Summary
denying summary judgment where there was evidence that plaintiff's well was downhill from defendant's gasoline storage tank, groundwater flowed from the tank toward the well, an excavator had noticed gasoline stains in soil near the tank, and tank was the only one within a half-mile radius of the well
Summary of this case from In re Methyl Tertiary Butyl EtherOpinion
(Filed 16 November, 1927.)
Waters and Water Courses — Subterranean Waters — Pollution — Damages — Evidence — Nonsuit.
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, 1927, of FORSYTH. Affirmed.
Wallace Wells and W.H. Beckerdite for plaintiff.
Swink, Clement Hutchins for defendant.
The evidence: That prior to the installation of the pump by the defendant, The Texas Company, that the water in the well of the plaintiffs was all right. After the installation of the pump and the union joint, the well became contaminated with gasoline. The defendant, Yokeley, lessee, entered into a trade with the defendant, The Texas Company, whereby the said company was to install the electric pump, which it did, and the defendant, Yokeley, was to use its gasoline. The defendant, The Texas Company, had notice of the condition of the tank shortly after the well became contaminated. The pumps installed by the defendant, The Texas Company, was one hundred and thirty feet from the well. This was the only gasoline tank within half a mile or more of the plaintiff's home. The general contour of the ground was sloping from the gasoline tank to the well. A strata of rock ran from the tank to the well. The vein of water running into the well came from the northwest, the direction of the well from the pump. The gasoline tank is on the lot of H.C. Weavil. Mr. Barney is manager of The Texas Company. The Texas Oil Company put in the gasoline tank, etc., and it has a capacity of 500 gallons. C. B. Yokeley runs the filling station.
Arville Masten, plaintiff, testified: "This is gasoline that came out of my well (referring to liquid in jar which witness had). I took this out this morning. Mr. Reid and Mr. Swaim were with me at the time. There was seven inches more gasoline in the well at the time. (Counsel hands 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 had gasoline in it all the time for two years now. . . . (Redirect) I have 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 filing station is."
The defendant denied any negligence in the 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.
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.
The principle upon which the action is bottomed is well stated in 27 R. C.L., part of section 137, p. 1223, as follows: "The weight of modern authority supports the rule that a person who, by permitting the pollution of his own soil or the water thereunder, contaminates his neighbor's well or the streams under the neighbor's land, from which water is appropriated, is liable to the latter in damages, and in some cases the continuance of such pollution has been restrained by injunction." Clark 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 when it reaches his neighbor's land it will be unfit for use by either man or beast. The same principle applies to noxious odors. This is good morals as well as good law. The judgment of the Superior Court is
Affirmed.