Appeal, No. 10, Jan. T., 1961, from decree of Court of Common Pleas of Montgomery County, Nov. T., 1957, No. 20, in equity, in case of Township of Hatfield et al. v. Lansdale Municipal Authority et al. Decree affirmed.
Aaron S. Swartz, III, with him High, Swartz, Childs & Roberts, for appellants.
William R. Cooper, II, for appellees.
Before Jones, C.j., Bell, Musmanno, Jones, Cohen, Bok and Eagen, JJ.
OPINION BY MR. JUSTICE COHEN.
This is an appeal from a decree of the Court of Common Pleas of Montgomery County in a class action brought in equity to enjoin the appellants, Lansdale Municipal Authority (hereinafter referred to as the Authority) from operating a well in Hatfield Township.
The appellees, individual neighboring property owners, claim that the operation of appellants' well during a trial run caused the dehydration of some of their wells and a diminution of water supply in others, and that continued operation of the well would seriously and permanently impair their water supply.
The lower court decreed that an injunction would be enforced unless certain conditions were met by the Authority. The conditions required that any present user or owner of a well within a radius of 1600 feet of the Authority's well could request to be connected to the proposed water line without cost, but they would pay for the water consumed.
The issues here on appeal are whether there is a right of absolute appropriation of percolating water, and, if not, is either a permanent injunction or an injunction conditioned on meeting specific prerequisites the proper remedy.
It is settled law in this state that, in derogation of the English rule of absolute appropriation, there is no absolute right to appropriate percolating waters for an unlawful purpose. Such an unlawful purpose includes the diversion for sale to others away from the land when such conduct impairs the supply of a well on the property of another. Rothrauff v. Sinking Spring Water Company, 339 Pa. 129, 14 A.2d 87 (1940). This is referred to as the doctrine of reasonable user.
The Authority, by putting its well through a trial run under standards accepted by custom of the well drilling trade, demonstrated that the operation of the well during a normal trial period will cause immediate damage to the neighboring wells. Appellants claim that operation of the well at two-thirds of the intended normal rate will ...