No. 1025 Pittsburgh, 1980, Appeal from the Order of the Court of Common Pleas, Civil Action - Law, Greene County at No. 142 November Term, 1978 - In Trespass
Harry J. Cancelmi, Jr., Waynesburg, for appellant.
Eric J. Held, Washington, for appellees.
Price, Johnson and Montemuro, JJ. Price, J., notes dissent.
[ 303 Pa. Super. Page 429]
The instant action concerns the complaint of landowners that a coal company operating on adjacent property caused the failure of one water-well and the pollution of a second well located on plaintiff-appellees' own land.
A jury found for the plaintiffs in the amount of $32,500, basing their measure of damages on the testimony of a local real estate dealer that the property had been worth $42,500 while served by two wells of pure water and that without a source of potable water the salvage value of the land together with a mobile home located thereon would be $10,000.
Defendant-appellant mining company appealed on the following grounds: (1) that there was insufficient evidence of causation for the jury to find the loss of water to be due to its activities in its mining operation; (2) that, even assuming causation, the loss was damnum absque injuria, or damage without legal wrong or legal liability; (3) that error was committed when the trial judge instructed the jury to disregard a "mining rights" clause in the landowner's deed to the property; and (4) that the verdict of the jury in awarding damages in the amount of $32,500 was excessive.
We affirm the lower court's decision on the first three issues, but we reverse the award of $32,500 as excessive, and
[ 303 Pa. Super. Page 430]
we remand for more realistic appraisal of actual and consequential damages in view of the testimony of plaintiffs' own witnesses that repair of the wells can be effected at lower cost.
The plaintiffs bought this property by a deed dated 1953, pursuant to a mining rights clause set forth in an earlier deed conveying to a predecessor in title in 1921. Thereafter they erected a dwelling and drilled a well to supply water. There was a continuous, ample, potable water supply from this well (hereinafter well # 1) for some twenty-five years until late May or early June of 1978.
In 1977 the plaintiffs purchased a mobile home and installed it on the property for their son's use. At that time a second well (hereinafter well # 2), was drilled, and from its installation until the same period in late May or early June of 1978 the supply was plentiful and potable.
The defendant company owns mining rights under the entire property originally designated the "Adamson Tract." Plaintiffs own the surface rights to a small section of this tract. Defendant owns surface rights in addition to subsurface rights to a portion of the tract contiguous to plaintiffs' property.
In 1975 defendant began to expand its operations into that contiguous portion of the tract. Several airshaft holes were prepared in the same general area. The airshaft which is the focus of this action is located 540 and 600 feet from defendant's two wells, and is known as "grout hole # 4." It was begun on May 9, 1978 and was completed May 29, 1978.
On May 31, 1978, well # 1 went dry. Two or three days later, well # 2 became polluted. During this same period of time, neighboring properties also experienced similar problems with their wells.
On June 8, 1978 plaintiffs notified an agent of defendant of their problems. Since early June of 1978 the plaintiffs have had a tank installed at their residence and their son-in-law
[ 303 Pa. Super. Page 431]
hauls water from his own home to theirs in 55 gallon lots daily. The plaintiffs travel two miles to the home of their son-in-law and daughter to shower, and must now take their laundry to the laundromat twice weekly instead of using the washer in their basement. Water at well # 2 can be used to flush the commode in the trailer, but cannot be used for cooking, cleaning, bathing, or drinking. The court below permitted these damages to be explored, stating that "they have the right to use their land and if the liability deprived them the use of their property, it is their damage." (N.T. 108). Cost of hauling water, attempted well repair, and laundry amounted to some $7,000 worth of out-of-pocket expenses in consequence of the well failures.
Real estate experts testified for plaintiffs and for defendant. Plaintiffs' witnesses estimated loss of value in the land without any source of usable water to be $32,000. Defendant's witness estimated loss to be no more than $12,500, assuming no usable water. Defendant also presented a mining engineer, Mr. Mishra, who opined that deeper drilling was "reasonably certain" to find water, and later estimated the degree of certainty as "98%." (N.T. 226)
Because the lower court expressed surprise at the measure of damages, and because, upon review of the record, we find that testimony of plaintiffs' own witnesses amply supports a finding that repair or replacement of these wells may be had at cost far less than the award of $32,500, we set forth samples from the notes of testimony at some length below.
Plaintiffs' own expert witness, Mr. Moore, who had been in the well-repair business in this area since 1948 and who had actual knowledge as to plaintiffs' wells and those of the near neighbors, testified as follows:
Q. Would you tell us, Mr. Moore, what you have found in other houses right next door to this one and on down the road in that area?
A. Right next door, Mr. Braddock restored a pump, he put a new pump in, but about a thousand yards or so, which is Mrs. Sissler's property, which is down this side . . . that pump was also covered up and we pulled it and sold her a new pump plus complete water purification . . .
[ 303 Pa. Super. Page 432]
Q. Was there any others that you had complaints about?
A. Yes. Mr. Staggers which is on the same side of the road as the shaft, which is about three hundred feet or so from the shaft, called me about his well and I told him what it would cost him, probably around a thousand dollars.
Q. Now, these places that you have mentioned here, was the problem there the same type of problem that Mr. Hughes had?
A. Identically the same. I would say identically the same. I would just be giving my opinion. (N.T. 27-28)
Q. If that was a well with water in it that looked something like, let's use [attorney for plaintiffs'] jar. I assume he is going to use that as Exhibit "A". Is there a possibility for purification to correct the conditions so it would be more suitable for domestic use?
A. Definitely. You can make the water very clear . . . .
Q. Well, just describe generally.
A. O.K. If the water is acidy, then you put an acid neutralizer on it. Then, if you have an iron condition, then you put an iron filter on it. If you do have any bacteria, then you put a clorenator [sic] on it. Then if the water is real hard, then you put a softener on it. Now you ...