Pennsylvania Coal Co. v. Sanderson , 1886 Pa. LEXIS 343 ( 1886 )

Mr. Justice Clark

delivered the opinion of the court,

The Pennsylvania Coal Company is the owner of some sixteen hundred acres of anthracite coal land in the Lackawanna Valley, situate above the city of Scranton, in the basin of a small tributary of the Lackawanna river, known as Meadow Brook, into which, owing to the natural conformation of the surface, the water from these lands is drained. The company first opened the coal seams on this land by a drift, or tunnel, in the year 1867 or 1868: they drove three other tunnels and sunk a shaft, and thereafter mining operations were extensively engaged in: the establishment being known as the Gipsy Grove Coal Works. From the time the first tunnel was driven, the mine water flowed, by the natural course of gravity, into the Meadow Brook; as the operation of the mines was increased, the volume of mine water increased. The water which percolated into the shaft was by powerful engines pumped therefrom, and, as it was brought to the surface, it passed with the flow from the tunnel, by an artificial water course, over the defendant’s own land, into the Meadow Brook, which, we have said, was the natural water course for drainage of the entire basin.

The plaintiff, Mrs. Sanderson, in the year 1868, purchased a tract of land, in the city of Scranton, some three miles below the Gipsy Grove Works, on the Meadow Brook, near its mouth. The existence of the stream, the purity of its water, and its utility for domestic and other purposes, it is said, was a leading inducement to the purchase. She began, and in the year 1870 finished,the erection of a house upon the land; in connection therewith, dams were built across the brook, to form a fish and ice pond, and to supply a cistern; the water was forced by a hydraulic ram from the cistern to a tank in the house, and was used for domestic purposes and for a fountain.

It is alleged that the large volume of mine water, which the defendants poured into the Meadow Brook, has corrupted the water of that stream to such an extent as to render it totally unfit for domestic use; that the fish in the brook have been totally destroyed, the plaintiff’s pipes corroded and her entire apparatus for the utilization of the water rendered wholly worthless; and that, in consequence, about the year 1875, the same was abandoned. This action was brought to recover the damages which the plaintiff alleges she has sustained, in consequence of the alleged pollution of the stream.

At the trial of the cause in February, 1878, in the Common Pleas of Luzerne county, the court, after hearing the plaintiff’s case, entered a nonsuit, on the ground that the discharge of the mine water was a necessary incident to mining; that there was neither malice nor negligence shown, in the operation of the mine, and the case was therefore one of damnum absque injuria. A writ of error was taken to the refusal of the Court, to take off the nonsuit, and the case was presented for the consideration of this Court.- 5 Norris, 401. Upon consideration of the question involved, this Court Was then of opinion, that except where it is qualified by the existence of peculiar conditions, the duty of the owner of property is defined by the maxim, “ Sic ulere tuo, ut alienum non Icedas; ” that this case exhibited none of those peculiar conditions, and that the plaintiff’s proofs exhibited a case which should have been submitted to the jury. A procedendo having been awarded, the cause was again brought to trial in the Common Pleas of Lackawanna county, where in October, 1879, a verdict was rendered for the plaintiff. A writ of error was then taken by the defendants, but this Court, adhering to the opinion contained in 5 Norris, 401, the judgment was affirmed. The plaintiffs, however, sued out a second writ to the same judgment, and assigned for error the ruling of the Court, as to the proper measure of damages, and upon this the judgment was reversed, and a venire facias de novo awarded. The cause was again tried in the Common Pleas of Lackawanna county in February, 1885; judgment was again entered for the plaintiff; and it is to this judgment that the present errors are assigned.

The questions which are now to be considered with a single exception, perhaps, being identical with those which ' re previously considered and embraced in the judgment reported in 5 Norris, 401, the argument has been practically a re-argument of the original case. We have before us not only the same parties, and the same questions, but the same case, and if it be true, as it is most persistently argued, that this Court was mistaken in its former ruling, it is well that the error should be righted in the same case in which it occurred.

If we lay aside our own previous decisions of this case, and regard the cause as coming before us upon a re-argument, the main question involved is one of new impression in this state. This Court was not then, and is not now, in harmony with reference to it.

It has been stated that 30,000,000 tons of anthracite and 70,000,000 of bituminous coal are annually produced in Pennsylvania; it is therefore a question of vast importance, and cannot on (.hat account be too carefully considered. For, if damages may from time to time be recovered, either in the present form or as for a nuisance, punitive sums may be resorted to, to prevent repetition,‘or to compel the abatement of the nuisance. Indeed, if the right to damages in such cases is admitted, equity may and under the decisions of this Court undoubtedly would, at the suit of any riparian owner, take jurisdiction, and upon the ground of a continuous and irreparable injury, enjoin the operation of the mine altogether. Whatever rights Mrs. Sanderson may have to the use of this water, and whatever remedy she may have in this case, or in any other form, in law or in equity, is the right and remedy of every other riparian owner, along Meadow Brook, and whatever maybe the rights and remedies of the owners on Meadow Brook, are, of course, the rights and remedies of all other riparian owners throughout the Commonwealth. It may be that Mrs. Sanderson adopted a more extensive arrangement for the use of this water than any other person, and is consequently more inconvenienced on that account; but the law is the same in her case as in all other cases; if she may recover damages in a large amount, others similarly but less affected, may recover in a less sum. Besides, these riparian owners are not limited to their present modes of enjoyment; it is impossible to foresee what other modes of enjoyment they, or their successors in title, may adopt; or to estimate the extent of damages to which the continued pollution of the stream might proceed; hence, if the responsibility of the operator of a mine is extended to injuries of the character complained of, the consequence must be that mining cannot be conducted, except by the general consent of all parties affected.

It will be observed that the defendants have done nothing to change the character of the water, or to diminish its purity, save what results from the natural use and enjoj'ment of their own property. They have brought nothing on to the land artificially. The water as it is poured into Meadow Brook, is the water which the mine naturally discharges ; its impurity anges from natural^not artificial causes. The mine cannot, oTcburse, beAperated elsewhere than where the coal is naturally found, and the discharge is a necessary incident to the mining of it. It must be conceded, we think, that every man is entitled to the ordinary and natural use and enjoyment of his property ; he may cut down the forest trees, clear and cultivate his land, although in so doing he may dry up the sources of his neighbor’s springs, or remove the natural barriers against wind and storm. If, in the excavation of his land, he should uncover a spring of water, salt or fresh, acidulated or sweet, he will certainly not be obliged to cover it again, or to conduct it out of its course, lest the stream, in its natural flow, may reach his neighbor’s land. It has always been considered that land on a lower level owes a natural servitude to that on a higher level, in respect of receiving without claim for compensation by the owner, the water naturally flowing down to it. In sinking his well, he may intercept and appropriate the water which supplies his neighbor’s well: Acton v. Blundell, 12 M. & W., 324; Wheatley v. Baugh, 1 Casey, 528; Haldeman v. Bruckhart, 9 Wr., 514; or if his own well is so close to the soil of his neighbor, as to require the support of a rib of clay or of stone on his neighbor’s land, to retain the water in the well, no action will lie against the owner of the adjacent land for digging away such clay or stone, which is his own property, and thereby letting out the water: Wh. on Neg., 939. He may, to a reasonable extent, jure naturae divert water from a stream for domestic purposes, and for the irrigation of his land: Mes-singer’s Appeal, decided October 5th, 1885.

So also each of two owners of adjoining mines has a natural right to work his own mine, in the manner most convenient and beneficial to himself, although the natural consequence may be, that some prejudice will occur to the owner of the adjoining mine : Smith v. Kendrick, 7 C. B., 505. One mine owner may thus permit water, naturally flowing in his own mine, to pass off by gravitation into an adjoining or lower mine, so long as his operations are carried on properly and in the usual manner: B.ainbridge on Mines, 297. To the same effect are Wilson v. Waddell, L. R., 2 Appeal Cas. 95; Crompton v. Lea, L. R., 19 Eq., 115.

The defendants, being the owners of the land, had a right to mine the coal. It may be stated, as a general proposition, that eveiy man has the right to the natural use and enjoyment of his own property, and if whilst'lawfully in such use and enjoyment, without negligence or malice on his part, an unavoidable loss occurs to his neighbor, it is damnum absque injuria, for the rightful use of one’s own land may cause damage to another, "without any legal wrong.

Mining in the ordinary and usual form is the natural user of coal lands; they are, for the most part, unfit for any other use. “It is established,” says Cotton, L. J., in West Cumberland Iron Co. v. Kenyon, 11 L. R., 6 Ch. Div., 773, “that taking out mineral is a natural use of mining property, and that no adjoining proprietor can complain of the result of careful, proper mining operations.” In the same case Brett, L. J., says: “The cases have decided that where that maxim (sie utere tuo ut alienum non loedas') is applied to landed property, it is subject to a certain modification; it being necessary for the plaintiff to show, not only that he has sustained damage, but that the defendant has caused it by going beyond what is necessary in order to enable him to have the natural use of his own land.” L. R., 11 Ch. Div., 787.

The right to mine coal is not a nuisance in itself: It is, as we have said, a right incident to the ownership of coal property, and when exercised in the ordinary manner, and with due care the owner cannot be held for permitting the natural flow of mine water over his own land, into the water course, by means of which the natural drainage of the country is effected.

There are, it is well known, percolations of mine water into all mines; whether the mine be operated by tunnel, slope or shaft, water will accumulate, and, unless it can be discharged, mining must cease. The discharge of this acidulated water is practically a condition upon which the ordinary use and enjoyment of coal lands depends; the discharge of the water is therefore part and parcel of the process of mining, and as it can only be effected through natural channels, the denial of this right must inevitably produce results of a most serious character to this, theJLadiug^ndustrial interest of the state.

The defendants werfTehgaged iiYa perfectly"lawfulbffsiriessj in which they had made large expenditures, and in which the interests of the entire community were concerned; they were at liberty to carry on that business in the ordinary way, and were not, while so doing, accountable for consequences which they could not control; as the mining operations went on, the water by the mere force of gravity ran but of the drifts and found its way over the defendant’s own land to the Meadow Brook. It is clear that for the consequences of this flow, which by the mere force of gravity, naturally, and without any fault of the defendants, carried the water into the brook and thence to the plaintiff’s pond, there could be no responsibility as damages on the part of the defendants.

A person, in the lawful use of Ids own land, may cause to flow over the land of another a greater quantity of water than it is naturally subjected to. “Iam aware,” says Woodwaed, J., in Kauffman v. Griesemer, 2 Casey,414, “that in Merrit v. Parker, 1 Coxe (N. J.) R., Chief Justice Kinsey, denied these principles, and held that by no contrivance and under no pretense can one man cause to flow over the land of another a greater quantity of water than it is naturally subjected to; but on the other hand there is a Maryland case of equal authority, Williams v. Gale, 3 H. & John R., 281, which, in its facts, bears a striking resemblance to the case at bar, and the case of Martin v. Riddle, decided by my brother Lowjeue, in the District Court of Allegheny county, and affirmed in the Supreme Court at September Term, 1848; these cases recognize the principle, that the superior owner may improve his lands by throwing increased waters upon his inferior, through the natural and customary channels, which is a most important principle in respect not only to agricultural, but to mining-operations also.”

It may be said tliat under the doctrine of Baird v. Williamson, 15 C. B., N. S., 876, when the flow of water is increased artificially or is greater than would result from gravitation alone, the mine owner who causes it is liable for the increased injury ; that this may be termed a non-natural use of the land, and the mine owner would be held for any injury, vvbich would be sustained in consequence of this artificial increase in the amount. We understand the rule of Baird v. Williamson to be this: Where coal may be successfully mined by tunnel or drift, the owner of the land may be deemed to have the natural use and enjoyment of it in that form of mining, and he will in such a case not be allowed to add merely to the efficiency of his enterprise, to the injury of his neighbor’s land, by the artificial accumulation of water in large quantities through the use of powerful engines and pumps.

But it does not appear from any evidence in this cause, that the mine was conducted by the defendant, in any but the ordinary and usual mode of mining in this country. The deeper strata can only be reached by shaft, and no shaft can be worked until the water is withdrawn. A drift is in some sense an arI tificial opening in the land and accumulates and discharges water in a greater volume and extent, than would otherwise result from purely natural causes, yet- mining by drift has, as we have seen, been held to be a natural user of the land. So, too, we think, according to the present practice of mining, the working of the lower strata by shaft, in the usual and ordinary way, must be considered the natural user of the land, for the taking out of the coal, which can be reached by shaft only; and, as the water cannot be discharged by gravit]*-alone, it must necessarily, as part of the process of mining, be lifted to the surface by artificial means, and thence be discharged through the ordinary natural channels for the drainage of the country.

But if we should be wrong as to the water which was pumped out of the mine, how can we discriminate as to the effect of the water which flowed from the mine by mere gravity and that which was pumped out? The witnesses did not discriminate in their testimony, and the learned Court did not instruct the jury to make any discrimination. The injury done to the plaintiff was estimated without any effort to distinguish between the effects of the water from one or other of these sources. If the stream was already corrupted by the Avater which flowed from the tunnels, or if that Avater was sufficient of itself to corrupt it, so as to render it useless for domestic purposes, the water which was pumped as an independent cause of action, Avould occasion an injury without damage. The pollution of a clear stream might inflict an injury for which damages would be recoverable, but we cannot see how damages could be estimated for the pollution of a stream Avhich had already become foul from other causes, for which the law gave no remedy.

It is said the defendants created an artificial water-course from their mine to Meadow Brook, but this artificial watercourse was upon their own land, and conducted, no more Avater to the brook than, by the natural conformation of the surface, could otherwise have reached it. If it be suggested that the defendants might have extended this artificial water way, in form of a sewer, to some point of safety, it may be asked where, short of the sea, might the sewer be discharged that the same complaint might not be made ?

We do not say tliat a case may not arise in which a stream, from such pollution may not become a nuisance, and that the public interests, as involved in the general health and well being of the community may not require the abatement of that nuisance. This is not such a case; it is shown that the community in and around the city of Scranton, including the complainant, is supplied with abundant pure water from other sources; there is no complaint as to any injurious effects from this water to the general health; the community does not complain on any grounds. The plaintiff’s grievance, is_ for a mere personal inconvenience, and. we are of opinion that ruere priYatejpersonaLipcunvunience, arising in this way and under such circumstances, must yield to Ike necessities of a great public industry, which ¿Ithough in the Hands-of a private corporation, subserves a great public interest. To encourage the development of the great natural resources of a country, trifling inconveniences to particular persons must sometimes give way to the necessities of a great community.

Nor do we say, that a miner, in order that his mines may be made available, may enter upon his neighbor’s lands, or inflict upon him any other immediate or direct injury, but we do say, that in the operation of mining, in the ordinary and usual manner, he may upon his own lands, lead the water which percolates into his mine, into the streams which form the natural drainage of the basin, in which the coal is situate, although the quantity as well as the quality of the water in the stream may thereby be affected.

In the previous disposition of this case in this court, as reported in 5 Norris, 401, the principle of law mainly relied upon was stated as follows : “If a man brings or uses a thing of a dangerous nature on his own land, he must keep it at his own peril, and is liable for the consequences if it escapes and does injury to another: ’ Jones v. Festinlog, L. R., 3 Q. B., 736. “ The person whose grass or corn is eaten down by the

escaping cattle of his neighbor, or whose mine is flooded by the water from his neighbor’s reservoir (Harrison v. Great Northwestern Railroad Company, 3 H. & C., 238), or whose habitation is made unhealthy by the fumes and noisome vapors of his neighbor’s alkali works (St. Helen’s Smelting Company v. Tipping, 11 H. L. Cas., 642), is damnified without any fault of bis own, and it seems but reasonable and just that the neighbor who has brought something on his own property which was.not naturally there, harmless to others, so long as it was confined to his own property, but which he knows will be mischieveous if it gets on his neighbor’s should be obliged to make good the damage which ensues if he does not succeed in confining it to his own property: Fletcher v. Rylands, L. R., 1 Ex., 280.”

The parenthetic references to authorities are not found in the opinion in Fletcher v. Rylands, but were inserted in the body of the quotation by Mr. Justice Woodward, who delivered the opinion of this court.

The doctrine declared in Fletcher v. Rylands, regarded as a general statement of the law, is perhaps not open to criticism in England, but it is subject to many and obvious exceptions there and has not been generally received in this country. A rule which casts upon an innocent person the responsibility of an insurer is a hard one at the best, aud will not be generally applied unless required by some public policy, or the contract of the parties. The later decisions in the English Courts, seem to encourage rather than to discourage exceptions to it. But we regard the rule in Fletcher v. Rylands as wholly inapplicable to the case under consideration. Referring to the judgment we find the facts of that case to have been as follows : The plaintiff was damaged by his property being flooded with water, which without any fault on his part, broke out of a reservoir, constructed and maintained on the defendant’s land, by the defendant’s orders. The coal under the defendant’s land had, at some remote period been worked out, but this was unknown at the time the defendants gave directions to erect the reservoir. Although the persons employed did not in fact use proper care and skill to provide for the sufficiency of the reservoir, with reference to these old shafts, the defendants were personalty free from all blame. The consequence was that the reservoir, when filled with water, burst iuto the shafts ; the water flowed down through them into the old workings and thence into the plaintiff’s mine, and there did the mischief. “We think that the true rule of law is,” says Blackburn, J., “ that the person who for his own purposes brings on his lands and collects and keeps there anything likely to do mischief, if it escapes, must keep it in at his peril, and if he does not do so, is prima facie answerable for all the damage which is the natural consequence of its escape. He can excuse himself by showing that the escape was owing to the plaintiffs default; or perhaps that the escape was the consequence of vis major, or the act of God; but as nothing of this sort exists here, it is unnecessary to inquire what excuse would be sufficient. The general rule, as above stated, seems on principle just.”

Then follows the clause which we find quoted in the opinion of Mr. Justice Woodward.

But the defendants, in the case at bar, brought nothing upon the land; they accumulated nothing there; the water was there without any act of theirs, and it was the accumulation of it which they sought to prevent. They were in the natural user of their lands for a lawful purpose, and the discharge of the mine water was an absolute necessity in order to that use of the land. The distinction is obvious, and we cannot see how Fletcher v. Bylands can be supposed to have any application in the consideration of this case.

The case was taken to the House of Lords on a proceeding in error against the judgment of the Exchequer Chamber, which had reversed the judgment of the Court of Exchequer; the judgment was there affirmed (Bylands v. Fletcher, L. B., 3 H. L., 330) and the general legal proposition, involved in the case thus stated by Lord Oranworth : — “If a person brings or accumulates on bis laud anything, which if it should escape, may causo damage to his neighbor, he does so at his peril, if it does escape and cause damage he is responsible, however careful he may have been, and whatever precautions he may have taken to prevent damage.”

But the very distinction we have endeavored to point out, between that case and this, was suggested in the judgment of the House of Lords, in the case referred to. Lord Cairns says : — “ The defendants might lawfulty have used that close for any purpose for which it might in the ordinary course of the employment of land be used, and if in what Í may term the natural user of that land there had been any accumulation of water, either on the surface or underground, and if, by tlie operation of the laws of nature, that accumulation of wafer had passed off iuto the close occupied by the plaintiff, the plaintiff could not have complained that the result had taken place.” A line was thus drawn between the rule recognized in the case adjudged, and the general immunity which the law extends to land owners for acts done in the natural and lawful user of their laud. In the first head note, of the case as reported in L. B., 3 H. L., 330, the general legal proposition, embodied in the judgment of the House of Lords is thus stated: — “Where the owner of land, without wilfulness or negligence, uses his land, in the ordinary manner of its use, though mischief should thereby be occasioned to bis neighbor, be will not be liable for damages.” Thus it seems that the liability, even under the ruling of Bylauds v. Fletcher, is rested on the manifestly hazardous state of things artificially maintained on the land, and not on the natural user of it.

As we liave said, even in England the later decisions favor exceptions to the rule of Rylands v. Fletcher; thus in Nichols v. Marsland, L. R., 10 Exch., 255, the defendant was an owner of artificial pools, formed bv damming a natural stream, into which the water was finally let off by a system of weirs. The rainfall accompanying an extremely violent thunderstorm broke the embankments, and the rush of water down the stream carried away four county bridges, in respect of which the action was brought. It was held that the rule referred to did not apply, in the operation of natural forces so violent and unexpected that human foresight could not have been reasonably expected to anticipate it. So it has been held not to apply, where the immediate cause of the damage is the act of a stranger: (Box v. Jubb, 4 Exch. Div., 76) nor when the artificial construction is maintained for the common benefit, and the immediate cause of the injury of such a trivial character as to have been wholly unexpected: (Carstairs v. Taylor, L. R., 6 Exch., 217,) or in the exercise of powers specially conferred by law: (Madras Ry. Co. v. Zeminder, etc., L. R., 1 Ind. App., 364.

The principle of Rylands v. Fletcher was again enforced by the Court of Exchequer in Smith v. Fletcher, L. R., 7 Ex., 305, a case referred to in the argument of counsel, growing out of injury from the same premises; the case was carried up, however, to the Exchequer Chamber; where the judges thought that under the circumstances of the case, evidence might have been received to show that every reasonable precaution had been taken to guard against ordinary emergencies; and that it was desirable the opinion of the jury should be taken as to whether the acts of the defendants were done in the ordinary, reasonable and proper mode of working the mine. It is not altogether clear, therefore, since the decision in this case in the Exchequer Chamber, what the English doctrine is as to cases which are not strictly like Rylands v. Fletcher.

Nor has the doctrine of Rylands v. Fletcher been generally received in this country; it has been cited with approval in Massachusetts: (Shipley v. Fifty Associates, 106 Mass., 194; Gorham v. Gross, 125 Mass., 232; Mears v. Dole, 135 Mass., 508;) but it has been expressly denied in New York: (Lovee v. Buchanan, 51 N. Y., 477;) in New Jersey: (Marshall v. Welwood, 38 N. J. Law, 339;) and in New Hampshire; Sweet v. Cutts, 50 N. H., 439; Garland v. Towne, 55 N. H., 57.) In Lovee v. Buchanan, Earl C. says, it is sufficient, however, to say that the law as laid down in these cases (Ryland v. Fletcher, and Smith v. Fletcher) is in direct conflict with the law as settled in this country. “ Here, if one builds a dam upon his own premises and thus holds back and aecunaulates the water for bis benefit, or if he brings water upon his premises into a reservoir, in ease the dam or the banks of the reservoir give away and the lands of a neighbor are thus flooded he is not liable for the damage without proof of some fault or negligence on his part: (Angeli on Water-courses, sec. 336; Tapman v. Curtis, 5 Vt., 371; Todd v. Cochell, 17 Cal., 97; Everett v. Hydraulic, etc., Co., 23 Id., 225; Shrewsbury v. Smith, 12 Cushing, 177; Livingston v. Adams, 8 Cowen, 175; Bailey v. Mayor, etc., of New York, 3 Hill, 581; S. C., 2 Denio, 433; Pixley v. Clark, 35 N. Y., 520, 524; Sheldon v. Sherman, 42 Id., 484.

“ The true rule is laid down in the case of Livingston v. Adams as follows: “ Where one builds a mill-dam upon a proper model, and the work is well and substantially done, he is not liable to an action though it break away, in consequence of which his neighbor’s dam and mill below are destroyed. Negligence should bo shoVm in order to make him liable.”

In Marshall v. Welwood, Beasley, C. J. says: — “The fallacy in the process of argument by which judgment is reached in the case of Fletcher v. Hylands, appears to me to consist in this : that the rule, mainly applicable to a class of cases, which I think should be regarded as in a great degree exceptional, is amplified and extended into a general If not universal principle.”

In Garland v. Towne, Ladd, J., referring to the case of Iiylands v. Fletcher, says: “I am not aware that any Court this side of the Atlantic has gone so far as this, and I apprehend it would bé a surprise not only to that large class of our people engaged in various manufacturing operations, who use water power to propel -their machinery and for that purpose maintain reservoirs, but to the legal profession, to hold that in case of the breaking away of such reservoirs, there is no question of care or negligence to be tried, but that he who lias thus accumulated water in a non-natural state, on his own premises, is liable, at all events as matter of law, in case it escapes, for the damage caused by it. As a general proposition, it is safe to say that the owner of land has a right to make reasonable use of liis property, and that right extends as well to an unlimited distance above the earth’s surface as to an unlimited distance below.”

See also Wh. Neg., 934, Angell on Watercourses, 836 ; Washburn on Easements, eh. 3, § 7 ; Jones v. R. R. Co., 27 Vt., 399.

If a man erect a mill upon a stream of water, and build a dam wholly upon his own land in order to apply the weight and power of the water to the propelling of his mill; or if lie erect tanks or basins to retain water, for the irrigation of his land, it seems a severe rule, to put upon him the strict and uubending obligation of an insurer; to bold him liable for any injury whatever which may result from the escape of the water, whether in the construction and maintenance of the works, he was negligent or not.

As a general rule those who engage in an undertaking attended with risks to their neighbors, are answerable for the conduct of that undertaking, with diligence, proportioned to the apparent risk, and this would seem to be the better rule. Where one places a steam boiler upon his premises, and operates the same with care and skill, so that it is no nuisance, in the absence of proof of fault or negligence upon his part, he is not liable for damages to his neighbor, occasioned by the explosion of his boiler: Lo^ee v. Buchanan, supra. A railway company may bring upon its lands locomotive engines, and if notwithstanding the best practicable care and caution, and the use of the best approved appliances, sparks escape and fire the property of the adjacent land owners, the company will not be held for the consequences. So with fires necessarily employed in the clearing of land, and for domestic purposes ; in the accumulation of materials for building of dwelling houses, or other necessary structures on the land, for the enjoyment thereof.

In the first place, then, we do not regard the rule in Rylands v. Fletcher, as having any application to a case of this kind; and if it had, we are unwilling to recognize the arbitrary and absolute rule of responsibility it declares, to the full extent, at least, to which its general statement would necessarily lead.

The case of Mason v. Hill, 5 B. & A., 11, is in no respect inconsistent with the view we have expressed, and we cannot see how it can be supposed to have any important bearing on the case.

The only case cited by the defendants in error, which would seem to sustain their view of this case, is the rather recent case of Pennington v. Brinsop Coal Co., L. R., 5 Ch. Div., 769, where an injunction was granted to restrain the coal company from pumping water from their colliery into Borsdane Brook, by means whereof the water used in the plaintiff’s cotton mill was corrupted. The claim in that case, however, included the distinct assertion by the plaintiff of a prescriptive right to the use of the water for the supply of his boilers, and for the other purposes of the mill, in its natural purit3. That the plaintiff had all the rights of a riparian owner, and also a right by prescription, was conceded. Upon this the Court granted an injunction. What the plaintiff’s rights as a riparian owner were was not separately discussed in the judgment of the Court; indeed, that question was not discussed at all, and cannot be said to have been decided ; because, as we have said, the defendant conceded the prescriptive right. The opinion of the Court (Fry, J.), is wholly occupied with the discussion of a question which is irrelevant here, whether, where the right is conceded, damages might or should be awarded in lieu of the injunction. As the question now under consideration was neither discussed or decided, we cannot see how the case can be supposed to have any importance here. If it be assumed, however, that it was decided upon the plaintiff’s rights as a riparian owner alone, we think the case was not well considered. The authorities cited by the learned Judge,in that view, certainly do not sustain him.

There is a well known line of cases in Pennsylvania and elsewhere, which decide that a stream of water may not be fouled, by the introduction into it of any foreign substance, to the damage and injury of' the lower riparian owners: Howell v. McCoy, 8 Rawle, 256; Barclay v. Commonwealth, 1 Casey, 503; McCallum v. Germantown Water Company, 4 P. F. S., 40; Wood v. Sutcliffe, 16 Jur., 75; Wood v. Waud, 3 Ex., 748; St. Helen Smelting Co. v. Tipping, 4 B. & S., 608; 11 H. L., 642; are cases of this kind, lint we do not understand the principle of these cases to be denied. And we think they are not pertinent to the question now under consideration. The defendants introduced nothing into the water, to corrupt it; the water flowed into Meadow Brook just as it was found in the mine; its impurities were from natural and not from artificial causes.

It may be said, that if the mines liad not been opened, the water which flowed into the stream would have been pure, but as Chief Justice Lewis said, in Wheatley v. Baugh, 1 Casey, 532, “the law has never gone so far as to recognize in one man the right to convert another’s farm to his own use for the purpose of a filter.”

In the case of the New Boston Coal Company v. Pottsville Water Co., 54 Penn. St., 164, a question of somewhat similar nature was sought to be raised in this Court, but the cause was determined on other grounds, and the question referred to was not decided. No ease in Pennsjdvania has been brought to our notice, in which the precise question appears to have been decided.

As the discharge of mine water is incident to all mining, it is probable that there is scarcely a stream in the mining regions of Lackawanna county, which is not to a greater or less extent similarly affected; but, adopting the language of our brother Paxson, in his dissenting opinion (6 W. N. C., 101) : “The population, wealth and improvements are the result of mining, and of that alone. The plaintiffs knew, when they purchased their property, that thej'- were in a mining region: they were in a city born of mining operations, and which had become rich and populous as the result thereof. They knew that all mountain streams in that section were affected by mine water, or were liable to be. Having enjoyed the advantages which coal mining confers, I see no great hardship, nor any violence to equity, in their also accepting the inconvenience necessarily resulting from the business.”

We are of opinion, for the reasons stated, this judgment should be reversed. It is with the greatest reluctance we conclude to revise and reverse a former judgment of this Court. We feel much more embarrassed, in so. doing, because of the well known learning and ability of the learned judge who delivered the previous opinion, and of the fact that two at least of our number have given that opinion their formal approval ; but a majority of this Court, as it is now constituted, satisfied that the rule laid down in that opinion and judgment is a wrong one, feel constrained to adopt a different rule and enter a different judgment.

The view which we have taken of this case renders it unnecessary that we should consider the other errors assigned.

The judgment is reversed.

Mercur, C. J., Gordon, and Trunkey, JJ., dissent.

There have been four writs of error in this case. Mr. Justice Woodward delivered the opinion of the Court on the first writ of error, which is reported in 5 Norris, 401. Mr. Justice Paxson at that time filed a dissenting opinion. Mr. Justice Gordon delivered the opinion of the Court on the second writ of error, which is reported in 13 Norris, 302. Mr. Justice Paxson and Mr. Justice Sterrett dissented. Mr. Justice Trunkey delivered the opinion of the Court on the third writ of error, which is reported in 6 Out., 370.

Dissenting opinion of Mr. Justice Paxson on the first writ of error:

“ This case involves a question of vast importance to the mining interests of Pennsylvania, and a careful consideration of it has led me to a different conclusion from that adopted by the majority of the Court. In an ordinary case it would be sufficient to announce my dissent without more; but the principle decided being one of the first impression, and so far-reaching in its consequences, I desire to place upon record the reasons which have compelled me to differ from my brethren.

The plaintiffs are the owners of a tract of land within the limits of the city of Scranton, upon which they have erected a handsome residence and other improvements.

It was supplied with water by a mountain stream for culinary and bathing purposes, as well as for a fish-pond, located in the grounds attached to the house. Some time after the completion of the, improvements, the defendants opened a coal mino about three miles up the stream and near its head. In opening said mine a drift was made out of which the water flowed without the application of machinery, and following the law of gravity, found its way into the stream of plaintiffs. Soon after this the fish in the pond died, the pipes in plaintiff’s house corroded, and the water became unfit for domestic purposes. No analysis was furnished of the water, but it was conceded that it became acid and unfit for use, although perfectly clear, and to the eye unchanged. The Court below, having nonsuited the plaintiffs, it must be assumed that the mine water was tbe cause of the injury. Under this state of facts were tbe plaintiffs entitled to recover damages ? The Court below held that they were not, which ruling tbe majority of this Court decided to be error.

It is a fact not without significance, that this question has never before been decided in Pennsylvania. For a period of about fifty years mining operations have been carried on here, increasing in extent yearly, until it has become tbe overshadowing interest of the Commonwealth, and there is now hardly a mountain stream in the mining region that is not affected just as the plaintiffs stream was. That no riparian owner has complained before, goes far to establish the fact that the common sense and the common judgment of the people of those regions were against such an assumption.

It is true the question was raised in the single case of The New Boston Coal and Mining Company v. The Pottsville Water Company, 4 P. F. S., 164, in which tbe water company sought to enjoin the coal company from pumping their mine water into the stream.

The Court in that case refused the injunction on other grounds and left the main question undisposed of.

The plaintiffs rely upon a class of cases which, while they are admitted law, have no application to the case at bar, such as Howell v. McCoy, 3 Rawle, 256; Wheatley v. Chrisman, 12 Harris, 298, and McCallum v. The Germantown Water Company, 4 P. F. S., 40, in each of which the water had been fouled by the admixture of dye-stuffs, or some other injurious substance. The only case cited by the plaintiffs, which seemingly sustains them, is Pennington v. Brinsop Hall Coal Company, L. R., 5, Chancery Div., 769.

This is an English case, and not authority here. Nor is there any tiling in the decision to commend it to favor. It was not a well considered case, was decided by a single judge, and the few authorities he cites do not sustain him. He evidently decided it upon the ground of fouling the water, and had in his mind the line of English decisions bearing upon the question raised in our own case of McCallum v. Water Company, supra. The facts are not fully given, ( and it is quite possible they may have justified his ruling. There is nothing in his opinion to indicate that his mind grasped the broad question involved in this case. Nor do I regard English cases as safe precedents upon such a question. They are influenced to some extent by the social and political conditions of the country. The mines in England are generally located in highly-improved sections, where the land possesses great intrinsic value, and the streams are filled with choice fish, the sole right to which is in the nobility and landed gentry. Under such circumstances we could hardly expect the English judges to lay down a rule suited to the rough mountain lands, which in the main constitute the mining regions of Pennsylvania. We must not overlook the further fact that in England the costly improvements of the country antedate mining operations in many instances for centuries, while here, for the most part, the mining region was a wilderness at the commencement of mining operations. The population, wealth and improvements are the result of mining, and of that alone. The plaintiffs knew, when they purchased their property, that they were in a mining region; they were in a city born of mining operations, and which had become rich and populous as a result thereof. They knew that all the mountain streams in that section were affected by mine water, or were liable to be. Having enjoyed the advantages which coal mining confers, I see no great hardship, nor any violence to equity, in their also accepting the inconvenience necessarily resulting from the business.

It was not alleged, nor is there any proof, that the defendants did anything to foul the water. It flowed from the drift just as it fell from the clouds, excepting in so far as it had been affected by the coal and other mineral substances with which it came in contact after percolating through the surface soil. It was also a natural flow of water. It is true, some of it was pumped out, generally at night, but this was after the injury of which the plaintiffs complain was done. There was no distinction, however, as to the character of the water flowing from the drift and that which was pumped out at the shaft.

While there is no decided case in Pennsylvania which rules this question, there are certain principles which may be considered as settled that have a direct bearing upon it. It must be conceded, the defendants have a right to mine their coal. It is equally clear that they have a right to free their mine from water, by pumping, if necessary. Without it, no mine-can be operated for any considerable length of time. A man may use and enjoy his own property in a lawful manner, and if in doing so without negligence, an unavoidable loss occurs to his neighbor, it is damnum absque injuria. If in excavating my land for a lawful purpose, as in digging a cellar or opening a quarry, I strike a spring, which flows out over the lower land of my neighbor, 1 am no more responsible for such flow than if the water had fallen from the clouds upon my land and then ran off upon his. There is no principle of natural law better settled than that water will seek its level according to the law of gravity. There is no rule of human law more firmly established than the principle incorporated into the jurisprudence of all civilized nations, that the water which falls upon the earth, or comes out of its bosom from springs, must follow its natural channel. Hence no Court has ever decided that the owner of mountain lands was responsible for the torrents which at times pour down the mountain sides, to the devastation of tlie plain below. In towns and cities the rule is different. They have, as a general rule, no natural drainage. It is all artificial. Of course, in cities, a man may not throw the water from bis roof upon his neighbor’s roof or yard. In ibis the law is but common sense, or, as Blackstone puts it, “ tlie perfection of reason.”

As before remarked, the defendants bad a right to work their mine to pump out the water therein. The right to work mines is a right of property, which, when duly exercised, begets no responsibility. Wilson v. Waddell, L. R., 2 App. Cas., 95. It is also settled, that the disturbance or destruction of subterranean springs, or streams in a proper course of mining, is not a ground of action : Trout v. McDonald, 2 Norris, 144. In Wheatley v. Baugh, 1 Casey, 528, it was held that where a spring depends for a supply upon percolations through the land of the owner above, and, in the use of tlie land for mining or other lawful purposes, the spring is destroyed, such owner is not liable for the damages thus done, unless the injury was occasioned by malice or negligence. Says Lewis, C. J., at page 582: “Percolations spread 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 the right to convert another’s farm to his own use for the purpose of a filter. The Roman law, founded on enlightened consideration of the right of property, declared that he who in making a now work upon his own estate, uses his right without trespassing either against any law, custom, title or possession which may subject him to any service towards his neighbors, is not answerable for the damages which they may chance to sustain thereby, unless it be that he made that change merely with a view to hurt others without any advantage to himself.” Again, at page 535, “In conducting extensive mining operations, it is, in general, impossible to prevent the flow of subterranean waters through the interstices in which they have usually passed, and many springs must be necessarily destroyed in order that the proprietors of valuable minerals may enjoy their own. The public interest is greatly promoted by protecting this right, and it is just that the imperfect right and lesser advantage should give place to that | which is perfect, and infinitely the most beneficial to in- ' dividuals and the community in general.” So, if in sinking a 'swell upon one’s own land it destroys the well of his neighbor, jit is damnum absque injuria: Washburne on Easements, 369; Angell on Watercourses, 183; Frazier v. Brown, 12 Ohio St., 294; Roath v. Driscoll, 20 Conn., 533. It is clear, under the authorities in this state and elsewhere, that if the defendants, in proper course of mining, had destroyed the subterranean springs which supply the plaintiff’s stream, and thus destroyed the stream itself, it would have been a loss for which they would not have been entitled to damages, while Kauffman v. Griesemer, 2 Casey, 407, and Martin v. Riddle, Id., 415, distinctly recognize the principle, that in favor of agricultural and mining operations, the volume of the water may be increased by the owner of the upper or superior heritage, and thrown upon the lower or siibservient heritage by its natural or accustomed channels. The plaintiffs have no cause to complain of the increased volume of water. In fact, they do not complain of such increase. They object to nothing but the change in the character and quality of the water. Are they entitled to recover damages for this? I would answer this question affirmatively if the defendants had fouled the water which is discharged from their mine. But, as before said, they have not. They pump it out or allow it to flow from the mine without any admixture of any kind. As Nature created it so they discharge it, leaving it to seek its natural channel. The answer is found in Prescott v. Williams, 5 Metc., 429, recognized in Kauffman v. Griesemer, supra. Because water is descendible by nature, the owner of a dominant or superior heritage has an easement in the servient or inferior tenements for the discharge of all waters which by nature rise in, or flow or fall upon the surface. Hence, the owner of a mill has an easement in the land below, for the free passage of the water from the mill, in the natural channel of the stream, accompanied with a right to enter upon the land for the purpose of cleaning out the stream and removing obstructions to the free flow of tho water. This decision is undoubted law. In terms it applies to all waters which by nature rise in, or flow or fall upon the surface. It applies with equal force to such subterranean springs in a man’s land as, in the pursuit of his lawful use of his land, are brought to the surface. They then rise in his land and flow upon the surface. In such case it is beyond his control. Water is said to be a common enemy. It -passes from the superior to the servient heritage, and so on by the irresistible law of gravity, to the ocean, where it finds its level. Each riparian owner has the use of it, but no right of property beyond the use. It literally has no owner.

If damages are to be recovered from the mere flow of water, where no act has been done to change its character or diminish its purity, it is manifest that results of a serious character must follow to the mining and other industrial interests of tho country. If the plaintiffs have a right to recover in this suit, they have a right, under all the authorities, to an injunction to restrain the defendants from the pumping, or even permitting the flow of water for the future. Such an injunction might be effective, at the cost of the destruction of the mine, so ñuas the pumping is concerned, but how the defendants are to stop the natural flow from the drift is not clear to my mind.

The argument that it might have been carried into the Lackawanna or some other stream by a tunnel is without force, for the reason that the riparian owners upon those streams would have the same right to object that the plaintiffs have — nay more, they would have the clear right to enjoin against conveying the water out of its natural channel to their hurt.

If a Court of Equity should refuse to grant an injunction against the defendants to restrain the flow of the mine water for the future, the same result (stoppage of the mine) can be compelled by the common-law action of ease for a nuisance. A recovery in the present action would be no bar to a subsequent suit for continuing the flow of water; and if the first verdict should be for a nominal sum, the second and subsequent verdicts would be such as to empty the cash box of.' any coal company, and make mining practically impossible. For in such cases the jury would be instructed to give such, damages as would punish the defendants, and secure the abatement of the nuisance. Of the readiness of a jury to comply with such instructions I entertain no doubt.

What has been said as to the plaintiffs is true as to every other riparian owner in the mining region. The former have no rights that are not common to all. They have made a different use of the water and have been more inconvenienced by reason thereof. But that does not affect the principle. If the flow of mine water is an injury for which tlie owner of the mine is responsible in damages, I am unable to see how such mines can be operated in the future, except by the consent of the riparian owners. It is impossible, under any system of government, or any code of laws, that equal and exact justice should be meted out in all cases. Under no state of society, save the savage, can a man enjoy all his natural rights. He is compelled to relinquish a portion of them for the common good. There are many instances in which the prosecution of a man’s lawful business occasions annoyance and loss to some one. The law compels compensation for some ; others, if unaccompanied with negligence, it regards as damnum absque injuria. The distinction between the two classes of cases is very narrow, and it sometimes requires the highest order of wisdom to properly define it. In the present case I think a broader view might have been taken of the question under discussion, which would have been entirely in harmony with well-settled principles of law. The trifling inconvenience to particular persons must sometimes give way to the necessities of a great community. Especially is this true where the leading industrial interest of the state is involved, the prosperity of which affects every household in the Commonwealth.