTANCE OF ACT OF JUNE 7, 1907, AND ACT OF APRIL
13, 1905.
FORM 10.
To the Water Supply Commission of Pennsylvania:
The
Company, a corporation created on the
day of
A. D. 19., under and by virtue of the provisions of an act of the
General Assembly of the Commonwealth of Pennsylvania, entitled,
“An act to provide for the incorporation and regulation of certain
corporations," approved the 29th day of April, A. D. 1874, and the
supplements thereto and the amendments thereof, for the purpose
of
3
hereby certifies under the seal of said corporation:
That at a meeting of the stockholders of said company, held pur-
suant to due and legal notice at the office of said company, on the
day of
A. D., 19.…………………., the fol-
lowing resolutions were adopted by the persons or bodies corporate
holding the majority in value of the capital stock of said corporation:
"RESOLVED, That this corporation hereby accepts the provisions
of the act of the General Assembly of the Commonwealth of Pennsyl-
vania, entitled, 'An act to require all water and water power com-
panies hereafter incorporated, or hereafter formed by merger and
consolidation, or hereafter purchasing the property and franchises of
any other such company, to designate the exact source of their supply
of water or water power; and to require all existing water and water
power companies, merging and consolidating or purchasing the prop-
erty and franchises of any other such company, to accept the pro-
visions of this act, and of the act approved April thirteenth, one thou-
sand nine hundred and five, entitled, "An act providing that the
right of eminent domain, as respects the appropriation of streams,
rivers, or waters, or the land covered thereby, shall not be exercised
by water companies incorporated under law," and providing the man-
ner in which water and water power companies, subject to the pro-
visions of this act, may secure a new or additional source of supply
for their water or water power,' approved, the 7th day of June, A.
D. 1907, and hereby agrees to be subject to, and bound by, the pro-
visions of said act with like effect as if this corporation had been
formed subsequently to the passage of said act;
"RESOLVED, That this corporation hereby accepts the provisions
of the act of the General Assembly of the Commonwealth of Penn-
sylvania, entitled, 'An act providing that the right of eminent domain,
as respects the appropriation of streams, rivers, or waters, or the
155
land covered thereby, shall not be exercised by water companies in-
corporated under law,' approved the 13th day of April, A. D. 1905,
and hereby agrees to be subject to, and bound by, the provisions.
of said act with like effect as if this corporation had been formed
subsequently to the passage of said act;
"RESOLVED, That the president and secretary of this corporation
be, and they are hereby, authorized and directed to make and execute,
under the corporate seal, the written acceptance, as required by the
said act of June 7th, 1907, and to file the same in the office of the
Water Supply Commission of Pennsylvania, and also to file a certi-
fied copy of the same in the office of the Secretary of the Common-
wealth of Pennsylvania."
IN TESTIMONY WHEREOF, The said
......Company has caused its corporate seal to be
hereunto affixed, duly attested by its president and secretary this
day of
A. D. 19.
By
(SEAL.)
ATTEST:
STATE OF PENNSYLVANIA,
COUNTY OF
Secretary.
SS:
BE IT REMEMBERED, That on the
A. D. 19, before me,
in and for the said county, personally appeared
COMPANY.
President.
day of......
President, and
Secretary, of thẹ
Company,
who, being duly sworn, depose and say that they were personally
present at the execution of the above written certificate, and saw the
common seal of the said corporation duly affixed thereto, and that
the seal so affixed thereto is the common or corporate seal of the
said company, and that the above written instrument or certificate
was duly signed and sealed by and as and for the act and deed of the
said company for the uses and purposes therein mentioned; and that
the names of these deponents, subscribed to the said certificate as the
president and as the secretary of the said corporation, in attestation
of the due execution thereof, are of these deponents' own proper and
respective handwriting.
Sworn and subscribed before me the day and year above written.
Witness my hand and
seal.
156
Company.
ACCEPTANCE
OF
Act of June 7th, 1907, and Act of April 13th,
1905.
Filed in the office of the Water Supply Com
mission of Pennsylvania on the.
day of
……………...... A. D. 19.
19…………..
Secretary.
CERTIFICATE OF WATER SUPPLY COMMISSION EVIDENC-
ING ACCEPTANCE OF ACT OF JUNE 7, 1907, AND
FORM 12.
ACT OF APRIL 13, 1905.
OFFICE OF
THE WATER SUPPLY COMMISSION OF PENNSYLVANIA
Harrisburg,
19..........
PENNSYLVANIA, SS:
I DO HEREBY CERTIFY, That the foregoing and annexed is a
full, true and correct copy of the written acceptance by the
Company of the
provisions of the act of the General Assembly of the Commonwealth
of Pennsylvania, entitled, "An act to require all water and water
power companies hereafter incorporated, or hereafter formed by
merger and consolidation, or hereafter purchasing the property and
fanchises of any other such company, to designate the exact source
of their supply of water or water power; and to require all existing
water and water power companies, merging and consolidating or pur-
chasing the property and franchises of any other such company, to
accept the provisions of this act, and of the act approved April thir-
teenth, one thousand nine hundred and five, entitled, 'An act pro-
viding that the right of eminent domain, as respects the appropria-
tion of streams, rivers, or waters, or the land covered thereby, shali
not be exercised by water companies incorporated under law,' and
providing the manner in which water and water power companies,
subject to the provisions of this act, may secure a new or additional
source of supply for their water or water power," approved the 7th
day of June, 1907; and of the act of the General Assembly of the
157
Commonwealth of Pennsylvania, entitled, "An act providing that the
right of eminent domain, as respcets the appropriation of streams,
rivers, or waters, or the land covered thereby, shall not be exercised
by water companies incorporated under law," approved the 13th day
of April, 1905, as the same remains on file in this office.
IN TESTIMONY WHEREOF, I have hereunto set my hand the
day and year above written.
Secretary, Water Supply Commission of Pennsylvania.
茶
​( 158 )