Brown v. Illius , 25 Conn. 583 ( 1857 )

Storrs, C. J.

This case comes before us on a motion for a newtrial,on the ground that the verdictis unsustained by the evidence, and for error in the charge of the court to the jury. We are satisfied that the verdict is sufficiently supported by the evidence, and that a new trial should not be granted upon this part of the motion. And the charge of the court, with perhaps a single exception, is obviously correct, and deals only with well settled principles of law, of very common application. A majority of us, however, are not entirely satisfied that the judge laid down the law correctly as to the defendant’s liability after notice for corrupting, in the mode supposed, the subterraneous streams or currents that may have supplied the well of the plaintiffs. The court very properly said to the jury, that if the injury to the well of the plaintiffs was caused by the noxious matter, placed by the defendant on his own land, penetrating the earth and corrupting the underground water-course that supplied the well, and only in thai mode, it was difficult to see how the defendant could be guilty of negligence in producing the injury, since he had no means of knowing that the water-course was there. But the court then proceeds to say, that soon after the mischief began, the plaintiffs informed the defendant of the effect which the noxious matter was producing on their well, and adds, that if after receiving this information, he could have prevented a continuance of the injury by the use of reasonable care, he was liable for the damage resulting from his neglect to use such care; and in a previous part of the charge the court had laid down the general principle which is here applied.

The question here involved is one of some difficulty, but the majority of the court consider it unnecessary to decide it in the present case. The whole evidence in the case is detailed in the motion, and since a motion for a new trial in some measure addresses itself to the discretion of the court, it is very proper for us, and indeed our duty, to look at the whole case and see whether any injustice has been done to the defendant by the charge of which he complains. And looking thus at the whole case, we are satisfied that the question made by the defendant and upon which he requested the charge of the court,, as to his non-liability for corrupting, in the mode stated, the underground water-course supplying the well of the plaintiffs, was of no substantial relevancy or importance. It savors rather of a speculation, than of a serious practical inquiry. It is true that the plaintiffs claimed that the noxious matter placed by the defendant on his land, was not only washed along the surface into the well, but also soaked into the ground and thence into the soil around the well and into the well, but the plaintiffs here manifestly contemplated nothing more than its transmission by means of the surface moisture and along with the surface water produced by rains, and claimed nothing from the corruption thereby of any underground current or stream of water that may have supplied the well. The well was in close contiguity to the noxious matter, and the communication of the latter with the former was obviously direct and immediate. There is no substantial difference between the migration of the particles of corrupt matter along the surface upon the temporary currents caused by the rain, and their penetration into the soil in connection with and by the agency of the same water. Both are entirely different from the corrupting of subterraneous streams and currents. The nuisance is wholly one of the surface, producing its noxious effect by modes of communication incident to the surface, and under the action of superficial agencies, although its operation may be in some measure beneath the surface.

The question as to the liability or non-liability of the defendant for any injury that might be caused by the corrupting of underground streams, was made wholly by the defendant, and we do not see that any evidence was offered by him to show that the injury was caused in this manner, rather than by the diffusion of the poisonous matter along or near the surface as claimed by the plaintiffs. We think, therefore, that whether this portion of the charge-was correct or not, the defendant was not injured by it, and is not entitled to a new trial on the ground of error therein, even if, which we do not decide, such error may exist.

We therefore do not advise a new trial on either of the grounds on which it is asked.

In this opinion, Hinman, J. concurred.

Ellsworth, J. I do not perceive that any novel or doubtful principles of law were laid down in the court below. The case, in my view, presents little else than the question, whether under the circumstances the defendant was conducting his business with a due regard to the rights of the plaintiffs ; or in other words, whether the defendant had violated the maxim familiar to every professional man, and approved by every moralist, sic utere tuo ut alienum non locdas.

From the record it appears, that after the plaintiffs’ works were erected, (which are extensive, and of great value,) the defendant erected his gas-works immediately adjoining the premises of the plaintiffs. A part of the plaintiffs’ works consisted of a well of some 16 feet diameter, built near the line of their lot, and near the gas-works subsequently built by the defendant^ which, before it was injured, supplied the plaintiffs’ works with water. On the trial, the plaintiffs claimed that the stenches and smells arising from the manufacture of gas, penetrated their rolling-mill, and rendered it uncomfortable and inconvenient, as well as unwholesome; that their workmen would not labor, and were seriously hindered and delayed; and that the gas-works were built in an improper location, in an unskillful and improper manner, and were carried on negligently, especially in this, that the defendant and his agents placed on the ground around his works and near to the well, large quantities of coal tar, gas lime, and other noxious and offensive materials, used in and resulting from the manufacture of gas ; from which materials impure water was drained along the surface of the defendant’s yard into the plaintiffs’ well, and under the surface by percolation, so as to render it unfit for use.

The plaintiffs did not put their right to recover, on the ground that the defendant had not a right to use his own premises in a suitable and proper manner for any business which he could be allowed to carry on at that place; but they denied the propriety of the defendant’s business as it was carried on, and placed their claim particularly on the fact, that the business at best was a nuisance, and was made more so by an unnecessary accumulation of filth and noxious matter, which, by exposure to heat and rain, injured the well by corrupting the water which passed over or through the defendant’s yard into it.

The defendant on his part claimed, that as proprietor of his lot, he had a right to put on it his gas-works and manufacture gas as he pleased, since that business was allowed to be lawful; and had a right, in pursuing it, to keep the refuse or noxious materials spoken of by the plaintiffs, upon his premises, according to his own convenience and pleasure ; and that he was not responsible, if the water in the well was spoiled thereby; for that water passing through the soil of his lot by filtration or percolation, and thereby carrying impurities into the subterranean streams that supplied the well and corrupted it, would not lay the foundation of an action; and to that effect asked the judge to instruct the jury.

He refused; and in my judgment with entire propriety. If indeed the law be as claimed by the defendant, that any use to which a man puts his land can not, by effects under the surface, work a nuisance, then the charge is obviously wrong and injurious to the defendant; for the plaintiffs insisted that their evidence proved that the defendant had ruined iheir well through the percolation, filtration or soaking of corrupted water from the defendant’s land ; that the rain soaked through the accumulated filth left on the defendant’s land through his neglect and inattention, and with full knowledge on his part. If the jury believed this, (and I have no doubt they did, as I feel confident they ought to have done, if I may draw an inference from the evidence detailed in the other motion,) the charge does the defendant palpable injustice, for the judge not only omitted to charge as requested by him, but charged the contrary; that if the defendant had knowledge, and was guilty of carelessness in using his land, and the mischief arose from percolation and filtration, he was liable. But I am confident that the lawis notas claimed by the defendant, and that the judge was right.

I confess I see not why the defendant asked a charge in this specific form, embracing streams of water, for no such point had been raised by the plaintiffs, and no facts appeared to show that it could be of any practical importance to the defendant. Subterraneous currents, as something different from water mixed with and a part of the earth itself, not passing in currents, but by percolation or chemical attraction, have very little to do with the merits of this case, which is one of filth and poison infused into land and the water in it, through neglect, to the injury of others, Still, if the defendant had a right to ask instructions upon the law of “ subterranean streams and currents,” as distinct from percolating water, and has done it, for myself I must say, I see no error in the charge, for the judge told the jury, that if the defendant had knowledge of the facts, and the nuisance arose from the manner in which he was conducting his business, that is, corrupting and rendering useless a “ subterraneous current of water which supplied the plaintiffs’ well,” which injury he could avoid by using due diligence, but would not, and would let the injury be continued and perpetuated, he would be liable for the damages ; and this 1 believe is the law in this state, and elsewhere so far as I am acquainted. It is a nuisance, and has nothing to do with the lawful use of water. 2 Green. Ev., 381. 1 Com. Dig., tit. Nuisance. The law of running streams on the surface of the earth, in fixed and defined channels, so as to become currents of water, is certainly well established; so is the law of under-ground water, in a state of combination with the earth, percolating it without fixed and defined channels, under the power of chemical affinities, capillary attraction, or some other unknown and imperceptible influence of a like character.

In the latter case, this court correctly held, in the recent case of Roath v. Driscoll, 20 Conn., 533, in accordance with Acton v. Blundell, 12 M. & W., 324, Dickerson v. The Grand Junction Canal Company, 9 E. L. & Eq., 520, and Wheatly v. Bough, 25 Penn. S. Rep., 530, and other cases which might be cited, that water in the earth,a part of it, partaking of its character only, belongs to the soil as much as the soil itself, and the owner may do with it as with the soil, and any mere use of it, as in Roath v. Driscoll, is lawful and proper; but I conceive, that if, through carelessness and unnecessarily, he poisons his land and the water in it, and thereby poisons his neighbor’s land and crops, and the water that enters it and supplies his. well, as was claimed to be proved in this case, it is a different thing.

The distinction is not, as has been intimated, between streams running on the surface and those running below it, but it is whether the waters are streams, i. e., water running in fixed and defined channels, or water in combination with the earth, either in a state of quiescence or percolation, and not under the power of a uniform law, as surface streams under that of gravitation, but moving under influences unknown and unappreciable. If there be a clearly defined continuous stream in the earth which is appreciable, and can be known and is known, I see not why it may not fall within the law of surface streams, as well as any other stream. It was so held in the two last cases above cited, and read on the trial. Lewis, C. J., in the case from Pennsylvania, says, “ But to entitle a stream to the consideration of the law, it is certainly necessary that it should be a water-course, in the proper sense of the term. A spring-gutter on the surface, is none the less a watercourse, although it is not equal in volume to a river. Small as it may be, if it have a clear and well defined channel, it can not be diverted to the injury of the proprietor below. So a subterranean stream which supplies a spring with water, can not be diverted by the proprietor above, for the mere purpose of appropriating the water to his own use.” See Smith v. Adams, 6 Paige, 434. Ch. J. Lewis says again, “ In limestone regions, streams of great volume and power pursue their subterranean courses for great distances, and then emerge from their courses, furnishing power for machinery of every description, or supplying towns and settlements with water, for all the purposes of life To say that these streams might be obstructed, corrupted or diverted, because they run through subterranean channels, is to forget acknowledged rights and duties in relation to flowing water.” And again, “ Where the filtrations are gathered into sufficient volume to have an appreciable value, and to flow in a clearly defined channel, it is generally possible to see it and to avoid diverting it, without serious detriment to the owner of the land through which it flows. But it is otherwise with percolations spreading in every direction through the earth, and it is impossible to avoid disturbing them without relinquishing the necessary enjoyment of the land. Accordingly, the law has never gone so far as to recognize in one man a right to convert another’s farm to his own use, for the purposes of a filterer.” Parke, J., in the case of Dickerson v. The Grand Junction Carnal Co., p. 521, says, “ And indeed, if the course of a subterranean stream were well known, as is the case with many which sink under ground, pursue for a short distance a subterraneous course, and emerge again, i't never would be contended that the owner of the soil under which the stream flowed, could not maintain an action for the diversion of it, if it took place under such circumstances as would have enabled him to recover, if the stream had been wholly above ground.”

If, then, in the case under consideration, it be conceded that the defendant’s counsel had introduced such evidence as made it proper for them to ask the judge to lay down the law as to “ subterranean streams and water-courses,” he properly met the claim of the defendant, by saying, that the doctrine of reasonable care in the use and working of the defendant’s gas-works, where knowledge had been brought home to him, was justly and strictly applicable to the use of “ subterranean streams and water-courses ” connected therewith.

I have already said, that upon the real merits of this case, the plaintiffs sought to recover of the defendant, upon the maxim’ that the defendant must so use his own as not to injure another, and that he can not continue to do or enjoy that which is a nuisance, because it may be convenient and profitable to himself, especially where reasonable care and attention would remove the evihj In my judgment, the judge laid down the law with entire correctness on this point. He told the jury, that if the defendant did not exercise ordinary care in selecting the place of his business, or in constructing his works, or prosecuting his business, and this negligence brought injury upon the plaintiffs, the defendant would be liable in damages.

It can not be claimed, I think, that because the defendant is the owner of his lot of land, he may appropriate it to any use or business he pleases. This can not be, unless, in the midst of a dense population, a person, to suit his own convenience or interest, may erect a pig-sty, a slaughter-house, a tannery, a tallow-furnace, a steam engine, or a smith’s forge, which in their use will infect the atmosphere, produce unhealthy vapors or offensive smells or noises, so near dwellings as materially to affect them and render them unhealthy or uncomfortable as residences. Nor can it be claimed for a moment, that if gas-works are not necessarily a nuisance in particular places, if well constructed and carefully attended, yet they may not become such if not well constructed and carefully attended. Whether the nuisance be effected on or under the surface of the defendant’s lot is immaterial, in my judgment, if it be a nuisance. The defendant’s works were claimed to be a nuisance viewed in any and every light, and the fact whether they were so or not, was submitted to the jury under proper instructions. The general subject of nuisances is elaborately discussed and with great ability, by the late Chief Justice Church, in Whitney v. Bartholomew, 21 Conn., 218. My own views on the subject can not be more fully expressed than they are in the opinion in that case.

I think the verdict is not against the evidence, unless it be as to the amount of damages. They are higher than I should have given, but not so much so as to justify the setting aside the verdict and granting a new trial.

New trial not advised.