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BURR v. ADAM EIDEMILLER (11/12/56)

November 12, 1956

BURR
v.
ADAM EIDEMILLER, INC., APPELLANT.



Appeal, No. 137, March T., 1956, from judgment of Court of Common Pleas of Butler County, Dec. T., 1954. No. 56, in case of Randolph R. Burr et ux v. Adam Eidemiller, Inc. Judgment affirmed. Trespass for property damage. Before GRAFF, J., specially presiding. Verdict for plaintiffs and judgment entered thereon. Defendant appealed.

COUNSEL

J. Campbell Brandon, with him Hugh S. Millar and Brandon, Millar & Rockenstein, for appellant.

Willis A. MacDonald, with him A. R. Cingolani, for appellees.

Before Stern, C.j., Jones, Bell, Chidsey, Musmanno and Arnold, JJ.

Author: Chidsey

[ 386 Pa. Page 418]

OPINION BY MR. JUSTICE CHIDSEY

Plaintiffs, husband and wife, brought this action in trespass against the defendant, a road construction company, to recover damages arising out of the subterranean contamination of their water supply. The jury rendered a verdict for the plaintiffs in the sum of $16,000. The defendant filed motions for judgment non obstante veredicto and for new trial which were dismissed and judgment entered on the verdict. The defendant appeals therefrom.

In passing on defendant's motion for judgment n.o.v. we must review the evidence and consider all the facts and reasonable inferences to be drawn therefrom in a light most favorable to plaintiffs' cause: Nixon v. Chiarilli, 385 Pa. 218, 122 A.2d 710. The plaintiffs had been the owners of a 15-acre tract of land fronting upon Connoquenssing Creek in Forward Township, Butler County, for some 16 years upon which had been erected their dwelling, a 2-story brick building, a 2-car frame garage, four 5-room cottages fronting upon the Creek, an artificial lake stocked with fish, and a picnic ground. The place was known as "Wonderland Park" and was used for public gatherings upon a rental basis and the cottages were rented at an annual rental. The home, cottages, picnic area and artificial lake with fountain had been served by a pure and abundant spring as the

[ 386 Pa. Page 419]

    sole source of water supply. The spring had been in existence for over 50 years.

In 1954 State Highway Route No. 68 was relocated and the M. & S. Construction Company received the general contract for the improvement of the highway. The paving contract was sublet to Adam Eidemiller, Inc., defendant and appellant herein. In August of 1954 the defendant, for the purpose of mixing materials necessary to pave the surface of the highway, occupied by lease a tract of land known as the Fisher property which adjoined the real estate of the plaintiffs, separated by a public secondary road known as Ash Road. The Fisher land was upgrade from the plaintiffs' land. In the process of preparing the Fisher land for its operations thereon, the defendant company revived the top soil and clay and drilled some 50 post holes through the sandstone to a depth of 3 to 3 1/2 feet for the purpose of placing poles therein to support the sides of storage bins. A ramp was constructed and heavy machinery installed in order to transfer the materials for the roadway to trucks which carried the materials to the place where the road was being constructed. Large quantities of slag from steel mills 30 miles away were hauled and placed in the bins, and underwent a leaching or wetting down process before it was used in the concrete mix. 5,000 to 10,000 gallons of polluted water from Connoquenessing Creek were daily poured over this slag in a continuous spray.

This leaching process commenced on September 1, 1954, and three days later the plaintiffs' spring became contaminated. This contamination was traced to the run-off water from the slag pile, particularly by the use of a dye test. The water in the spring became contaminated chemically in that ...


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