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September 12, 1963


Appeals, Nos. 102 and 111, Oct. T., 1963, from judgments of Court of Common Pleas of Lancaster County, Nov. T., 1961, No. 38, and Dec. T., 1961, No. 73, in cases of Maris A. Reinhart et al. v. Lancaster Area Refuse Authority et al., and Fred R. Hackman and Robert R. Hackman, executors under will of Ethel M. Hackman, deceased, v. Same. Judgments reversed.


Carl A. Wiker, with him Charles A. Achey, Jr., for appellants.

W. Hensel Brown, Jr., with him Brown and Zimmerman, for appellee.

Before Rhodes, P.j., Ervin, Wright, Woodside, Watkins, Montgomery, and Flood, JJ.

Author: Montgomery

[ 201 Pa. Super. Page 616]


These two appeals were taken by plaintiffs below from the grant of judgments n.o.v. for the defendants following verdicts for money damages in plaintiffs' favor in two actions of trespass brought for contamination of wells located on their respective properties. The actions arose as a result of filling operations on land owned by defendant McFalls and leased by him to the other defendant, Lancaster Area Refuse Authority, for the purpose of dumping refuse thereon.

In the opinion of Judge JOHNSTONE we find a succinct description of defendants' operation: "For some years prior to the fall of 1960 McFalls had been dumping clean fill in the valley with the purpose in mind of eventually filling up the valley and creating level land between the two roads.... The actual operation of the landfill consisted of digging a trench or trough, depositing refuse in the trough during the day and then covering over the refuse each evening with a layer of clean earth and compressing each day's fill by running over it with a bulldozer. McFalls supplied whatever earth was needed to cover the refuse, either from his own land or elsewhere, and also directed where on his land the landfill was to be conducted."

There is little, if any, disagreement as to the basic facts. They may be briefly stated as follows: Prior to 1960 McFalls purchased the four-acre tract of land under consideration, located several miles south of the City of Lancaster, and had begun to fill a 20 foot valley or depression therein with clean fill. Before 1960 Reinharts had purchased an adjoining property with

[ 201 Pa. Super. Page 617]

    two dwellings erected thereon, the occupants of which secured their water from two wells located on the property. About 1950 Ethel M. Hackman, who died August 25, 1961, acquired property in the same vicinity and constructed a dwelling house thereon which was served by a 93 foot well. All three wells produced water satisfactory in quantity and quality for the needs of the occupants of the several houses they served. McFalls, in 1960, leased his property to the Authority for a landfill operation which began in November of that year. Prior to the commencement of this operation, a 42 inch pipe had been laid to accommodate a stream running through McFalls' land. The dumping operation began in November of 1960 and refuse consisting mainly of manure, red paint, a foaming material, junk, tin cans and garbage were dumped thereon until April, 1961. During January, 1961 the wells, aforementioned, began to produce water with a reddish color and a strong odor. Tests were made of the sewage system on the Hackman property, but these tests failed to connect the contamination of the wells with it. The contamination of the wells continued up to the time of trial, October 3, 1962, with notice of the contamination of the Reinhart wells being given to the defendant McFalls on January 16, 1961.

This action falls into the category known as non-trespassory invasions of another's land. Restatement, Torts, § 822, states the general rule as follows:

"The actor is liable in an action for damages for a non-trespassory invasion of another's interest in the private use and enjoyment of land if, (a) the other has property rights and privileges in respect to the use or enjoyment interfered with; and (b) the invasion is substantial; and (c) the actor's conduct is a legal cause of the invasion; and (d) the invasion is either (i) intentional and unreasonable; or (ii) unintentional and otherwise actionable under the rules governing

[ 201 Pa. Super. Page 618]

    liability for negligent, reckless or ultrahazardous conduct."

Restatement, Torts, § 832, applies the rule to waters: "Non-trespassory invasions of a person's interest in the use and enjoyment of land resulting from another's pollution of surface waters, subterranean waters or water in watercourses and lakes ...

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