Bayer v. Nello Teer

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Bayer v. Nello L. Teer Company, 256 N.C. 509 (1962). In this case, Nello Teer built an open-pit quarry next to a house with a well. The quarry installed a pump to dewater the pit. The neighbor’s well was contaminated by salt water. But the Supreme Court refused to give the neighbor relief, holding that the quarry’s use of the land and groundwater was reasonable. There are references in the case to the Bayers’ arguments that the quarry’s pumping made their well unuseable for human consumption, unfit for bathing or general sanitary purposes, and the situation was investigated by a sanitary engineer with the State Board of Health. But none of this mattered to the Supreme Court in 1962. Whether the case would come out differently today is unclear.

Here is excerpt from the Maryland Court of Appeals citing the Bayer case as well as summarizing the other states that have agreed with the approach and some of the limits on the approach that had developed as of 1968. The Ohio approach, as outlined inCline v. American Aggregates Corporation, 15 Ohio State 3d 384 (1984), reversed Ohio's older precedents and adopted the standard of Section 858 of the Restatement of Torts, 2d. This approach, if adopted in North Carolina, would give adjoining property owners a cause of action against someone who “unreasonably” lowers their groundwater. It is conceivable that the N.C. Supreme Court would similarly depart from its 1962 decision in a case brought today.

In Bayer, an adjoining landowner sued a quarry owner for damages resulting from a diminution of water in the plaintiff's well because the quarry owner had pumped percolating waters from its quarry pit in order to carry on the operation of the quarry. The Supreme Court of North Carolina adopted the American Rule and held that the quarry owner was not legally responsible for the loss to the plaintiff because the pumping of the percolating waters from its quarry pit was incident to normal quarrying operations and hence a reasonable use of the percolating waters. The Supreme Court of North Carolina quoted with approval from the opinion of the Supreme Court of Alabama in Sloss-Sheffield Steel & Iron Co. v. Wilkes, supra, as follows: "But this early rule of the common law has given way to the doctrine of 'reasonable use,' by which the landowner is said to have the right only to a reasonable and beneficial use of the waters upon the land or its percolations or to some useful purpose connected with his occupation and enjoyment. The 'reasonable use' theory does not prevent the proper consumption of such waters in agriculture, manufacturing, irrigation, or otherwise, nor the development of the land for mining and the like although the underground waters of neighboring properties may be thus interfered with or diverted. He may consume it, but he must not waste it to the injury of others. He may pump or draw or drain such waters without liability to his neighboring landowners, when it is proper for the natural and legitimate use or improvement of his own land, but not in *441 an unreasonable manner to force and increase the flow to divert them to some use disconnected with such improvement and enjoyment whereby the flow of waters or their percolation under the lands of others are destroyed or diminished." ( 256 N.C. at 516, 124 S.E.2d at 556-557.) The general rule is that a landowner engaged in ordinary and usual mining operations is not responsible for damages resulting from the diversion or destruction of the flow of percolating waters. In addition to Bayer v. Nello L. Teer Co., see Clinchfield Coal Corp. v. Compton; Sycamore Coal Co. v. Stanley and Sloss-Sheffield Steel & Iron Co. v. Wilkes, Dickey v. Honeycutt, C & W Coal Corp. v. Salyer, all supra. As it is prima facie established that Teeter's use of the percolating waters on its land is a legitimate and reasonable one, it is incumbent upon the Finleys to show that such was unreasonable. There are cases which have indicated that the diversion or destruction of the flow of percolating waters may be unreasonable if the water is being sold for commercial purposes, see e.g.,  Koch v. Wick, 87 So.2d 47 (Fla.1956);  Rothrauff v. Sinking Spring Water Co., 339 Pa. 129, 14 A.2d 87 (1940); Canada v. City of Shawnee, supra, or if the water is being unreasonably wasted, see e.g.,  City of Pasadena v. City of Alhambra, 33 Cal.2d 908, 207 P.2d 17 (1949); > Southwest Engineering Co. v. Ernst, 79 Ariz. 403, 291 P.2d 764 (1955) (these cases relied primarily upon the legislative intent expressed in  statutes prhibiting the wasting of water). In addition, there are numerous cases which have established that a malicious or negligent use of percolating waters is unreasonable. See generally 93 C.J.S. Waters s 93 at 767-772 s 94 at 773 (1956); 56 Am.Jur. Waters s 114 at 596-99, s 117 at 599-601 (1947). This cases of  Cabot v. Kingman, 166 Mass. 403, 44 N.E. 344, 33 L.R.A. 45 (1896);  New York Cent. R. R. Co. v. Marinucci Bros. & Co., Inc., 337 Mass. 469, 149 N.E.2d 680 (1958);  Gamer v. Town of Milton, 346 Mass. 617, 195 N.E.2d 65 (1965), relied upon by the appellants, are examples of a negligent use as the basis of liability. Inasmuch as there is no contention or proof by the Finleys that there was any negligence by Teeter in its excavation of its quarry or of any waste, malice or sale of percolating waters, or other unreasonable use, Teeter has no liability to the Finleys for damages resulting from Teeter's pumping of percolating waters from its quarry. The injury to the Finleys is damnum absque injuria.

Finley Et Ux. V.Teeter Stone, Inc., 51 Md. 428 (1968). “Damnun absque injuria” (“loss without injury in the legal sense”) is the common law’s way of saying “sorry for your loss, but you get no help here.”