#### ARVILLE MASTEN and LILLIE MASTEN v. THE TEXAS CO., H. C. WEAVIL and C. B. YOKELEY.

(Filed 16 November, 1927.)

Waters and Water Courses — Subterranean Waters — Pollution—Damages —Evidence—N onsuit.

Where a tank to supply large quantities of gasoline has been put into the ground by the defendant on property adjacent to that of plaintiff, and its use thus caused the seepage of gasoline into the ground in such quantities as to destroy the use of plaintiff’s well of water used at his dwelling for drinking purposes, by entering into the underground water channels which gave him his water supply, the defendant is answerable for the damages thus caused, and the evidence in this case is *held*sufficient to take the issue to the jury upon defendant’s motion as of nonsuit.

Appeal by Texas Company from *Lyon, J.,*at September Term, 1921, of Eoesyth.

Affirmed.

Tbe evidence: That prior to tbe installation of tbe pump by tbe defendant, Tbe Texas Company, that tbe water in tbe well of tbe plaintiffs was all right. After tbe installation of tbe pump and tbe union joint, tbe well became contaminated with gasoline. Tbe defendant, Yokeley, lessee, entered into a trade with tbe defendant, Tbe Texas Company, whereby tbe said company was to install tbe electric pump, which it did, and tbe defendant, Yokeley, was to use its gasoline. Tbe defendant, Tbe Texas Company, bad notice of tbe condition of tbe tank shortly after tbe well became contaminated. Tbe pumps installed by-the defendant, Tbe Texas Company, was one hundred and thirty feet from tbe well. This was tbe only gasoline tank within half a mile or more of tbe plaintiffs’ borne. Tbe general contour of tbe ground was sloping from tbe gasoline tank to tbe well; A strata of rock ran from tbe tank to tbe well. Tbe vein of water running into tbe well came from tbe northwest, tbe direction of tbe well from tbe pump. Tbe gasoline tank is on tbe lot of H. C. Weavil. Mr. Barney is manager of Tbe Texas Company. Tbe Texas Oil Company put in tbe gasoline tank, etc., and it'has a capacity of 500 gallons. C. B. Yokeley runs tbe filling station.

Arville Masten, plaintiff, testified: “This is gasoline that came out of my well (referring to liquid in jar which witness bad). I took this out this morning. Mr. Reid and Mr. Swaim were with me at tbe time. There was seven inches more gasoline in tbe well at tbe time. (Counsel bands jar of liquid to jury for examination.) That is gasoline in that jar. Before this tank was put in my water was all right, in good condition. I have bad gasoline in it all tbe time for two years now. . . . *541(Redirect) I Lave gotten sixty or sixty-five gallons of this gasoline out of my well altogether.”

E. H. Kirkman, county sanitary officer, testified, in part: “I inspected Mr. Masten’s well about that time. I found quite a heavy skim of gasoline on top of the water, possibly half an inch or an inch. I then drew the water off and sealed the well, and about a week later made another inspection, and found about half an inch or an inch of gasoline on top of the water. *We*cleaned the well again; I went down in the well and drew off the contents and measured the gasoline. I got about five gallons of gasoline. I then notified Mr. Yokeley I wanted to look into the condition of his tank. I then went to Mr. Barney for permission to go into his pumping system, his part of it. He granted me permission. I went there to make the inspection and Mr. Weavil refused permission to make it. I came back later and made the inspection. I excavated around that upright tank. Around that union joint I found some wet mud, wet with gasoline. I found a drip from that union, and found the ground immediately underneath that drip saturated with gasoline. The well was walled with tile. It was concreted at the top and a pump was used.”

Fred Swaim testified: “I helped dig this well of Mr. Masten’s. The vein there comes from the northwest, kind of the direction of where the filling station is.”

The defendant denied any negligence in thfe installation of the tank, or any negligence in permitting the tank to remain in a leaking condition, and denied that the gasoline in the well came from, or had any connection with, the gasoline in the tank.

Judgment of nonsuit was entered against Yokeley. The Texas Company is the only defendant that appealed.

*Wallace & Wells and W. H. Beckerdite for plaintiff.*

*Swink, Clement & Hutchins for defendant.*

ClaeKSON, J.

This action was tried in the Forsyth County Court. After the plaintiffs had introduced their evidence, motion was made by defendant for judgment as in case of nonsuit, C. S., 567, which was allowed. Plaintiffs excepted, assigned error and appealed to the Superior Court. The judgment of the Forsyth County Court was reversed and the action remanded to said court for trial on the facts. Defendant, Texas Company, excepted, assigned error and appealed to the Supreme Court. *We*think the evidence, though circumstantial, more than a scintilla, and sufficient to be submitted to a jury. *Ledford v. Power Co., ante,*p. 98. The probative force is for a jury to determine.

*542Tbe principle upon wbicb tbe action is bottomed is well stated in 27 E. C. L., part of section 137, p. 1223, as follows: “Tbe weight of-modern authority supports tbe rule that a person who, by permitting tbe pollution of bis own soil or tbe water thereunder, contaminates bis neighbor’s well or tbe streams under tbe neighbor’s land, from wbicb water is appropriated, is liable to tbe latter in damages, and in some cases tbe continuance of such pollution has been restrained by injunction.” Cl*ark v. Lawrence.,*59 N. C., p. 83; *Rouse v. Kinston,*188 N. C., p. 1; *Finger v. Spinning Co.,*190 N. C., p. 74; *Cook v. Mebane,*191 N. C., p. 1.

One may no more pollute a subterranean stream than a surface stream. A person has no right to befoul, corrupt or poison underground water so that wben it reaches bis neighbor’s land it will be unfit for use by either man or beast. Tbe same principle applies to noxious odors. This is good morals as well as good law. Tbe judgment of tbe Superior Court is

Affirmed.