161 Pa. 283 | Pa. | 1894
Opinion by
.In the year 1893, the defendants, who operate a large tannery near Everett, Bedford county, began the construction of a tunnel upon their own land to procure a supply of water for their tanning operations; The plaintiffs thereupon filed this bill, averring that they are informed and believe that the object
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 touched 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 excavation 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 follow 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 restrain 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 state and in England, it was decided: “ That the owner of land is not entitled to recover for injuries to wells
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 purpose, 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 and rely on these cases.
The plaintiffs aver that defendants’ construction of a tunnel on their own land will tap subterranean 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 defined than Lybe’s spring, in the case cited, the subterranean flow to
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.