Pfeiffer v. Brown , 35 W.N.C. 481 ( 1895 )

Opinion by

Me. Justice Mitchell,

The right of the upper landowner to discharge water on the lowerlands of his neighbor is in general a right of flowage only in the natural ways and natural quantities. If he alters the natural conditions so as to change the course of the water, or concentrate it at a particular point, or by artificial means to increase its volume, he becomes liable for any injury caused thereby: Addison on Torts, sect. 288, ed. 1891.

In the present case the defendants, by drilling a well and pumping, increased the aggregate quantity of water discharged, concentrated it at an artificial point of flow, and changed its character from fresh to salt, whereby it became more injurious to plaintiff’s land. Prima facie therefore they were liable in this action and the burden of proof was on them to show some reason why the general rule should not apply. This they endeavored to do by the claim that the water was discharged in the lawful and proper use of their own land. The exception is well established and is thus expressed in the strongest authority in its favor, Penn. Coal Co. v. Sanderson, 113 Pa. 126, “ every man has the right to the natural use and enjoyment of his own property ; and if while lawfully in such use and enjoyment without negligence, an unavoidable loss occurs to his neighbor, it is damnum absque injuria.” But this, as was shown in Collins v. Chartiers Valley Gas Co., 131 Pa. 143, does not go beyond proper use and unavoidable damage. It was accordingly said in the latter case that “the use which inflicts the damage must be natural, proper, and free from negligence, and the damage unavoidable. . . . Hence the practical inquiry is, first, whether the damage was necessary and unavoidable ; secondly, if not, was it sufficiently obvious to have been foreseen, and also preventable by reasonable care and expenditure ? ”

This brings us to the consideration of what is meant by reasonable care and expenditure. In the Chartiers case it was said in the charge that the jury might have found that if the defendants had exercised any reasonable judgment, or investigated or paid attention to it, they would have known that the injury to the plaintiff would follow, and with the outlay of a small amount of money might have prevented it. These remarks appear to apply equally to the present case. On the facts shown it could hardly be contended that the injury was unavoidable. The very simple device resorted to by the plaintiff obviated it, and there was evidence from which the jury not only might but should have found that defendants should have foreseen the result of their operations and provided against it. In regard to what is a reasonable expense in this connection, neither in the Chartiers nor any of the other cases has it been necessary to define it strictly, but it is clear from all of them that the word reasonable is not to be taken in a narrow sense. It is not to be lost sight of that the defendant’s right to injure another’s land at all, to any extent, is an exception, and the burden is always upon him to bring himself within it. And his exception is founded on necessity and because otherwise he would himself be deprived of the beneficial use and enjoyment of his own land. Unless that would be the substantial result of forbidding his action, he is not within the immunity of any of the cases. And the expense which will absolve him from the duty of preventing the injury must come substantially up to the same standard. If the expense of preventing the damage from his act is such as practically to counterbalance the expected profit or benefit, then it is clearly unreasonable, and beyond what he could justly be called upon to assume. If on the other hand, however large in actual amount, it is small in proportion to the gain to himself, it is reasonable in regard to his neighbor’s rights, and he should pay it to prevent the damage, or should make compensation for the injury done. Between these two extremes lies a debatable region where the cases must stand upon their own facts, under the only general rule that can be laid down in advance, that the expense required would so detract from the purpose and benefit of the contemplated act, as to be a substantial deprivation of the right to the usé of one’s own property. If damage could have been prevented short of this it is injuria which will sustain an action.

In regard to the somewhat analogous right of eminent domain over a public franchise previously existing—a right resting on the same basis of necessity,—it was said in Pittsburg Junction R. R. Co.’s Appeal, 122 Pa. 511, 531: “ The location claimed for defendant is a matter of economy, not of necessity. It can construct its road and reach its terminus by another route. It is true it would be expensive, but it is a mere question of money and engineering skill. It is not entitled to run through plaintiff’s yard, and cripple its facilities for handling its business, merely to save money,” and further quoting from Penn. R. R. Co.’s Appeal, 93 Pa. 150, there “ must be a necessity that arises from the very nature of things, over which the corporation has no control; it must not be a necessity created by the company itself for its own convenience, or for the sake of economy.” While it is not meant to be said that this standard should be enforced without qualification, against private rights to the natural use of property, it nevertheless illustrates the basis of necessity on which the exercise of such rights to the damage of another without compensating him, must rest. Each party has clear rights to the use and enjoyment of property, and each must concede something for the preservation of the other. Where conflict is irreconcilable the right to use one’s own must prevail, but it can only do so without compensation where the resulting damage is not avoidable at all, or only at such' expense as would be practically prohibitory.

In the charge and answers to several of the points the learned judge used the expressions “ at slight expense,” “ at small expense ” etc. in reference to the duty of defendants to prevent the salt water from flowing on plaintiff’s land. This was not giving the jury a proper standard.

Judgment reversed and venire de novo awarded.