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BUMBARGER v. WALKER (05/26/58)

May 26, 1958

BUMBARGER
v.
WALKER, APPELLANT.



Appeal, No. 318, Jan. T., 1957, from judgment of Court of Common Pleas of Clearfield County, Nov. T., 1955, No. 380, in case of Harvey Bumbarger v. Ray S. Walker. Judgment affirmed; reargument refused June 20, 1958.

COUNSEL

James K. Nevling, with him Robert V. Maine, and Nevling and Davis, for appellant.

F. Cortez Bell, with him Bell, Silberblatt & Swoope, for appellee.

Before Jones, C.j., Musmanno, Arnold, Jones and Cohen, JJ.

Author: Musmanno

[ 393 Pa. Page 144]

OPINION BY MR. JUSTICE MUSMANNO

The plaintiff, Harvey Bumbarger, owns a farm in Graham Township, Clearfield County, which, until 1955, was enriched with a spring which supplied all his domestic needs with pure, potable water but which, by October of that year became wholly useless because of certain chemical infiltrations which rendered it unfit for drinking, cooking, or cleaning purposes. The plaintiff's wife testified that, after the chemical invasion, the water made a precarious bathing agent because "it would burn the skin off you almost." Allowing her a little latitude for over-zealous exaggeration, there would still seem to be no doubt from the record that the water underwent a drastic transformation. Whereas originally it had a "good taste," it now became sour; whereas, before it was odorless, it was now offensive in smell; whereas theretofore it flowed easily and innocuously through pipes and fixtures, it now corroded and otherwise damaged its copper, brass and lead containers.

As no change in nature's manifestations occurs without the intervention of some force, put into effect either by man or cosmic energy, there had to be a reason for the deterioration in Bumbarger's spring. Bumbarger contended that this deterioration, which

[ 393 Pa. Page 145]

    made it necessary for him to obtain water elsewhere at considerable expense and inconvenience, was due to the discharging into his spring of drainage from an open pit mining operation on an adjoining property which was owned by one Albert Smith. He brought suit against Ray S. Walker and Robert Bailey, purportedly in charge of the strip mining in question. The jury returned a verdict in favor of Bumbarger in the sum of $10,000 against Ray S. Walker, but exonerated Robert Bailey from any liability in the premises.

Ray S. Walker has appealed, seeking judgment n.o.v. on the asserted basis that the evidence produced by Bumbarger did not prove that the drainage from his mining operation flowed into the plaintiff's spring, nor that he had made an unreasonable use of the Smith land, considering that it was located in coal fields, of which the plaintiff was well aware.

Walker, of course, had the right to take the coal out of the Smith lands in accordance with accepted methods of open pit mining and he was entitled to discharge the drainage waters accompanying such an operation in a manner consistent with a reasonable use of the land. Since the Smith property occupied a higher elevation than the Bumbarger property, Walker would not be liable if the mine waters reached Bumbarger's farm over and through some natural watercourse. In Lucas v. Ford, 363 Pa. 153, 155, we said: "The owner of upper land has the right to have surface waters flowing on or over his land discharged through a natural water course onto the land of another ... He may make proper and profitable use of his land even though such use may result in some change in quality or quantity of the water flowing to the lower land ...


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