dissent">Head, J.,

Dissenting:

I am unable to accept as sound the conclusion reached by the majority of the judges who heard this case. I deem it unnecessary to undertake to review or analyze the numerous decisions from foreign jurisdictions referred to in the majority opinion for the obvious reason that, according to my judgment, the case at bar is ruled, one way or the other, by the decisions of our own Pennsylvania courts.

At common law the obligations of one private property owner to his neighbor were broadly and generally summed up in the maxim “sic utere tuo ut alienum non laedas.” Since the very beginning the doctrine thus expressed has been a vital part of the law of this Commonwealth. It accords to every citizen the fullest liberty in the use and enjoyment of his own property compatible with the exercise of the same right by his neighbors. Its prohibition clearly marks the limit of such use. The failure or neglect to observe that prohibition is followed by liability. This cannot be escaped on the theory the act, the consequences of which worked inconvenience and injury to another, was not itself forbidden by any law and was therefore lawful; nor that it was done as carefully as it could be done. It is by the consequences that flow from the act rather than from the nature of the act itself or the manner in which it was performed the liability must be determined. Where the legislature in its wibdom creates municipal and other public or quasi public corporations, expressly authorized by the legislative will to construct and maintain certain works, the most careful execution of the chartered powers may unavoidably involve risks to the safety of individuals *236and create inconvenience in their enjoyment of their, property. In such cases the injury to the individual, necessarily following the performance of the legislative will, is swallowed up in the public benefit derived by the community at large by the execution of the power given by the lawmakers of the Commonwealth. It,is thus properly and necessarily classified as damnum absque injuria. If, for instance, a railroad company cannot maintain its lines and operate its engines and cars without noise, smoke, steam, &c., the owners of adjacent property may indeed suffer annoyance that is reah and tangible, but it is part of the price which the legislature has said must be paid by the individual to bring about the public and common benefit intended. Hence the decisions of the Supreme Court in Marchand v. P. R. R. Co.; Lippincott v. same, and cases of their class. A just recognition of this principle appears to me to account for the numerous cases against cities, boroughs and public transportation companies, relied upon in the majority opinion to support the conclusion reached.

In the case at bar the defendants are private citizens. The introduction by them into their own property of a water supply to enhance their enjoyment of it was a perfectly lawful act, but it was so maintained that it has worked hurt, inconvenience and damage to the plaintiffs. Why should they be remediless? As I view it, the case is strictly and clearly within the principle declared by the Supreme Court in Pottstown Gas Company v. Murphy, 39 Pa. 257; Hauck v. Tidewater Pipe Line Company, 153 Pa. 366, and our own case of Welliver v. Irondale Company, 38 Pa. Superior Ct. 26. In Hauck v. Pipe Line Company the defendant had buried a pipe line on its own right of way for the transportation of oil. The construction and maintenance of that line were perfectly lawful acts. There was no evidence offered or required that the line had been carelessly constructed or that it had not been maintained with reasonable care; *237but oil did escape from the line beneath the surface of the ground and by seepage found its way beyond the lines of the right of way into the property of the plaintiff. The injury thus was not the result of the careless handling of the oil at the pipe line terminal by the employees of the company. In considering that case President Judge Rice, in the course of his opinion, in Welliver v. Irondale Company, supra, thus states the exact nature of the injury: “The plaintiff introduced evidence which tended to show that the oil escaped from defendant’s pipes, percolated through the ground, and injured his springs and lands, &c.” The defendant was thus in the situation of having violated the prohibition of the maxim we have already quoted and its liability followed because, while1 it had committed no unlawful act and was not shown to have been guilty of any negligence, yet it had produced, for its own benefit, on its own property, conditions which worked hurt, inconvenience and damage to its neighbor. In the Welliver case, above cited, the whole question was most carefully considered in the opinion of President Judge Rice. There the defendant was a private corporation not invested with the right of eminent domain. To enhance the profitable use of its own property, it constructed thereon a race or canal by which á water supply was brought to its plant. In the course of time some of this body of water seeped through the restraining banks and injured the adjoining lands of t|ie plaintiff. There, as here, liability was denied because it was not shown by the plaintiff’s evidence the canal had been negligently constructed or maintained. In his opinion Judge Rice says: “The contention that the defendant cannot be held liable, in the absence of negligence, because the damages resulting to the plaintiff are the result of the defendant’s lawful use of its own land and the development of the natural resources thereof, cannot be sustained. This race is an artificial water course......The business is that which the de*238fendant company was chartered to carry on, it is lawful and it is conducted on the defendant’s own land, but these facts, of themselves, do not absolve the company from the obligation so to conduct it that a private nuisance shall not be created by thu percolation of water brought by artificial means upon its premises.”

After a thorough and careful review of the many authorities the opinion demonstrates, as I think, that the case was properly within the principle laid down in Pottstown Gas Company v. Murphy, reaffirmed in Hauck v. Pipe Line Company, supra. In the present case, as in the Welliver case, the defendants introduced upon their own property an artificial supply of water for their own use and benefit. This was an entirely lawful thing to do, and the evidence in the present case, as in the former one, in no way showed any act of negligence in the construction or maintenance of the pipé line, but the injurious consequences complained of followed. If the obligation to so use your own property as not to injure that of another be potential, its prohibition has not been observed, and it is in accordance with natural justice as well as with the law of the Commonwealth, as I understand it, that these defendants should make good the injury resulting from their act rather than that the plaintiffs should be compelled to suffer the injury without compensation.

The attempt made to so construe these cases as to deprive them of force and efficacy in the determination of the case at bar, has, I submit, patently failed. The opinions delivered are too carefully expressed, too accurately discriminating, to leave room for debate as to the ground on which the judgments were rested. In both the acts from which the injurious consequences flowed were intrinsically lawful. But because of those consequences what was in itself harmless was converted into a private nuisance and liability necessarily followed.

I would hold therefore that the case at bar is ruled by *239the cases just cited and should have been tried in accordance with the principles they have enunciated. I would reverse the judgment and send the case back for another trial.

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