Opinion by
Rice, P. J.,
It is conceded, and is too plain for argument, that the defendant borough had no right to divert the stream, to the injury of the lower riparian owners, for the purpose of supplying its inhabitants with water, without making or securing compensation to the persons injured: Haupt’s Appeal, 125 Pa. 211; Lord v. Water Co., 135 Pa. 122; Clark v. R. R. Co., 145 Pa. 438; R. R. Co. v. Water Co., 182 Pa. 418; Glass Co. v. Water Co., 5 Pa. Superior Ct. 563. There was ample evidence to warrant the jury in finding that the flow of water over and through the plaintiff’s land was sensibly diminished by reason of the erection of the defendant’s dam. The question was submitted to them under instructions, to which no exception has been taken, and, therefore, their verdict is to be construed as establishing the fact. It follows that the defendant was liable to action in vindication of the plaintiff's right; but not for the recovery of substantial damages unless actual injury was done Clark v. R. R. Co., supra.
The case, as presented here, turns upon the question of the measure of damages.
The court was asked to instruct the jury, that the evidence was too vague, uncertain and indefinite to sustain a verdict for actual damages. The refusal so to charge is the subject of the second assignment of error. But there was evidence that the plaintiff used the stream for watering his stock, and that before *530the dam was built the water flowed through his premises from nine to twelve months in the year,— some years the stream did not become dry at all, — whilst since it was built (in 1892) it only flows five or six months in the year. Clearly, the deprivation of the use of the stream for this purpose for a longer period than formerly was a substantial injury which, even in the absence of evidence of any other, would entitle the plaintiff to recover something more than nominal damages. We need not dwell on this assignment; we have said enough to show, that the defendant was not entitled to an affirmance of the point.
The plaintiff offered to show, in addition, that within ten feet of the bed of the stream he has a spring, over which was erected a spring house, and which was useful and profitable to him by reason of the domestic uses which he made of it; that this spring was fed in part at least, if not wholly, by percolations from the stream; that by reason of the cutting off of the stream these percolations ceased, and the spring became dry for a greater portion of the year, in consequence of which he suffered damage. The overruling of the objections to this offer, and the refusal to charge that the evidence was insufficient to establish the facts recited in the offer and to warrant the jury in taking the diminished flow of the spring into consideration in estimating the plaintiff’s damages, are the subjects of the first and third assignments of error.
Wheatley v. Baugh, 25 Pa. 528, decided that where a spring depends for its supply upon percolations through the land of the owner above, and in the use of the land for mining or other lawful purposes the spring is destroyed, such owner is not liable for the damages thus done, unless the injury was occasioned by malice or negligence. Neither this case, nor any of those which follow it touch the precise question raised here. They relate to a lawful and nonnegligent use of his land by the owner, whereby the water which would naturally percolate through his soil and supply the spring or well of his neighbor, is prevented from doing so. This is damnum absque injuria, because to hold otherwise would deprive the. owner of the land from which the water percolated of the reasonable enjoyment of his own property. “No man could dig a cellar, or a well, or build a house on his own land, because these operations *531necessarily 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.” This being the reason of the rule, it needs no argument to show that it cannot be invoked by one who tortiously diverts a stream, and thus deprives a lower owner of the benefits incident to the enjoyment of his right to have it flow as it was wont by nature without material diminution or alteration. If in its natural state it irrigates his land or supplies his well or spring, the fact that these benefits depend on percolations through his soil does not place the act of the wrongdoer in depriving him of them beyond the pale of judicial recognition. The diversion of the stream is the gravamen of the action, and the destruction of the spring, if a necessarily resulting injury which might have been foreseen, goes to the measure of damages. This is not seriously disputed; indeed the counsel for the defendant candidly admitted on the argument that there might be a recovery of damages for the destruction of the spring if there was any satisfactory evidence that it was supplied by percolation from the stream, but very earnestly contended that there was no such evidence. It is said, that this is one of many cases growing out of the defendant’s act, and we have examined the evidence with the care that the importance of the case, and the sincerity and earnestness of counsel in pressing the point, demanded. Certainly, the fact was not demonstrated on the trial, but we cannot say that there was no reliable evidence of it. Witnesses who had known the-spring for many years testified that when the stream runs the spring runs, and when the stream is dry the spring dries up. If the drying up of the stream was caused by the weather and other natural conditions that might affect the spring as well, it might be said that the evidence established no more than a coincidence. But if the fact be, as some of the testimony would seem to indicate, that, irrespective of these natural conditions, the spring always becomes dry whenever tbe flow of water in the stream is shut off, and is at once *532.supplied when the stream resumes its flow, a strong probability arises that there is some connection between the two. This fact, taken in connection with the evidence as to the conformation of the ground, the porous nature of the adjacent soil, the frequent sinks in the bed and sides of the stream, to say notiiing of the opinions of witnesses who had observed the action of the stream and the spring through a long period of years, made the question one for the jury. We are not required to say that we would have rendered the same verdict; it is sufficient to show, that the contention of the plaintiff was not so improbable, inherently, or so unsupported by evidence of a trustworthy nature as to warrant the court in refusing to submit the question to the jury.
Judgment affirmed.
Reeder, J., dissents.