Williams v. Ladew
29 A. 54
Pa.
1894
Check Treatment

Opinion by

Mr. Justice Dean,

.In thе year 1893, the defendants, who operate a large tannery near Everett, Bedford county, began the constructiоn of a tunnel upon their own land to procure a supply of water for their tanning operations; The plaintiffs therеupon filed this bill, averring that they are informed and believe that the object *287of defendants in constructing the-new tunnel is to intеrsect a water-way tunnel upon their land, and to divert the water from this last mentioned tunnel to defendants’ use, to the damage of plaintiffs, and praying for an injunction to restrain the defendants from further work upon ‍‌‌‌‌​​​​​‌​​​‌​​​‌‌​‌‌‌​​​‌‌‌​‌​​‌​‌‌​‌‌‌‌​‌‌‌‌​‍the tunnel upon their own land. The court below granted a temporary injunction, which, upon hearing, it refused to dissolve, thus restraining defendants from further work, until final hearing and decree. This appeal is from the refusal to dissolve the preliminary injunction.

For obvious reasons, on this appeal from an interlocutory decree, it would be improper for us to express any opinion on the disputed facts in the issue. But taking the undisputed facts as they appear by bill, answer and affidavits, defendants, as yet, have not tоuched and do not intend, in the construction of their tunnel, to touch other than their own lands. The procuring of a water supply is absolutely necessary to the existence of their tannery business, in which they have invested a very large amount of money. The averments, in the bill and in plaintiffs’ affidavits, at best, show an apprehension that defendants’ purpose is to unlawfully divert water to which plaintiffs claim the exclusive right; for they do not aver a belief that defendants intend any excavаtion outside their own land.

Under such a state of facts, we think plaintiffs’ right to an injunction, pending hearing, was very doubtful, because plaintiffs’ right to restrain defendants’ operations ‍‌‌‌‌​​​​​‌​​​‌​​​‌‌​‌‌‌​​​‌‌‌​‌​​‌​‌‌​‌‌‌‌​‌‌‌‌​‍on their own land is far from clear. The strong arm of an injunction should not be exercised unless in cases of clear right or great wrong, without remedy at law.

True, the plaintiffs aver the construction of this tunnel upon defendants’ own land will tap subterranean streams, which now flow into plaintiffs’ tunnel. But it does not necessarily fоllow that even this would violate a right of plaintiffs. In Lybe’s Appeal, 106 Pa. 626, a case in which Lybe prayed for an injunction to rеstrain one Herr from digging a well upon his own land, whereby a subterranean flow of water would be cut off from a certain spring to which plaintiff had a right, ‍‌‌‌‌​​​​​‌​​​‌​​​‌‌​‌‌‌​​​‌‌‌​‌​​‌​‌‌​‌‌‌‌​‌‌‌‌​‍there was a most thorough examination of the whole subject, and a review of the law in this statе and in England, it was decided: “ That the owner of land is not entitled to recover for injuries to wells *288and springs situated thereon, if сaused by the acts of the adjoining owner, if done in the exercise of his lawful rights on his own soil, and if such rights are exercised withоut malice or negligence.” It is further held that, as to subterranean waters, “ The great preponderance of authority supports the doctrine that an injury caused to a subterranean supply of water by the lawful acts of an owner of land, is, unless the stream be well defined and its existence known or easily discernible, or unless the injury be caused by negligence or malice, damnum absque injuria.” It is said in this case, that the question was first discussed at length in Wheatley v. Baugh, 25 Pa. 528. In the case last nаmed, it appeared that Baugh, the plaintiff, occupied about an acre of ground on which he carried оn a tannery; he procured his supply of water for tannery purposes from a spring upon his own land. The defendant, fоr the purpose of mining copper ore upon the land adjoining, at the distance of 550 yards from Baugh’s spring, sank a shaft, which, while operated, stopped the subterranean flow into the spring. This court decided against the plaintiff on thе ground that the source of the spring was percolations, ‍‌‌‌‌​​​​​‌​​​‌​​​‌‌​‌‌‌​​​‌‌‌​‌​​‌​‌‌​‌‌‌‌​‌‌‌‌​‍and the interruption of these was no cause of action. But the Court says: “We have treated the stream as depending on percolations alone at the point where mining operations are carried on; because the evidence does not show that any distinct water-cоurse leading to it has been cut off. If tbis should be shown, and it should also appear that it could have been preserved without material detriment to the owner of the land through which it flowed, the destruction of it might be attributed to malice or negligеnce.”

In Haldeman v. Bruckhart, 45 Pa. 514, it is decided: “ That a proprietor of land may, in the proper use of his land for mining, quarrying, building, or any other useful purрose, cut off or divert subterraneous water flowing through it to the land of his neighbor, without any responsibility to that neighbor.” We have called attention to the law as stated in these cases, because counsel for both parties cite аnd rely on these cases.

The plaintiffs aver that defendants’ construction of a tunnel on their own land will tap subterranеan waters under that land, which now run into a defined stream ‍‌‌‌‌​​​​​‌​​​‌​​​‌‌​‌‌‌​​​‌‌‌​‌​​‌​‌‌​‌‌‌‌​‌‌‌‌​‍on plaintiffs’ land. But this stream, in the most favorable view, is no better definеd than Lybe’s spring, in the case cited, the subterranean flow to *289which was cut off. Besides, it is disputed that the stream on plaintiffs’ lаnd is such a natural stream, the flow of which cannot be lawfully diminished by them as adjoining owners; but putting aside this question, the defendants have the right to construct a tunnel upon their own land to obtain a water supply from percolations or subterranеan flow upon that land, so long as their operations are not negligently or maliciously conducted; or if defendаnts attempt to interfere directly with the body of water in the stream on plaintiffs’ land, before the determination of their right, thе Court may properly, on application, restrain such interference. But so long as their operations arе confined for a useful purpose to their own land, we think at this stage of the case they should not be restrained by injunction.

Therefore the decree of the court below continuing the injunction is reversed at the costs of the appellees, and the injunction is dissolved, so far as it restrains defendants from necessary and useful operations on their own land.