Good v. Altoona City , 162 Pa. 493 ( 1894 )

Opinion by

Mr. Justice Fell,

Little need be said either in explanation or. in vindication of the judgment in this case. The plaintiff is the owner of a farm -situated three miles from Altoona, through which a stream known as Mill run passes. The bed of the stream is limestone rock, through seams and fissures in which a part of the water finds a subterranean passage and feeds two springs near the farm buildings, from which water is procured for the stock and for domestic purposes.

The city of Altoona constructed sewers, the contents of which flow into this stream, with the result to the plaintiff that the water of the stream and of the springs is so polluted as to be unfit for any use, and at times when the water overflows the banks of the stream deposits of filth are left on his fields. By digging wells he has been unable to obtain pure water, as on account of-the crevices in the rock the whole underground supply is polluted, and he is unable to obtain water for use on his farm except from a great distance and at great expense.

The assignments of error raise two questions: First, whether there is any liability on the part of the defendant; and, second, whether the recovery, if any can be had, shall be for a permanent injury. These questions were both properly submitted at the trial, and the jury found that the act of the defendant destroyed or seriously impaired a property right which the plaintiff possessed in a stream, and that there was no practicable method by which this injury could in the future be averted, and that it was continuing and permanent.

The fact that the stream has a partially subterranean course does not affect the right of the plaintiff, as the location of the part of the stream below the surface is well defined and easily ascertained.

Penna. Coal Co. v. Sanderson, 113 Pa. 126, presented an entirely different question. It was there said: “It will be observed that the defendant has done nothing to change the character of the water or to diminish its purity, save what results from the natural use and enjoyment of their own property. They have brought nothing on to the land artificially. The water as it flowed into Meadow brook is the water which the mine naturally discharges; its impurities arise from natural and not artificial causes.” And the decisions in Howell v. McCoy, 3 Rawle, 256; Barclay v. Commonwealth, 25 Pa. 503; and McCollum v. Germantown Water Co., 54 Pa. 40, holding that a stream of water may not be fouled by the introduction into it of any foreign substance to the injury of a lower riparian owner, were expressly recognized.

The judgment is affirmed.