
    STUMP’S APPEAL.
    A bill in equity will not lie against an insolvent Canal Company to compel it to pay for injuries caused by its works. The statutory remedy is exclusive.
    Appeal from the Court of Common Pleas of Berks County. In Equity.
    The facts of the case appear in the opinion of the Court below, sustaining defendants demurrer to plaintiffs bill, delivered Aug. 12, 1880, by
    Hagenman, P. J.
    The bill charges that Leah Stump is the owner of a water power on the Tulpehoeken Creek, which is used to drive a large grist mill belonging to her* That the water power is furnished by the water of said creek, which flows from a feeder dam erected across the same. That in 1868 the Canal Company did take the property of said Leah Stump, then owned by Wayne J. Stump and Samuel Fisher, by raising the feeder dam and thereby diverted the water from the said creek where it was accustomed to flow to said grist mill and premises belonging to said Leah Stump. The bill further charges that after the water had been diverted, Wayne J. Stump and Samuel Fisher, the then owners, filed a petition in the Court of Quarter Sessions of Berks County, and had their damages assessed against said company and judgment given for $1,300.00, which said judgment was assigned to said Leah Stump on the 22nd day of March, 1875, and is in full force and unpaid ; and that said Leah Stump has without effect sought to obtain satisfaction by execution, on which the Sheriff returned that there are no goods of defendant corporation wherewith he can satisfy the execution of the writ. It is alsp charged in the bill tbat the property of the corporation is subject to a mortgage of three millions of dollars prior to date to said judgment; that the property is absolutely worthless, not yielding sufficient revenue equal to the necessary expenses of management and repair. The said Leah Stump has no remedy at law to obtain assistance of a Court of Equity to compel the Canal Company to pay the amount fixed by the Court of Quarter Sessions or cease to divert the water obtained under the provisions of its charter. The Canal Company by their counsel filed a demurrer to the whole bill; alleging the said Leah Stump has not in and by her bill made or stated such a case as entitles her in a Court of Equity to any relief against said company as to matters mentioned therein. The original act of incorporation passed in September, 1791, authorized the company to take all the water of the Tulpehocken Creek for the use of its canal. The Act of April 2,1811, P. L. 226 gave the company the right to use the waters of any creek or stream on the route of this intended canal, and provision was made in both acts for compensating parties for taking creeks, mill waters, &c., by the company for the construction and use of the canal. The bill admits the taking of the water by the company for its own use uuder the provisions of its charter. The remedy therefore pointed out by the act for the injury complained of, must be pursued. The Act ■of March 21,1806, 4 Sm. L. 332 provides that in all cases where a remedy is provided or a duty enjoined or any thing directed to be done by an Act or Acts of Assembly of this Commonwealth, the directions of the said Acts shall be strictly pursued. So to, there are numerous decision» to the effect that when a statute gives a remedy it is exclusive of all others. In the case of the Cumberland Valley Railroad Company vs. McLanahan, 9 P. P. S. 23 Chief Justice Sharswood said: It is a perfectly well settled principle that when the Legislature has provided a ¡specific remedy for the recovery of damages for injuries sustained by the construction of a work of internal improvement by a corporation, a party injured cannot have recourse to a common law action.” It was also ruled in McKinney vs. Monongahela Nav. Co., 2 Harris 65. Leah Stump has a remedy under the statute incorporating the Union Canal Company, and that remedy she must pursue to the end. She has no other. Certainly she cannot stop short of it and invoke the power of a Court of Equity. This case is virtually decided by Spangler’s Appeal, 14 P. P. S., 387. Spangler filed a bill in equity setting forth that the Union Canal Company had raised their feeder 'dams and thereby diverted the waters of Tulpehocken Creek from the mill, and prayed the Court to enjoin the Canal Company to remove such parts of the dams which had been raised, which caused the water to be diverted. The Supreme Court dismissed the bill.
    
      In the opinion Chief Justice Thompson said that the remedy of the statute must fee pursued, that it would be an intolerable' evil if a party were authorized to stop the works by injuncion, operating on the supply of water, for instance, when it is a canal, until the damages are paid. It cannot be done and no book or case shows that it can. The demurrer is sustained and the bill is dismissed with costs.
    Leah Stump then appealed, assigning the dismissal of her bill for error.
    
      A. G. Green, Esq., for appellant
    argued that the remedy pointed out by statute had been pursued to judgment. The canal has the property and refuses to pay for it; and the principal that applies to married women should be applied to this corporation, viz.: that it will not be allowed to keep the property and refuse to pay for it; Patterson vs. Robinson, 1 C, 81. Western Penna. R. R. Co. vs. Johnston, 9 P. F. S., 290. To sell out the franchises would be to destroy the existence of the company, but would not produce anything. Heilman vs. Union Canal Company, 1 Wright, 100 is not inconsistent with the relief asked.
    
      George E. Baer, Esq., contra,
    
    argued that a bill in equity will not lie to enforce payment of a judgment recovered in a statutory proceeding against a corporation for damages caused by the' exercise of the power of eminent domain; Heilman vs. Union Canal Co., 1 Wright 100. Spangler’s Appeal, 14 P. F. S., 387 and cases cited.
   The decree of the Court below was affirmed by the Supreme; Court on March 28, 1881 in the following opinion per

Green, J.;

Every question presented by this record has been already decided by this Court adversely to the appellants. When they were here in Spangler’s Appeal, 14 P. S. 387, we held that a bill in equity would not lie because the Act incorporating the defendant gave a remedy by a proceeding for the assessment of damages, and! that remedy must be pursued. Since then they have resorted to-that mode of redress, and had their damages assessed, and now they allege the insolvency of the defendant and their consequent inability to collect the money due them, and again seek relief by injunction. But we are powerless to help them. In Heilman vs. Union Canal Co., 1 Wr. 100, it was determined that the insolvency of the company was not sufficient to confer jurisdiction in equity. We there said : “The fact, if it be so, that this remedy may not be successful in realizing the fruits of a recovery in law on account of the insolvency of the defendants is not of itself a ground of equitable interference. The remedy is what is to be looked at'. If it exist, and is ordinarily adequate, its possible want ot success is not a consideration.” * * * * “Hence the alleged insolvency of the company, and the supposed inability to collect damages that may be recovered from it, is no reason - for Interfering by injunction.” In Spangler’s Appeal, we held, “If these mill owners have a remedy under the statute they must pursue it; if they have none then they are not entitled to anything.” * * * “It is enough, however, to say that this company is authorized to take the water of Tulpehocken creek for its canal, and it is not an act contrary to law, or equity either, that they do, and without this they cannot be enjoined, nor can its servants and agents, engaged in aiding it to do, what the law allows the company to do. Besides, there is either an adequate remedy in the Act for compensating the injury, or there is no allowable remedy of any kind.’’

The case of Levering vs. The Philadelphia, Germantown and Norristown R. R. Co., 8 W. & S. 459, cited by the appellants, is not applicable. That was a case in which land was taken, and the Act of incorporation only conferred the right to occupy and use the ground taken, on payment, or tender of payment of the amount awarded by the viewers. This was held to be a condition precedent, and if not performed the right of occupancy was gone. But in the Act incorporating the defendant in this case there is no such provision, and hence the case referred to is not in . point. The Court below was clearly right .in dismissing the appellants’ bill.

Decree affirmed.  