TOWNSHIP OF HATFIELD v. LANSDALE MUNICIPAL AUTH. Pa. 333
Cite as 16.5 A.2d 333
.a:, Pa. 113
TOWNSHIP OF HATFIELD and Owen J.
Keenan et al., on their own behalf and
on behalf of two hundred fifty property
owners and residents of Hatfield Tp., Coun-
ty of Montgomery, Pa., whose water wells
are jeopardized by the deep water well of
Lansdale Municipal Authority in Hatfield
LANSDALE MUNICIPAL AUTHORITY et
Supreme Court of Pennsylvania.
March 13, 1961.
Suit for injunction. The Court of
(Cinnoon Pleas of the County of Mont-
g ;ery (in Equity), November Term, 1957,
a: No. 20, Morris Gerber, J., entered decree.
i cifendants appealed. The Supreme Court,
N ,. 10, January Term, 1961, Cohen, J., held
t!::t neighboring property owners whose
wiatcr wells were damaged during trial run
,i municipal authority's well were properly
gr-:nted permanent injunction conditional
(o authority's joining to its system without
cot all interested injured parties within
raitius of 1,600 feet.
1. Waters and Water Courses -=132
There is no absolute right to appropri-
;t- percolating waters for unlawful pur-
i;,-e; such unlawful purpose includes di-
xrsion for sale to others away from land
\%h en such conduct impairs supply of well
,:1 property of another; this is the doctrine
oi "reasonable user".
Soe publication Words and Phraises,
for other judicial constructions and defi-
nitions of "Reasonable User".
2. Waters and Water Courses =152(3)
Neighboring property owners whose
S.tcr wells were damaged during trial run
'" municipal authority's well would be
:'"ited permanent injunction conditional
1i: n authority's joining to its system with-
out cost all interested injured parties within
radius of 1,600 feet.
High, Swartz, Childs & Roberts, Aaron
S. Swartz, III, Norristown, for appellants.
William R. Cooper, II, Lansdale, for ap-
Before CHARLES ALVIN JONES, C.
J., and BELL, MUSMANNO, BENJAMIN
R. JONES, COHEN, BOK and EAGEN,
This is an appeal from a decree of the
Court of Common Pleas of Montgomery
County in a class action brought in equity
to enjoin the appellants, Lansdale Municipal
Authority (hereinafter referred to as the
Authority) from operating a well in Hat-
The appellees, individual neighboring
property owners, claim that the operation
of appellants' well during a trial run caused
the dehydration of some of their wells and
a diminution of water supply in others, and
that continued operation of the well would
seriously and permanently impair their
The lower court decreed th1t an ini0nc-
tion would be enforced unless certain con-
dios were met by the Authority. The
conditions required that any present user
or owner of a well within a radius of 1,600
feet of the Authority's well could request
to be connected to the roosed dateline
without cost, but they would pefor te
The issues here on appeal are whether
there is a right of absolute appropriation of
percolating water, and, if not, is either a
permanent injunction or an injunction con-
ditioned on meeting specific prerequisites
the proper remedy.
 It is settled law in this state that,
in derogation of the English rule of absolute
appropriation, there is no absolute right
168 ATLANTIC REPORTER, 2d SERIES
to appropriate percolating waters for an un-
lawful purpose. Such an unlawful purpose
includes the diversion for sale to others
away from the land when such conduct im-
pairs the sumply of a well on the property
of another. Rothrauff v. Sinking Spring
Water Company, 1940, 339 Pa. 129, 14 A.2d
87. This is referred to as the doctrine of
 The Authority, by putting its well
through a trial run under standards accept-
ed by custom of the well drilling trade,
demonstrated that the operation of the well
during a normal trial period will cause im-
mediate damage to the neighboring wells.
Appellants claim that operation of the well
at two-thirds of the intended normal rate
will not be harmful to the neighboring
wells, but there is no proof of this. The ap-
pellants cannot now expect a court to over-
see reduced operation of the wells to deter-
mine if a satisfactory intermediate modus
opcrandi could be settled upon within the
limits of the reasonable user rule. Our
courts are not equipped to handle such re-
Nor can appellants succeed in persuading
this court to adopt the western rule of ap-
portionment by dividing the community's
water supply into shares which will be satis-
factory to all. That doctrine deviates from
the English rule of absolute appropriation
and was adopted because of the geographi-
cal and climatic differences between the arid
western states and England, where water
was plentiful. The Pennsylvania rule, as
stated in the Rothrauff case supra, lies
somewhere between these two rules.
The problem of water supply is fast be-
coming a matter of great concern in Penn-
sylvania. It is not apocryphal to note that
the super-abundance of water that we have
enjoyed in the past may soon be reduced to
mere adequacy as a result of industrial ex-
pansion, increased agricultural development
and irrigation, and population growth.
However, this is not now a matter for this
court, but one which should have our legis-
lature's prompt consideration.
The lower court, mindful of the iniury
incurred on a;nnellecs, nevertheless took i u
twice of the "municipal function and service
performed by the Authority" and made th,
permanent injunction conditional upon ap.
pellant Authority's ioininz to its system
without cost all interested injured parties
within a radius of 1,600 feet. That court,
relying on Restatement, Torts 858-Sk.
(1939), held that a court of equity in cases
involving subterranean water rights cou'i
ba:lince the needs of a total community ai-
fected by a permanent injunction against
the proeprty rights of the appellees. Ac-
tually, it was appellant Authority who sub-
mitted the initial conditional plan which.
merely was modified and expanded by the
court below. The determination of the
lower court was well within the broad pow-
ers of a court of equity and will not be dis-
turbed by our court.
Decree affirmed at appellants' cost.
402 PIa. C:
George W. MOORE, Appellant,
Joseph QUIGLEY and William H. Gunther.
Supreme Court of Pennsylvania.
March 13, 1961.
Trespass to recover damages for
beating allegedly inflicted on the plai::: t
The defendants filed a counterclaim i
damages arising out of the same altcr',
tion. From a judgment of the Court '
Common Pleas of Berks County at No.
December Term, 1957, Albert S. Reahr.:('
J., the plaintiff appeals. The Sl;':-
Court, No. 86, January Term, 1961, Chl
Alvin Jones, C. J., held that where .'
ment was invalid because it was en:1
before the time for filing a new trial 1i':
had expired, an appeal therefrom n '