6 A.2d 901 | Pa. | 1939
The facts are set forth in Zimmerman v. Union Paving Company,
Aside from the question as to the legal effect of the particular phraseology of the deed, there is little ground for controversy between the parties. Ordinarily, when *322
a spring depends for its supply upon filtrations and percolations through the land of an adjoining owner, and in the use of that land for lawful purposes the spring is destroyed, such owner, in the absence of malice and negligence on his part, is not liable for the damage occasioned, which is damnum absque injuria: Wheatley v. Baugh,
The real question in the case, and the one in regard to which we believe the trial court and the Superior Court were in error, is as to the extent of plaintiff's rights under the deed from Umbenhauer, and whether those rights were destroyed or impaired by defendant. In regard to the Lutz Spring, the deed expressly granted the right to conduct the water from Umbenhauer's land through a two inch pipe to plaintiff's premises. In the case of the unnamed spring, however, there was given to plaintiff only the right "to get his water." He was granted the privilege of taking the water, but not by any prescribed method of conveyance; on the contrary, the express grant of a right to conduct the water from the Lutz Spring by a pipe, and the omission of a similar grant in connection with the other spring, indicate that it was not intended to grant to plaintiff any such right in the case of the latter spring, but are equivalent, indeed, to an express denial of that right. It is true, in the absence of any provision to the contrary, that a grant of a right to take water may ordinarily be exercised by the grantee in any reasonable manner, since it carries with it every incident reasonably necessary to make the grant effectual, and usually this would include the right to convey the water by a pipe: Cram v. Chase,
Such being the limitation of his property right in the water of the spring, what damage to that right did plaintiff prove? The verdict of the jury was based upon testimony by expert witnesses as to diminution in the value of plaintiff's property before and after "the spring was taken away," or, "was destroyed," or, the property was "deprived of the use of the water," or, "the water was taken away," or, "the spring ran dry," and represented an alleged permanent depreciation in the value of the property after it was entirely deprived of the use of the water from the unnamed spring. Had any of these conditions actually occurred, plaintiff, of course, would thereby have been deprived of his property right in the spring as granted by the Umbenhauer deed. In fact, however, the spring did not "run dry," nor was it "taken away" or "destroyed," nor was plaintiff's property "deprived of the use of the water," nor was there any testimony that it has been diminished in volume or impaired in quality. All that has happened is that the spring now emerges from the ground about thirty feet distant from its former outlet and at a somewhat lower point. There was some suggestion on the part of plaintiff that it is now an entirely different spring, *325 but this contention is untenable since the same water flows through the earth as before, only, because of a slight diversion of its course, it comes to the surface a few feet from the place of its former outlet. Umbenhauer himself, the grantor in the deed, does not, and cannot, make any such claim, but on the contrary has permitted plaintiff, without question, to draw his water from the spring in its new location.
We have here, then, the unjust result that plaintiff has obtained a verdict of more than four times the amount paid by him for the land and for the water from the two springs, as damages for the alleged loss of water from the one spring,2 although in fact he has suffered no such loss and still has all the rights in regard to this spring which he obtained under the Umbenhauer deed, being deprived only of the convenience of conveying the water through a pipe by gravity, which was not a right to which he was legally entitled under the deed. He can continue to "get" the water in buckets as he has been doing for several years, or, if Umbenhauer permits, he can pump the water through a pipe from the new outlet of the spring; but while either of these methods — to the former of which he is entitled as a matter of right — may be less desirable than to obtain the water by gravity, he cannot recover in the present action for being forced to resort to one or the other of them, partly for the reason that he has not proved any money damage resulting from the necessity of changing his method of getting the water, and more especially because he has not been deprived by defendant of any property right owned by him by virtue of his deed or otherwise.
The judgment of the court below, affirmed by the Superior Court, is reversed, and judgment is here entered for defendant.