Mr. Justice Woodward
delivered the opinion of the court,
In the year 1868 the plaintiffs purchased a tract of land in the city of Scranton, and began the erection of a house upon it, which was finished in the year 1870. Before the purchase a stream of water, which ran through the land, was examined - by Mr. Sander-son, who traced it to its source. It appears from his testimony that the existence of this stream was a leading inducement to the plaintiffs to buy and build. It was called by some of the witnesses Meadow Brook, and was of an average width of perhaps seven feet throughout the distance from the house of the plaintiffs to the springs from which it flowed. Mr. Sanderson testified that when he traced it in 1868, the water was perfectly pure. Dams were built across it for the purposes of a fish and ice pond, and to supply a cistern. Water was carried in pipes from the cistern to a ram, and thence to a tank in the attic of the house.
After the improvements were completed the defendants established a colliery on lands belonging to them along the stream, and about two miles above the land of the plaintiff. A drift was first made into their mine, and a shaft was afterwards sunk. The water which collected in the drift, as well as that pumped by powerful engines from the shaft, ran into Meadow Brook, and was carried to its outlet in the Lackawanna river. It was alleged on the trial that the effect of the mine-water was to corrupt the water of the stream, and to render it worse than worthless for any domestic or household use. There was evidence that the fish in the brook were destroyed ; that the willows along the banks died ; that the pipes connecting it with the cistern, the ram and the house, were corroded and eaten out; that the water became unfit for domestic uses as early as 1873 ; and that its use for all purposes was abandoned in 1875. After the evidence of the plaintiffs had been given, it was held by the court to be inadequate to warrant or support a verdict, and a nonsuit was directed.
• In the summary disposition that was made of the cause, sight appears to have been lost of some distinctions which the law has [405]*405settled, and a mistake seems to have been made in choosing the class of precedents that were followed. The water in the mine of the defendants was in the ground before the colliery existed, hut the drift and shaft collected it in such volume, and the mining operations made its ejection necessary in such a direction as to render what was harmless in its natural state a source of material discomfort, mischief and disaster. Undoubtedly the defendants were engaged in a perfectly lawful business, in which large expenditures had been made, and with which wide-spread interests were connected. But however laudable an industry may be, its managers are still subject to the rule that their property cannot be so used as to inflict injury on the property of their neighbors. “ Every man,” Lord Truro observed, in Egerton v. Earl Brownlow, 4 H. L. C. 195, “ is restricted against using his property to the prejudice of others.” The invasion of an established right will, in general, per se, constitute an injury for which damages are recoverable, for in all civil acts, the intent of the actor is less regarded than the consequences to the party suffering. Thus, if a man lop a tree, and the boughs, ipso invito, fall upon another, or he shoot at a butt, and hit another unawares, an action lies. So, one is liable who has land through which a river runs to turn his neighbor’s mill, and lops the trees growing on the river side, and the loppings impede the progress of the stream, which hinders the mill from working : Broom’s Leg. Max. 366, 367. To render a particular case an exception to' the general principles controlling the exercise of dominion over property by its proprietor, it must be ascertained to be exceptional in its surroundings or its facts. From necessity the principles are sometimes relaxed. They do not apply where it is impossible to gather safe facts to become bases for safe rules. With respect to water flowing in a subterraneous course, it has been held that the owner of land through which it flows has no right or interest which will enable him to maintain an action against an owner who, in carrying on mining operations in his own land, in the usual manner, drains away the water from the other’s land, and lays his well' dry: Acton v. Blundell, 12 M. & W. 324. Haldeman v. Bruckhart, 9 Wright 514, and Wheatley v. Baugh, 1 Casey 528, were ruled in the same way. So, rights and liabilities in respect of artificial streams, when first flowing on the surface, are in some particulars distinct from those respecting natural streams so flowing. They are distinct at least to the extent that the user of the easement of sending on the water of an artificial stream to the land of a' neighbor, is no evidence that the land from which the water is sent has become subject to the servitude of being bound to send it on : Gaved v. Martin, 19 C. B. N. S. 758. Perhaps Smith v. Kenrick, 7 C. B. 715, may be classed as an exceptional case also in its circumstances, although as a precedent it will probably prove of doubtful value. It was held there that each of two owners [406]*406of adjoining mines has a natural right to work his own mine in the manner most convenient and beneficial to himself, although the natural consequence may be that some prejudice will accrue to the owner of the adjoining mine.
But except where it is qualified by the existence of peculiar conditions, the duty of the owner of property is defined by the maxim sic utere tuo ul alienwn non Icedas. Can it be said, as a conclusion of law, that the duty of these defendants is qualified by such conditions ? They created.an artificial watercourse from their mine to Meadow Brook. The plaintiffs insisted that the act resulted in grave injury to them. Why ought not the jury to have been left to determine the truth or falsity of their allegation? It was declared in Graved v. Martin, supra, that if the water in an artificial stream, when brought to the surface, is made to flow on the land of a neighbor without his consent, it is a wrong for which the party causing it so to flow is liable. If a man brings or uses a thing of a dangerous nature on his own land, he must keep it at his own peril, and is liable for the consequences if it escapes and does injury to another: Jones v. Festiniog, L. R. 3 Q. B. 736. “The person whose grass or corn is (eaten down by the escaping cattle of his neighbor; or whose mine is flooded by the water from his neighbor’s reservoir (Harrison v. Great North Western Railroad Co., 3 H. & C. 238), or whose habitation is made unhealthy by the fumes and noisome vapors of his neighbor’s alkali works (St. Helen’s Smelting Co. v. Tipping, 11 H. L. Cas. 642), is damnified without any fault of his own, and it seems but reasonable and just that the neighbor who has brought something on his own property which was not naturally there, harmless to others so long as it was confined to his own property, but which he knows will he mischievous if it gets on his neighbor’s, should be obliged to make good the damage which ensues if he does not succeed in confining it to his own property;” Fletcher v. Rylands, L. R. 1 Ex. 280. In an elaborate and carefully considered opinion in Mason v. Hill, 5 B. & A. 1, Denman, C.
Free access — add to your briefcase to read the full text and ask questions with AI
Mr. Justice Woodward
delivered the opinion of the court,
In the year 1868 the plaintiffs purchased a tract of land in the city of Scranton, and began the erection of a house upon it, which was finished in the year 1870. Before the purchase a stream of water, which ran through the land, was examined - by Mr. Sander-son, who traced it to its source. It appears from his testimony that the existence of this stream was a leading inducement to the plaintiffs to buy and build. It was called by some of the witnesses Meadow Brook, and was of an average width of perhaps seven feet throughout the distance from the house of the plaintiffs to the springs from which it flowed. Mr. Sanderson testified that when he traced it in 1868, the water was perfectly pure. Dams were built across it for the purposes of a fish and ice pond, and to supply a cistern. Water was carried in pipes from the cistern to a ram, and thence to a tank in the attic of the house.
After the improvements were completed the defendants established a colliery on lands belonging to them along the stream, and about two miles above the land of the plaintiff. A drift was first made into their mine, and a shaft was afterwards sunk. The water which collected in the drift, as well as that pumped by powerful engines from the shaft, ran into Meadow Brook, and was carried to its outlet in the Lackawanna river. It was alleged on the trial that the effect of the mine-water was to corrupt the water of the stream, and to render it worse than worthless for any domestic or household use. There was evidence that the fish in the brook were destroyed ; that the willows along the banks died ; that the pipes connecting it with the cistern, the ram and the house, were corroded and eaten out; that the water became unfit for domestic uses as early as 1873 ; and that its use for all purposes was abandoned in 1875. After the evidence of the plaintiffs had been given, it was held by the court to be inadequate to warrant or support a verdict, and a nonsuit was directed.
• In the summary disposition that was made of the cause, sight appears to have been lost of some distinctions which the law has [405]*405settled, and a mistake seems to have been made in choosing the class of precedents that were followed. The water in the mine of the defendants was in the ground before the colliery existed, hut the drift and shaft collected it in such volume, and the mining operations made its ejection necessary in such a direction as to render what was harmless in its natural state a source of material discomfort, mischief and disaster. Undoubtedly the defendants were engaged in a perfectly lawful business, in which large expenditures had been made, and with which wide-spread interests were connected. But however laudable an industry may be, its managers are still subject to the rule that their property cannot be so used as to inflict injury on the property of their neighbors. “ Every man,” Lord Truro observed, in Egerton v. Earl Brownlow, 4 H. L. C. 195, “ is restricted against using his property to the prejudice of others.” The invasion of an established right will, in general, per se, constitute an injury for which damages are recoverable, for in all civil acts, the intent of the actor is less regarded than the consequences to the party suffering. Thus, if a man lop a tree, and the boughs, ipso invito, fall upon another, or he shoot at a butt, and hit another unawares, an action lies. So, one is liable who has land through which a river runs to turn his neighbor’s mill, and lops the trees growing on the river side, and the loppings impede the progress of the stream, which hinders the mill from working : Broom’s Leg. Max. 366, 367. To render a particular case an exception to' the general principles controlling the exercise of dominion over property by its proprietor, it must be ascertained to be exceptional in its surroundings or its facts. From necessity the principles are sometimes relaxed. They do not apply where it is impossible to gather safe facts to become bases for safe rules. With respect to water flowing in a subterraneous course, it has been held that the owner of land through which it flows has no right or interest which will enable him to maintain an action against an owner who, in carrying on mining operations in his own land, in the usual manner, drains away the water from the other’s land, and lays his well' dry: Acton v. Blundell, 12 M. & W. 324. Haldeman v. Bruckhart, 9 Wright 514, and Wheatley v. Baugh, 1 Casey 528, were ruled in the same way. So, rights and liabilities in respect of artificial streams, when first flowing on the surface, are in some particulars distinct from those respecting natural streams so flowing. They are distinct at least to the extent that the user of the easement of sending on the water of an artificial stream to the land of a' neighbor, is no evidence that the land from which the water is sent has become subject to the servitude of being bound to send it on : Gaved v. Martin, 19 C. B. N. S. 758. Perhaps Smith v. Kenrick, 7 C. B. 715, may be classed as an exceptional case also in its circumstances, although as a precedent it will probably prove of doubtful value. It was held there that each of two owners [406]*406of adjoining mines has a natural right to work his own mine in the manner most convenient and beneficial to himself, although the natural consequence may be that some prejudice will accrue to the owner of the adjoining mine.
But except where it is qualified by the existence of peculiar conditions, the duty of the owner of property is defined by the maxim sic utere tuo ul alienwn non Icedas. Can it be said, as a conclusion of law, that the duty of these defendants is qualified by such conditions ? They created.an artificial watercourse from their mine to Meadow Brook. The plaintiffs insisted that the act resulted in grave injury to them. Why ought not the jury to have been left to determine the truth or falsity of their allegation? It was declared in Graved v. Martin, supra, that if the water in an artificial stream, when brought to the surface, is made to flow on the land of a neighbor without his consent, it is a wrong for which the party causing it so to flow is liable. If a man brings or uses a thing of a dangerous nature on his own land, he must keep it at his own peril, and is liable for the consequences if it escapes and does injury to another: Jones v. Festiniog, L. R. 3 Q. B. 736. “The person whose grass or corn is (eaten down by the escaping cattle of his neighbor; or whose mine is flooded by the water from his neighbor’s reservoir (Harrison v. Great North Western Railroad Co., 3 H. & C. 238), or whose habitation is made unhealthy by the fumes and noisome vapors of his neighbor’s alkali works (St. Helen’s Smelting Co. v. Tipping, 11 H. L. Cas. 642), is damnified without any fault of his own, and it seems but reasonable and just that the neighbor who has brought something on his own property which was not naturally there, harmless to others so long as it was confined to his own property, but which he knows will he mischievous if it gets on his neighbor’s, should be obliged to make good the damage which ensues if he does not succeed in confining it to his own property;” Fletcher v. Rylands, L. R. 1 Ex. 280. In an elaborate and carefully considered opinion in Mason v. Hill, 5 B. & A. 1, Denman, C. J., held that the possessor of land through which a natural stream runs, has the right to the advantage of that stream flowing in its natural course, not inconsistent with a similar right in the proprietors of the land above and below; and that neither can any proprietor above diminish the quantity or injure the quality of the water, nor can any proprietor below throw back the water without his license or grant. It was one of the features of that case that the water which the defendant had the right to use, subject to the duty of returning it, was heated when it was returned to the stream, and the jury had assessed damages for that. The Chief Justice said in entering judgment: “ As to the right to recover for the injury sustained by the water being returned in a heated state, there can be no question.” In Wood v. Sutliffe, 16 Jur. 75, and 8 Eng. L. & Eq. R. 217, an injunction was granted to [407]*407restrain the defendant, against whom a recovery had been had at law, from pouring dye-wares, dye-liquors, madder, indigo or potash into a channel that connected his»dye-works with a stream called the “Bowling Beck,” on which, below the works, the cotton-mill of the plaintiffs was situated, and in the use of the water of which they claimed prescriptive rights. “I am satisfied from the evidence,” the Vice-Chancellor remarked, in the course of his opinion, “that to some considerable extent, the pollution of this stream is inevitable, and that no court of law, or court of equity, nor all the courts in the world, except there were a power of removing all that mass of human beings which now congregate about its banks, ever could restore it to the state in which it once was. But still it does not follow, because there be a certain degree of pollution, which cannot be very accurately measured, and which is inevitable, that therefore everybody has a right to pollute the stream by pouring in immense quantities of filth and pollution from his own works, to make it ten thousand times worse.” Pennington v. Brinksop Hall Coal Company, 5 Ch. Div. 769, was a case where an injunction was granted to restrain the defendants from pumping water from their colliery into Borsdane Brook, by which the water in use for the cotton-mill of the plaintiffs had been corrupted. While their claim included the assertion of a prescriptive right it was discussed mainly in view of thfe position of plaintiffs as sub-riparian owners, by the justice who granted the injunction. In answer to the suggestion that in lieu of the remedy sought, damages should be awarded, it was said that “ the rights of the plaintiffs as riparian owners, are not limited to their present modes of enjoyment. It was impossible to foresee what modes they, or their successors in title, may resort to, or the extent of damages which would be compensation for the injury which the continued pollution might cause to such new modes of enjoyment.” While a right by prescription was the main element of the title of the plaintiffs to a decree in Wood v. Sutliffe, and a partial element in the title of the plaintiffs in Pennington v. Brinksop Hall Coal Company, it did not enter at all into the consideration of Mason v. Hill. There, indeed, it was expressly put aside. “We do not wish,” the Chief Justice declared, “to rest a judgment for the plaintiff on this narrow ground.” Pennington v. The Coal Company was decided so lately as last May, and it would seem that in England this branch of the law has been definitely and firmly settled.
And the question is by no means a fresh one in Pennsylvania. In Barclay v. The Commonwealth, 1 Casey 503, the defendant had been convicted of a nuisance in the Quarter Sessions of Bedford, in permitting the wash and waste from his barnyard to escape into the springs dedicated by the Penns to the use and benefit of the inhabitants of the town of Bedford. In this court, the judgment was reversed for an irregularity in the sentence, but the conviction [408]*408was approved. The Little Schuylkill Navigation Company, 7 P. F. Smith 142, was an action to recover damages for injury to the plaintiff’s forge-dam in the Little Schuylkill river, caused by the throwing of coal dirt, slate and loose earths into the channel of the stream by the servants and employees of the defendants. The refuse matter was carried down the river by the action of the water, and deposited in the dam. Other persons were shown to have cast the refuse of their mines into the water, and the court below had charged in substance that the defendants were liable for the combined results of all the deposits. This instruction raised the main question on the writ of error. It was held here that the liability of the defendants began with their act on their own land, and was wholly separate and independent of concert with others; and that their tort, having been several when committed, did not become joint because its consequences united with the consequences of the acts of others. But it was not suggested that under any theory or doctrine of public policy, the defendants had the right to use the river-bed as a dumping-ground for the rubbish of their mines. Th/e corruption of the water was not alleged, it is true, but it is not readily apparent how a principle could be sound that would justify the destruction of the water of a running stream for one purpose, and not justify the destruction of its uses by the same or a similar agency for all purposes whatever.
In the argument here, the ground was distinctly taken that immense public and private interests demand that the right, which the defendants exercised in ejecting the water from their mine, should have recognition and be established. It was said that in more than a thousand colleries in the anthracite regions of the state, the mining of coal can only be carried on by pumping out the percolating water which accumulates in every tunnel, slope and shaft, and which, when brought to the surface, must find its way by a natural flow to some surface stream. It was urged that the law should be adjusted to the exigencies of the great industrial interests of the Commonwealth, and that the production of an indispensable mineral, reaching to the annual extent of tAventy millions of tons, should not be crippled and endangered by adopting a rule that would make colliers answerable in damages for corrupting a stream into which mine-Avater Avould naturally run. These are considerations that are entitled to be well weighed. In the trial of questions like this before a- jury, they ought to be kept steadily in view. The proprietors of large and useful interests should not be hampered or hindered for frivolous or trifling causes. For slight inconveniences or occasional annoyances they ought not to be held responsible, and in dealing Avith such complaints juries should be held with a steady hand. Only when some material and appreciable injury has been sustained, should a recovery of damages against them be allowed. But there must be one rule of law maintained for all men, and by [409]*409that rule all men’s rights must be tried and tested. The view so earnestly and ably presented by the counsel here, was pressed upon Mr. Justice Mellor, in the trial of St. Helen’s Smelting Co. v. Tipping, 11 H. L. Cases 642—a precedent in every way of interest and value. After the verdict, a motion for a new trial was heard and refused by the Court of Queen’s Bench, and on review in the Exchequer Chamber, and afterwards in the House of Lords,'the judgment was affirmed. In charging the jury, the judge used this language: “ The defendants say, ‘ If you do not mind, you will stop the progress of works of this kind. ’ I agree that that is so, because, no doubt, in the county of Lancaster, above all other counties, where great works have been created and carried on — works which are the means of developing the national wealth — you must not stand on extreme rights, and allow a person to say, ‘I will bring an action against you for this, that, and so on.’ Business could not go on if that were so. Everything must be looked at from a reasonable point of view; therefore the law does not regard trifling and small inconveniences, but only regards essential inconveniences; injuries which sensibly diminish the comfort, enjoyment or value of the property which is affected.” In another part of the same lucid charge, the jury were' instructed that “if a man by any act, either by the erection of a lime-kiln, or copper-works, or any work of that description, sends over his neighbor’s land that which is noxious and hurtful, to an extent which sensibly diminishes the comfort and value of the property, and the comfort of existence on that property, that is an actionable injury.” The consequences that would flow from the adoption of the doctrine contended for, could be readily foretold. Relaxation of legal liabilities and remission of legal duties to meet the current needs of great business organizations, in one direction, would logically be followed by the same relaxation and remission, on the same grounds, in all other directions. One invasion of individual right would follow another, and it might be only a question of time when, under the operations of even a single colliery, a whole country side would be depopulated.
Judgment reversed, and procedendo awarded.
Mr. Justice Paxson filed a dissenting opinion.