United Fuel Gas Co. v. Sawyers

• Decision Date: 19 June 1953
• Parties: UNITED FUEL GAS CO. v. SAWYERS.
• Court: United States State Supreme Court — District of Kentucky

Page 466

259 S.W.2d 466

38 A.L.R.2d 1261

UNITED FUEL GAS CO. v. SAWYERS.

Court of Appeals of Kentucky.

June 19, 1953.

J. Woodford Howard and Fred Francis, Prestonsburg, for appellant.

L. C. Farley, Pikeville, for appellee.

STANLEY, Commissioner.

The judgment is for $400 damages for the contamination of a water well charged to have been caused by a nearby gas well. We sustain the motion for an appeal.

In building a home at a considerable cost near Pikeville in 1941, the appellee, Edgar Sawyers, drilled a well 69 feet deep, only one foot of which was in rock, and obtained a supply of good water. The depth was reached in three days of drilling. The well was stopped at that point because other wells in the neighborhood drilled deeper into the rock had been getting sulphur water. It was cased with metal, hermetically sealed at the joints, down to the rock. There was pure water in the well for some ten years until the appellant's gas well on adjoining property was in process of being drilled 450 feet away on substantially the same plane. After the drilling operations had continued for three days, the water in Sawyers' well began to be salty and sulphurous. He promptly advised the defendant's agents of this fact. The water became nauseating and unfit for domestic purposes, and permanently discolored appellee's plumbing fixtures. Sawyers testified he did not know how the mineral substances got into his well.

The right of recovery is claimed because in some unexplained way the plaintiff's water supply was contaminated by the drilling and maintenance of the gas well.

The drilling and casing of the gas well was done in an approved manner and by proper methods. The evidence is to the effect that it was not possible for any deleterious substance to have escaped. It is also shown that other nearby water wells were contaminated like the plaintiff's before drilling was begun.

The basis of liability for injury to property by pollution of subterraneous waters from oil, gas, salt water or like substances from wells must be either negligence or nuisance. There was no negligence in the present case. The question is one of nuisance in the broad sense that the law operates as a restriction upon the right of an owner of property to make use of it as he pleases. Kentucky Block Fuel Co. v. Roberts, 207 Ky. 137, 268 S.W. 802. Outside the scope of the decision is the question of pollution of surface waters or of an identifiable underground stream. See Nourse v. Andrews, 200 Ky. 467, 255 S.W. 84; Annotations, 55 A.L.R. 1385; 109 A.L.R. 485. The decision is confined to pollution of percolating waters. 'Percolating waters are those which ooze, seep, or filter, through the soil beneath the surface, without a defined channel, or in a course that is unknown and not discoverable from surface indications without excavation for that purpose. The fact that they may, in their underground course, at places come together so as to form veins or rivulets, does not destroy their character as percolating waters.' Clinchfield Coal Corp. v. Compton, 148 Va. 437, 139 S.E. 308, 311, 55 A.L.R. 1376. Percolating waters are part of the earth itself with the same right of use and appropriation by the owner of the land. Nourse v. Andrews, 200 Ky. 467, 255 S.W. 84; Feldhaus v. Jefferson Co., 264 Ky. 829, 95 S.W.2d 790; Sycamore Coal Co. v. Stanley, 292 Ky. 168, 166 S.W.2d 293.

It is doubtful if the evidence was sufficient to establish causal relation between the drilling of the gas well and the contamination of the water well. We have only that which may be inferred from the coincidence of the water becoming bad just when the nearby gas well reached the same depth or perhaps a few feet deeper, and the circumstance that water in wells a few feet deeper than plaintiff's well was sulphurous or salty. Cf. Haveman v. Beulow, 36 Wash.2d 185, 217 P.2d 313, 19 A.L.R.2d 763. Accepting as sufficient the causal connection, there may have been liability under an unqualified adherence to the common law as laid down in Rylands v. Fletcher, L.R., 3 H.L. 300 (see 1 Am.Jur., Adjoining Landowners, Sec. 12) that one must in all events so use his property as not to injure the legal rights of his neighbor. But present American law departs from the English common law. It exonerates the owner from legal liability if there was a 'reasonable use' of his property. The owner of property may use percolating waters beneath his surface for all purposes properly connected with the use, enjoyment and development of the land itself, but he is forbidden from using it for purposes not connected with the beneficial enjoyment of the ownership. 'The ...