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tween the parties on the question of damages after corporate action to condemn had been taken. The intention of the parties is clearly expressed in the following clause of the deed: 'It being hereby agreed and understood by and between the parties that this grant is intended to convey unto the party of the second part, subject to the agreement heretofore made (that is the agreement relating to the settlement of damages) every right that could be acquired by the party of the second part by condemnation proceeding under the right of eminent domain. Other recitals intend to show the same purpose and intention. There is nothing in the entire record to show that the Boalsburg Water Company abandoned its claim to the waters of the stream under the right of eminent domain. Every act of the company from the date of its incorporation to the present time shows an intention to use the waters of the stream in question for the purpose of supplying the public with water. As we view it the settlement of damages and the acceptance of the deed from the riparian owner is in aid of this purpose. The statute which gives the right to condemn clearly contemplates an effort on the part of the condemning company to amicably settle the question of damages with the riparian owner. Rights conferred under the power of eminent domain may be acquired by an adverse condemnation proceeding, but they may likewise be acquired after proper corporate action has been taken directing the location, by an equivalent agreement between the parties: Hendler v. L. V. R. R. Co. 209 Pa. 256. It is the duty if a corporation desiring to condemn land for a public use after proper corporate action has been taken to make an effort to settle the question of damages. with the land owner before proceeding adversely We can see no reason why a corporation having the power of eminent domain, and in the assertion of that power makes an effort to amicably settle the question of damages with a land owner as the law contemplates, should be denied the rights which accrue to a condemning company because it succeeds in doing what the law required, that is, settle the question of damages with the land

Defendant's exceptions to the findings of fact, and to the conclusions of law, must be dismissed.

Now, December 11, 1922, this cause came on be heard as to the exceptions filed to the decree nisi, and, therefore, upon consideration thereof, the exceptions are dismissed. The solicitors for the plaintiff are hereby directed to draw and submit a final decree. Notice of the filing of this opinion, and the dismissal of the exceptions to the decree nisi, to be given by the Prothonotary to the solicitors for the plaintiff and the defendant.

PALMER WATER CO. v. LEHIGHTON WATER SUPPLY CO. (NO. 2.)

Eminent Domain-Water Companies-Appropriation of Stream-Condemnation by Second Company-Equity-Injunction.

The right to determine the quantity of water required and necessary for present and future needs of a water company is lodged in its Board of Directors, subject to review by the courts.

A water company has the right to condemn waters so as to provide for its present purposes as well as its future needs.

The burden of showing that the water company condemned more water than it required for its present purposes and future needs is on a junior water company claiming the waters.

An injunction was granted against a junior water company where it failed to show that the senior water company had appropriated more water than required for its present or future needs.

In the Court of Common Pleas of Carbon County. In Equity. No. 1 June Term, 1913. Palmer Water Company v. Lehighton Water Supply Company. Bill in Equity for Injunction. Injunction granted.

Jacob C. Loose and Stevens Hecksher, for Plaintiff. F. W. Wheaton, P. F. O'Neil and A. T. Walsh, for Defendant.

Groman, P. J. 31st Jud. Dist., Specially Presiding, September 25, 1922.

The court, in pursuance of the opinion of the Supreme Court filed in the above cause, wherein the decree heretofore made by the court, was reversed, the exceptions reinstated and the record remitted so that proper and consistent findings of fact be made, the law applied thereto, and a decree entered in accordance therewith, proceeded to do so, and attaches hereto, the disposition

made by the court of the requests for findings of fact by the plaintiff as well as by the defendant; as well as findings of fact by the court, discussion, conclusion of law, and the order for the entry of the decree thereon.

FINDINGS OF FACTS.

1. The Palmer Water Company was regularly incorporated February 23, 1899 under the provisions of an act of the General Assembly of Pennsylvania, dated April 29, 1874, and supplements thereto, for the purpose of supply water to the public, and water power for manufacturing purposes, in the Township of Lower Towamensing, Carbon County, Pennsylvania.

2. The Company by resolution passed by the Board of Directors on April 28, 1899, and on November 9, 1899, respectively, appropriated all the water of Big Creek at and above the Parryville dam, the dam being located above the Borough of Parryville, in the Township of Lower Towamensing, County and State aforesaid; and also appropriated certain lands over which said creek flows.

3. The water and lands appropriated by the company were necessary for its corporate purposes.

4. The Parryville dam on Big Creek, located in the Borough of Parryville, Carbon County, Pennsylvania, was one of the sources of supply appropriated from which water is supplied to the New Jersey Zinc Company of Pennsylvania, and the Carbon Iron and Steel Company, Limited, both located partly in the Borough of Parryville, but within the Township and County aforesaid.

5. Big Creek is a fair size mountain stream, the minimum flow yielding approximately fourteen million gallons a day.

6. The Carbon Iron and Steel Company, Limited, requires for its use approximately ten to thirteen million gallons of water each twenty-four hours.

7. The New Jersey Zinc Company of Pennsylvania requires for its manufacturing uses approximately sixteen million gallons daily.

8. The requirements of the New Jersey Zinc Company of Pennsylvania within the next four years will approximate twenty million gallons of water daily.

9. The Palmer Wate: Company is not securing all the water required for its present needs from Big Creek.

10. The Palmer Water Company has not condemned more water than its present and future needs requires.

11. The Lehighton Water Supply Company was incorporated on November 3, 1899 under the provisions of an act of the General Assembly of Pennsylvania, dated April 29, 1874, and supplements thereto. It is the lessor of the Weissport Water Company whose place of business, according to its charter, is in the Borough of Weissport, Carbon County, Pennsylvania; also of the Lehighton Water Company whose place of business is in the Borough of Lehighton, county and state aforesaid.

12. The Palmer Water Company in October, 1908, brought an action of trespass against the defendant. the Lehighton Water Supply Company, in the Court of Common Pleas of Carbon County, as of No. 1 October Term, 1908, for the wrongful taking by the defendant of the waters of Pine Run which had been condemned by the defendant, a verdict for the plaintiff was rendered by direction of the court, no appeal was taken by the defendant.

13. The Lehighton Water Supply Company, the defendant in this suit, after verdict rendered and judgment entered in the suit of the Palmer Water Company v. The Lehighton Water Supply Company, No. 1 October Term, 1908, continued to take and appropriate the waters of Pine Run.

DISCUSSION.

The Palmer Water Company was duly incorporated under the provisions of the act of April 29, 1874, for the purpose of supplying water to the public,and under the provisions of the Act of May 16, 1889, P. L. 226, has the power to condemn waters. This power is expressed in the following language: "And it shall have power to appropriate so much of the waters from the rivers, creeks, canal water rights and easements, within or without the limit of the city, borough or place in which said company may by its charter be located, as may be necessary for its purposes."

The plaintiff condemned the waters of Big Creek and its tributaries, or so much of the same, at least, as were necessary for its present purposes and future needs. The Lehighton Water Company after such condemnation and appropriation by the plaintiff claims the right to

condemn and appropriate a portion of the same waters.

The right of one corporation to condemn property for public use already condemned by another corporation for public use must arise from necessity so absolute that without it the grant itself (to the second corporation) would be defeated. It must also be a necessity that arises from the very nature of things over which the corporation has no control. It must not be a necessity created by the corporation itself for its own convenience or for the sake of economy" is a proposition established by the following authorities:

Pennsylvania Railroad Co.'s Appeal, 93 Pa. St., page 150, (1880); Pittsburgh Junction Railroad Co.'s Appeal, 122 Pa. St., page 511 (1888); Groff's Appeal, 128 Pa. St., page 621; 144 Pa. St., page 150, (1891); Railroad Company v. Railroad Company, 203 Pa. St., page 176 (1902); Boalsburg Water Company v. State College Water Co., 240 Pa. St., page 212 (1913).

One of the questions to be determined is then: Are the necessities of the junior company beyond its control, or are such necessities created by the company for its own convenience and for the sake of economy? The contention of the defendant is that the source of water supply in question is necessary, and other sources of supply beyond its control; while the plaintiff contends that other sources of supply are available. The following testimony presented throws considerable light on the different sources of supply and the question of their availability.

Mr. N. S. Hill, Jr., an expert called by the defendant, under cross-examination, in answer to the question whether it was possible to develop Long Run, one of the sources of supply for defendant, sufficiently to furnish a supply of water amounting to one million, three hundred and five thousand gallons per day (the requirements of the defendant company), answered as follows: (Page 178) "I should think it might be possible. I do not know that I would want to say that without more definite knowledge of the exact amount of storage that could be built at Long Run, whether it would be practically possible to develop that shed to yield a million, three or four hundred thousand gallons a day. Q. That is by adequate storage? A. By developing to the maximum whether that would mean by a system of dams which might flood