Appeal, No. 57, March T., 1957, from judgment of Court of Common Pleas of Washington County, Nov. T., 1954, No. 227, in case of Stephen J. Daniels et ux. v. Bethlehem Mines Corp. Judgment affirmed.
Paul N. Barna, for appellants.
Stephen D. Marriner, for appellee.
Before Jones, C.j., Bell, Chidsey, Musmanno, Arnold, Jones and Cohen, JJ.
OPINION BY MR. JUSTICE BENJAMIN R. JONES
This appeal arises from the refusal of the court below to lift a compulsory non-suit entered in an action to recover damages allegedly caused to appellants' farm and livestock by water discharged thereon from appellee's mine.
On this appeal we review the evidence and all the reasonable inferences therefrom in the light most favorable to the appellant-plaintiffs: Auel v. White, 389 Pa. 208, 210, 132 A.2d 350; Layman v. Gearhart, 389 Pa. 187, 190, 132 A.2d 228; Seng v. American Stores Co., 384 Pa. 338, 345, 121 A.2d 123.
Since 1950 the Daniels (appellants) have owned a tract of land in West Pike Run Township, Washington County, upon which they operate a dairy farm and maintain a herd of dairy and beef cattle. Two streams or creeks traverse this farm; one stream (known as Little Pike Run), in winding fashion, enters the farm from the northwest, crosses the northwesterly portion, leaves the farm, reenters and again leaves the farm near the southeasterly corner thereof; the other stream enters the farm from the west, crosses the southerly portion in an easterly direction and joins the other stream at a point south of the Daniels' land.
At a point approximately 1 1/2 miles northwest of the farm the appellee operates a bituminous coal mine known as the Ellsworth Mine. For some years water from this mine has been pumped through a twelve inch pipe and discharged into the stream which transports and carries it to and across the Daniels' farm. Up
until June 1953, the water pumped from the mine and discharged into the stream was fit for consumption by cattle and the Daniels' and other lower riparian owners utilized the water from the stream - which never dried up - to water their cattle. This stream constituted the only constant and reliable source of water supply for the cattle because the stream on the farm's southern boundary, at certain times of the year, became dry.
In June, 1953 appellee began pumping highly colored water into the stream which carried mine waste, muck, sludge and other waste materials.*fn1 This water was not only unfit for cattle consumption but vile in odor and laden with materials which settled in and partially filled up the stream and covered about 1 1/2 acres of the Daniel's farm. From June, 1953 - particularly in June, July and August, 1953 - until May, 1954 - sometimes in the daytime and sometimes at night - appellee continued to pump this polluted water into the stream. As a result, the stream now dries up during the summertime and the Daniels' have had to dig a well to secure a new source of water supply for their ...