Facts:
P owned a well on its property which it used for household uses. D moved to an adjacent
piece of property and constructed a well of its own. D began using this well (a longer
and stronger well than that of P) to fill a pool, which severely limited P’s use of its well.
Issue: Based on the objective “reasonable use” test, should P be granted damages based
on D’s actions?
Holding: Damages are not assessed, P’s request to enjoin D from pumping from its well
will be granted until further order from the court on the condition that P deepen or agree
to permit D to cause their well to be deepened to a reasonable depth with the cost to be
equally divided. P must run the risk of permanent loss of water inherent in deepening the
well, D must also arrange for a substitute water supply for P in the interim.
An alternative remedy, is that P may elect to run at their own expense, a
permanent connection to D’s supply of water from the Suburban Water Company. If this
is agreed upon, the order will fix a time schedule and provide for a report on the results of
the work.
If P does not accept any of these options, the injunction is removed, if D does not
comply with the remedy selected by P, the injunction is permanent
Rationale:
– the reasonable use standard permits the court to consider and evaluate the various
factors on both sides and arrive at an accommodation of the conflicting rights. It
also permits the court to consider the intentions of the offending party and his
actions subsequent to the discovery of the consequences of his water use
– P is not entitled to have D restrained from using its well because it can purchase
water commercially at a reasonable price, nor vice versa because a land owner is
entitled to use of percolating water under his land
– The size of P’s well does not preclude his argument, as he is entitled to protection
if their use is impaired by an unreasonable use by D, though it may be evaluated
in the reasonableness of the comparable use
– D says the construction of a school and of sanitary and storm sewers next to P’s
property have lowed the level in P’s well. This is not true, as it appears the water
level only goes down when D uses his well.
– It appears that D did not know its well would interfere with Ps. P’s well is
marginal with a weak recovery rate. However, D’s use is recreational whereas
P’s is used for household use. The amount of water D is taking far exceeds what
would be “normal” in that area, and D takes very large amounts of water in
concentrated periods.