#### Straight *v.*Hover.

*Contamination of stream*— Lower *proprietor of lands entitled to damages-*— Upper *owner of lands operates for petroleum*— Salt *water discharged into stream*— Operation *conducted with care and in only practicable mode.*

1. It is the right of the lower proprietor of lands upon a running stream to receive the water from upper proprietors free from contamination by artificial means, and for substantial injuries which result from an invasion of that right he may maintain an action without regard to the motive which prompts the invasion.

2. An upper owner of lands upon such stream who operates them for underlying petroleum by pumping it and the salt water with which it 'is commingled into tanks and, after the petroleum rises, withdrawing the salt water from beneath and discharging it by gravity into the stream is liable in compensatory damages for such substantial injuries as may be sustained by a lower proprietor in consequence of the water in the stream being thereby rendered unfit for the use of live stock and destructive of the grass with which it comes in contact, although such operation is conducted with care and in the only known practicable mode of developing the mineral resources of his lands.

(No. 10646

Decided January 26, 1909.)

Error to the Circuit Court of Allen county.

Mrs. Hover brought suit in the court of common pleas to recover from Straight damages which she alleged were sustained by her in consequence of his polluting a stream of water which naturally flowed from his premises upon hers, the pollution resulting from Straight’s operation of his lands for underlying petroleum, in which operation petroleum was separated from salt water with which it is commingled, and the salt water discharged into the stream rendering its water *264unfit for her live stock and causing it to overflow and injure the grass of her' pasture land through which the stream flows. Straight answered setting up three defenses. On the first and second defenses the cause was tried to a jury which found for the plaintiff in the sum of $102.25 for which judgment was rendered in her favor. Upon those defenses no question now arises. The question here presented arises upon a third defense, to which the court of common pleas sustained a general demurrer. In that defense Straight alleged that he cast no water or other substance upon the plaintiff’s lands except by the stream which naturally flowed from his lands to hers, that he was engaged in operating his lands carefully and in the only known mode for operating lands for underlying petroleum, and that the resulting discharge of the salt water raised from his wells into the stream, which was the natural drainage of the basin, was inevitable. The demurrer to this defense having been, sustained in the court of common pleas, judgment in favor of the plaintiff was entered and that was affirmed by the circuit court.

*Messrs. Richie & Leland*and *Mr. John W.*Roby, for plaintiff in error.

The cases relating to the pollution oi streams by factories, or in the course of any artificial use of the soil, do not apply to such facts as are here involved. The factory can be located elsewhere than at the point where the damages accrues. The oil on the other hand has been put in place by nature, and its production is but a natural use of the property where found.

*265If the right of operating for it be denied then the owner is deprived of one of the natural uses of his property, and mankind is deprived of the use of one of earth’s great natural resources.

It can not be said that the 'rule that one must use his own so as not to injure his neighbor applies. *Iron & Steel Co.*v. *Kenyon,*L. R., 11 Ch. Div., 783.

Nor does the mere fact that damage has ensued entitle one to relief. It may be *damnum absqiie injuria*and as we have said in the Sander-son case hereinafter referred to, “It may be stated as a general proposition that every man has the right to the natural use and enjoyment of his own property, and if, while lawfully in such use and enjoyment, without negligence or malice on his part, an unavoidable loss occurs to his neighbor, it is *damnum absque injuria,*for the rightful use of one’s own land may cause damage to another without any legal wrong.”

In Pennsylvania and Indiana this question has been fully discussed and settled to the effect that where others are injured by a natural use of property, it is but *damnum absque injuria. Barnard*v. *Sherley,*135 Ind., 547, 34 N. E. Rep., 600, 35 N. E. Rep., 117, 41 Am. St., 454, 24 L. R. A., 568.

The same question was reconsidered and former decision approved in *Barnard*v. *Sherley,*151 Ind., 160, 41 L. R. A., 747, 47 N. E. Rep., 671.

The leading case on the subject is *Coal Co.*v. *Sanderson,*113 Pa. St., 126, 57 Am. Rep., 445, 6 Atl. Rep., 453.

In this latter case the process of mining • developed a stream of acidulated water, which was *266permitted to flow into the water course of the basin in which the coal mine was situated, to the material damage of a lower riparian land owner. The court sustained the right of the mine owner to permit such flow.

It will not do to say, in the case at bar, that this water could be diverted from land of plaintiff below by the use of a sewer or ditch, for then it must be. thrown into some other water course, and, as was said in the Sanderson case, “It pan not be said where short of the sea, such sewerage could stop.” *C. & H. C. & I. Co.*v. *Tucker,*48 Ohio St., 41, was relied on by the court below as authority for its ruling in sustaining its demurrer to the third defense. This case is one where the coal slack was deposited on the land of the miner in such a position that a stream of water washed it down and over the land of the adjoining owner. A coal slack case is in no way parallel to a water case. The coal slack is something which by its very nature may either be disposed of by burning or so deposited as to remain where placed. The fact that the miner in the Tucker case did not have sufficient land for the storage of his slack did not relieve him from caring for the same. But water has a natural flowage and may not in its nature be indefinitely contained.

The Pennsylvania courts recognize this distinction and fully uphold the principle laid down in 48 Ohio St. by two well known decisions. *Elder*v. *Coal Co.,*157 Pa. St., 490, 27 Atl. Rep., 545, 37 Am. St., 742; *Hindson*v. *Markle,*171 Pa. St., 138, 33 Atl. Rep., 74.

*267Nor in considering the Ohio coal slack case (48 Ohio St., 41) should the fact be lost sight of that the decision was predicated primarily on a criminal statute prohibiting the depositing of coal slack in the manner in which it was deposited in that case. \

Though it has often discussed the question, our legislature has always, in view of the great property interests at stake, refused to prohibit by criminal statute the flowage of salt water into the streams of the state. Section 6925, Revised Statutes, now permits such flowage. It would certainly seem that the declaring of certain acts named in this section to be unlawful, but expressly, excepting the running of “fresh and salt water” into water courses, from the list of unlawful acts, fixes the right to run fresh and salt water into water courses as clearly as if it had said that such an act is lawful- — -that certain acts are unlawftil but this act is not unlawful.

The Pennsylvania courts have directly and specifically applied the principle of the Sanderson case to numerous oil mining cases. *Pfeiffer*v. *Brown et al.,*165 Pa. St., 267, 30 Atl. Rep., 844.

In considering the applicability of the case last cited to the case at bar it must be remembered that the third defense, the demurrer to which was sustained by the lower court, avers that it was only possible to successfully and profitably operate the oil wells of the plaintiff in error here by disposing of the salt water in the manner in which he was disposing of the same.

*268*Messrs. Ridenour & Halfhill,*for defendant in error.

The drilling and operating of oil wells is a form of mining, and is therefore controlled by the laws applicable to mining. We do not contend that the drilling of oil wells is an unusual use of the lands as compared with those engaged in the same forms of business in certain localities, but is an exceptional use rather than a common and ordinary use. It is not incidental to the use of the soil itself, and yet, indeed, it is destructive of what is the most common use of the soil, viz: for agricultural purposes.

The doctrine on which the cases in Pennsylvania and Indiana have been decided, viz: that it is the development of the natural resources of the country, does not apply in Ohio. The common pleas court in sustaining the demurrer to the defendant’s answer and applying the law in the trial of this case followed the doctrine and rule that prevails in most of the states, and especially based its ruling upon the case of *C. & H. C. & I. Co.*v. *Tucker,*48 Ohio St., 41.

The court in its charge to the jury also relied upon the above authority as being the law governing this case, and we maintain that the charge in substance contains the rule of law as announced in the above case.

The plaintiff in error contends that he has operated his wells as is customary in the Ohio and Indiana oil fields and in the only way that oil wells can be successfully operated at a profit, etc. The same argument was used by the coal company in *C. & H. C. & I. Co.*v. *Tucker, supra.*

*269The plaintiff in error also contends that he has conducted his business in the only practical way. This contention was also made in *C. & H. C. & I. Co.*v. *Tucker, supra.*We think this case is in common with the case in review: that all of the claims made by the plaintiff in error are answered and fully decided by this court in that case.

The entire brief of plaintiff in error is based upon the rule laid down in *Barnard*v. *Sherley,*135 Ind., 547, and 151 Ind., 160, and *Coal Co.*v. *Sanderson,*113 Pa. St., 126, and a few other cases decided in Pennsylvania following the rule announced in 113 Pa. St.

The doctrine of the Pennsylvania and Indiana cases is not followed by a majority of the states. The Ohio rule, announced in 48 Ohio St., is the rule observed in the following cases: *Jacobs*v. *Allard,*42 Vt., 303; *Manufacturing Co.*v. *Atlantic De Laine Co.,*10 R. I., 106; *Washburn*v. *Gilman,*64 Me., 163; *Canfield*v. *Andrews,*54 Vt., 1; *Robinson*v. *Coal Co.,*57 Cal., 412; *Roller Mills*v. *Wright, Admx.,*30 Minn., 249.

Any use that materially fouls and adulterates the water, or the deposit or discharge therein of any filth or noxious substance that so affects the water as to impair its value for, the ordinary purposes of life, will be deemed a violation of the lights of the lower proprietor. *Baltimore*v. *Manufacturing Co.,*59 Md., 96.

Mine water can not be turned into a stream in such way as to pollute it, although the pollution is nothing more than to render the water which was before soft and suitable for distilling purposes, hard, and unfit for such purposes. *Young & Co.*v. *Distillery Co., A.*C. 1893, 691.

*270An upper proprietor can not throw poisonous and corrosive substances into the stream so as to corrupt the water to the extent that the machinery of the other proprietors on the stream is corroded and destroyed and the use of the water for reasonable and proper purposes impaired and perverted. *Merrifield*v. *Lombard,*13 Allen, 16.

The owner of a bleachery will not be permitted to turn the chemicals used in his business into the stream so as to render the water unfit for domestic use for the lower proprietor. *Holsman*v. *Bleaching Co.,*14 N. J. Eq., 335.

A stream can not be polluted for mining purposes. *Beach*v. *Iron & Zinc Co.,*54 N. J. Eq., 65.

Water can not be polluted by washing iron ore to such an extent as to render it unfit for the domestic use of the lower, proprietor. *Coal, I. & R. Co.*v. *Hamilton,*100 Ala., 252; *Hunter*v. *Coal Co.,*16 Ky. L. Rep., 190.

There is no difference in' the rules governing natural and artificial watercourses. So if the right to an artificial course has been acquired, mine water can not be turned into it in such a way as to pollute it. *Magor*v. *Chadwick,*11 Ad. & El., 571.

Many other cases can be cited from the various states supporting the Ohio doctrine.

The plaintiff in error, however, contends that the case of *The C. & H. C. & I. Co.*v. *Tucker,*48 Ohio St., *supra,*was based on a criminal statute. It is true that there is a criminal statute declaring that the depositing of refuse from a mine in certain places constitutes a nuisance; but the court decided the case on the principles of the *271common law and did not rely upon the criminal statute.

The plaintiff in error has seen proper to cite Section 6925, Revised Statutes, making it a misdemeanor to permit petroleum or crude oil or any compound or mixture or other product of such well, except fresh and salt water to escape into a water course, etc., and he argues'that by reason of the fact that salt water is excepted from this criminal statute, that it becomes lawful to permit salt water to flow into any stream of this state in any quantity. -This is true only to the extent that the rights of the lower proprietor in said stream and his said land be not injured.

This statute can in no way vary the rule requiring one to respond in damages for permitting salt water to flow into a stream in stich quantities as to injure the lower proprietor. It is the abuse of the upper proprietor in permitting the salt water to flow in such quantity as not only to destroy the water in the stream, but also to injure the realty itself that is complained of and for which suit is brought.

Shauck, J.

Counsel for defendant in error cite as complete authority for the judgment under review, *The C. & H. C. & I. Co.*v. *Tucker,*48 Ohio St., 41, and it is said that the case was so regarded in the courts below. In that case it was held that, where in the operation of a coal mine, coal slack, dirt and refuse are washed down upon the lands of a lower proprietor to his injury, an action lies to recover damages therefor, the deposits having been made intentionally upon the *272defendant’s premises though made in the conduct of the business in accordance with the general practice in the operation of similar coal mines in the surrounding district. That case may not be full authority for the judgment of the courts below in the present case since it did not affirmatively appear there, as it does here, that the injury resulted from the careful pursuit by the defendant of the only known mode in which it was practicable to develop the mineral resources of its lands. While the facts upon which the original plaintiff counted in *The Salem Iron Company*v. *Hyland et al., 74*Ohio St., 160, were substantially the same as those presented here, a different remedy was sought. In that case we concluded, that inasmuch as the plaintiff could not be entitled to a remedy in equity unless it could recover at law and the injuries complained of did not amount to an appropriation of its property, but merely constituted a nuisance which might be adequately compensated in damages, the equitable considerations presented would not justify us in rendering a decree which would in effect deny to the'defendants the opportunity of bringing to the surface and subjecting to use the petroleum underlying their lands. Whether the injuries which resulted to the plaintiff from the discharge of salt water into the flowing stream which it had been accustomed to use in its natural state of comparative purity was a burden to which the lower proprietor must submit without remedy, or was a proper subject for compensation in damages, was expressly left undetermined.

*273The view which counsel for the plaintiff in error urges upon our attention is, that he has an. undoubted right to develop the resources of his land by bringing the underlying petroleum to the surface and preparing it for market, that throughout the Ohio field it is commingled with salt water from which it must be separated by pumping it into tanks and by drawing the salt water from beneath the petroleum after it rises, that the salt water can not be indefinitely confined, and that drainage effective to prevent its uniting with the fresh water of flowing streams can not stop short of the sea. The conclusion is, that since he is carefully exercising a right in the only known practicable mode he incurs no liability for the consequences which result. This view has won the approval of courts in a few of the cases contained in the reporter’s abstract of the briefs. Of these the leading case is *Pennsylvania Coal Company*v. Sanderson, 113 Pa. St., 126, which is not distinguishable from the present case by any fact of legal significance. Water necessarily developed in the operation of a coal mine was discharged into a stream which was the natural drainage of the basin and resulted in such a change in the character of the water of the stream as rendered it unfit for the uses to which it had been devoted by the lower proprietor when received in its natural state. Suit having been brought to recover for such injurjq the trial court took the view now urged by counsel for the plaintiff in error here and the judgment was adverse to the right to recover. In a proceeding in error in the supreme court the judgment was reversed, six *274of the seven judges concurring. The view taken by the Supreme Court of Pennsylvania in that case, and elaborated in its opinion, is well expressed in the syllabus: “The invasion of an established right will in general *per se*constitute an injury for which damages are recoverable, for in all civil acts the intent of the actor is less regarded than the consecjuences to the party suffering. However laudable industry may be, its managers are still subject to the rule that their property, can not be so used as to inflict injury on the property of others.” This view of the law was applied to the following concrete case: S. purchased a tract of land in the coal regions, upon which he erected a handsome residence. One of the principal inducements to the purchase was that a stream of pure mountain water ran through the tract, and a number of valuable improvements were made in order that the residence and grounds might be supplied with water for culinary, bathing and other purposes. Shortly after these improvements were completed a mine was opened by defendant on the stream about two miles above the land of S., the water from which when pumped or flowing naturally therefrom ran into the stream and so polluted it as to render the water unfit for any of the uses to which S. had adapted it. Upon the above facts the court below entered a nonsuit, on the ground that in the absence of negligence or malice this was *damnum absque injuria. Held,*that S. had a right of action and the case should have been submitted to a jury. The harmony between the law of' England and that of the United States upon the subject was assumed, for *275much reliance was placed upon the instruction given by Mr. Justice Mellor in *St. Helen's Smelting Company*v. *Tipping,*11 H. L. Cases, 642, which had been approved in the Queen's Bench in the Exchequer Chamber and in the House of Lords. The judgment of the trial court in the Sanderson case, being reversed upon the view of the law above expressed, the case was remanded to the court of common pleas where it was again tried, the trial - resulting in a judgment for the plaintiff. The controversy of the parties appeared in the supreme court of the state upon three occasions in addition to the one already noted. In every instance the supreme court adhered to the right of the plaintiff to recover under the conditions stated, except the last which is reported in 113 Pa. St., page 126. In that case, four of the seven judges concurring, the doctrine previously announced was rejected and the court denied the right to recover. The condensed proposition expressing the later view of the court is as follows: Damages resulting to another, from the natural and lawful use of his land by the owner thereof are, in the absence of malice and negligence *damnum absque injuria.*One operating a coal mine in the ordinary and usual manner may upon his own lands drain or pump the water which percolates into the mine into a stream which forms the natural drainage of the basin in which the mine is situate, although the quantity of the water may thereby be increased and its quality so affected as to render it totally unfit for domestic purposes by the lower riparian owners. The use and enjoyment of a stream of pure water for *276domestic purposes oy the lower riparian owners, who purchased their land, built their houses and laid out their grounds before the opening of the coal mine, the acidulated waters from which rendered the stream entirely useless for domestic purposes, must *ex necessitate*give way to the interests of the community, in order to permit the development of the natural resources of the country and to make possible the prosecution of the lawful business of mining coal. The final conclusion was reached by a nearly equally divided court, and the change of view apparently resulted from changes in the composition of the court. The case, though obviously weak as an authority, seems to have had much to do with the decisions in *Barnard*v. Sherley, 135 Ind., 547, and 151 Ind., 160. But the final judgment in that case was based upon an elaborate finding of facts .from which, in connection with the opinion, it appears that the conclusion was also much influenced by the consideration that the lower proprietor’s right to recover is only for injuries of a substantial character which have been caused by the defendant, and that it does not extend to such promiscuous and general consequences as unavoidably attend the substitution of urban for rural conditions.

The Sanderson case was a manifest departure from the rule of law often stated, and generally regarded as well settled, that although there is a servitude upon the lower proprietor to receive the natural flow of water from higher grounds, it is his right to receive it in its natural state and without deleterious change effected by artificial means. The case was cited as an authority in *John Young**277*& Company*v. *The Bankier Distillery Company,*App. Cases, 1893, page 691, where Lord Watson said of it: “Against the principle the appellants were able to cite only one American case, which I do not notice further, because it was decided on the express ground that in so far as concerns the present question, the law of Pennsylvania essentially differs from the law of England.” In another opinion in the same case it was said that *Coal Company*v. *Sanderson*proceeded upon considerations which characterize making law rather than interpreting the law so as to give effect to sound, just and well recognized principles as to the common interest and rights of upper and lower proprietors in the running water of a stream. This criticism seems to be justified by the attention which was given to considerations which tended to obscure, rather than make clear, the settled principles of the law. It is familiar that one who merely exercises a right is not liable for the consequences which result to another, even though he is prompted by malice, and that the motive which prompts one to a wrongful act may determine whether he is liable for exemplary or only actual damages. But was it ever before considerately held that one who invades the rights of another is not liable for such actual damages as ensue merely because the act was not done maliciously? An erroneous conclusion would naturally issue from such confusion of legal and theological considerations. Nor did the court limit the opportunities for the intervention of error when it turned its attention from the legal principles which *278it, with other courts of this country and England, had often declared, and permitted itself to become concerned regarding the interests of the community and the extent to which public interests might be impaired if, in cases of this character, it should continue in the familiar course of adjudication. However numerous may be the persons who engage in mining- for coal and petroleum, however laudable may be their undertakings, these are but private 'enterprises instituted and conducted for private gain which may be acquired only with due regard to the rights of lower proprietors, whose numbers must always at least equal theirs, and in accordance with the principles upon which all titles are held. Without further exposition of this familiar subject, notwithstanding a few cases to the contrary, we adhere to the established rule upon the subject which is expressed in the syllabus. This case considered in connection with *The Salem Iron Company*v. *Hyland et al.,*places us in the position of holding, that in cases of this character where the invasion of the rights of the lower proprietor does not amount to an appropriation of his property, but merely constitutes a nuisance, an injunction- will not be allowed to prevent the development of the resources of the lands of the upper owner, but that an action will lie for the recovery of such substantial damages as the lower proprietor may sustain by reason of such operations. With that position we are content since it seems to regard all the principles which the rights of the parties require us to recognize. The judgment in the present case *279appears to have been carefully restricted to the actual injuries sustained by the original plaintiff and it will be affirmed.

*Judgment affirmed.*

Crew, C. J., Summers, Spear, Davis - and Price, JJ., concur.