
    HAUGH’S APPEAL.
    A privy vault which pollutes the water of a neighbor’s well is such a continuing nuisance, which may be remedied by injunction.
    Appeal from Common Pleas, No. 3, of Philadelphia County; In Equity. No 115 Jan. Term, 1881.
    This was a bill in equity brought by Matthias Dill against Marcus Ilaugh. The facts of the ease appear in the following extract from the report of J. Howard Gendell, the Master:
    The main controversy grows out of the alleged injury to a well of water belonging to plaintiff and upon his land, by the construction of a cesspool or privy well on adjoining land of the defendant. The properties are situate in the outskirts of that part of the city which was formerly Manayunk. The plaintiff purchased his property early in 1845. The well had been dug during the preceding year. The water seems to have been both pure and cold, and suitable for all household uses, until shortly after the construction by the defendant, in or about 1874, of the cesspool complained of, when it became foul and corrupt, and utterly unfit for use. The first and main question of fact is whether this ppllution was caused by the cesspool.
    
      The wells are about twelve feet apart. The testimony on the part of the defendant proves that the ground is rocky, but the solid rock was not reached in digging the privy well until the bottom was approached. A portion of the rock was removed by blasting, but according to the testimony of Albert Mackleer, who was in charge of the work, there was but one blast. The decided weight of the testimony is that the dip of the rock from the privy well is away from and not towards the plaintiff’s well. In the opinion of a number of quarrymen, it is not possible for water and filth to percolate from the defendant’s well to the plaintiff’s. It would in their opinion, present the phenomenon of water running up hill.
    On the other hand, after the water of the plaintiff’s well haá remained pure for over thirty years, it became foul within a few months after the cesspool was constructed. It is argued that it is not probable that this is not a mere coincidence. The character of the defilement seems also to point to its origin. The water is, or at all events at times has been, somewhat discolored, and its smell resembles that' of excremental matter. The witnesses who have examined the well testify that a thick jelly-like substance, entirely different from the slime often found in wells, oozes into it through the crevices on the side nearest the privy, but not on the other side, and that this substance seems to be in every respect identical with privy filth.
    I am of opinion that the affirmative evidence on the part of the plaintiff has far more force than the merely negative testimony that the effect is impossible. It is true that water will not run up hill, but if the descent is obstructed, it may be backed to a higher level. The witnesses whose opinions are relied on are laborers and quarrymen, who, no doubt, may be expert workmen, but who, so far as appears, are not experts respecting underground streams and drainage. They altogether overlook the material fact that the bottom of the privy well is fully fifteen feet higher than the bottom of the water well. The water certainly flows away somewhere. The well has once, at least, been full, and the water disappeared. -It might flow from the well for a .short distance in one direction, and then, by reason of an open scam in the rock, or otherwise, entirely change its course, and flow directly under its former channels. At all events, without stopping to speculate further respecting the mode of communication between the two wells, it is sufficient to say that experience has demonstrated that an entirely inexplicable connection often exists between wells a considerable distance apart. *
    I find that the water in plaintiff’s well has been and is contaminated by the defendant’s privy well.
    The defendant denies that this constitutes any cause of action,, or that any legal injury has been inflicted. If the plaintiff has suffered damage, it is damnum absque injuria. He claims that he complied with his whole _ duty in placing his privy well the distance from the division line specified by the city ordinance, that he has been guilty of no negligence in locating his privy, but placed it as far away from the plaintiff’s well as the arrangement of his properties would permit. I cannot, however, assent to these propositions. I visited the premises at the request of the parties and in company with their counsel, and found that there might have been a foot or two greater distance between the wells, but I cannot say that this would have made any difference in the result. It is needless to inquire whether the defendant might not have arranged his property differently, for two reasons ; the negligence, if any, consisted rather in the construction of' the well than in its location, and the question is one of nuisance and not of negligence. See cases hereinafter cited. The question of negligence is therefore immaterial. The city ordinance in forbidding the digging of privy wells within a certain distance of the division line was not intended to authorize a well which is in other respects a nuisance. What, then, are the relative rights and duties of the parties.
    I cannot doubt that a well of water is property, and that an action will lie for an injury to it. Such an action was sustained in Pottstown Gas Company vs. Murphy, 3 Wr. 257, where the water was injured by fluids percolating from the gas works. This ease also decides that the Gas Company was bound at its peril to prevent the fluids from injuring the neighbor’s well, and was liable for its failure to do so, without any regard to the questions of skill, precaution and negligence. See the answer to the plaintiff’s points, and to the last branch of the defendant’s second point, pp. 260, 261. The same principle applies to a privy well. According to Jacob vs. Worrell, 16 Leg. Int., 139, one which leaks into an adjoining property is a nuisance per se without regard to the question of negligence. Shuter vs. The City, 3 Philadelphia, 228, is similar to Gas Company vs. Murphy. The present Chief Justice, in delivering the opinion of the District Court, said that the city cannot dig a privy,. however skillfully they may do it, if the result is that the filth of it is discharged on their neighbors; and from this analogy, if it i& actually impossible to make the reservoir watertight, the only result is that they must pay the damage, or become themselves owners of all the property within reach of the influence of the nuisance. These cases are in accordance with the doctrine laid down in Wood on Nuisances, pp. 556-559, in which the eases relating to privies are collected, and the subject is so fully considered that I do not consider it necessary to say more.
    It is argued that the rule is different in the city, where the ground has in the course of time become so thoroughly contaminated by the percolation of foul matters through it, that it is unsafe to use well water for domestic purposes. While no case was cited which sustains this view, it may, perhaps, be correct, but it has no application to the present case. The exception contended for cannot apply to the whole city merely, because it is a municipality. Several of the cases cited originated within city limits. Those limits include large tracts of farm lands,, which must necessarily depend upon wells. It is suggested that the test is whether the property is situated upon a street in which the ordinary municipal improvements have been made, and whether it is taxed as city property, or as rural or farm lands. If this be the true test, the exception claimed is applicable. The street is paved, water pipes are laid in it, and the property is taxed at full city rates. But in my opinion there is no such fixed ai’bitrary and artificial rule. I find no trace of it in any case cited, and I see no valid reason for establishing it now for the first time. Indeed, as already stated, none of the cases seem to> touch the point at all. While it might be conceded that if the-ground is so generally saturated with impurities that a well is. uselsss, no action will lie, because the harcn cannot be attributed to any one source, and because it is impossible to spoil that which is already useless; yet where the ground is fresh, there is no general foulness, and the injury can be distinctly traced to one specific source, the general rule- must- apply. The wells in question are in Manayunk — one of the suburbs. On the visit which I have mentioned, I found that wells and pumps were in common use there. Moreover the property is on the outskirts of that suburb, and I find that the injury complained of is directly traceable to the defendant’s privy. The general rule is therefore applicable.
    The only remaining question is whether the plaintiff is entitled to the specific relief which he asks. The jurisdiction of equity to enjoin a nnisauce is unquestionable, and has been exercised in the ease of nuisances like the present. See "Wormersley vs. ■Church, 17 L. T. (N. S.) 190. It is asserted, however, that the plaintiff can, at a small expense, introduce hydrant water from the pipes in the street, and that his remedy, by action at law for ■damages is therefore full, complete and adequate. But the nature of water varies greatly with the source of supply; and if the plaintiff receives his supply from the city’s pipes he not only becomes subject to the constantly recurring annoyance of a periodical payment, but also becomes subject to all the regulations of the City Water Department, and to the contingencies of ■a temporary, a partial, or indeed a total failure of the supply, without any adequate redress ; Smith vs. Philadelphia, 31 P. P. Sm. 38. His well is his property, and I do not think he is required to suffer it to be destroyed, because he can get other property of a different nature, and subject to restrictions and ■conditions from which he is now free. It might with equal propriety be argued in this and in nearly every such case that the plaintiff has it is in his power to dig a new well on another part of his premises.
    I report that a decree ought to be made in favor of the plaintiff with costs; that by the decree the defendant should be enjoined from permitting or suffering any water or filth to run or percolate into plaintiff’s premises, and particularly into his water well, from the privy on the defendant’s premises; that to this end he be required within thirty days from the entry of the decree to thoroughly cleanse his privy well, and that he be enjoined from using said privy well, or permitting or suffering the same to be used until it is thoroughly cemented or otherwise rendered watei’-tight. The form of the decree can be settled as provided in the equity rules.
    The Court made a decree in accordance with the recommendation of the master.
    Iiaugh then appealed complaining of the decree made by the Court.
    
      George W. Arundel, Esq. and Hon. Benjamin H. Brewster for appellant
    argued that the appellee was not irreparably injured ; Attorney General vs. Nichol, 16 Vesey, Jr. 342; Wynstanley vs. Lee, 2 Swanston 338; Fishmongers’ Co. vs. East India Co., 1 Dickens 164. The owner of land through which water flows by a subterranean channel cannot complain of the diversion or disturbance of the water by mining operations on the adjoining tract; Acton vs. Blundell, 12 Meason & Welsby 324; Greatrex vs. Hayward, 20 E. L. & Eq. 377; Rawstron vs. Taylor, 33 E. L. & Eq. 428; Broadbent vs. Ramsbotham, 34 E. L. & Eq. 553; Greenleaf vs. Francis, 18 Pickering 117; Roth vs. Driscoll, 20 Conn. 533; Brown vs. Illins, 27 Conn. 84; Wheatley vs. Baugh, 25 Pa. 528; Fletcher vs. Rylands, 1 L. R. Ex. 263; Lasee vs. Buchanan, 51 N.Y. 476.
    J. A. & A. Simpson, Esqs. contra
    
    argued that an injunction will 1 io to prevent obstruction of “ancient lights;" Corning vs. Lowerre, 6 John Ch. 439; Back vs. Stacy, 2 Russ 121; 2 Story Eq. Jur. Sect. 926, 929. A privy which leaks into an adjoining' property is a nuisance; Jacobs vs. Worrall, 15 Leg. Int. 139; Shuter vs. City, 3 Phila. 228; Norton vs. Scholefield, 9 M. & W. 665: Wright vs. Williams, 1 M. & W. 77; Story vs. Hammond, 4 Ohio 376; Tenant vs. Goldwin, 1 Salkeld 360; Ball vs. Nye, 99 Mass. 582; Columbus Gas Co. vs. Freeland, 12 Ohio 392; St. Helens Chemical Co. vs. St. Helens, 1 L. R. Exch. Div. 196; Marshall vs. Cohen, 44 Georgia, 489; Pottstown Gas Co. vs. Murphy, 39 Penna. 257; Tate vs. Parrish, 7 T. B. Monroe 325; Greene vs. Nunnemacker, 36 Wis. 50; Hodgkinson vs. Ennor, 4 Best & S. 229; Sanderson vs. Pennsylvania Coal Co., 86 Pa. 401. Equity will restrain a permanent continuing trespass; Womersly vs. Church, 17 L. T. Rep. N. S. 190; Masson’s Appeal, 70 Pa. 26; Allison’s Appeal, 77 Pa. 221; Seheetz’s Appeal, 35 Pa. 88. Or to prevent a multiplicity of suits; Minning’s Appeal, 82 Pa. 373. Irreparable damage is such as can only be estimated by conjecture; Sunderland vs. Whitesides, 7 Phila. 335; 2 Story Eq. Sect. 926, 929.
   The Supreme Court affirmed the decree of the Common Pleas on April 10, 1882, in the following opinion per:

Gordon, J.

We can do nothing in this case but affirm the decree of the Court below. Even were we otherwise inclined, we would be compelled to encounter an opposing tide of authority* against which it would be difficult, indeed, to make headway.

As the master has found, the privy vault of defendant, Ilaugh, by its offensive percolation, has rendered foul and unfit for use the water of the plaintiff’s well, this puts the defendant in the position of maintaining a private nuisance of a continuing character, which injures the property of his neighbor. That such an injury is actionable is sustained by many authorities; among others The Pottstown Gas Co. vs. Murphy, 3 Wr. 257; Shuter v. The City of Philadelphia, 3 Phila. R. 228; Jacobs v. Worrell, 15 Legal Intell. 139. We assent to the opinion of Judge Hare, as found in the case last cited, that the right to have a privy is a right only so long as it is used without material injury to the property of others ; when its fetid contents begin to leak over upon the adjoining lands, it becomes a nuisance, and is actionable as such. The plea of necessity fails to justify an act of this kind, for the proposition that one man should, under any circumstances, be permitted to deposit any part of his health-destroying filth in or upon his neighbor’s premises, is simply absurd. Nor is it less contrary to our ideas of common sense that he should be allowed to supplement his own cess-pool with his neighbor’s water well. Here, however, there is found no necessity for this wrongful act of the defendant, for, by a proper construction of his vault, he might have used his privy without injury to Bill’s property; for this wrong, therefore, he has no excuse but the. saving of a few dollars. An excuse, we need hardly say, that is utterly without merit.

Nor is the right to equitable interference, in order to restrain the continuance of a private nuisance, any more doubtful than the right to a common law action. Mr. Bispham, in his work on the Principles of Equity, sec. 439, says that this jurisdiction in cases of nuisance is ancient, and has been traced back to the reign of Elizabeth, since which time it has been constantly-exercised. That, in these cases, equity has concurrent jurisdiction with the law Courts, and this jurisdiction is justified on the ground of restraining irreparable mischief or preventing a multiplicity of suits. To the same point is Stewart’s Case, 6 P. F. S. 413. And a case almost exactly like the one in hand is Womersly v. Church, 17 L. T. R. N. S. 190, where the bill was to restrain the defendant from using a cess-pool on his own property in such a manner as to pollute the water feeding on the plaintiff’s well.

Decree affirmed, with costs to be paid by the appellants.  