45 Pa. 514 | Pa. | 1863
The opinion of the court was delivered,
by
Confessedly the absolute dominion of a proprietor over his land to the centre of the earth, is restrained by the maxim “ sie tdere tuo ut alienum non loedas.” But what is an injury ? The rightful use of one’s land may cause damage to another without any legal wrong. An act done, causing damage which the law will redress, must not only be hurtful, but wrong
In the opinion delivered by this court, it was said, indeed, that inferior proprietors may have rights in subterranean streams, and those were instanced that in limestone regions often pursue their course in great volume and power, and then emerging from their caverns, furnish power for machinery, or supply towns and settlements with water for all the purposes of life. To say that such streams might be obstructed or diverted, merely because they run through subterranean channels, would be, said the court, to forget the rights and duties of man in relation to flowing water. Underground currents of such a description are exceptional in their nature, and the same reason exists for holding that a lower proprietor has a right to insist upon their uninterrupted flow, as exists in the case of watercourses on the surface. Their existence and their course are generally known. If, therefore, the owner below has any rights in them, they are perceptible, and the owner of the land through which they pass may, in most cases, have the fullest use of his property without disturbing them. What was said upon these exceptional cases had been previously, though more guardedly, said in Dickinson v. The Grand Junction Canal Company, 9 Eng. Law & Eq. 521, a case decided in the English Court of Exchequer, where a distinction between water running on the surface and sub-surface streams was asserted, but the court said “ if the course of a subterranean stream were well known, as is the case with many which sink under ground, pursue for a short space a subterraneous course,
Throwing out of view for the present such exceptional cases, there is a well-marked distinction between the flowage of water in surface and sub-surface channels.
A proprietor of land may, in the proper use of his land for mining, quarrying, building, draining, or any other useful purpose, cut off or divert subterraneous water flowing through it to the land of his neighbour, without any responsibility to that neighbour. Some of the grounds for the distinction are clearly pointed out in Acton v. Blundell, 12 M. & W. 324, and others may be mentioned. They are that in case of an underground supply to a spring or well, or a stream emerging upon land of a lower proprietor, the water does not flow openly in the sight of the owner of the soil under which it passes, that there is therefore no reason for implying consent or agreement between the proprietors of the adjoining lands beneath which underground currents exist, which is one of the foundations upon which the lawr as to surface streams is supposed to be built; and that for the same reason no trace of positive law can be inferred. Again, if the lower proprietor has a right to the undisturbed flowage of water through subterranean passages in his neighbour’s land, he has the power of preventing that neighbour from using the water in his own soil, for he cannot use it and return it to its old passage-way, which he may do in the case of a surface stream. Such a right, if it exists, also exposes the upper proprietor to the hazard of incurring fruitlessly heavy expenditures in efforts to improve or use his land, since he can have no knowledge until after his outlay has been made, that his contemplated use will interfere with any rights or interests of an adjoining owner. A surface stream cannot be diverted without knowledge that the diversion will affect a lower proprietor. Not so with an unknown subterraneous percolation or stream. One can hardly have rights upon another’s land which are imperceptible, of which neither himself or that other can have ■ any knowledge. No such right can be supposed to have been taken into consideration, when either the upper or lower tract was purchased. The purchaser of lands on which there are unknown sub-surface currents, must buy in ignorance of any obstacle to the full enjoyment of his purchase indefinitely downwards, and the purchaser of lands on which a spring rises, ignorant whence and how the water comes, cannot bargain for any right to a secret flow of water in another’s land. It would seem, therefore, most unreasonable, that the latter should have a right to prevent his neigh-
The distinction thus founded in reason, is recognised by the law. The civil law adopted it. Thus in Dig. vpl. 89, 3, “ de íUjiq. et ajjí. pi. arc. Denique Ma^vcellus scribjt.,. cumjeo, qui in^”suo i foctius vicini fontem, avertit nifel posse aptijilec de dolo actio-t'A ffiem; ethane non c^ebet habere,si non ammo vicinftnocendi sed suum agjtum melio$em faciendi iR fecit.” The common law is the same.
The leading ease of Acton v. Blundell, 12 M. & W. 324, already referred to, asserts it distinctly; and the distinction between surface and underground waters which was there drawn, was recognised in Dickinson v. The Grand Junction Canal Co., 9 Eng. Law & Eq. 520, as well as in our own case of Wheatly v. Baugh. So in Ellis v. Duncan, 21 Barb. 280, it was ruled that the owner of a farm may dig a ditch to drain his land, or open and work a quarry upon it, although by so doing he interrupts oné of the underground sources of a spring on his neighbour’s land; and it was said, “ the rule that a man has the right to the free and absolute use of his property, so long as he does not directly invade that of his neighbour, or consequentially injure Ms perceptible and clearly defined rights, is applicable to the interruptions of the sub-surface supplies of a stream by the owner of the soil, and the damage resulting from it is not the subject of legal redress.’-’
The same thing was decided in Roath v. Driscoll, 20 Conn. 533, 542; and in Brown v. Illins, 27 Conn. 84, it was more emphatically ruled, and the court adopted the mode of expression used by one of the counsel in Acton v. Blundell, saying in regard to subterranean streams and currents, “ there is not any jus alienum on the part of the owner of the other lands, and therefore the maxim ‘ sic utere tm ut alienum non Icedas’ does not
We think, therefore, that the learned judge of the Common Pleas misapprehended what had been ruled in Wheatly v. Baugh. The defined watercourses there spoken of which a man may not divert to the hurt of an inferior proprietor, are not the hidden streams of which the owner of the soil through which they pass can have no knowledge until they have been discovered by excavations made in the exercise of his rights of property.
There are known streams to which, if the lower proprietor has any rights, they are perceptible, and require no sub-surface exploration before their course can be defined.
We are not, however, to be understood as intimating that an owner may maliciously or negligently divert even an unknown subterranean stream to the damage of a lower proprietor. But in the enjoyment of his land he may cut drains,- or mine, or quarry, though in so doing he interfere with- the flowage of water in hidden, unknown, underground channels.
Applying these principles to the present case, we are constrained to say we see no evidence of malice or negligence on the part of the defendants. Mining on their land as they did, was no more than the exercise of their legal rights. If in so doing, they interrupted an underground stream which supplied the plaintiff’s spring, it was damnum absque injuria, and there was no evidence of the existence of such a known well-defined watercourse under ground in the land of the defendants, as will enable the plaintiff to maintain an action against them for diverting it by their mining operations, and thus destroying the spring. The points proposed by the defendants should have been unqualifiedly affirmed.
The judgment is reversed, and a venire de novo awarded.