Dissenting Opinion by
Judge Mencer:I respectfully dissent. As the majority so aptly points out, “[t]he appellant concedes that the 2.17 million gallons of water per day coming from the inactive mines in the Irwin Basin which it discharges from its Hutchinson Mine is polluted with an iron and acid content substantially in excess of the maximum acceptable quality standard set by the Sanitary Water Board. Moreover, appellant does not contend that this discharged water would not be injurious to the public health, animal or aquatic life or to the use of the water for domestic or industrial consumption or recreation.” Therefore, these undisputed facts, coupled with the clear language of Section 315(b) of the Clean Streams Law, *426Act of August 23, 1965, P. L. 372 (effective January 1, 1966), compels me to the sole conclusion that, when the “discharge from the mine,” encompassing acid mine drainage from whatever source, contains concentrations of acid or iron in excess of the reasonable limits properly established by the Sanitary Water Board, a mine drainage permit “shall not be issued.” To qualify for the permit under the circumstances prevailing in this case, the appellant’s plan of drainage must include the treatment of the 2.17 million gallons of polluted water per day which originates in the Irwin Basin.
One must recognize that the Legislature, in enacting the Clean Streams Law of 1965, was concerned with pollution of the waters of the Commonwealth. Consequently, it is the discharge of the polluted waters into the stream that is critical and not the source of the polluted waters. I therefore find no merit in appellant’s assertion that it is free from any responsibility for any polluted water draining into the Hutchinson Mine, since appellant is intentionally and of its own volition discharging that deleterious mine drainage into the waters of the Commonwealth.
Appellant asserts that the Sanitary Water Board’s refusal to grant it a permit imposes liability on it for the polluted water caused by other mine operators and, moreover, imposes such liability retroactively. I cannot agree with this assertion. Here neither appellant nor the prior operators of the inactive mines in the Irwin Basin are responsible for treatment of the polluted mine drainage coming from the Irwin Basin as long as this water is not discharged from a mine with injurious consequences as defined in Section 315 of the Clean Streams Law as amended in 1965. No liability attached for the past operations which resulted in the water in the Irwin Basin becoming polluted. Nor is appellant accountable for any discharge of polluted *427water prior to January 1, 1966, which was the effective date of the 1965 Clean Streams Law. It is the present pumping by.appellant at the Hutchinson Mine which results in a present discharge of polluted water from that mine into the waters of the Commonwealth which constitutes, the current condition which justifies the Board’s refusal to grant a permit to appellant. The present'pumping is not tied in any way to the past , or attributable to prior operators of the inactive mines of the Irwin Basin. The requirement that appellant treat the polluted water which it is now discharging from its Hutchinson Mine does not render the provisions of the 1965 Clean Streams Law retroactive.
Nor do I believe that Pennsylvania Coal Company v. Sanderson, 113 Pa. 126, 6 A. 453 (1886) controls here. In that case, the coal company pumped mine water to the surface, where it joined a flow of water from the drift mouth and then ran by an artificial water course into a stream. The complaint alleged that the coal company polluted the stream and thereby rendered the water totally unfit for domestic and household use and, in addition, alleged that the fish in the stream had been killed. The Supreme Court held that every man has a right to the natural use and enjoyment of his own property and if, while lawfully in such use and enjoyment, without negligence or malice on his part, an unavoidable loss occurs to his neighbor, it is damnum absque injuria. However, the Commonwealth is not restricted by this rule of damnum absque injuria or by any balancing of equities or by any question of possible prescriptive rights for, no matter how long continued, stream polluters can acquire no prescriptive or property rights to pollute as against the Commonwealth. Pennsylvania R. R. Co. v. Sagamore Coal Co., 281 Pa. 233, 126. A. 386 (1924), cert. den. 267 U.S. 592 (1925); *428Commonwealth ex rel. Shumaker v. New York and Pennsylvania Company, Inc., 367 Pa. 40, 79 A. 2d 439 (1951).
I am not persuaded that the instant ease is ruled by the Guideline provisions published by the Department of Health in its Mine Drainage Manual, Second Edition. Appellant contends Guidelines §§IV-A-3 and IVA-4 are relevant to this case. My study of these particular Guidelines convinces me that neither is applicable to the factual situation here. Guideline 3 pertains to either (1) a situation where the operations of an active mine intercept mine water pools which would discharge at a point other than the discharge point used by the operator of the active mine or (2) a situation where drainage of an active mine flows to a common pool. Guideline 4 pertains to mining requiring the pumping or draining of adjacent inactive mines to protect the active mine operations. The factual situation in the instant case is that the active mine, but not as a result of any of its operations, receives polluted mine water which would not discharge at a point other than that proposed by the active mine operator. Such water would merely fill up the active mine unless removed from the active mine by pumping. Also, there is no pumping here of adjacent inactive mines in order to protect the active mine operations.
Neither can I accept the majority’s ingenious theory that the 2.17 million gallons of water per day coming from the inactive mines in the Irwin Basin are “waters of the Commonwealth” since this water has been a part of an underground lake. Section 1 of the Clean Streams Law of 1965 defines “waters of the Commonwealth” to include “any and all rivers, streams, creeks, rivulets, lakes, dammed water, ponds, springs, and all other bodies of surface and underground water, or parts thereof, whether natural or artificial, within or on the boundaries of this Commonwealth.” My analysis of this definition does not persuade me that the waters in *429the inactive mines in the Irwin Basin are “waters of the Commonwealth.” If this be true, the majority’s entire premise evaporates, since it has concluded that polluted waters of the Commonwealth in an underground lake cannot pollute other waters of the Commonwealth flowing in a surface stream. However, even if the factual situation here satisfied the definition, I am still uncertain how this would require the issuance of a permit when Section 315(b) of the Act states in part: “A permit shall not be issued if the board shall be of the opinion that the discharge from the mine would be or become Inimical or injurious to the public health, animal or aquatic life, or to the use of the water for domestic or industrial consumption or recreation. . . .”
I would affirm the order of the Sanitary Water Board in this case.
Judge Kramer joins in this dissent.