Rothrauff Et Ux. v. Sinking Spring Water Co.

• Decision Date: 24 June 1940
• Docket Number: 167
• Citation: 14 A.2d 87,339 Pa. 129
• Parties: Rothrauff et ux., v. Sinking Spring Water Company, Appellant
• Court: Pennsylvania Supreme Court

14 A.2d 87

339 Pa. 129

Rothrauff et ux., v. Sinking Spring Water Company, Appellant

No. 167

Supreme Court of Pennsylvania

June 24, 1940

Argued May 10, 1940.

Appeal, No. 167, Jan. T., 1940, from judgment of C.P. Berks Co., March T., 1937, No. 74, in case of Lewis H. Rothrauff et ux. v. Sinking Spring Water Company. Judgment reversed.

Assumpsit. Before MAYS, J.

The opinion of the Supreme Court states the facts.

Verdict and judgment for plaintiff. Defendant appealed.

Errors assigned, among others, related to refusal of points for charge, various portions of charge, and refusal of motions for new trial and for judgment n.o.v.

The judgment is reversed, and the record is remitted to the court below to proceed as herein directed.

Charles W. Matten, of Matten & Matten, with him Geo. Eves, for appellant.

John B Stevens, of Stevens & Lee, for appellees.

Before SCHAFFER, C.J., MAXEY, DREW, LINN, STERN, BARNES and PATTERSON, JJ.

OPINION

MR. STERN, JUSTICE.

Plaintiffs are the owners of a farm in Berks County upon which, until the event hereinafter mentioned, there was a deep-seated spring producing a substantial quantity of water. Defendant a corporation engaged in the business of furnishing water to the public, entered into a written agreement with plaintiffs on January 9, 1935, by which it was to purchase the effluent of this spring for a period of ten years for the price of two and a half cents per thousand gallons, the flow to be metered in such manner that wastage or overflow from its reservoir would not be registered.

Having difficulty with its other sources of supply and finding that the amount of water received from the spring was inadequate for its needs, defendant obtained permission from plaintiffs to sink a well on their property in order to secure an additional quantity to augment the flow of the spring. Such a well, designated No. 1, was drilled, and the parties thereupon signed another agreement, dated May 29, 1936, in which defendant was given permission to install a pump and to connect this well by a pipeline to defendant's collecting basin, the combined flow of the well and spring to be metered through the then existing equipment, or defendant, at its option, might run the water from the well directly into its distribution system through an independent meter to be installed.

Defendant, requiring a still larger supply, with plaintiffs' consent sank three more wells on their land. Of these, two were wholly unsuccessful, and the third was abandoned when it was found that its effect was to muddy the water in the spring. Defendant next drilled a well on its own property some distance below the spring, but the water there was not potable. Then defendant took options on a property adjoining that of plaintiffs and on it dug three additional wells, none of which gave satisfactory results. During October and November, 1936, defendant drilled another well, designated No. 9, on this same property; this well furnished an abundant supply of water, but immediately upon operating it, at the beginning of December, 1936, plaintiffs' spring went dry, a condition which has since persisted and which the parties apparently agree will be permanent. As far as well No. 1 is concerned, defendant continued to pump water therefrom, under the contract of May 29, 1936, until October, 1937. In June, 1938, the parties entered into a third contract by the terms of which defendant agreed to pay plaintiffs a flat rate of $100 per month for water taken from this well, regardless of quantity, and this contract is still in force and plaintiffs have been paid in accordance with its terms.

The present action was brought by plaintiffs to recover three items. One, of $286.65, was for water taken by defendant from the spring and from well No. 1 during the months of October and November, 1936; liability for this amount was admitted by defendant at the trial and is not in controversy. A second item, of $451.22, was for water taken by defendant from well No. 1 between December, 1936, and October, 1937; no part of this item, -- although $363.59 thereof was admitted by defendant in its affidavit of defense to be due, -- was included in the verdict obtained by plaintiffs. The third and principal item, of $4,744.81, was for water, at the rate of two and a half cents per thousand gallons, which plaintiffs claim would have been obtained from the spring and delivered to defendant under the contract of January 9, 1935, had defendant not made such delivery impossible by its sinking of well No. 9, the result of which, according to plaintiffs, was the drying up of their spring. The $4,744.81 thus claimed was intended to represent the value of the estimated flow for the period from December 1, 1936, the time of the stoppage of the spring, until November 1, 1938; the significance of the latter date, or why the claim was thus limited, is not apparent from the record.

The jury returned a verdict in favor of plaintiffs for $4,416.50 being the sum of the items of $286.65 and $4,744.81, less a set-off of $615 admitted by plaintiffs to be due defendant for the cost of drilling well No. 1, for which plaintiffs, in the contract of May 29, 1936, had agreed to reimburse defendant.

It will be noted at the outset that plaintiffs are not proceeding in trespass for the difference in the value of their land before and after the permanent destruction of the spring, but in assumpsit for breach of the contract of January 9, 1935. The suit is founded upon the principle that the prevention by a party to a contract of performance by the other party constitutes an actionable breach: Restatement, Contracts, section 315 (1); Rogers v. Davidson, 142 Pa. 436, 439; Arlotte v. National Liberty Insurance Co., 312 Pa. 442, 445; Miles v. Metzger, 316 Pa. 211, 217. But defendant contends that even if the drilling of well No. 9 did cause plaintiffs' spring to run dry, this was neither the breaking of a contract nor the commission of a tort, because defendant had a legal right to drill the well, and if any damage was caused thereby to plaintiffs it was damnum absque injuria.

More than fifty years ago this court said in Lybe's Appeal, 106 Pa. 626, 634: "Than the doctrine of subterranean percolations and water courses no subject has been more fully discussed in our books." And yet, curiously enough, although there have been even more cases on this subject since that decision than before it, the important issue involved in the present litigation is a novel one in this State.

This much is settled, -- that when a spring depends for its supply upon filtrations and percolations through the land of an adjoining owner, and in the use of that land for lawful purposes the spring is destroyed, such owner, in the absence of malice and negligence on his part, is not liable for the damage thus occasioned: Wheatley v. Baugh, 25 Pa. 528; Haldeman v. Bruckhart, 45 Pa. 514; Coleman v. Chadwick, 80 Pa. 81; Lybe's Appeal, 106 Pa. 626; Collins v. Chartiers Valley Gas Co., 131 Pa. 143; 139 Pa. 111; Williams v. Ladaw, 161 Pa. 283; Zimmerman v. Union Paving Co., 335 Pa. 319. The question now arises in regard to the scope of the limitation embodied in the phrase "in the use of that land for lawful purposes." Such purposes undoubtedly include mining, quarrying, building, draining, cultivating and irrigating the land, as well as watering livestock, and domestic uses in general. Do the same rights exist in the case of an owner who treats subterranean water as merchandise for sale and distribution to persons having no connection with the land from which the water is derived? Under what is known as the English rule, ^[1] as well as most of the earlier decisions in this country, no distinction was made in this respect, the argument being that subjacent water, like minerals or oil, should belong to the owner of the land absolutely and for all purposes, and that, because of the difficulty of tracing the occult movements of underground waters, and because an attempt to administer any other legal rule would involve the subject in uncertainty, the only practical solution is to allow each owner to enjoy full rights of property in the waters under his land. But the marked tendency in American jurisdictions in later years has been away from the doctrine that the owner's right to sub-surface waters is unqualified; on the contrary there has been an ever-increasing acceptance of the viewpoint that their use must be limited to purposes incident to the beneficial enjoyment of the land from which they are obtained, and if their diversion or sale to others away from the land impairs the...