Haldeman et al. v. Bruckhart

• Decision Date: 01 July 1863
• Citation: 45 Pa. 514
• Court: Pennsylvania Supreme Court
• Parties: Haldeman <I>et al. versus</I> Bruckhart.

Page 514

45 Pa. 514

Haldeman et al. versus Bruckhart.

Supreme Court of Pennsylvania.

July 1, 1863.

ERROR to the Common Pleas of Lancaster county.

COPYRIGHT MATERIAL OMITTED

COPYRIGHT MATERIAL OMITTED

H. M. North, for plaintiffs in error, cited and relied on Haverstick v. Sipe, 9 Casey 368; 16 Leg. Int. 301; Panton v. Holland, 17 Johns. 92; 12 Mass. Rep. 220; 8 Johns. 421; Acton v. Blundell, 12 Meeson & Welsby 324; Wheatley v. Baugh, 1 Casey 528; Am. Railway Ca. 553; Chatfield v. Wilson, 8 Am. L. Reg. 528; Ellis v. Duncan, 21 Barb. 230.

William B. Fordney, for defendant in error, relied on Wheatley v. Baugh, 1 Casey 528; Tyler v. Wilkinson, 4 Mason's U. S. Rep. 397; Hetrick v. Deachler, 6 Barr 32; Miller v. Miller, 9 Id. 74.

The opinion of the court was delivered, July 1st 1863, by STRONG, J.

Confessedly the absolute dominion of a proprietor over his land to the centre of the earth, is restrained by the maxim "sic utere tuo ut alienum non lædas." But what is an injury? The rightful use of one's land may cause damage to another without any legal wrong. An act done, causing damage which the law will redress, must not only be hurtful, but wrongful. There must be damnum et injuria, an act not merely hurtful, but an infringement of another's right. The plaintiff in this case cannot therefore recover, unless the acts of which he complains were in violation of some rights which he had upon the lands of the defendants. That an inferior proprietor has a right to the uninterrupted flow of the water in a surface watercourse leading to his land over the land of an adjoining proprietor, is a familiar principle; but he has no such right to an unknown subterranean stream which feeds his spring, or flows out upon his land. For any flowage in such a stream, he has, in ordinary cases, no servitude upon the land of his neighbour, at least he has no natural right to enforce such a servitude. After the full discussion which this subject received in Wheatly v. Baugh, 1 Casey 528, little remains for us now to add. In that case it was ruled, that where a spring depends for its supply upon filtrations or percolations of water through the land of an owner above, and in the use of the land for mining or other lawful purposes the spring is destroyed, such owner is not liable for the damages thus caused to the proprietors of the spring, unless the injury was occasioned by malice or negligence. To such percolations or filtrations, then, the inferior owner has no right. This was all that was necessary to the decision of the case.

In the opinion delivered by this court, it was said, indeed, that inferior proprietors may have rights in subterranean streams, and those were instanced that in limestone regions often pursue their course in great volume and power, and then emerging from their caverns, furnish power for machinery, or supply towns and settlements with water for all the purposes of life. To say that such streams might be obstructed or diverted, merely because they run through subterranean channels, would be, said the court, to forget the rights and duties of man in relation to flowing water. Underground currents of such a description are exceptional in their nature, and the same reason exists for holding that a lower proprietor has a right to insist upon their uninterrupted flow, as exists in the case of watercourses on the surface. Their existence and their course are generally known. If, therefore, the owner below has any rights in them, they are perceptible, and the owner of the land through which they pass may, in most cases, have the fullest use of his property without disturbing them. What was said upon these exceptional cases had been previously, though more guardedly, said in Dickinson v. The Grand Junction Canal Company, 9 Eng. Law & Eq. 521, a case decided in the English Court of Exchequer, where a distinction between water running on the surface and sub-surface streams was asserted, but the court said "if the course of a subterranean stream were well known, as is the case with many which sink under ground, pursue for a short space a subterraneous course and then emerge again, it never could be contended that the owner of the soil under which the stream flowed could not maintain an action for the diversion of it, if it took place under such circumstances as would have enabled him to recover if the stream had been wholly above ground."

Throwing out of view for the present such exceptional cases, there is a well-marked distinction between the flowage of water in surface and sub-surface channels.

A proprietor of land may, in the proper use of his land for mining, quarrying, building, draining, or any other useful purpose, cut off or divert subterraneous water flowing through it to the land of his neighbour, without any responsibility to that neighbour. Some of the grounds for the distinction are clearly pointed out in Acton v. Blundell, 12 M. & W. 324, and others may be mentioned. They are that in case of an underground supply to a spring or well, or a stream emerging upon land of a lower proprietor, the water does not flow openly in the sight of the owner of the soil under which it...