Zimmerman v. Union Paving Co.
| Decision Date | 19 June 1939 |
| Docket Number | 220 |
| Citation | 335 Pa. 319,6 A.2d 901 |
| Parties | Zimmerman v. Union Paving Company, Appellant |
| Court | Pennsylvania Supreme Court |
Argued April 24, 1939.
Appeal, No. 220, Jan. T., 1939, from judgment of Superior Court, Oct. T., 1938, No. 317, affirming judgment of C.P Schuylkill Co., Nov. T., 1934, No. 55, in case of Thomas O Zimmerman v. Union Paving Company. Judgment reversed.
Trespass. Before PAUL, J.
The facts are stated in the opinion of the Supreme Court, and also in the opinion of the Superior Court, reported in 134 Pa.Super. 373.
Verdict and judgment for plaintiff in sum of $2,500. Defendant appealed to the Superior Court, which affirmed the judgment of the court below. Appeal by defendant allowed to the Supreme Court.
The judgment of the court below, affirmed by the Superior Court is reversed, and judgment is here entered for defendant.
John Kennedy Ewing, 3rd, of Saul, Ewing, Remick & Saul, with him Wesley K. Woodbury, for appellant.
J. L. N. Channell, with him H. O. Bechtel, for appellee.
Before KEPHART, C.J., SCHAFFER, MAXEY, DREW, LINN, STERN and BARNES, JJ.
The facts are set forth in Zimmerman v. Union Paving Company, 134 Pa.Super. 373. For present purposes they may be briefly stated as follows: In 1923 William C. Umbenhauer, owner of a tract of land, deeded to plaintiff a small portion of it, two hundred feet square, "Together with the right of way to conduct the water from the Lutz's Spring on land of party of the first part [Umbenhauer] through a two inch pipe to premises of the party of the second part [Zimmerman], . . . Also for the said party of the second part to get his water at another spring near his place." Plaintiff built a house on the land purchased, established his residence there, and installed a pipe line from the Lutz spring, using the water for all manner of domestic purposes. He also laid a similar pipe from the other (unnamed) spring on Umbenhauer's property to the front of the house, where he erected a "fountain" -- a cemented pool or well -- and used this water for refrigeration, drinking and cooking. In 1932 defendant company, which was building a state road in the neighborhood, acquired from Umbenhauer the right to excavate and remove soil from his land, and started to dig there at a place called the "borrow pit." Some distance back from the top of the bank of this pit was the unnamed spring, water from which began seeping through the side of the pit. Plaintiff showed this to defendant's superintendent in charge of the work, told him of his rights in the spring, and warned him against its destruction or injury. Defendant kept on with the excavation, with the result that the full flow of the spring came through at a place some six feet lower than its original outlet. Previously it had issued at a point a foot and a half higher in elevation than plaintiff's "fountain", and the water had run through the pipe by gravity, but due to the lowered outlet pumping would now be required to conduct the water by pipe. Plaintiff did not install a pump, but he and his family began carrying the water to his house in buckets, a distance of about 300 feet, and this method of transporting the water has continued during the seven years which have elapsed since defendant's act changed the course of the spring. Plaintiff brought suit in trespass to recover for alleged permanent damage to his property and reduction in its market value. A verdict of $2500 in his favor was sustained by the court below and by the Superior Court on appeal.
Aside from the question as to the legal effect of the particular phraseology of the deed, there is little ground for controversy between the parties. Ordinarily, 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 occasioned, which is damnum absque injuria: Wheatley v. Baugh, 25 Pa. 528; Haldeman v. Bruckhart, 45 Pa. 514; Williams v. Ladew, 161 Pa. 283. This is true even if there be an express reservation of the right to conduct water from the spring on the other's land, and to lay pipes for the conveyance of the water: Brain v. Marfell, 41 L.T. n.s. 455, 20 Amer. Law Reg. n.s. 93. Lybe's Appeal, 106 Pa. 626. The reason upon which this principle is founded is that the subterranean sources of a spring are not perceptible, and damage caused by operations in their vicinity cannot usually be foreseen or avoided; where the existence, extent and location of such sources are unknown, any other rule would prevent the normal and legitimate development of the land. But if the act which causes the damage is persisted in after its effect has become apparent, or is merely wanton and of no use to the owner who performs it, or is attended by negligence, the law is otherwise: Lybe's Appeal, supra; Johnstown Cheese Manufacturing Co. v. Veghte, 69 N.Y. 16, 23; Hayes v. Adams, 109 Ore. 31, 218 P. 933. If any injury to a neighbor's rights in wells or a water supply is plainly to be anticipated, and can be avoided by the exercise of reasonable care and at reasonable expense, a land owner is not exempt from all obligation to pay regard to the effect of his operations on subterranean waters: Collins v. Chartiers Valley Gas Co., 131 Pa. 143; 139 Pa. 111. Since, in the present case, defendant had ample warning of the likely result if the excavation was continued in the direction of the spring, it cannot, in the face of its wilful action after such notice, claim immunity from responsibility merely because the water diverted was of subterranean origin.
The real question in the case, and the one in regard to which we believe the trial court and the Superior Court were in error, is as to the extent of plaintiff's rights under the deed from Umbenhauer, and whether those rights were destroyed or impaired by defendant. In regard to the Lutz Spring, the deed expressly granted the right to conduct the water from Umbenhauer's land through a two inch pipe to plaintiff's premises. In the case of the unnamed spring, however, there was given to plaintiff only the right "to get his water." He was granted the privilege of taking the water, but not by any prescribed method of conveyance; on the...
To continue reading
Request your trial
-
Schuster v. Pennsylvania Turnpike Commission
... ... and incorporeal hereditaments. * * *' 73 C.J.S. Property ... § 1b, pp. 138-140. See Zimmerman v. Union Paving ... Co., 335 Pa. 319, 6 A.2d 901; Godley v. City of Phila., ... 7 Phila. 637; ... ...
-
Bumbarger v. Walker
...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 t......
-
Bumbarger v. Walker
...spring is destroyed, such owner, in the absence of malice and negligence on his part, is not liable for the damage thus occasioned'. In the Zimmerman wherein it was held that defendant's conduct had not resulted in any legal damage, our Supreme Court said 'that the subterranean sources of a......
-
Rothrauff Et Ux. v. Sinking Spring Water Co.
...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. question now arises in regard to the scope of the limitation embodied in the phrase "in the use of that land for lawful purp......
-
ACQUISITION OF WATER FOR ENERGY AND MINERAL DEVELOPMENT IN THE EASTERN UNITED STATES
...in title had conveyed all other rights "to the waters" of the stream to a municipality). [291] See Zimmerman v. Union Paving Co., 6 A.2d 901, 903 (Pa. 1939) (groundwater). [292] Eastern Pa. Power Co. v. Lehigh Coal & Navigation Co., 92 A. 47, 48 (Pa. 1914) (explaining that an additional use......