Beatrice Gas Co. v. Thomas

• Citation: 41 Neb. 662,59 N.W. 925
• Parties: BEATRICE GAS CO. v. THOMAS.
• Decision Date: 27 June 1894
• Court: Supreme Court of Nebraska

41 Neb. 662

59 N.W. 925

BEATRICE GAS CO.

v.THOMAS.

Supreme Court of Nebraska.

June 27, 1894.

Syllabus by the Court.

1. One who collects injurious or offensive matter upon his premises, which, by percolation, transmission through subterranean streams, or otherwise, pollutes his neighbor's well, is liable for the damages thereby sustained.

2. It is not necessary for the recovery of such damages that the fact of the contamination of plaintiff's well was known by the defendant. It is sufficient that such contamination was the natural and probable consequence of defendant's acts.

3. Where an injury of such character causes permanent and irremediable damage to plaintiff'sland, the plaintiff should recover in one action all damages, present or prospective. But if the injury was temporary in its character, and capable of being avoided in the future without permanent injury to plaintiff's land, damages can only be recovered up to the commencement of the action, the injury then being in the nature of a continuing nuisance.

4. The fact that the injury could be avoided by digging a new well would not be a bar to the action, but would be admissible in mitigation of damages, by restricting the plaintiff to such recovery as would compensate him for reasonable expenses incurred in avoiding the injury.

5. The plaintiff having introduced evidence that other wells in the neighborhood of the source of pollution complained of were likewise affected, held, that evidence on behalf of the defendant to show that other wells, situated at a great distance from such source, were also likewise affected, was admissible.

Error to district court, Gage county; Broady, Judge.

Action by Hiram R. Thomas against the Beatrice Gas Company. Judgment for plaintiff, and defendant brings error. Reversed.

W. S. Summers, for plaintiff in error.

R. W. Sabin and J. B. Betts, for defendant in error.

IRVINE, C.

Thomas brought this action against the gas company, alleging that the plaintiff was the owner of a certain lot in South Beatrice, and had been such owner for five years, occupying the premises as a homestead; that he dug a well thereon suitable for use; that the gas company operated and maintained its manufactory one block from the property of the plaintiff; that contiguous to this factory the gas company made a large excavation in the ground, reaching into the sand, into which it emptied all the filth and waste coming from its factory, consisting of a deadly and poisonous liquid, which was absorbed into the sand, and by said sand carried and percolated itself from the cesspool, through the ground, to the plaintiff's well, rendering the water therein unfit for use, dangerous, and unwholesome; that by reason of the premises the plaintiff had lost his well, his land had been rendered unfit to make another well, and he had been compelled to carry water necessary for household use and for stock for a long distance; that he had expended large sums of money in efforts to remedy the evil; that the value of his property had been destroyed,--all to his damage in the sum of $900. The answer amounted to a general denial. There was a trial to a jury, and a verdict and judgment for the plaintiff for $453.78, from which the gas company prosecutes error.

The evidence on the trial tended to show that the gas company sank what it calls a “condense well” on its own property, at a distance of 492 feet from plaintiff's well; that into this condense well the company permitted to flow certain waste products; that, some months after this condense well went into use, it was discovered that plaintiff's well was contaminated. Some time afterwards the water became wholly unfit for use. There seems here to be a stratum of sand between beds of rock and clay. The condense well reached the sand. Plaintiff's well passed through the sand and into the rock. The odor of the water in plaintiff's well after its contamination was similar to the odor in the neighborhood of the condense well. The odor resembled that of naphtha, and there was evidence tending to show that the gas company used naphtha in its process. During the trial, evidence was introduced tending to show that other wells in the neighborhood of plaintiff had been contaminated in like manner. The admissibility of this evidence, under ordinary circumstances, would be at least doubtful; but, under the circumstances of this case, we think the action of the trial judge was correct. The evidence first came in connection with proof that the plaintiff was compelled to carry all the water for his household use from a great distance, and he accounted for this fact by proving that a nearer well was polluted in the same manner as his own. Moreover, there were suggestions, in the course of the examination of witnesses, that plaintiff's well had been polluted by the voluntary act of himself or some other person. After this evidence was in, and near the close of the defendant's case, an effort was made by the gas company to show that a well had been sunk on the opposite side of the river, and that the water obtained in that well was contaminated in the same manner. This evidence was excluded. The record does not show how far this well was from the gas works, but it does appear it was in another portion of the city. We think the court should have admitted this evidence. The fact that other wells, at a considerable distance, were likewise polluted, would not conclusively show that the pollution of plaintiff's well was not due to the gas company, but it would tend in that direction; and the greater the distance the stronger the inference would be that the cause in both cases was a general cause, affecting the whole region, and not the act of the gas company, complained of. We are aware that the introduction of such testimony leads to the danger of introducing collateral issues into the trial. At the same time, we think that such evidence was material, and, within reasonable limits, should have been admitted, especially as the plaintiff had introduced proof of the contamination of neighboring wells. For this error the judgment must be reversed, but, as a new trial must be had, it is proper that we should consider the fundamental questions raised by the record.

The gas company contends that there could be no liability for an injury of the character complained of. This question is raised by the assignment that the petition does not state a cause of action, and by exceptions to the instructions, which were to the effect that if matter in the condense well percolated through the ground into plaintiff's well, polluting the water, then the condense well was a nuisance, for the maintenance of which the plaintiff was entitled to damages. The law on the subject, as stated in the adjudicated cases, is not in a condition very satisfying to the reason. The cases are so numerous that a complete review would be unprofitable and almost impossible. We shall select certain cases, which are probably those most frequently cited, and those which have served as landmarks for the discussion.

In a number of cases, of which Acton v. Blundell, 12 Mees. & W. 324, is representative, it has been held that the law in relation to surface water courses is not applicable to subterranean streams, and that a proprietor has no cause of action because of the fact that another, by sinking a well or by the proper opening of a mine, taps a subterranean water course, and deprives such proprietor of the water supply for his own well. This doctrine is put chiefly...