Wheatley v. Baugh

Decision Date01 January 1855
Citation25 Pa. 528
PartiesWheatley versus Baugh.
CourtPennsylvania Supreme Court

Lewis and J. M. Read, for plaintiff in error.

Pennypacker, for defendant in error.

The opinion of the Court was delivered by LEWIS, C. J.

A mining company, in the course of necessary operations in mining minerals from their own land, interrupted the percolations which supplied a spring on an adjacent tract, and the owner of the spring, under the direction of the Court below, recovered damages for the loss of it. The question is, can this recovery be sustained?

The general principle undoubtedly is, that he who owns the soil has it even to the sky, and to the lowest depths. He may dig as deep and build as high as he pleases. The maxim which embodies the principle is, "cujus est solum ejus est usque ad cœlum et ad infernos." If this general rule be applicable to the case before us, the plaintiff in error is justified in all that he did on the land of his principals by their direction. But there are some restrictions upon this general right of property, which it becomes necessary to notice. The natural streams of water existing by the bounty of Providence, for the benefit of the land through which they flow, are incidents annexed to the land itself: 4 Mason 400; 12 Wend. 332. They do not begin by consent of parties, nor by prescription, but ex jure naturæ, and therefore they are not extinguished by unity; nor can they be obstructed or diverted to the prejudice of adjacent proprietors: Sury v. Piggot, Popham 170; 3 Bulst. 339. It was said by Sir JOHN LEACH, in Wright v. Howard, 1 Sim. & Stuart 190, that "every proprietor who claims a right either to throw the water back above, or to diminish the quantity which is to descend below, must, in order to maintain his claim, either prove an actual grant or license from the proprietors affected by his operations, or must prove an uninterrupted enjoyment of twenty years:" 1 Sim. & Stuart 190. It is true that there is a difference between watercourses on the surface, and those which run under ground: Acton v. Blundell, 12 Mees. & Welsby 324. But that distinction does not authorize neighbouring proprietors to disregard the necessities of each other's condition in respect to the latter. It is manifest that valuable rights may exist in both; and it is indisputable that wherever they do exist they must be protected by law. In limestone regions streams of great volume and power pursue their subterranean courses for great distances, and then emerge from their caverns, furnishing power for machinery of every description, or supplying towns and settlements with water, for all the purposes of life. To say that these streams might be obstructed or diverted, merely because they run through subterranean channels, is to forget the rights and duties of man in relation to flowing water. But to entitle a stream to the consideration of the law, it is certainly necessary that it be a watercourse, in the proper sense of the term. A spring gutter on the surface, is none the less a watercourse, although it is not equal in volume to a river. Small as it may be, if it have a clear and well defined channel, and a regular flow in that channel, it cannot be diverted to the injury of the proprietors below: Jack v. Martin, 12 Wend. 330. So a subterranean stream, which supplies a spring with water, cannot be diverted by the proprietor above, for the mere purpose of appropriating the water to his own use: Smith v. Adams, 6 Paige 435. As the owner of the land below is bound to permit the stream to flow in its accustomed channel, and cannot erect obstructions so as to throw the water back on his neighbour above, so the latter is bound, as a correlative obligation, to permit it to flow to his neighbour below. Each has a right to a reasonable use of the water on his own premises, but he must so exercise his privilege as not to injure the rights of the other. "Sic utere tuo ut alienum non lædas" is the maxim especially applicable to the enjoyment of these rights. When the filtrations are gathered into sufficient volume to have an appreciable value, and to flow in a clearly defined channel, it is generally possible to see it, and to avoid diverting it without serious detriment to the owner of the land through which it flows. But percolations spread in every direction through the earth, and it is impossible to avoid disturbing them without relinquishing the necessary enjoyment of the land. Accordingly the law has never gone so far as to recognise in one man a right to convert another's farm to his own use, for the purposes of a filter.

Such a claim, if sustained, would amount to a total abrogation of the right of property. No man could dig a cellar, or a well, or build a house on his own land, because these operations necessarily interrupt the filtrations through the earth. Nor could he cut down the forest and clear his land for the purposes of husbandry, because the evaporation which would be caused by exposing the soil to the sun and air would inevitably diminish, to some extent, the supply of water which would otherwise filter through it. He could not even turn a furrow for agricultural purposes, because this would, partially, produce the same result. Even if this right were admitted to exist, the difficulty in ascertaining the fact of its violation, as well as the extent of it, would be insurmountable. The Roman law, founded upon an enlightened consideration of the rights of property, declared that "he who, in making a new work upon his own estate uses his right without trespassing either against any law, custom, title, or possession, which may subject him to any service towards his neighbours, is not answerable for the damages which they may chance to sustain thereby, unless it be that he made that change merely with a view to hurt others without any advantage to himself." "He may raise his house as high as he pleases, although, by the elevation, he should darken the lights of his neighbour's house:" Domat, § 1047. He may dig for water on his own ground, and if he should thereby drain a well or spring in his neighbour's ground, he would be liable to no action of damages on that score: Domat, § 1581; Pardessus, Traité des Servitudes, § 76; Dig. 39, 2, 24, 12; Dig. 39, 3, 1, 12; Dig. 39, 2, 26; Dig. 39, 3, 21. These principles of the civil law are also the recognised doctrines of the common law: Burg v. Pope, 1 Cro. Eliz. 118; Parker v. Foote, 19 Wend. 309; Hoy v. Sterrett, 2 Watts 331; Greenleaf v. Francis, 18 Pick. 121; Acton v. Blundell, 12 Mees. & Wels. 324. It is true that several English Nisi Prius decisions introduced a modern doctrine in relation to ancient lights, in opposition to that held in the reign of Queen Elizabeth by all the judges in the Exchequer Chamber: 1 Cro. Eliz. 118. But the modern doctrine was never recognised by the King's Bench until the decision in Darwin v. Upton, in 1786, 2 Sqund. 175, n. 2. As that decision was since the American Revolution after which English Courts ceased to have authority here, and is an anomaly in the law, the modern doctrine founded upon it has not been received as suitable to the condition of this country: 19 Wend. 309; 2 Watts 331. In Acton v. Blundell it was held that the defendant had a right to sink coal pits on his own land, although he thereby drained a well on the plaintiff's land. In Greenleaf v. Francis it was decided that the owner of land may dig a well on any part of it, notwithstanding he thereby diminishes the water in his neighbour's well, unless in doing so he is actuated by a mere malicious intent to deprive his neighbour of the water without benefit...

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