
    PERCOLATING WATERS NOT THE SUBJECT OF DAMAGES IN OHIO.
    Common Pleas Court of Montgomery County.
    In the Matter of the Miami Conservancy District on Petition of The Peerless Paper Company For An Appeal of Damages.
    Decided, December 5, 1924.
    
      Ohio Conservancy Act — Provision for Compensating Land Owners Injuriously Affected by Operations Thereunder — Does not Include Loss from the Diverting of Percolating Waters.
    
    Loss of percolating waters is not the subject of damages in Ohio unless made such by special contract, and mo provision for such loss having been made in the contract between the city of Dayton and the Miami Conservancy District, there can be no right of action because of the loss by the complainant of a valuable well by reason of the lowering of the bed of Mad River.
    
      O. B. Brown, for the Miami 'Conservancy District.
    
      Craighead ■<& Cowden, for the Peerless Paper Co.
   Snediker, J.

The petitioner sues to recover damages because of the destruction of a large open well which was installed beneath the floor of the basement of the petitioner and which was a valuable asset in its business.

The petition recites that during the year 1919 the Miami Conservancy District, in carrying out its plans for flood prevention, dredged and deepened the channel of Mad River, and lowered the bed of Mad river opposite the plant of the petitioner about three feet, and used the excavated material for the purpose of building up and widening the levees on either side of the river; that other constructions were made and changes occurred which resulted in lowering the bed of Mad river and diverted the flow of percolating waters and springs which formerly flowed into and filled the well of the petitioner which we have described.

This petition further recites that large expense has been incurred by the petitioner in efforts to deepen the original well, but it was unable to improve or use it; that a new well had to be constructed at large expense and there was a loss cn account of what had been done by the Conservancy District to this petitioner of $8,242.77. After some further allegations with respect to the title to the land on the part of the Conservancy District and to a contract which was made by the Conservancy District with the city of Dayton, giving it the privilege to enter upon the. lands, described and to construct and properly maintain improved channels for Mad river, and so forth, the petitioner says:

“It was further provided in said contract between the said District and the City of Dayton and as part of the consideration, for ,the granting of .said rights by said the City of Dayton, that, said District .thereby agreed with said City that. it would before commencing, any of the work therein provided for, by settlement or by proper legal-proceedings, compensate the owners of all property abutting upon those parts of said lands, streets, alleys and avenues described in said contract or affected by said works and structures, for all damages to said property which would result by reason of the construction and maintenance of the work to be constructed thereon. And that said District would hold said City free and harmless by reason, of any and all such damages. ’ ’

To this .petition there has been filed a, general demurrer, or. the ground that it does not state facts sufficient to consi itute a cause of action. The law of Ohio with respect to percolating waters was laid down by the Supreme Court at a very early date in the case of Frazier v. Brown, 12 O. S., page 294; it was there held:

“In the absence of express contract and positive legislation, as between proprietors of adjoining lands, the law recognizes no correlative rights, in respect to underground waters percolating, oozing.or filtrating through the earth.”

This decision of the Supreme Court has never been reversed so far as we are able to find, by any subsequent opinion of that court. On the contrary the -principle just recited has been reaffirmed in other cases, one' of which is the case of Elster v. Springfield, 49 O. S., page 82; another and very recent case, which follows the Frazier case, is that of Colliers Co. v. Cocke, 107 O. S., page 238-258. On this last named page the Supreme Court says:

“As between adjacent owners, the rule of law 'seems to be that there is no right to recover for damages for loss of springs or _ wells fed by percolating water, and that, unless there is injury or damages to a subterranean stream or water in a known and fixed course and well defined channel, there can be no recovery.”

So that we are led to the conclusion that the law of Ohio, in general, does not permit the recovery of damages on account of loss of a well fed by percolating water. If there is an express contract or positive legislation this general rule does not apply..

There is found in the Conservancy Law of Ohio at Section 6828-62 of the General Code, the following provision:

“In case any person or public corporation within or without any District organized under this Act shall consider itself injuriously affected in .any manner whatsoever by any act performed by any official or agent of such District, or by the execution, maintenance or operation of the official plan, in case no other method of relief is offered under this; Act, the remedy shall be as follows:”

Omitting the description of the remedy, we find the last sentence of this Section reads: “No damages shall be allowed under this section which would not otherwise be allowed in law.”

The Conservancy District is á subdivision of the state of Ohio, and only such damages may be recovered against it in any instance as the law by. its special terms permits. The Supreme Court having decided that no damages are recoverable for the loss of percolating waters, Section 6828-62 cannot, be construed to be legislation permitting such recovery.

The contract relied upon by the petitioner is that made with the city of Dayton by the Conservancy District and heretofore described in the quotation from the petition. We do not regard this contract as rendering the Conservancy District liable to this petitioner. The damages- provided1 against, by the contract, are not specifically the- loss-Neresustained by the petitioner. Percolating waters not-being the-subject of damages in Ohio, unless made the special - subject of a contract, must -be mentioned to be included. The clause-in the contract incorporated in the petition relates only to such damages as are generally recoverable.

In our opinion the demurrer should be sustained..  