Hauck v. Tidewater Pipe Line Co.
26 A. 644
Pa.
1893
Check Treatment

Opinion by

Mr. Chief Justice Paxson,

We will not consider the first three specifications of error, for the reason that they do not conform to the rules of court. We have made similar announcements so often within the last two or three years that it is difficult to understand why more attention is not paid to it.

The fifth specification alleges that the court below erred in declining to affirm the defendant’s fourth point. The point was as follows:

“ That the defendant is not liable for damages resulting from its business by reason of oil escaping from its own lands where *374it is being handled, except such oil escapes through negligence of the company or its agents.”

This point presents the main feature of the case. The court below refused it upon the ground, that it was a question of nuisance, and not of negligence, citing Pottstown Gas Company v. Murphy, 39 Pa. 257, in support of this view. In that case it was held that the gas company was answerable for consequential damages, such as the corruption of the plaintiff’s ground and well, by the fluids percolating from the works; and that a corporation is exempt from consequential damages only where, being clothed with the state’s right of eminent domain, it takes private property for public use, upon making proper compensation, and where such damages are not part of the compensation required.

’We -think the learned judge was right, under the authority above cited, in holding that this was not a case of negligence, but of nuisance or of consequential damages. For this reason we think that the case of The Railroad Company v. Lippincott, 116 Pa. 472, and of Railroad Company v. Marchant, 119 Pa. 559, have no application. The railroad companies in those cases were clothed with the right of eminent domain, and were expressly authorized by law to construct their roads and operate them. It was held, therefore, that any injury resulting from such operation, without negligence and without malice, was damnum absque injuria. In the case in hand the company was clothed with no such powers. We think the case closely resembles that of Robb v. Carnegie, 145 Pa. 324, in which it was held that the owners of coke ovens, the gases from which injured the growing crops upon the adjoining farm, were liable in damage to the owner of said farm for such injury. An attempt was made in that case, as it has been made in this, to bring it within the doctrine of Pennsylvania Coal Company v. Sanderson, 113 Pa. 126. In the latter case the injuries complained of were the natural and necessary result of the development by the owner of the resources of his own land. In opening a drift-for the purpose of mining coal, the mine water, impregnated with the impurities which it had taken up from the earth, coal and other minerals in the mines, either flowed from the mouth of the drift, or was pumped from the mines, and allowed to take its natural course on its way to the ocean. *375It will thus be seen that the flow of mine water was the natural and necessary result of the development by the owner of his own property. This was not the case in Robb v. Carnegie, nor is it the case here. In Robb v. Carnegie the refuse coal which was used for making coke was not mined upon the premises of the company, but was brought from other mines at a distance. In the case in hand the oil which was the cause of the injury to the plaintiffs’ property, was brought from a distance, allowed to escape from the pipes, and to percolate through plaintiffs’ land and destroy his springs. It was not in any sense a natural and necessary development of the land owned by the company.

The appellants attempted to distinguish this case from Robb v. Carnegie by the fact that in the latter case the smoke and gases from the works were carried by the wind and lodged upon the plaintiffs’ land; while in the latter case the escaping oil merely percolated through the soil until it reached plaintiffs’ springs. The essential difference between being carried through the air and percolating through the soil has not been made to appear. We regard it as a distinction without a difference.

As was correctly said by the learned judge in a portion of his charge, embraced in the tenth specification: “ If the mere fact that the business is a lawful business, and has been conducted with care, would be a defence where a neighbor’s land had been injured in consequence of the business carried on there, the escape of gas for instance, or the escape of oil, the result would be that a man might lose his farm; might be compelled to leave it, and have no compensation, simply because the business which brought about this loss was a lawful business, and was carried on carefully. That is not the law. No man’s property can be taken, directly or indirectly, without compensation under the law of this state. Hence, there are cases, and a great many of them, where a defendant is held liable in damages, although his business is lawful, and he has exercised care in carrying it on.”

In the consideration of this class of cases, care must be taken to distinguish between the natural and necessary development of the land itself, and injuries resulting from the character of some business, not incident and necessary to the development *376of the land, or the minerals or other substances lying within it. The owner of the land has the right to develop it by digging for coal, iron, gas, oil, or other minerals, and if in the progress of this development an injury occurs to the owner of adjoining land, without fault or negligence on his part, an action for such injury cannot be maintained. If this were not so a man might be utterly deprived of the use of his property. It is not so where the injury is caused by the prosecution of a business which has no necessary relation to the land itself, and is not essential to its development.

Judgment affirmed.