Bumbarger v. Walker

164 A.2d 144, 193 Pa. Super. 301, 1960 Pa. Super. LEXIS 644
CourtSuperior Court of Pennsylvania
DecidedSeptember 20, 1960
DocketAppeals, 123, 124, 127, and 128
StatusPublished
Cited by25 cases

This text of 164 A.2d 144 (Bumbarger v. Walker) is published on Counsel Stack Legal Research, covering Superior Court of Pennsylvania primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Bumbarger v. Walker, 164 A.2d 144, 193 Pa. Super. 301, 1960 Pa. Super. LEXIS 644 (Pa. Ct. App. 1960).

Opinions

Opinion by

Rhodes, P. J.,

Plaintiffs, Harvey Bumbarger, Jr., and Lillian A. Bumbarger, his wife, and Lewis E. Bumbarger and Anna Marie Bumbarger, his wife, brought these actions of trespass against defendants, Ray S. Walker and Robert Bailey, for damages resulting from ruination of the spring which supplied water to their properties. The complaints alleged that defendants, in conducting an open pit or strip mining operation on the Albert Smith farm at a higher elevation and about 2,250 feet distant from a spring used by plaintiffs for a domestic water supply, had caused water with a high sulphur content from the mining operation to flow into the spring and render the water unfit for use by plaintiffs in their respective dwellings.

Lewis E. Bumbarger and Harvey Bumbarger, Jr., are sons of Harvey Bumbarger, Sr., on whose land the spring in question is located. Plaintiffs each purchased a lot of ground from their father. These lots adjoin each other. Harvey Bumbarger, Jr., erected a dwelling on his land in 1949, while Lewis E. Bumbarger built in 1951. Under parol permission plaintiffs constructed a pipeline from the spring to their [304]*304respective lots. They subsequently received express grants of the easement appurtenant to use of the spring by deeds from their father given in confirmation of the previous parol grants between the parties.

Defendants’ strip mining operation lies generally northwest of the spring on the farm of Harvey Bumbarger, Sr., and approximately 2,250 feet distant therefrom. The approximate elevation of the bottom of the pit is 1,728 feet, while that of the springhouse is 1,640 feet. The strata of the area has a general slope from the northwest to the southeast, that is, from defendants’ operation downgrade to the springhouse. A watercourse begins at the eastern edge of defendants’ mining pit, extends over the property of Harvey Bumbarger, Sr., and passes within fifty feet of the spring in question. On the northeast portion of the lands of Harvey Bumbarger, Sr., are some old strippings and mining operations which have been largely filled in, and are approximately 600 feet from the spring and 30 to 40 feet above the level of the spring. The mining operations ceased at least seven years prior to 1955.

The pit resulting from defendants’ strip mining was 200 to 300 feet in length, 40 to 50 feet in width, and 40 to 50 feet deeper than the adjacent highway. A considerable amount of water accumulated in the pit.

The testimony indicates that on several occasions there had been drilling and blasting in the pit, and following the blasting the water disappeared from the bottom of the pit. Concussions from the blasting were felt by the home owners in the area. In one instance five windows were shattered; in another a portion of a cellar wall was damaged. In 1955, subsequent to the blastings in the open pit, the spring on the property of Harvey Bumbarger, Sr., became unfit for domestic use due to the sulphur in the water. The walls of the springhouse turned reddish in color. [305]*305Cooking utensils and plumbing were eaten by the acid. Defendants produced evidence that the spring in question was fed by percolating water as distinguished from surface water.

Testimony of both lay and expert witnesses offered to establish the cause of the contamination was conflicting. Plaintiffs contended, inter alia, that defendants had shattered the underground strata of rock by blastings in the open pit thereby disturbing the flow of subterranean or percolating waters and causing sulphur or acid water to flow into the spring. On the other hand, defendants asserted that the water which caused the contamination of plaintiffs’ water supply came from the percolating waters of the old strippings and deep mining operations in the vicinity.

At the conclusion of the trial, eight special questions1 were submitted to the jury.

[306]*306The jury, after answering the special questions, returned a general verdict in favor of Harvey Bumbarger, Jr., in tbe amount of $4,800, and in favor of Lewis E. Bumbarger in tbe amount of $3,200. Motions for new trial were not pressed in the court below beyond tbe formal filing within tbe four-day limitation. Tbe motions for judgment notwithstanding tbe verdicts were dismissed by tbe court below, and judgments were entered on tbe verdicts. Each defendant appealed from both verdicts.

On these appeals defendants maintain (1) that, when a spring depends for its supply upon percolations through land of others and explosives are employed in tbe use of that land for mining coal and tbe quality of tbe water supply is changed in tbe absence of malice, negligence, and foreseeability of barm, tbe actor is not liable for injury to tbe spring; (2) that a parol grant to use a spring on tbe lands of a grantor does not vest in tbe grantee a cause of action against tbe one who changes tbe quality of tbe spring; (3) [307]*307that, where plaintiffs have obtained water comparable to or better than the original supply of water without proof of acquisition expenses, plaintiffs are not entitled to damages; and (4) that the jury made special findings on controverted questions and returned a general verdict inconsistent with the findings, and that therefore the general verdict should be reversed.

The general verdict prevails. At most, the result of the jury’s special findings is to confine the cause of the contamination of the spring to the blasting by defendants. That acts by an adjoining owner can destroy or damage a spring which depends for its supply upon filtrations and percolating waters running through his land has been recognized by our courts. See Rothrauff v. Sinking Spring Water Company, 339 Pa. 129, 132-135, 14 A. 2d 87; Zimmerman v. Union Paving Company, 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 them. Cf. Bumbarger v. Walker, 393 Pa. 143, 148, 142 A. 2d 171.

Furthermore, it appears that defendants might have disposed of the water in the bottom of the pit by pumping it to the west where the watershed sloped in a direction away from plaintiffs’ spring. Thus any question of injury to plaintiffs’ spring could have been avoided. Cf. Collins v. Chartiers Valley Gas Company, 131 Pa. 143, 18 A. 1012; 139 Pa. 111, 21 A. 147. As we said in Evans v. Moffat, 192 Pa. Superior Ct. 204, 220, 160 A. 2d 465, 473 (allocatur refused) : “. . . but mere economic advantage offers no excuse for causing substantial harm to another’s property if such harm can be avoided by proper measures.”

Section 519 of Restatement, Torts, vol. 3, p. 41, defines the liability for ultrahazardous activities as follows: “Except as stated in §§521-4, one who carries [308]*308on an ultrahazardous activity2 is liable to another whose person, land or chattels the actor should recognize as likely to be harmed by the unpreventable miscarriage of the activity for harm resulting thereto from that which makes the activity ultrahazardous, although the utmost care is exercised to prevent the harm.”

In Laventhol v. A. DiSandro Contracting Company, 173 Pa. Superior Ct. 522, 525, 98 A. 2d 422, 423, Judge Weight said: “Liability for concussion damage resulting from non-negligent blasting operations has now been established by Federoff v. Harrison Construction Co., 362 Pa. 181, 66 A. 2d 817.”

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164 A.2d 144, 193 Pa. Super. 301, 1960 Pa. Super. LEXIS 644, Counsel Stack Legal Research, https://law.counselstack.com/opinion/bumbarger-v-walker-pasuperct-1960.