Bumbarger v. Walker

• Decision Date: 20 September 1960
• Citation: 164 A.2d 144,193 Pa.Super. 301
• Parties: Harvey BUMBARGER, Jr., and Lillian A. Bumbarger, his wife v. Ray S. WALKER and Robert Bailey, Appellants. Lewis E. BUMBARGER and Anna Marie Bumbarger, his wife, v. Ray S. WALKER and Robert Bailey, Appellants.
• Court: Pennsylvania Superior Court

Page 144

164 A.2d 144

193 Pa.Super. 301

Harvey BUMBARGER, Jr., and Lillian A. Bumbarger, his wife v. Ray S. WALKER and Robert Bailey, Appellants.

Lewis E. BUMBARGER and Anna Marie Bumbarger, his wife, v. Ray S. WALKER and Robert Bailey, Appellants.

Superior Court of Pennsylvania.

Sept. 20, 1960.

Rehearing Denied Oct. 17, 1960.

Application for Allocatur Dismissed Dec. 2, 1960.

Joseph J. Lee, Clearfield, for appellants.

Bell, Siberblatt & Swoope, F. Cortez Bell, F. Cortez Bell, Jr., Clearfield, for appellees.

Before RHODES, P. J., and GUNTHER, WRIGHT, WOODSIDE, ERVIN, WATKINS and MONTGOMERY, JJ.

RHODES, President Judge.

Plaintiffs, Harvey Bumbarger, Jr., and Lillian A. Bumbarger, his wife, and Lewis E. Bumbarger and Anna Marie Bumbarger, his wife, brought these actions of trespass against defendants, Ray S. Walker and Robert Bailey, for damages resulting from ruination of the spring which supplied water to their properties. The complaints alleged that defendants, in conducting an open pit or strip mining operation on the Albert Smith farm at a higher elevation and about 2,250 feet distant from a spring used by plaintiffs for a domestic water supply, had caused water with a high sulphur content from the mining operation to flow into the spring and render the water unfit for use by plaintiffs in their respective dwellings.

Lewis E. Bumbarger and Harvey Bumbarger, Jr., are sons of Harvey Bumbarger, Sr., on whose land the spring in question is located. Plaintiffs each purchased a lot of ground from their father. These lots adjoin each other. Harvey Bumbarger, Jr., erected a dwelling on his land in 1949, while Lewis E. Bumbarger built in 1951. Under parol permission plaintiffs constructed a pipeline from the spring to their respective lots. They subsequently received express grants of the easement appurtenant to use of the spring by deeds from their father given in confirmation of the previous parol grants between the parties.

Defendants' strip mining operation lies generally northwest of the spring on the farm of Harvey Bumbarger, Sr., and approximately 2,250 feet distant therefrom. The approximate elevation of the bottom of the pit is 1,728 feet, while that of the springhouse is 1,640 feet. The strata of the area has a general slope from the northwest to the southeast, that is, from defendants' operation downgrade to the springhouse. A watercourse begins at the eastern edge of defendants' mining pit, extends over the property of Harvey Bumbarger, Sr., and passes within fifty feet of the spring in question. On the northeast portion of the lands of Harvey Bumbarger, Sr., are some old strippings and mining operations which have been largely filled in, and are approximately 600 feet from the spring and 30 to 40 feet above the level of the spring. The mining operations ceased at least seven years prior to 1955.

The pit resulting from defendants' strip mining was 200 to 300 feet in length, 40 to 50 feet in width, and 40 to 50 feet deeper than the adjacent highway. A considerable amount of water accumulated in the pit. $The testimony indicates that on several occasions there had been drilling and blasting in the pit, and following the blasting the water disappeared from the bottom of the pit. Concussions from the blasting were felt by the home owners in the area. In one instance five windows were shattered; in another a portion of a cellar wall was damaged. In 1955, subsequent to the blastings in the open pit, the spring on the property of Harvey Bumbarger, Sr., became unfit for domestic use due to the sulphur in the water. The walls of the springhouse turned reddish in color. Cooking utensils and plumbing were eaten by the acid. Defendants produced evidence that the spring in question was fed by percolating water as distinguished from surface water.

Testimony of both lay and expert witnesses offered to establish the cause of the contamination was conflicting. Plaintiffs contended, inter alia, that defendants had shattered the underground strata of rock by blastings in the open pit thereby disturbing the flow of subterranean or percolating waters and causing sulphur or acid water to flow into the spring. On the other hand, defendants asserted that the water which caused the contamination of plaintiffs' water supply came from the percolating waters of the old strippings and deep mining operations in the vicinity.

At the conclusion of the trial, eight special questions ¹ were submitted to the jury.

The jury, after answering the special questions, returned a general verdict in favor of Harvey Bumbarger, Jr., in the amount of $4,800, and in favor of Lewis E. Bumbarger in the amount of $3,200. Motions for new trial were not pressed in the court below beyond the formal filing within the four-day limitation. The motions for judgment notwithstanding the verdicts were dismissed by the court below, and judgments were entered on the verdicts. Each defendant appealed from both verdicts.

On these appeals defendants maintain (1) that, when a spring depends for its supply upon percolations through land of others and explosives are employed in the use of that land for mining coal and the quality of the water supply is changed in the absence of malice, negligence, and foreseeability of harm, the actor is not liable for injury to the spring; (2) that a parol grant to use a spring on the lands of a grantor does not vest in the grantee a cause of action against the one who changes the quality of the spring; (3) that, where plaintiffs have obtained water comparable to or better than the original supply of water without proof of acquisition expenses, plaintiffs are not entitled to damages; and (4) that the jury made special findings on controverted questions and returned a general verdict inconsistent with the findings, and that therefore the general verdict should be reversed.

The general verdict prevails. At most, the result of the jury's special findings is to confine the cause of the contamination of the spring to the blasting by defendants. That acts by an adjoining owner can destroy or damage a spring which depends for its supply upon filtrations and percolating waters running through his land has been recognized by our courts. See Rothrauff v. Sinking Spring Water Co., 339 Pa. 129, 132-135, 14 A.2d 87; Zimmerman v. Union Paving Co., 335 Pa. 319, 322, 6 A.2d 901. The verdicts of the jury established defendants' liability for the ultrahazardous activity of blasting carried on by them. Cf. Bumbarger v. Walker, 393 Pa. 143, 148, 142 A.2d 171.

Furthermore, it appears that defendants might have disposed of the water in the bottom of the pit by pumping it to the west where the watershed sloped in a direction away from plaintiffs' spring. Thus any question of injury to plaintiff's spring could have been avoided. Cf. Collins v. Chartiers Valley Gas Co., 131 Pa. 143, 18 A. 1012, 6 L.R.A. 280; 139 Pa. 111, 21 A. 147. As we said in Evans v. Moffat, 192 Pa.Super. 204, 220, 160 A.2d 465, 473 (allocatur refused): '* * * but mere economic advantage offers no excuse for causing substantial harm to another's property if such harm can be avoided by proper measures.'

Section 519 of Restatement of the Law, Torts, vol. 3, p. 41, defines the liability for ultrahazardous activities as follows: 'Except as stated in §§ 521-4, one who carries on an ultrahazardous activity ² is liable to another whose person, land or chattels the actor should recognize as likely to be harmed by the unpreventable miscarriage of the activity for harm resulting thereto from that which makes the activity ultrahazardous, although the utmost care is exercised to prevent the harm.'

In Laventhol v. A. DiSandro Contracting Co., 173 Pa.Super. 522, 525, 98 A.2d 422, 423, Judge Wright said: 'Liability for concussion damage resulting from nonnegligent blasting operations has now been established by Federoff v. Harrison Construction Co., 362 Pa. 181, 66 A.2d 817.'

The record indicates that the spring on the property of Harvey Bumbarger, Sr., had been used for domestic purposes at least from 1917, and that the contamination did not develop until 1955 and 1956, which was subsequent to the strip mining and blasting by defendants. After the coal had been removed by defendants, they drilled a hole 40 to 50 feet deep below the bottom of the pit and exploded dynamite therein which successfully removed the accumulated water therefrom. Admittedly the bottom of the open pit of defendants' strip mining was at a higher elevation than the Bumbarger spring. Where conditions which have continued for a long period of time change coincidentally with the occurrence of a new event, which in common experience may have caused the change, there is sufficient evidence of causation present for the case to go to the jury. Richard v. Kaufman, D.C., 47 F.Supp. 337, 338; Alwine v. Valley Smokeless Coal Co., 271 Pa. 571, 573, 115 A. 882. In addition, there was expert testimony presented by both plaintiffs and defendants that the ground surface and rock strata underneath sloped downward in a southeasterly direction from the mining operation and toward the Bumbarger spring, and that there was visible seepage of sulphur or mine water appearing at five places at elevations of 11 to 30 feet above the spring and 900 feet or less distant therefrom after the blasting. New seepage discolored and killed the grass. There was expert testimony that the change in the rock strata by blasting would change the course of subterranean waters and cause damage to the spring. We think the evidence of plaintiffs and their expert, if accepted by the jury, was sufficient in its totality to show that defendants' blasting and removal of the accumulated water from the bottom of the pit by drilling and blasting so altered the underground strata and percolating waters as to pollute and cause damage to the spring used by plaintiffs.

The following statement of Mr. Justice Linn, speaking for the Supreme Court in ...