Pittsburg dispatch. [volume] (Pittsburg [Pa.]) 1880-1923, 1890-10-26


on the next trial. in Lackawauna county,
a verdict was given for plaintiffs. Defend
ants took out a writ of error, but the Su-
preme Court, adhering to the opinion con-
tsined in Norris, 401, judgment was
affirmed. Plaintiffs then sued out second
writ to the same judgment, assigning error
in the ruling of the Court as to the measure
OF damages. judgment was reversed. ana
venire facias de novo awarded. Plalntlns
got another judgment. which brought the
case to the Supreme Court for its hnal
quietus Justice Clark observes, among
other things, that
Defendants had done nothing to change the
! character of the water except what resulted
from the natural use and enjoyment of their
own property. A man is entitled to the or
dinary and natural use Of his property, may
cut down forest trees etc., altnougn
in doing he may dry up the sources OF his
neighbor's springs. or remove natural barriers
against storms. If, in the excavation OF his
land he uncovers a spring of water. salt or
fresh, acidulated or sweet, he is certainly not
obliged to cover it again, OF to conduct 1t out OF
its course. lest the stream in its natural now
may reach his neighbor's land. Defendants
being the owners of the land, had right to
mine the coal while lawfully in use and i'm
| proyement of their property. An unavoidable
loss occurred to their neighbors without negli-
gence or malice on their part. it is damnum
absque injuria, for the rightful use OF ones
own land may cause, damage to another with
out any legal wrong we DO
not say that case may not arise in which
stream from such pollution may not become
nuisance and that the public interests, as in
voved in the general health and well-being of
the community, may not require the abatement
Of that nuisance.
ONLY A PERSONAL GRIEVANCE.
Justice Clark goes on to state that the
citizens of Scranton did not make any COM
| piaint, though they, too, used the water OF
Meadow brook, the stream fouled, and adds:
The plaintiffs grievance is for a mere person
al inconvenience and we are of opinion that
| mere private personal inconvenience, arising in
this way and under such circumstances must
yield to the necessities of quiet public indus
try. which, although in the hands of a private
corporation, subserves great public interest
To encourage the development of the great
natural resources of a country, trifing 1ncon-
veniences to particular persons must give way
to the necessities of great community.
The case of Fletcher VS. Rylands is quoted
at length and pronounced inapplicable.
That case might have been urged in the
matter of the breaking OF the dam above
Youngstown, had it not been overruled in En-
gland, and the English doctrine on the SUBJ
ject left somewhat in doubt. The Court says,
in the case of the Pennsylvania Coal Com
pany VS. Sanderson:
AS general rule, those who engage in an un-
dertaking attended with risks to their neigh
bors, are anSwerable tor the conduct of that
undertaking, with diligence proportioned to
the apparent risk. and this would seem
be the better rule. There is a well-known line
OF cases in Philadelphia and elsewhere which
decide that stream of water may not be
fouled by the Introduction into it of any foreign
substance to the damage and injury of the
lower riparian owners, but in this case defend
ants introduced nothing into the water to cor
rupt it; the water flowed into Meadow brook
just as it was found in the mine; its impurities
were from natural and not from artificial
causes.
1t may be said that if the mines had not
been opened. the water which flowed into the
stream would have been pure, but as Chief
Justice Lewis said in Wheatly VS.. Baugh,
l Casey, So. ''the law has never gone so far as
to recognize in one man the right to convert
another's farm to his own use for the purpose
of a filter" No case in Pennsylvania has been
brought to our notice in which the precise
question appears to have been decided.
JUSTICE PAXSoN COULDN'T AGREE.
Justice Paxson, now Chief Justice, de-
livered dissenting opinion on the first of
four wrils of error in the case, in which he
took substantially the same ground as that
OF Justice Clark, but he only occupied four
pages in the State reports. while Justice
Clark filled IA pages. On the first trial, in
1878, in Luzerne county, Judge Stanton
granted a compulsory non-suit, on the
ground that there appearing to be no negli-
gence or malice, and the discharge of the
mine water being necessary in mining, was
damnum abseue injuria. Justice Woodward
| delivered the opinion of the Court, in which
the judgment was reversed, and in conclu-
sion said:
Relaxation of legal liza bilIties and remission
of legal duties to meet the current needs of
great business organizations. in one direction,
would logically be followed by the same relaXa-
ton and re mission on the same grounds in all
other directions. One invasion of individual
right would follow another, and it might be
only question of time when, under the opera
tons OF even single colliery, whole country
side would be depopulated
Justice Woodward was Democrat of the
old school and tenacious of individual
rights. His opinion can be found in 5
Norris, 401. Justice Paxson dissented.
In Ii Norris, 302, will be found the opin-
ion OF the Court delivered BY Justice Cor
don affirming a verdict for plaintiffs. JUS
tice Gordon agreed with Justice Woodward,
then deceased. and said in substance:
If the pollution of the brook resulted from
the necessity of coal mining and the right of
the plaintiffs must yield to it as an industry i'm
portant to the Commonwealth as argued the
argument was fallacious, as the private inter-
ests of the defendants and not the public well
fare. were involved. No industry, however i'm
portant. can claim the right to take and use
the property of the citizen without compensa-
tion. 1t is urged that mining cannot
be carried on without this flow of acidulous
water hence. of necessity, the neighboripg
streams must be polluted This is true, and it
is also true that coal mining would come to
nothing without roads, but it does not follow
that for roads the land OF an adjacent owner
may be taken or his right of way encountered
without compensation. In conclusion Justice
Gordon said:
RIGHTS OF MUNICIPALITIES.
If, indeed, the custom set up were to prevail,
then. at least so far as coaS-nining companies
are concerned there would be an abrogation of
the eighth section, article Il of the Constitu-
tion. which provides that municipal and other
corporations invested with the power of taking
private property for public use shall make just
compensation for properly taken, injured or
destroyed by the construction and enlargement
of their works highways. or improvements"
Not only would we thus have custom superior
to the supreme law of the land, but one reach
ing even beyond the possible sovereignty of the
State, i'll that il would empower private per-
suns for private purposes to lnJure or destroy
private property, and that without compensa-
tion. custom such as this is radically bad
and cannot be sustained.
In this case Justices Paxson and Sterrett
were dissenters.
Now as to the boring of oil and gas wells:
Mamie r. Collins and Mary L. Osborn
owned lots in the borough of Gienfield, this
county. On these lots were two wells.
Near them the Charters Valley Gas Com.
panv had we'll bored, and in it the salt
water arose aHd salted the wells OF Mes
danes Collins and Osborn. Suit for DAM
ages therefor was brought in Common Pleas
No. ., and tried before Judge Ewing, at the
April term of 1885. The argument by
plaintiffs attorneys was that the rule in the
Pennsylvania Coal Company versus San
derson does not exempt a landowner from all
obligation to pay regard to the effect of his
operations on subterranean waters; that ii
person boring for oil or gas have knowledge