TOE 8CRA2STON lKIBDJN-i!KlDAr JttOKJSlHli, UJCUKMBEIt 1H, 189?.
The Rutin? 'Wfilcli-S
,,t Text of the Decision vof - Judge; Pherson of
Dauphin County )?in j the Effort of 1 Lehigh
Valley Interests to Monopolize the Fluid of
the Lehigh River's Headwaters
The opinion of Judge J. B. McPher
on in the equity suits of the Lehigh
Coal and Navigation- company., -the
Bethlehem South Gas and Water com
pany. K. P. Wilbur and Robert H.
Sayre and Samuel .Wallace and .others
against the Scranton Gas and Water
company which was tiled with Pro
thonotary Pryor Tuesday is given be
low almost in its-entirety.: -
These three bills in equity, which were
heard and argued together, raise sub
stantially the same questions. They
grow out of the defendants claim to
bring water, from the river Lehigh for
domestic and manufacturlng.use in the
City of Scranton. '
FINDINGS OF FACT.
1- The !S?&
l?f March 16.1
femlant power 4
ExlslngThe powers given by
thtiututSJ the company has spent
about "vo-millions of dollars upon the
Slant -which, Is- now suplying an apr
age of 13 W0 000 gallons of water dailj to
She city of Scranton and its Immediate
neighborhood. Klght millions are used
domestic-, and live millions for a. -ufaoturinK
purposes. The water is
n(". streams nearby one
being Stafford Meadow Brook, and the
other which is the principal
supply, being Kouring Brook. On these
streams the defendant has several res
ervolrs. In which water is stored for
vse as occasion may require.
YC: , ,i .imuvht'of 1895 the avail
able supply sank s-'o low that the com-J
pany turned In alarm .10
oTtlona! source, and f"''d o. carry
out a.'plan first considered rt
year ago. and build "a iftw reservoir
ipon the Uhlgh rlver. In October !.
the board of directors 'passed the fol
lowing resolution: (Here follows reso
luUon appropriating water from Le-
h'TLrSdant immediately notified
the Lehigh Coal and Navigation con -pany
of this resolution, and asked Its
consent "that we may take water from
the upper waters of the Lehigh near
Gouldsboro' station on the U, L.
W It. K.. so far as your company is
concerned and subject to your right to
supply , the canal of the LehlghCoal
and Navigation company:" adding,
"We propose simply to build storage
reservoirs and llll the same In time of
freshets and high water, and not inter
fere with the ordinary and common
flow of water In the stream." Consent
was refused, however, and thereupon
the defendant proceded to carry out
the resolution of Its board. .
3 For this purpose the defendant
bought In fee a tract of land ly ng
across the head waters of the Lehigh
river near tloulilsboro station, and
built thereon In the county of Lacka
wanna a crib dam crossing the stream.
The dam Is two hundred and nfty-nve
feet long; the breast is about eight feet
high; the spill-way is fifty-seven feet,
and the sluice way Is six feet, in
breadth. When full, the pool above the
dam t overs an area of -sixty-four acres
and contains about 61,000,000 gallons
of water. At the head of the pool the
defendant erected a pumping station
and installed therein a pump with a
capacity of lO.OUO.OOO gallons per uay.
About a mile and a half from this sta
tion Is the ridge or divide, about thirty
five feet higher than the dam, which
separates the water-shed or basin of
the pool from the water-shed or basin
of Roaring Brook. Connecting with the
pump about two miles of Iron pipe was
laid, through which the water from
the pool can be forced Into the bed of
Roaring Brook, mingling thencefor
ward with that stream and flowing In
to the defendant's reservoirs at Elm
hurst and elsewhere, on Its way to be
used In the city of Scranton and neigh
borhood; The course of the river has
not been changed by the defendant; but
the stream Hows now through the pool,
and passes over the dam or through the
sluice-way into its. former, bed. -4.
Shortly after work was -begun these
.1)1118 in equity were tiled, but there was.
no preliminary mterrerence (oy me
court, and within a few 'months the
clam, pumping-station and plpe-lirte
were ready for use. The cost of the
whole work was about $:.3,000. In the
month of February, 1896, while the
river was In freshet above the dam, the
gate was closed and the pool was tilled.
This was done in about five hours and
a half without appreciable effect upon
the stream at White Haven or below,
and without affecting In the least the
interest of any one of these plaintiffs.
Since then the defendant .has not ob
structed or diminished the How or vol
ume of the water. The gate of the dam
has been open, and the stream has (low
ed without hindrance. No pumping has
been done and the water stored re
mains in the. pool, -awaiting, the. de-..
cislon of the court upon the pending
questions.
5. The defendant's right to build a
dam across the stream upon its own
land is not denied; but the plaintiffs
deny entirely Its right to take any
part of the water at any stage, and
carry it for use to the city of. Scranton.
Their respective interests areasfollows:
The Bethlehem South Water company,
which supplies the community dwelling
in that neighborhood, takes its water
from the Lehigh at a point eighty or
ninety miles below the dam in con
troversy. Messrs. Wilbur and Sayre
are among the consumers of the water
thus supMled.; and the bill to. No. 6
Januay term Is filed upon the theory
that '.these . plaintiffs represent ' the'
riparian-' owners, and especially the
right of such owners to use the water
for domestic purposes. The bill to No.
7 January term, filed by Messrs,
Samuel L. Wallace and others, asserts
the right to use the water for power;
each of these plaintiffs derives his right
by lease or other contract from the
Lehigh Coal and Navigation company,
but as hereafter stated no stress is laid
upon this fact and the plaintiffs are
regarded as independent rlnnrin n nu-n.
ers. The remaining bill Is filed by the
uviKpuontf:ompany, whose interest m
the subject of dispute requires a state
ment in some detail
In the sixth finding, after referring to
me a oi me rrovince passed in 1771
making the Lehigh a common highway
fornavlgatlon, and prohibiting diversion
of the water for mills. or nnri.wnru.
and erection of dams; also the act of
isio cr-. mi), tne act or 1822 (P. L. 21)
incorporating Lehich Coal and Navi
gation Co., tr-e court says:
By virtue of this statute apd supple
mentary legislation, the Navigation
company Improved the channel of the
river and silent a largo sum of money
In constructing a slack-water and de
scending navigation, building dams at
various points along the river from Its
mouth at Kaston to the Great Falls at
Stoddardsvllle. ,. Its canal and oqulp-i
ment ire, how valued on the books of
the company ;at about t2.100.000, but a
few years ago a further, sum of $1,600,006
was charged, off, and it Jjs probable that
much more has been expended. Noth
ing seems to have been done by the
company above the Falls; at all events,
In March, 1836, (P. L. 212) the legisla
ture extended the provisions of the act
of 1803 above. clted. Via the waters of
the Lehigh above" the Tails at Stod
dardsvllle" thereby - permitting dams
to be erected on'that part of the river;
and declaring also, that '"the dams here
tofore erected on the headwaters of
said stream above the aforesaid falls
shall be lawful under the provisions of
said act."
In the year 1846. (P. L. 134) an act was
passed to incorporate The Upper Lehigh
Navigation company.. for the purpose of
Improving the navigation above the
great falls. No evidence was offered
that anything" was done In pursuance
of this statute; and It Is cited now
because the defendant regards it as a
fact from which jthocmurt should infer,
that In 1840 the legislature did not sup
pose Mt had lost its power over the
upper waters of- the river, and there
fore that the act of 1822 was not Intend
ed to transfer absolute dominion over
the whole stream to the Coal and Nav
igation company. -.
, In 1862 a great flood visited the val
ley of the Lehigh, aod carried out many
of the company's dams. (Here follows
a review of the acts of 1863 (P. L. 99)
and 1864 (P. L. 633) relating to the
rights surrendered by the Lehigh Coal
and Navigation company.
v; ; ' -
In pursuance, lorn-the' powers granted
by the acts heretofore cited the com
pany maintains a slackwater naviga
tion, forty-six. miles long, from Mauch
Chunk to the mouth of the river at
Kaston, upon which its own boats and
boats owned by other persons, to the
nu ml T of 309, are engaged In the trans
portation of freight, which In each of
the years 1894 and 1895 aggregated
about 350,000 tons. It has also convey
ed to twenty-eight corporations and
Individuals,, by, deasavor other form of
.contrnot, the -right to use the wjater,
n ml the vater-toer.- of the: river for
manufacturing and oilier puiposestire-J
celvlnjr f romithese contracts a revenue
of about $23,900 a yar:-, Eighteen other
corporations rhnd Tridfplduuls use the
Water for similar purposes without pay
ing therefor. The valley is populous,
and Its Inhabitants depend on the riv
er and its tributaries for their domes
tic supply.
V. The defendant's dam-Is built within
a short distance of'tlW ponds which
form the source of the river, and at this
point the stream Is usually of small
size. The basin, or water-shed, of the
dam Is abouc fllteen square miles In
area, and In its ordinary stage the vol
ume of water ;iloilng through' the pool
does not exceed '' 'r gallons a day.
The btreum Is rather to be called a
brook than a river. In times of fresh
ets, however, which occur every year
usually late In the winter, or early
In the spring the volume is greatly
increased, reaching 250,000,000 gallons a
clay, or even -more. There are many
tributaries-of- the main' river, large and
small, both above and below White
Haven, all, of which are swollen by
floods every year and discharge large
quantities of water Into the principal
stream. Without further detail, It Is
sufficient to find. In general terms, that
every year during the season of fresh
ets a vast quantity of water Is poured
clown the channel of the Lehigh, far In
excess of any demand which the plain
tiffs, or the total population of the val
ley, can possibly Qiafot upon It, either
now or, witutB,.any pejlod worth con
sidering. s,. '
It Is from this 'water in flood, arrest
ed once a year at such a season only,
that the defendant has filled and pro
poses to fill Its pool, storing the con
tents there until an emergency arises.
The evidence is ample to Justify the
finding that such an act has not been.
and will not be, perceptible by any one
of the plaintiffs; - and that no injury,
even of the most trifling character, has
been done or will be done thereby to
any Interest which the court is now
asked to protect. The ordinary tlow of
the stream will not be interfered with;
for the dam and pool either are now,
or can easily be, so equipped that the
exact quantity of water flowing in may
be accurately measured and allowed to
How out. - 1 ' . .
The water-shod of jhe river above
White Haven isfthput 300 square "miles
in area; and of the whole valley as
far as -Huaionr about 1,330 square miles.
The Lehigh runs Into the Delaware riv
er, and thence i into .Delaware bay:
while P.oiulni Brook belongs Jo the
Susquehanna svsterti and finds its way
at last into Chcsaprake bay.
DISCUSSION AND CONCLUSION-?.
The pi incinal question to be consid
ered has not yet been decided civ the
courts cif Pennsylvania. In the Paci
fic slates the subject has been dis
cussed, biit I have not been
willing to ,rely upon any case from
these states as an -authority, because
of the different' circumstances which
prevail In that rejlon and which have
inlluenced the Judicial' and .legislative
treatment of the right to Use the water
of a stream. Elsewhere there is little
help to had. . . The subjects of,
controversy have usually been, either
a conflict between two rights, both
growing cut of riparian ownership; or
an Interference (under the right of
eminent domain or otherwise) with the
normal and ordinary How of the stream.
Many of the cases are collectel in the
note to Davis, VS. Gctehe.ll, 79-Amer.
Decis. C8. But the fwo questions now
raised 'are -pertain almost every state
of the Union. First; Does mew ri
parian' ownership.. juFtlfy 'the owner In
diverting a part of the flood-waters of
a stream-ami carrying It elsewhere for
consumption, so long as the quantity
diverted Is ,too small to affect even
slightly thel rights of others? And.
second: May this diversion and con
sumption be authorized under a grant
of eminent domain; the stream being
navigable, the grantee being a corpora
tion supplying water to a city, and the
quantity taken being inappreciable by
the persons complaining? In
this view. It tj enough, to bay, that the
litigation taken as a whole brings be
fore the court.suhstanttally every kind
of right which now exists In the waters
of the Lehigh and Is averred to be
In danger of Injury at the defendant's
hands. ; The Bethlehem South Water
company' and the Individuals who Join
with It renrcsent a certain class of ri
.pftriah owners, and lay esnecial stress
upon the -domestic uses to which such
owners may lawfully put the waters of
a stream. Samuel Wallace and his as-'
soclates represent, those who use the
river assa source, of power,' and for
other objects in the business of manu
facturing Finally, the Navigation company
standing upon Its legislative title has
a certain Interest In the water which
does not depend upon riparian owner
ship. The extent of.fts right will be
examined more fully at a later stage
of the discussion -;,. ' - .. .
It Is unnecessary to spend time over
the first question above stated. The
proposition Is, that because the defend
ant owns a riparian tract of land It
may divert a part of the flood-water
of the stream .fqr consumption "In the
city. of. Stomton; as long .as. such di
version does no. actual. harm to any
lower- right., This vlew;of .the law was
argued with vigor, ana I do not at
tempt to pronounce it unsound. If.
however, the argument Is supposed
ahw) --to sustain the view that rnere ri
parian ownership would justify the
defendant In thus diverting any part of
the usual and ordinary flow, I feel lit
tle hesitation in. declaring this suppo
sition at least to be Incorrect. The
right of an apper against -a lower ri
parian ownership Is so. well settled by
numerous authorities, and so thor
oughly understood, that elaboration
would be superfluous. .-.-ID
then the defendant 'was asserting
S right to Interfere with the ordinary
ow of the stream, and could offer no
better Justification - than riparian ow
nership, the Injunctions prayed for
would be granted: for I agree fully
with the plaintiff's argument that
where the dispute Is between two- ri
parian ' proprietors and turns simply
upon the extent of their respective ri
parian rights In the ordinary volume
of the stream, an Injunction will issue
to restrain the upper proprietor from
making a non-riparian use of the wat
er, even if the evidence does not show
any appreciable injury to the owner
of the lower tenement.
But It the 'defendant's claim Is to
take flood-water only, the argument
would need consideration; for the ques
tion has not yet been decided by any
Pennsylvania court. The analogies of
this branch of the subject do not favor
the defendant's position; for as a gen
eral rule riparian ownership has hither
to been held to justify riparian use
only, and to give no right to -vert
the weter for use at a distant point:
but how far, if at all, this rule should
be modified so as to permit a riparian
owner to make a non-rlparlan use of
flood-water which no lower owner can
possibly miss, from the stream, is a
subject upon which I express no opin
ion. I. lay aside entirely the defend
ant's riparian ownership, because I be
lieve the second question above stated
to be controlling, and to furnish a suf
ficient reason for decision.
In this aspect, the defendant's claim
depends wholly upon the right of emi
nent domain contained in its charter.
This consideration removes the discus
sion into a different region, and makes
Inapplicable almost all the cases cited
by both parties. The plaintiffs ask us
so to construe the defendant's power
"to take water from any stream," as
to forbid the taking from any stream
unless It flows down some valley
within the' basin or water-shed which
also contains the city of Scranton.
They deny the power of the legislature
to authorize a water company to carry
water across a divide or ridge sepa
rating two water-sheds, because this
would divert a part of the stream per
manently from one valley to the other.
Certainly 'such a diversion would go
beyond the .usual power of a riparian
proprietor, acting simply upon his
right of riparian ownership; but I do
not see upon what principle a court
may limit the legislative power over
this subject. Undeniably the defend
ant belongs to the class of corporations
which may be clothed with the power
of eminent domain.
If the state grants this right with
out restriction Its- grantee may do
whatever the state could do; and
nothing limits the power of the state,
except perhaps some law of universal,
or of Christian, morality. The plain
tiffs urge that another limitation Is to
be found In the laws of nature, and
that flowing water must continue to
tlow even where It 1b not needed, un
less It can be. taken where the need
may be extreme without violating the
law of gravitation. I think this argu
ment overlooks the object of the power
of eminent .domain. This is always to
supply some public use; and surely, as
between a law of nature and the bene
fit of a community, there Is no room to
doubt which must go to the wall.
I cannot believe that the course of
nature Interposes an Immovable bar
rier to the legislative will, and 1 do
not know what else can prevent tne
state from enacting that some part of
a stream which has hitherto flowed
upon one side of a hiil may now be
transported to serve a public use upon
the other. I lay no stress,
however, on the navigable character of
the stream. Whether It Is navigable
or not, as a pure question of power,
the state might appropriate the whole
How for public purposes, making due
compensation - therefor; - although
doubtless so extreme an exercise of
sovereignty would only be supported
If the language admitted of no other
possible construction. Reasons
of policy may exist to restrain the
legislature in a given case, but this re
straint Is self-imposed. Restriction
from without must be found In the
course of nature or In the constitution
of the state; and I do not And In either
the prohibition for which the plaintiffs
contend. Speaking generally, the leg
islature Is all-powerful, save as re
strained by the constitution; it -may
certainly take private property for a
public use, and this power' extends to
the water of a running stream. Upon
what principle shall the state be for
bidden to cross a small elevation, and
pump the water from one side to meet
u public use upon the other? The
power can only be erctsed upon
making payment for property taken
or Injured: and the relevant question
seems to be; Does the power exist? If
it does, I think It can hardly be impor
tant to Inquire how distant the stream
may be from the place where the wat
er is to be used, or how r.-.uny ridges
must be surmounted before the point
of consumption is reached. If the doc
trine contended for by the plaintiffs
Is sound, it would be often difficult,
and might be impossible, for a large
city situated In a small basin to sup
ply Its necessities. The case before the
court furnishes an example of the diffi
culty: for the available sources of sup
ply within the Scranton basin have been
exhausted, and no more can be had
without 'diverting some water course-
in part, and pumping it over an eleva
tion between the city and the stream.
Except from the Lehigh or the Sus
quehanna no water is attainable: and
while It Is true that the city lies upon
-the general water-shed of the Susque
hanna. It is also true that a supply
from this source must be pumped up
a much higher hill than the elevation
separating Roaring Brook from the Le
high: and that the diversion of water
from the Susquehanna -would violate
technical rights as distinctly as the
diversion now complained of.
The legislature has declared In un
qualified language that the defendant
may "take water from any stream;"
and these simple words must be h id
to bear the usual and ordinary mean
ing. As a result, the power of the
defendant extends by positive grant
to the stream In dispute, but not
to- the whole of the flow. The precise
extent of its power Is not now Involved,
but there Is -certainly some limit which
It cannot pass. Its grant is to take
water "from" any stream, and this
language implies that some water
must be left; how much, need not now
be determined. In this controversy,
the court Is only, concerned with the
question whether a certain quantity
of flood-water may be taken and. car
ried for consumption Into an adjoining
valley. I have already declared my In
ability to find a principle by which
the right to take and consume. may be
limited to the valley of the selected
stream; and -It seems pertinent to add.
that many instances In the history of
the state show that the legislature has
not regarded the natural. course of a
stream as restricting the power of "emi
nent domain. For example, the Union
canal mingled the waters f the Schuyl
kill and Susquehanna basins; and ev
ery canar in the state, even while It
Is following the stream, violates ri
parian rights by carrying a consider
able volume of water past the owners
of the banks; and violates these rights
as completely and irrevocably as if the
water In the canal had been carried
over a hill and poured Into stream In
the valley beyond. Moreover, It Is a
matter of - common- knowledge that
many municipalities are supplied from
neighboring basins In distinct viola
tion of the laws of gravitation and of
flowing water. ( , ,
Without -further discussion of the
subject, my conclusion Is that the state
gave to the defendant a limited power
as to quantity, but an unrestricted lib
erty of choice as to stream. In fact,
however, there Is a very ,-eal restric
tion, namely, that practical and effec
tive limitation enforced by distance
and cost and the conflicting rights of
others, which will always operate ,to
confine In actual exercise a grant
which 'may be theoretically without
bounds. ' The practical limitation
above referred to Is evidently regarded
by the state as sufficient. It is the
only check relied upon In every charter
now granted to a water company.
- Assuming therefore that the defend
ant's charter empowers It to take wat
er from the river Lehigh, the further
question arises: Has it exercised this
power in conflict with the rights of the
plaintiffs?
Concerning the bill filed by the Beth
lehem South Water company, repre
senting the riparian right for domestic
use, only a word need be said. The de
fendant is bound to compensate lower
riparian owners for any Injury which
may be done to their domestic rights
by diverting any part of the stream
at any stage of Its flow. But In view
of the facts, that no Injury has been
done to these rights even In the slight
est degree, and that the defendant ex
pressly disclaims of record any inten
tion to Invade them, it seems clear that
no ground for an injunction has been
shown to exist. In the face of the de
fendant's solemn disclaimer of record,
nothing heretofore done can be regard
ed as a hostile act; and It Is equally
clear that the plaintiffs have not suf
fered the least perceptible Injury.
The right of the Navigation com
pany, and the rights possessed by
Samuel Wallace and his associates,
need not be considered separately. For
the purpose of this case I assume
these bills to rest uiton Independent
foundations; but whatever may be the
source or extent or relation to each
other of the rights enjoyed by the re
spective plaintiffs. If they have suf
fered no harm at the hands of the de
fendant, and will suffer none when the
water now in the pool is pumped Into
Roaring Brook, the injunctions asked
for should be refused. Upon this point
the evidence does not leave us in
doubt. In this case also, the
defendant disclaims any Intention to
Impair or conflict with the plaintiff's
right to make a manufacturing use of
the stream, and therefore the acts com
plained of cannot form the beginning
of a hostile use.
Whether or not the right of the Navi
gation company has been taken or In
jured, depends upon the extent of that
right; and this requires some consid
eration of the acts of assembly. As
against .the defendant (if not against
the riparian owners on the stream),
the company's claim is that "under its
churter the grant Is not a mere grant
of water power" but Is "a grant of
property In the corpus of the water as
a chattel," (Brief p. 26), subject merely
to the duty of maintaining the navi
gation; and although its present right
for purposes of navigation and power
extends no higher than Mauch Chunk
and White Haven respectively, tins
claim extends from the source of the
river to its mouth. Apparently also
the claim extends to the water of ev
ery tributary, although the legislative
grant speaks merely of "the river Le
high," and can only be made to cover
the tributary creeks by a liberality of
construction which Is not usually ap
plied to grants of this character. But,
even confined to the main stream, the
privilege is unusual In scope and can
only be sustained by unambiguous
grant. It may be worth nothing that
this extensive claim Is made m the
course of an argument which denies
the legislative competency to grant the
defendant a similar privilege. If the
Navigation company does own the cor
pus of the water In fee simple. It has
absolute dominion over It (subject only
to the reserved navigation right); and
may not only sell It for consumption
in the valley of the stream, but may
divert it to any point outside the val
ley; or may levy toll upon every gallon
which quenches the thirst of man or
beast along its banks. If the legisla
ture could lawfully do this In 1818 and
1822, what has happened since to im
pair its power? If it
(the - company) really owns the
water in fee simple, it has the power
to divert It at any time; otherwise,
"fee simple" must have some less ex
tensive meaning; and In point of fact
it does divert permanently from some
riparian owners, and has always di
verted that part of the stream which
flows in its canal.
But I think the company's right In
the sti-eam will be found upon exami
nation 'to come short of a fee simple
ownership in all the water not needed
for navigation.
In support of this construction It Is
Important also to notice that neither
the parties In Interest nor the legis
lature supposed In 1822 that the grant
was more extensive than the right to
take tolls, and the right to the power
of the stream.
Strictly construed, I believe this to
be the extent of the grant to the Navi
gation company; but there Is one quali
fication which ought to be made. The
grant of water power was for manu
facturing uses, and this fact ought not
to be lost sight of. When the act was
passed, the principal manufacturing
use of the water was to propel ma
chinery; but now, and for many years
past, other manufacturing uses which
consume or contaminate the water In
some degree have become much more
Important. To these uses a part of the
stream Is devoted under the contracts
between the company and riparian
manufacturers; and upon the analogy
of Alden's appeal, 93 Pa. 182, I regard
this as within the original grant.
If this view of the company's right
Is sound, it remains to Inquire whether
the proposed diversion, now in part
accomplished, has taken or injured, or
will take or Injure, In any degree the
company's Interest In the stream. ThU
is a question of fact, and upon the
evidence I answer it in the negative.
In no respect or degree has th navi
gation or the power of the rlvtr or its
value for manufacturing use been af
fected by what the defendant has
done; nor will It be affected by future
fillings of the pool when the stream Is
In Hood. Unless therefore the defend
ant's acts were In'-anded to assert a
hostile right, no ground for equitable
Interference exists. But to this bill
also the defendant answers tnat no
claim whatever Is m&de of a right to
do any act which will Injure the Navi
gation company's Interest in the river;
and as rtated - heretofore, this dis
claimer of record Is a complete protec
tion to the company interest.
It was also argued that the defend
ant's act is an unlawful Interference
with the franchise of the Navigation
company: unlawful. because lis
charter gives It no power, either ex
pressly or by necessary Implication, to
take franchises; or, if the power is
there, because the necessity for Its ex
ercise has not be.n made to appear.
In support of this position a well
known line of cases Is referred to, of
which Pittsburg Junction Railroad
company's appeal, 122 Pa 612, and
Groff's appeal, 128 Pa. 621, are ex
amples. To this I reply, that the In
terest of the Navigation company In
the water of the upper Lehigh 'Is not
easy to define precisely. At
present none of these questions arises,
because the right of the Navigation
company (whatever may be Its nature,
and over however much of the stream
it may exist in one degree or another)
has neither been taken nor injured,
and the defendant disclaims the light
or the Intention to do It the slightest
harm.
'in each suit I think the conclusion
must be that an injunction as prayed
for, to restrain the defendant from
maintaining Its dam and from; pump
ing the water therefrom Into Roaring
Brook, cannot be granted. But the
bills are not to be dismissed. Decrees
must be entered, so drawn as to con
fine the defendant's power ov$r the
stream within the limits fixed by the
answers and Indicated In this opinion.
Only flood-water is to be taken; and a
period In each year ought to be speci
fied within which the pool may be
filled from this source. Moreover, If
the dam Is not now so constructed that
the ordinary inflow and outflow of the
stream may be accurately measured
and regulated, this must be done; and
generally, every needful measure must
be adopted to protect the rights of the
plaintiffs against every reasonable jkm-
WOMAN TO WOMAN.
Women are being taught by blttet
xperlence that many" physicians can
not successfully handle their pecu
liar ailments knar urn as female diseases.
Doctors are willing and anxious to
help them, but they arc the wrong sex
to work understandinjjly. . .
When the woman of to-day ex
periences such symp
toms as backache,
nervousness, lassi
tude,
whites,
o?
pain
ful men
struation,
pains in
groins,
bearing-down
sensation, palpitation, "all
Xone" feeling and blues, she at one
takes Lydia E. Pinklsm's Vegetable
Compound, feeling sure of obtaining
immediate relief.
Should her symptoms be new to her,
she writes to a woman, Mrs. IMnkham,
Lynn, Mass., who promptly explains
her case, and tells her free how to get
well.
Indeed, so many women are now
appealing to Mrs. Plnkhain for advice,
that a score of lady secretaries are kept
constantly at work answering the great
volume of correspondence which comes
in every day. Each letter is answered
carefully and accurately, as Mrs. Pink
ham fully realizes that a life may de
pend upon her reply, and into many
and many a home has she shed tha
ay of happiness.
slbility of harm. The bills, also, will
be retained as pending proceedings,
with leave to either party to applv for
any change In the decrees which may
be found advisable.
John B. McPherson,
Speclr lly Presiding.
PRlCfcBUKG. ,
Eagle Hose company. No. 1, will open
the fair and festival, this evening In
Smith's hall, over postofllce. An excel
lent programme will be given in the
line of entertainment. Admission ten
cents.
Mr. John Kukuskl, of Plymouth, vis
ited relatives here yesterday.
Drs. Laubach, Van Sickle and Bll
llvemer performed the operation for
appendicitis upon Master Willie Heb
roud yesterday afternoon. So far as
is known it has been successful. '
The wigwam of Washtella tribe. No.
169, Improved Order of Red men, Oly
phant, was largely filled last evening
with red men from Nos. 72, of Provi
dence; 107, of Prlceburg; 211, of Peck
vllle, and 247, of Taylor. The pro
gramme of he evening was excellent.
A pale face was adopted Into the ...oe.
after which, for the good of the order,
the following programme wa.s ron
dered: Corn and venison, served by
the committee of 1R9; Songs by John
Saunders, of Nu. 72, Providence, on
Redmanshlp, composed by himself,
which were most excellent: songs by
James Cousins and Joseph Pratt, Will
lam Cousin and Ed Saunders, of No. 72.
Providence; song. Thomas Petch, of
No. 107, Prlceburg; songs by Hy
Fletcher and John Wright. No.' 211,
Peckvllle; Recorder William Kennedy,
the kicking buffalo of No, 107. Prlce
burg; remarks by District Grand Sach
em William Harshorn, of No. 72: Jast
Sachems Thomas Saunders. Daniel H.
Coleman, of No. 72; William Kennedy,
Thomas Petch, of 107; M. B. Wedeman,
C. P. Hartman, John Mitchell, of No.
211, which was yery Interesting and
encouraging for the brothers to know
how the order Is Increasing in these
hunting grounds. The Red Men are
such a lively set of fellows when they
get out they must have a good time,
and they enjoyed It up to a late hour,
when they returned to their private
wigwams.
AVOCA.
Following Is the programme which
will be given by the Avoca Musical so
ciety on Mondav evening: Address,
chairman; chorus, Avoca Musical soci
ety; recitation, Miss Annie Dommer
muth; violin solo, Mr S. Hamlil'tt; In
strumental duett, Messrs. Sheehan and
Greenfield; solo, Mrs. Atwell; recita
tion, Mr. William Jennings: solo, Mr.
David Stephens; duett, Messrs. Philip
Thomas and Joseph Johns; piano solo,
Mr. John K. O iMalley; solo, Mr. Philip
Warren: duett. Misses B. Dempscy and
L. Hlnes; solo. Mr. T. P. Watkins; se
lection. Mooslc Cornet band; solo, Mr.
Philip ThoniRs; duett, Messrs. D. Steph
ens and P. H. Warren; recitation, Miss
Mary Davis; solo, Mr. Joseph Johns;
chorus, Avoca Musical society.
BREAKFAST AT GRANT'S TABLE
A Hungry Newspaper Man Who ln
vitcd Ilimsell to Gen. Grnut Table.
After the officers at headquarters had
obtained what Bleep they could get, they
arose about daylight, feeling that In
all probability they would witness be
fore night cither a fight or a foot-race
a flcht If the armies encountered
each other, a foot-race to secute good
positions If the armies remained apart.
General Meade had started south at
dawn, moving along the Uermanna
road. General Grant intended to re
main In his present camp till BurnElde
arrived, in order to give him soir.e
directions In person regarding ha
movements. The general sat down to
the breakfast-table after nearly all the
staff -officers had finished their morning
meal. While he was slowly sipping hU
coffee, a young newspaper reporter,
whose appetite, combintd with his
spirit of enterprise, had gained a sub
stantial victory over his modesty,
slipped up to the table, took a seat at
the farther end, and remarked, "Then
I wouldn't mind taking a cup of some
thing warm myself, if there's no ob
jection." Thereupon seizing a coffee
pot, he poured out a full ration of that
soothing army beverage, and, after
helping himself to some of the other
dishes, proceeded to eat breakfast with
an appetite which had evidently been
stimulated by long hours of fasting. -
The general paid no more attention
to this occurrence than he would have
paid, to the flight of a bird across his
path. He scarcely looked at the In
truder, dd not utter a word at the
time, and made no mention of it after
ward. It was a fair sample of the im
perturbability of his nature as to triv
ial matters taking place about him.
"Campaigning with Grant,' by General
Horace Porter, In the December Cen
tury. THE SOCIAL WAR. . .
What tha Kelt Great Armed Conflict
- ' ill Be About.
The Civil War In the United States
turned upon slavery Incidentally, nqt
vitally. The cause of that great fight
lay much deeper. In the same way the
Social War which is coming will turn
Incidentally, upon religion, and be per
hans called a religious wftr heron rror-
but It will not be declared for the sakel
of faltn against unbeller, nor be fought
at first by any church, or alliance of
churches, against atheism. . It , will
simply turn out that the men who fight
I S Ml llll IK,-
Ik u
I
on the one side will have either thy
THi LEADER
124 and 126 Wyoming-Ave.
Oi IB ill III
ITdVA vnn Hnna vrntp PhHaf mna
vb WHIMSU4W4 uuvt Mb WU V JVU aVUUVff tti
on the last day before Christinas you can never Jnd such a complete .
and elaborate assortment as you can If you call early t . We atill have '.
an unbroken lime of tho choicest
Holidav
j - n v,..jHiug "... wuivuivu U3V1UI ctuiA ucauauia ajk
Christmas Gifts, and we are convinced that the lowne33 of our prices
will take you by surprise. In view
wo uav uiitue sumo mrge reductions man 01 me loiiowing aepartv
inenis : , . ...
FUFMIMC HNn TPPPT CinilPC
bUblllllU 11IIU JIULLI ULUULJ.
GFNTS' FHRMKHIMC
UblllU 1 1111VJ UVVUJ)
SILK AND WOOL MUFFLERS,
REAL LflCE HANDKERCHIEFS,
LINEN AND SILK HANDKERCHIEFS.
HRNn FMRRHinFRFn HANnKFRfHlFFS
a m a a aw asaia a a a a a a a a a a
FEATHER BOAS
UMBRELLAS
GLOVES
MANICURE SETS
TOILET SETS
ODOR SETS -SHAYING
SETS
SOFA CUSHIONS
ART-GOODS'
JEWELRY BOXES
WORK BOXES
GLOVE BOXES
Handkerchief Boies
NECKTIE BOXES -
ALL SIZES DOLLS, ALL PRICES.
Our Siovr mechanicil window display,, "The Dolls' Ball," Ism
popular as it ever was, and if you will bring the children it will
certainly amuse them. ,
We also beg to announce that due to the advance of ths season
we have made n bg reduction in all Silks, Dress Goods, Cloaks and
Millinery. Those desirous of an early selection should purchase How. '
IEBEGK I COR
con v lit Ion or the prejudices of Chris
tianity, or both, and that their adver
saries will have neither.- But the
struKKle will be at Its height when the
original steady current of facts which
led to Inevitable strife has sunk Into
apparent Insignificance under the rag
Inn storm of conflicting belief and un
belief. . .
The dlfiadvantaee of the unbelievers
will lie in the fact that belief Is positive
and assertive, whereas unbelief Is nega
tive and argumentative. It .la Indeed
easier to deny than to prove almost
anything. But that Is not the ques
tion. In life and war It Is generally
easier to keep than to take, and be
sides, those who believe "care," as we
say, whereas those who deny generany
"care" very little. It Is probable, to say
the least of It, that so long as the so
siallsts of the .near future believe as
sertively that they have discovered the
means of saving humanity Join misery
and poverty, and tight for pure con
viction, they will have the better of It;
but that when they find themselves in
the position of attacking half of man
kinds religious faith, having no Idea,
but only a proposition, to offer In Its
place, they will be beaten. .
That seems far from the question of
divorce, but It Is not. Before the battle
the opposing forces are encamped and
intrenched at a lltt'e distance from
each ot he-, and each tries to under
mine the others outworks. Socialism,
collectively, has dug a mine under So
cial Orders strongest tower, winch Is
called marriage, and the edifice Is be
ginning to shake from Its foundations,
even before the slow-match Is llgfited.
Fiom "A Rose of kesterday, by Mar
lon Crav.-ford, In the December Cen
tury. .
Reduced Rntcs'to Washington on Ac
count of the Inaagbrotion via Penn
sylvania Knilioad.
For the benefit of those who deslro
to attend the ceremonies Incident to
the inauguration v'of ' Pre.sident-elect
McKlnley, the Pennsylvania Railroad
company will sell "excursion tickets to
Washington March 1, 2, 3,. and 4, valid
to'return from Maroh'4 to 8, at the fol
lowing rates: From New York, $8.00;
Philadelphia, S5.40; Baltimore, $1.60;
Hnrrlsburg. 15.08; Wllllamsport, $8.79;
Buffalo, $11.20; Rochester. $10.48; Al
toona and Pittsburg,' $10.00; and from
all other stations on the Pennsylvania
system at reduced rates.
This inauguration will be a most In
teresting event, and will undoubtedly
attract a large number of people from
every section of , the country.
The magnificent facilities of the
Pennsylvania railroad make this line
the favorite route to the national capi
tal at All times, and its enormous equip
ment and spltndid terminal advan
tages at Washington make it especial
ly popular on such occasions,
CASTOR A
(
-tor Infants and Children.
Km
MTj -PLEASANT
COAL
AT R ETA I U
jcoti of the best quality for domestto iim
tod of an slses, tnclsdlng Buckwheat and
Mlrdssy, dstltsrsd la any part of ttas city.
h towsst prtos.
iOMors-Ncslvcd at tho Offlts. flrst floor,
ponmoawoalth bonding, room No. 4;
V Ph?5 "111 bs promptly sttsndnl
"rfuni im ui i,jc. 1 .
WM. T.SMITH.
! ..S ' ..i?
eriAnnfnrr Tinfe va Vha 4tt
Gonris
of the nearness of the Holidays
GHiliiY;
n a a a a a a atr a a a a a. a. a a a a a a
PIN CUSHIONS
SLIPPER CASES
TOILET CASES
LEATHER GOODS
JEWELRY
ALBUMS
BRIC-A-BRAC.
ESTABLISHED THIRTY YEARS.
NOW IN 00R HEW STORE,
130 WYOMING AVENUE.
Coal Exchsngs. Opp, HottlJeraya,
W hove tha Snast stors and most complsti
stock In all this section, of '
WITCHES, FINE JEWELRY, DIMI0N03,
STERLING SILVER WAR!,
STERLING SILVER NOVELTIES,
RICH CUT GLISS, CLOCKS, ETC.
Our Prices are always bottom.
If you bav not seen us la onr ntw stors II
will pay you to call.
- . X
Brewery
''win
; , i .t
Uanufaetursrs of tao Cslibralst
CAPACITVi
100,000 Barrels per Acnum
THS
iOSIC POWDER CO.,
ROOMS I AND 2, COM'LTH VL'Vi,
SCRANTON, PA.
WINING AND BLASTING
POWDER
MADE AT MOOSIC AND
DALB WORK.
iraEl.CONIi
IS
1?
BSBBBBBBBBBBanBB
1 LAFUN RAND POWDER CO't
ORANGE GUN POWDER
Elcctrlo Batteries, Klectrio Exploders, for
. plodlug blasts, Safety Flu and
Repawn) Chemical Ox's expSb
y