ROTHRAUFF v. SINK INGr SPRING WATER CO.
14. I4d 82
l..iniffrs present disability. Dr. Scicchi-
twso was of opinion that the osteo-arthritis
of the knee had been developing from
!026 to 1938, and that plaintiff's fall mere-
ly accelerated and aggravated its progress.
1'Th testimony of these physicians not only
/iiled to exclude the possibility that a
ire-existing infirmity contributed to the
e.,1-lility of plaintiff, but provided an
::irmnative basis for such a conclusion.
Under these circumstances, there was no
c arerial conflict of evidence to be re-
solved by the jury upon the question
whether the previous injury was a con-
tributing cause, and binding instructions
for the defendant should have been given
by the trial judge. See Evans v. Penn.
Siutual L Ins. Co., 322 Pa. 547, 186 A.
Plaintiff contends, however, that any
pre-existing arthritic condition he may
have had was dormant and inactive, and
that such a passive infirmity does not con-
stitute a concurring cause within the mean-
ing of the restrictive clause of the policies.
lHe relies upon the cases of Kelley v.
Pittsburgh Casualty Co., 256 Pa. 1, 100 A.
494, and Kelly v. Prudential Ins. Co., 334
Pa. 143, 6 A.2d 55. But in the first of
these decisions it was pointed out that the
policy in suit contained no provision ex-
pressly excluding liability for injuries re-
sulting wholly or partially from disease
or bodily infirmity. In other words, there
was no exclusion of risks such as the pres-
cut policies contain in Clause 9 (above
quoted), and therefore that case consti-
tutes no proper analogy to the one now
In Kelly v. Prudential Ins. Co., supra, the
insured, a woman sixty years of age, had
fallen and sustained severe injuries to
the skull which caused her death. It ap-
peared that at the time of the accident she
was afflicted with arteriosclerosis, a condi-
tion of the arteries frequently found in
persons of that age. We held that the case
v.as properly submitted to the jury because
the evidence clearly justified a finding that
the fall was the sole and proximate cause
''i death. The present case is clearly dis-
tinguishable, because plaintiffs condition
indicated the presence of a severe and ab-
normal infirmity, and all the evidence of
the case points to the fact that it united
h the accident in producing his dis-
hbility. Sec Silverstein v. Metropolitan
.. Ins. Co., 254 N.Y. 81, 171 N.E. 914.
As plaintiff failed to present evidence
upon which the jury could have found that
he was entitled to recover under the poli-
cies in suit, we are satisfied that the trial
judge should have directed a verdict in
favor of the defendant. Under these cir-
cumstances, the affirmance of the twentieth
point for charge requested by the defend-
ant could not have been harmful to plain-
tiff, and therefore it did not justify the
award of a new trial by the court in bane.
The order of the court below is reversed,
the verdict of the jury in favor of the
defendant is -reinstated, and judgment is
here entered upon the verdict.
lo 1unra manYr
ROTHRAUFF et ux. v. SINKING SPRING
Supreme Court of Pennsylvania.
June 24, 1940.
I. Contracts C==312(1)
The prevention by a party to contract
of performance by other party constitutes
an actionable breach.
2. Waters and water courses =101
SWhen a spring depends for its supply
upon filtrations and percolations through
land of adjoining owner, and in use of that
land for lawful purposes, spring is de-
stroyed, such owner, in absence of malice
and negligence, is not liable for damage thus
3. Waters and water courses
A property owner may not concentrate
subterranean waters and convey them off
his land if springs or wells of another land-
owner are thereby damaged or impaired.
4. Waters and water courses =101, 158V2
A water supply company which sank a
well on its property and used subterranean
water for purpose of sale and distribution,
causing spring on adjoining land to dry up,
committed, as against adjoining landowners,
a tortious act for which at connmon law
landowners might have recovered resulting
damages, or, there being in existence a con-
14 ATLANTIC REPORTER, 2d SERIES
tract of which such toitious act constituted
a breach by preventing performance on part
of landowners who had agreed to sell spring
water to company, landowners could recov-
er damages for breach of such contract.
S. Waters and water courses C=158'/2(1)
In action against water supply company
for breach of contract in making it impossi-
ble for landowners to furnish water from
spring which dried up after company sank
a well on adjoining property, whether dry-
ing up of spring was caused by sinking of
well was for jury.
6. Waters and water courses 5=(1581/2(1)
Where landowners contracted to sell
spring water to water supply company at
rate of 2% cents per 1,000 gallons and
spring dried up because of drilling of well
by company on adjacent land, the measure
of damages to landowners was amount
which landowners would have obtained un-
der contract from sale of water of the spring
had its fow not been destroyed by com-
7. Waters and water courses =>158'/2(1)
In action against water supply com-
pany for breach of contract whereby land-
owners agreed to sell spring water at rate
of 2% cents per 1,000 gallons, which spring
was caused to dry up by company's drilling
of well on adjacent land, evidence of amount
of flow from spring before well was dug was
properly admitted to determine probable
quantity lost to spring by drilling of the'
8. Damages =86
The law in allowing damages for breach
of contract requires only reasonable certain-
ty as distinguished from mere conjecture.
9. Waters and water courses. =158t/2(I)
In action for breach of contract where-
by water supply company agreed to purchase
spring water at certain rate per 1,000 gal-
lons, which spring was caused to dry up by
company's drilling of a well on adjacent
land, to ascertain damage done to flow of
spring by operation of such well, average
monthly amount of water previously ob-
tained from spring was required to be as-
certained, not for period which was before
operation of another well which was dug on
landowners' land and for which landowners
were paid by company, and which well
caused reduction of flow from spring, but
for period during which flow was already
greatly reduced by pumping of such or:.
10. Appeal and error 0 1178(3)
Where proper measure of damages g,
adopted by trial court, but there was err,,
in way in which it was applied to facts, ..
preme Court upon reversing judgment ,,
rected trial court to make an order giv -
plaintiff option to accept a reduced rate ;.
properly ascertained, or to suffer graunt.;
of a new trial.
Appeal No. 167, January term, 19:'
from judgment of Court of Common Plc .,,
Berks County, March term, 1937, No. 74;
H. Robert Mays, Judge.
Action of assumpsit by Lewis H. RotlI.
rauff and his wife against the Sinki;:;
Spring Water Company to recover darn.
ages for breach of contract. From a judn.
ment for plaintiff for $4,416.50, the dcfend-
Reversed, and record remitted.
Argued before SCHAFFER, C. J., ar.
MAXEY, DREW, LINN, STERN,
BARNES, and PATTERSON, JJ.
Matten & Matten, George Eves, a:n
Charles W. Matten, all of Reading, for
Stevens & Lee and John B. Stevens, aU
of Reading, for appellees.
Plaintiffs are the owners of a farm in
Berks County upon which, until the cvt-:
hereinafter mentioned, there was a deci-
seated spring producing a substani:.'
quantity of water. Defendant, a corpor.a-
ion engag thle business of furni^
n water to e uic, entered into a
written agreement with plaintiffs on J.I"
uary 9, 1935, by which it was to purc..
the effluent of this nnrn fnr a nerio
ten years for the price of two and a h.i
cents er thousand gallons, the flow t
be metered in such manner that wast:.'
or overflow from its reservoir would rt.'
Having difficulty with its other source
of supply and finding that the amount
water received from the spring was r:
adequate for its needs, obt
permission from plaintiff to -ink a W-
on their nronertv in nr, tn secure
additional uantit to augment the
of the spring. Such a well, designat3l
ROTIHRAUFF v. SINKING SPRING WATER CO.
14 A.2d 87
No. 1, was drilled, and the parties there-
n,.*,n signed another agreement, dated May
130,, in which defendant was given
-:ission to install a pump and to con-
,,* this well by a pipe-line to defendant's
t" acting basin, the combined flow of the
a i a:d spring to be metered through the
-'.. existing equipment, or defendant, at
,t, option, might run the water from the
s-l directly into its distribution system
*,.--.;gh an independent meter to be in-
,icifndant, requiring a still larger sup-
..,.vilaintiffs' consent sank three
.e wells on their land. Of these, two
Swhol unsuccessful, and the third
-. abandoned when i was found t
, effect was to muddy the wafer ifi the
SDetendant next drilled a well on
i: own property some distance below the
,,ring, but the water there was not po-
h !'c. Then defendant took options on- a
rperty adJoifnimy hat f plaintiffs andon
i dug three additional wells none of
w hch gave satisfactory results. During
0ci:ober and November, 1936, defendant
d'1-lled another well. designated No. 9. on
'' s same property; this well furnished-an
a'bundant supply of water, but immediately
-.,n ooerating it. at the hpfinnir of
1. memberr. 1936. nlaimiffs' srin went dry,
. condition which has since persisted and
,.hiich the parties apparently agree will
!< permanent. As far as well No. 1 is
c-'ccerned, defendant continued to pump
-,.:Cr therefrom, under the contract of
.,y 29, 1936, until October, 1937. In
J :ie, 1938, the parties entered into a third
c";i;ract by the terms of which defendant
;;rr-d to pay plaintiffs a flat rate of $100
; nr month for water taken from this well,
t.r.-rdless of quantity, and this contract
i -till in force and plaintiffs have been
# -d in accordance with its terms.
The present action was brought by plain-
':; to recover three items. One, of $286.-
'". was for water taken by defendant from
s spring and from well No. 1 during
months of October and November,
S; liability for this amount was admit-
'* by defendant at the trial and is not in
< '.roversy. A second item, of $451.22,
fir water taken by defendant from
N:i o. 1 between December, 1936, and
'- ,r, 1937; no part of this item,--al-
S ':h S363.59 thereof was admitted by
:.;nt in its affidavit of defense to be
'-;-as included in the verdict obtained
-, plaintiffs. The third and principal
item. .of S4.-474.8 was for water. at the
rate of two and a alf cents r thousand
gallons which plaintiffs claim would have
been stained from s an v-
ered to defendant under the contract of
fanuarv9. 1935 had eendant not made
such delivery imnnsih1. byv it- s-tinllm f
well o. 9. the result of which. according
to plaintiff, was the dryin up of their
sr_ The $4,744.81 thus claimed was
intended to represent the value of the es-
timated flow for the period from Decem- 700"
ber 1, 1936, the time of the stoppage of
the spring, until November 1, 1938; the
significance of the latter date, or why the 414 a
claim was thus limited, is not apparent --- 7
from the record. Pdo.
The jury returned a verdict in favor of
plaintiffs for $4,416.50 being the sum of ZSo,ooo
the items of $286.65 and $4,744.81, less atol
a set-off of $615 admitted by plaintiffs to J
be due defendant for the cost of drilling
well No. 1, for which plaintiffs, in the
contract of May 29, 1936, had agreed to
(1] It will be noted at the outset that
plaintiffs are not proceeding in trespass
for the difference in the value of their
land before and after the permanent de-
struction of the spring, but in assumpsit
for breach of the contract of Tanuar- 9,
19-5. The suit is founded upon the prin-
ciple that the prevention by a party to a
contract of performance by the other par-
ty constitutes an actionable breach. Re-
statement, Contracts, section 315 (1);
Rogers v. Davidson, 142 Pa. 436, 439, 21
A. 1083; Arlotte v. National Liberty In-
surance Co., 312 Pa. 442, 445, 167 A.
295, 108 A.L.R. 896; Miles v. Metzger,
316 Pa. 211, 217, 173 A. 285. But
defendant contends that even if the
drilling of well No. 9 did cause plain-
tiffs' spring to run dry, this was neither
the breaking of a contract nor the com-
mission of a tort, because defendant had
a legal right to drill the well, and if any
damage was caused thereby to plaintiffs
it was damnum absque injuria.
More than fifty years ago this court
said in Lybe's Appeal, 106 Pa. 626, 634,
51 Am.Rep. 542: "Than the doctrine
of subterranean percolations and water
courses no subject has been more fully dis-
cussed in our books." And yet, curiously
enough, although there have been even
more cases on this subject since that deci-
sion than before it, the important issue
*r' .n~.r,...~ ___ .. -_1.. --*-I. ,..-~..,. ,
14 ATLANTIC REPORTER, 2d SERIES
involved in the present litigation is a
novel one in this State.
[2-4] This much is settled,-that when
a spring depends for its supply upon l-
trations and percolations through the land
of an adjoining owner. and in the use of
that land for lawful purposes the spring
is destroyed, such owner, m the absence
of malice and negligence on his part, is
not liable for the damage thus occasioned.
Wheatlcy v. Baugh, 25 Pa. 528, 64 Am.
Dec. 721; Haldeman v. Bruckhart, 45 Pa.
514, 84 Am.Dec. 511; Coleman v. Chad-
wick, 80 Pa. 81, 21 Am.Rep. 93; Lybe's
Appeal, 106 Pa. 626, 51 Am.Rep. 542;
Collins v. Chartiers Valley Gas Co., 131
Pa. 143, 18 A. 1012, 6 L.R.A. 280, 17 Am.
St.Rep. 791; Id., 139 Pa. 111, 21 A. 147;
Williams v. Ladew, 161 Pa. 283, 29 A. 54,
41 Am.St.Rep. 891; Zimmerman v. Union
Paving Co., 335 Pa. 319, 6 A.2d 901. The
question now arises in regard to the scooe
of the limitation embodied in the phrase
"in the use of that land for lawful pur-
poses." Such purposes undoubtedly in-
ude mining, quarrying, building, drain-
ing, cultivating and irrigating the land,
as well as watering live stock and domes-
tic uses in general. Do the same rights
exist in the case of an owner who treats
subterranean water as merchandise for
sale and distribution to persons having no
connection with the land from which the
water is derived? Under what is known
as the English rule,1 as well as most of
the earlier decisions in this country, no
distinction was made in this respect, the
argument being that subjacent water, like
minerals or oil, should belong to the own-
er of the land absolutely and for all pur-
poses, and that, because of the difficulty
of tracing the occult movements of under-
ground waters, and because an attempt
to administer any other legal rule would
involve the subject in uncertainty, the only
practical solution is to allow each owner
to enjoy full rights of property in the
waters under his land. But the marked
1 This rule never prevailed in the ease
of surface streams, it being uniformly
held as to them that while a riparian
owner may use the water for purposes
incident to the proper enjoyment of his
land, he has no right to divert or sell it
fL' for use in no way connected therewith.
Scranton Gas & Water Co. v. Delaware,
Lackawanna & Western R. R. Co., 240
Pa. G01, 88 A. 24, 47 L.R.A.,N.S., 710;
Palmer Water Co. v. Lehighton Water
tendency in Amerian iurisdition. ;
later years has been away from the d
trine that the owner's right to sub-r.
face waters is unqualitea; on Me
trary here has been an ever-inrcra
acceptance of the viewpoint that thn
must be limited to nurnoses inident
the beneficial enjoyment of the land f~.
which they are obtaied, and if ei
version or sale to others away from :
land mpairs the supply o a spring
well on the property of another s-ui
is not for a lawful purpose" within
general rule concerning percolating 1*
tr but constitutes an actionabe w-r
r which damages are recoverab
While there is some d rence nf nij.r
as to what should be regarded as a rr-
sonable use of subterranean waters
modern decisions are fairly harmonious n
holding that a property owner may
concentrate such waters and convey e
off his landif the springs or wells of
another landowner are thereby damai
or mai Among leading cases in..
e-cited: Forbell v. City of New Yo:,.
164 N.Y. 522, 58 N.E. 644, 51 L.R.A. (6 .:
79 Am.St.Rep. 666; Dunbar v. Swecm- .
230 N.Y. 609, 130 N.E. 913; Katz v. \VW
kinshaw, 141 Cal. 116, 70 P. 663, 74 i'.
766, 64 L.R.A. 236; 99 Am.St.Rep. 3..
Erickson v. Crookston Waterworks, Po' -
er & Light Co., 100 Minn. 481, 111 N.\\
391, 8 L.R.A.,N.S., 1250, 10 Ann.Cas. S:8:
Meeker v. City of East Orange, 77 N.J ..
623, 74 A. 379, 25 L.R.A.,N.S., 465, l.:
Am.StRep. 798; Rouse v. City of Kins:ii
188 N.C. 1, 123 S.E. 482, 35 A.L.R. 12
In the absence of precedent in our on-
State we adopt this view as the pro:
interpretation of the law, and therci:
hold that when defendant sank well .N
9 and used the water therefrom for _
purpose of sale and distribution, it conn:
ted, as against plaintiffs, a tortious act '
which at common law they might have
covered resulting damages, or, there
ing in existence a contract of which -
illegal act constituted a breach by precv
Supply Co., 280 Pa. 492, 124 A. 717:
Lackawanna Mills v. Scranton Gas!
Water Co., 300 Pa. 303, 150 A. (;':'.
The same is true of subterranean aIr''
which, instead of being diffused and "''
coating, flows in such a well-defined '
tercourse as to constitute a regular anl
constant stream. Whetstone v. 3'"-
ser, 29 Pa. 59; Brown v. Kistler, 1'
Pa. 499, 42 A. 885.
.q ,rmiancc on the part of plaintiffs,
S.a,. as already pointed out, recover
*. i' their present action on the con-
i, The factual question, vigorously
.,., .: t the trial, was whether the dry-
...i plaintiffs' spring was actually
t,, ;v h sinking of well No. 9. Both
S r.'-sented evidence; this issue was
.. j':ryv and its verdict is conclusive.
.:, ie measure of damages, this was
,< .isnmed to be the amount which
: 0. would have obtained under their
fr.ct fom the sale of the water of the
Sh;!: its flow not been destroyed by
wAmW's act. Plaintiffs were entitled
o wavor for such water at a valuation
,( aw itA a half cents per thousand gal-
tsw. and in order to determine the prob-
bue *uanty lost to the spring by the drill-
a o# well No. 9 it was proper to receive
eq. ttu of the amount of flow from the
before that well was dug. It. is
o ':jt the damages thus computed are
S- ly to be wholly accurate, but the
St.;i;res only reasonable certainty as
,:::nisihed from mere conjecture. Re-
.-::*. Contracts, section 331 (1) and
S.i,, is thereunder; Macan v. Scandi-
*,a Belting Co., 264 Pa. 384, 392, 393,
SA. 750, 5 A.L.R. 1502; Freedom Oil
a Co. v. Williams, 302 Pa. 51, 56,
:A. .11; Commonwealth Trust Co. of
.: trgh v. Hachmeister Lind Co., 320
S233, 239, 240, 181 A. 787.
'! .I'nortunately, while the proper
.-:re of damages was adopted by the
S:t. there was error in the way in which
applied to the facts of the case,
:Ci verdict cannot be sustained in the
S :t rendered. Plaintiffs, having limit-
-ir claim to the quantity of water
the spring during the twenty-three
s from December 1, 1936, to No-
S-r 1, 1938, chose, as the criterion to
.-..:h the likely loss per month during
ip riod, the average number of gal-
,r month which the spring produced
Sthe year from June, 1935, to May,
All the witnesses, however, includ-
'e of plaintiffs testified. and plain-
:-d their counsel admitted, that the
ot well No. I on plaintifs" land
S:ter away from the spring; indeed
wn that; t he flow from the latter
a .rply and continuously from the
'nen well NoI was first o rated,
a t yt June 1, 19, unit nal
extinction of the spring in the beginning
of December, 1936. For any loss w
ter due to the drilling of woll MN 4e-.
adaat is ot liable, because that well
was sunk by agreement of the parties and
plaintiffs are being paid under a separate
contract for the water taken from it by
defendant. In order, therefore, to ascer-
tain the damage done to the flow of the
spring by the operation of well No. 9, the
average monthly amount of water pre-
viously obtained front the spring must be
ascertained, not for the year ending in
May, 1936, which was before well No. 1
went into operation, but for the period
from June 1 to December 1, 1936, during
which time the flow was already greatly
reduced by the pumping of that well The
learned trial judge in his charge to the
jury in effect told them that the damages,
if any, due plaintiffs for loss occurring
during the period from December 1, 1936,
to November 1, 1938, because of the drill-
ing of well No. 9, amounted to $4,744.81,
which was the figure erroneously claimed
by plaintiffs, instead of instructing the jury
to be guided, in their estimate of that loss,
only by the flow of the spring after it had
become affected by well No. 1.
 Defendant placed in evidence a
chart (exhibit No. 10) from which it would
seem that the average monthly amount of
water received by defendant from the
spring, as distinguished from that received
from well No. 1, from June 1 to December
1, 1936, can readily be ascertained, espe-
cially if supplemented by the records of
the actual payments made by defendant
during that time after deducting those at-
tributable to the water pumped from well
No. 1. The court below should compute
therefrom the average monthly amount of
water from the spring received by defend-
ant from this six-month period between
the time when well No. 1 came into opera-
tion and -the drilling of well No. 9; the
amount thus ascertained, multiplied by
twenty-three, will indicate the probable
quantity of water of the spring lost to
plaintiffs for the period for which they
have claimed damages in the present ac-
tion, and that quantity, at the rate of two
and a half cents per thousand gallons, will
establish the sum to which they are here
entitled on this item. To this should be
added the items of $286.65, admitted to
be due, and $363.59 (if still unpaid), be-
ing the part of the item of $45122 admit-
ted in the affidavit of defense to be due
ROTHRAUFF v. SKIING SPRING WATER CO.
14 A.d 87
14 ATLANTIC REPORTER, 2d SERIES
for water taken by defendant from well
No. I between December, 1936, and Octo-
ber, 1937. There should be deducted the
counter-claim of $615. The court should
then make an order giving to plaintiffs
the option to accept a reduced verdict as-
thus ascertained or to suffer the granting
of a new trial. The acceptance, of the
latter alternative will enable plaintiffs, if
they so desire, to present evidence of their
own in regard to the amounts of water
received from the spring from June 1 to
December 1, 1936, instead of being con-
cluded by the figures in defendant's ex-
hibit No. 10.
The judgment is reversed, and the rec-
ord is remitted to the court below to pro-
ceed as herein directed.
CASARI et al. (KIRCHNER et al., Inter.
veners), v. VICTORIA AMUSEMENT
ENTERPRISES, Inc., et al.
Appeals of VICTORIA AMUSEMENT EN-
TERPRISES, Inc., et al.
Supreme Court of Pennsylvania.
June 24, 1940.
ieargument Denied Sept. 12, 1940.
I. Appeal and error 42=1097(I)
In suit for an accounting where review-
ing court directed that defendants should
account, attorney appealing from decree fix-
ing the amount of his fee could not reargue
main question presented on prior appeal.
2. Appeal and error =>1206
Where reviewing court in accounting
proceeding ordered attorney to return cer-
tain bonds to treasury of corporation, which
order was disregarded and corporation sub-
sequently redeemed part of bonds by pay-
ment of a sum to attorney with interest and
remainder of the .bonds attorney returned
to corporation, attorney would be required
to return cash received for bonds and in-
3. Attorney and client 3=141
Allowance of $15,000 to attorney as fee
in accounting proceeding was not an abuse
Appeals Nos. 128, 129, and 188, Januatr
term, 1940, from decree of Court of C.,::.
mon Pleas, Northumberland County, si.
in Equity, No. 621, Equity Docket; Ma.
Bill in equity by G. A. Casari and oth i-
against the Victoria Amusement Ent-,r.
prises, Inc., and others to acquire cor.t:,-
over the conveyance of property now crc
trolled and held by defendants and for aa
accounting, wherein James H. Kirchr:
and others intervened as complainar.'
The individual defendants were order.
to account and from the decree enter!
after accounting, the Victoria Amuseme:::
Enterprises, Inc., G. A. Casari and othcen
and John L. Pipa, Jr., appeal.
Decree in accordance with opinion.
Argued before SCHAFFER, C. J., an!
DREW, LINN, STERN, BARNES, and
Nos. 128, 129:
William I. Troutman, of Shamokin, and
Robert T. McCracken and A. Evans Kcp-
hart, both of Philadelphia, for appellants.
John L. Pipa, Jr., S. L. Gribbin, and
J. A. Welsh, all of Shamokin, for appel-
George M. D. Richards, of Lansford, for
petitioners Elwood J. Reese et aL
J. A. Welsh, of Shamokin, for appellant
William L Troutman, of Shamokin, for
 The merits of the controversy b-
tween these parties were fully consider,,
and disposed of when the case was hc :
before (327 Pa. 382, 194 A. 503). Tt'
only matters properly before us are the-'
arising out of our previous order. Thcrti
we directed that the individual defenda:
should account. This they have d,)!
and exceptions have been taken by plain-
tiffs to certain items therein and to r''
court's action thereon in No. 129, Janua:
Term, 1940, and by Victoria Amuse:::':
Enterprises, Inc., in No. 128 of the s;;..
term. Pipa has appealed, No. 188, Janu-':
Term, 1940, from the decree fixing t'i
amount of his fee and attempts to rearg.n
the main question. We shall not go o0'
that ground again. He has no standii:
to now challenge our conclusions.
We directed the chancellor to determn:i
under equitable principles whether 1':4"