Opinion of the Court.

nized by the law, any injury to which is redressible by law. To pollute or foul the water of a well is an actionable injury. Ball v. Nye, 99 Mass. 582.

We see no reason why we should disregard the finding of the court below, that "by reason of the construction of said tunnel the said well of water was drained and destroyed," and we regard such a finding as proof that the owners of the property suffered a direct injury within the meaning of the remedial provisions of the statute.

We regard the remedial features of this statute as coming within the suggestion of Chief Justice Gibson, in the noted case of O'Connor v. Pittsburgh, 18 Penn. St. 187, 190: "The constitutional provision for the case of private property taken for public use extends not to the case of property injured or destroyed; but it follows not that the omission may not be supplied by ordinary legislation."

Finally, an argument in favor of the government is based upon the finding of the court below, that it does not appear that the well was supplied "by a distinct vein of water running into it;" and the leading case of Acton v. Blundell, 12 M. & W. 324, and cognate cases are cited.

The doctrine of those cases substantially is, that the owner of land may dig therein and apply all that is there found to his own purposes at his free will and pleasure; and that if, in the exercise of such right, he intercepts or drains off the water collected from underground springs in his neighbor's well, this inconvenience to his neighbor falls within the description of damnum absque injuria, which cannot become the ground of an action.

We recognize this as sound doctrine in the ordinary case of a question between adjoining owners of land. But in a case like the present, where the injury complained of is inflicted by the construction of a public work under authority of a statute, over land upon which the public authority has acquired a right of way only, and where the statute itself provides a remedy for such injury, the law has been held to be otherwise in cases whose reasoning demands our assent.

A Massachusetts statute provided that "every railroad cor

Opinion of the Court.

poration shall be liable to pay all damages that shall be occasioned by laying out and making and maintaining their road, or by taking any land or materials." Construing that statute, in the case of Parker v. Boston & Maine Railroad, 3 Cush. 107, 114, the Supreme Judicial Court said:

"And so in regard to the well. The claim for damages on this ground does not depend on the relative rights of owners of land, each of whom has a right to make a proper use of his own estate, and sinking a well upon it is such proper use; and if the water, by its natural current, flows from one to the other, and a loss ensues, it is damnum absque injuria. But the respondents did not own land; they only acquired a special right to and usufruct in it, upon the condition of paying all damages which might be thereby occasioned to others."

In the quite recent case of Trowbridge v. Brookline, 144 Mass. 139, 141, another statute was under consideration by the same court, similar in every respect to the act of Congress now under consideration. The case of Parker v. Boston & Maine Railroad was fully recognized and its authority followed. We quote as follows from the opinion:

"The question presented is whether a town which lawfully takes land and constructs a common sewer therein, whereby a well upon land not taken, and not adjoining land taken, is made dry, the well being fed by water percolating through the soil, may be liable to pay damages therefor to the owner of the land in which the well is situated.

"The respondent is liable for damages occasioned by the laying, making or maintaining' the sewer. Pub. Stats. c. 50, 3. The provision in the railroad act is similar: Damages occasioned by laying out, making, and maintaining its road.' Pub. Stats. c. 112, § 95. The provision in regard to public ways is: If damage is sustained by any persons in their property by the laying out,' etc. Pub. Stats. c. 49, §§ 14, 68. Section 16, which also applies to sewers, provides that, in estimating the damage, 'regard shall be had to all the damages done to the party, whether by taking his property or injuring it in any manner.' Under these provisions damages can be recovered for injuring land not taken and

VOL. CXLVIII-13

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not abutting upon land taken. Dodge v. County Commissioners, 3 Met. 380; Parker v. Boston & Maine Railroad, 3 Cush. 107; Marsden v. Cambridge, 114 Mass. 490.

"The respondent contends that it had the right of an owner of the land taken to make excavations in it, and thereby drain its neighbor's well; that its act without the authority and protection of the statute, was lawful, and invaded no right of the petitioner, and gave her no right of action; and that, in accordance with the decisions in England, the statute should be construed to intend only damages which, but for the protection of the statute, could be recovered by action. See New River Co. v. Johnson, 2 El. & El. 435; Metropolitan Board of Works v. McCarthy, L. R. 7 H. L. 243. But the respondent does not stand, in this respect, in the position of a purchaser of the land, taking the rights of its grantor. It is not the absolute owner of the land, but it took and holds the right to occupy the land for certain purposes, and to do upon it certain acts authorized by the statute. In exercising its rights, the town acts, not under the title of the owner, but by virtue of the authority given by the statute, and under the obligation imposed by the statute to pay all damages occasioned thereby. The petitioner had a right to collect and keep the water in her well; and depriving her of it, so as to injure her land, was a damage to her. It is no answer that other landowners had the same right in respect to their lands, and that, if the petitioner's damages had been in consequence of the exercise of those rights in his land by a landowner, she could not have recovered damages from him. The respondent's rights in the land, and its authority to do the act which caused the damage, are given by the same statute which gives a remedy to the petitioner to recover the damages.

"The precise question presented here was decided, in regard to a railroad, in Parker v. Boston & Maine Railroad, ubi supra. In that case, damages were alleged to have been occasioned, in the construction of a railroad, to land not within or adjoining the location of the road, by changing the grade of a highway and by draining a well. It is not suggested

Opinion of the Court.

that either would be a cause of action at common law. Chief Justice Shaw says that the main question in the case is 'whether a party having land with buildings thereon, lying near the track of a railroad, but not crossed by it, can recover compensation for incidental damages caused to his land, by the construction of the railroad and the structures incident to and connected with it.' After discussing the question, he says: 'We are of opinion, therefore, that a party who sustains an actual and real damage, capable of being pointed out, described and appreciated, may sue a complaint for compensation for such damage.' In regard to the well he says: The claim for damages on this ground does not depend on the relative rights of owners of land, each of whom has a right to make a proper use of his own estate, and sinking a well upon it is such proper use; and if the water, by its natural current, flows from one to the other, and a loss ensues, it is damnum absque injuria. But the respondents did not own land; they only acquired a special right to and usufruct in it, upon the condition of paying all damages which might be thereby occasioned to others.""

In Wheatley v. Baugh, 25 Penn. St. 528, 533, the case of Parker v. Boston & Maine Railroad is cited with approval. We also regard our own case of Great Falls Manufacturing Company v. Attorney General, above cited, as, in effect, construing the statute as applicable to a claim like the present

one.

Upon the whole, we are of opinion that the judgment of the Court of Claims is sustainable on principle and authority, and it is accordingly

Affirmed.

Opinion of the Court.

UNITED STATES v. TRUESDELL.

APPEAL FROM THE COURT OF CLAIMS.

No. 552. Submitted January 9, 1893. — Decided March 6, 1893.

This case is affirmed on the authority of United States v. Alexander, ante, 186.

THE case is stated in the opinion.

Mr. Solicitor General Cotton for appellants.

Mr. Job Barnard and Mr. George A. King for appellee.

MR. JUSTICE SHIRAS delivered the opinion of the court.

This suit was brought in the Court of Claims to recover damages for the loss of a well, occasioned by the construction of an extension of the Washington Aqueduct, and for compensation for a right of way across land of the complainant, taken for the purpose of constructing a tunnel, by virtue of an act of Congress of July 15, 1882, entitled "An act to increase the water supply of the city of Washington and for other purposes." 22 Stat. 168, c. 294.

So far as the recovery of the plaintiff below was based on the claim for compensation for land actually taken, the United States do not, in this appeal, complain. But they contend that the injury caused by the destruction of the well was damnum absque injuria. The liability of the United States, under the statute by virtue of which the work in question was done and the damages occasioned, has been declared in the opinion of this court in the case, just decided, of the United States v. Alexander, ante, 186, where the facts were similar, and we do not need to repeat what is therein said. The judgment of the court below is accordingly

Affirmed.