a verdict for the defendant. We bave therefore to examine the cases to see what the true distinction is between surface or visible, and subterranean waters, and whether different principles are applicable to the rights in them respectively or the same principle with only such modifications as may be necessary in practical application. In Wheatley v. Baugh, 25 Pa. 528, the plain tiff had a spring upon his property, which he had used in his tannery for more than twentyone years when defendant opened a mine on his adjacent land, and put in a steam pump to take out the water with the result of drying up the plaintiff's spring. It was held that plaintiff had no cause of action. This case settled the law on the subject of percolating waters, and has not since being questioned. It was followed in Haldeman v. Bruckhart, 45 Pa. 514, but was restated rather narrowly by Justice Strong, thus: "In that case it was ruled that where a spring depends for its supply upon filtrations or percolations of water through the land of an owner above, and in the use of the land for mining or other lawful purposes the spring is destroyed, such owner is not liable for the damages thus caused to the proprietors of the spring, unless the injury was occasioned by malice or negligence. To such percolations or filtrations, then, the inferior owner has no right. This was all that was necessary to the decision of the case." He then criticises the rest of the opinion in Wheatley v. Baugh as dictum, and formulates the rule again in the following terms: "A proprietor of land may in the proper use of his land for mining, quarrying, draining or any other useful purpose, cut off or divert subterraneous water flowing through it to the land of his neighbor, without any responsibility to that neighbor." These forcible statements of the rule are, as I apprehend, the main ground of the contention, on behalf of the defendant in the present case, that an owner is not bound to pay any regard to the effect of his operations on subterranean waters. But this contention overlooks the qualification, made in all the cases, that there must be no negligence. ions in favor of the rights of the proprietor on his own land, it is clear that the same qualification is not lost sight of although not prominently put forward. "A surface stream," says Strong, J., "cannot be diverted without knowledge that the diversion will affect a lower proprietor. Not so with an unknown subterraneous percolation or stream. One can hardly have rights upon another's land which are imperceptible, of which neither himself nor that other can have any knowledge. . . . These appear to us very sufficient reasons for distinguishing between surface and subterraneous streams, and denying to inferior proprietors any right to control the flow of water in unknown subterranean channels upon an adjoiner's land. They are as applicable to unknown sub-surface streams as they are to filtrations and percolations through small interstices." And in Lybe's App. 106 Pa. 634, it is said: "The rule is that wherever the stream is so hidden in the earth that its course is not discoverable from the surface, there can be no such thing as a prescription in favor of an adjacent proprietor to have an uninterrupted flow of such stream through the land of his neighbor." On the other hand, where the subterranean water is not hidden, but has a defined flow which is known or ascertainable, rights in it will be treated on the same basis as rights in a surface stream. Whetstone v. Bowser, 29 Pa. 59. It is therefore clear from the principles and the reasoning of all the cases that the distinction between rights in surface and in subterranean waters is not founded on the fact of their location above or below ground, but on the fact of knowledge, actual or reasonably acquirable, of their existence, location and course. whether the damage was necessary and unavoidable; secondly, if not, was it sufficiently obvious to have been foreseen, and also preventable by reasonable care and expenditure? The principle of Pennsylvania Coal Co. v. Sanderson is precisely the same as that of Wheatley v. Baugh, and is of general application. It is that the use which inflicts the damage must be natural, proper and free from negligence, and the damage unavoidable. On the question of negligence the question of knowledge is always important and may be conThe opinion of Chief Justice Lewis in Wheat-clusive. Hence the practical inquiry is, first, ley v. Baugh is as able, elaborate and convincing a discussion of the subject as can be found reported, and in it the necessary and unavoidable character of the damage is explicitly insisted on. "When the filtrations are gathered into sufficient volume to have an appreciable value, and to flow in a clearly defined channel, it is generally possible to see it, and to avoid diverting it without serious detriment to the owner of the land through which it flows. But percolations spread in every direction through the earth, and it is impossible to avoid disturbing them without relinquishing the necessary enjoyment of the land." p. 532. "The owner of a spring, although his right is imperfect where the supply is derived through his neighbor's land, has nevertheless a privilege subordinate only to the paramount rights of such neighbor; and it is only when the fair enjoyment of those paramount rights requires its destruction that he is bound to submit to the deprivation." p. 535. In Pennsylvania Coal Co. v. Sanderson the damage was unavoidable. In Wheatley v. Baugh it was not ascertainable beforehand. Hence the plaintiff had no cause of action in either case. Later cases following Wheatley v. Baugh have held that injury to springs, wells, etc., supplied by mere percolation, was not actionable, and the reason has always been the same, that the damage could not be foreseen or avoided. If the boundaries of knowledge have been so enlarged as to make an end of the reason, then cessante ratione, cessat ipsa lex. Geology is a progressive, and now in many respects a practical, science; and, as truly remarked by the learned judge below, in his opinion on the motion for a new trial, since the decisions in Acton v. Blundell, 12 Mees. & W. 324, and Wheatley v. Baugh, probably more And even in Haldeman v. Bruckhart, which deep wells have been drilled in Western Pennis the most strongly expressed of all the decis-sylvania than had previously been dug in the entire earth in all time. And that which was then held to be necessarily unknown or merely speculative as to the flow of water underground, has been by experience in such cases as this reduced almost to a certainty." If this is the state of knowledge at the present day-if the existence of a stratum of clear water and its flow into wells and springs of the vicinity, and the existence of a separate and deeper stratum of salt water which is likely to rise and mingle with the fresh when penetrated in boring for oil or gas, are known, and the means of preventing the mixing are available at reasonable expense-then clearly it would be a violation of the living spirit of the law not to recognize the change and apply the settled and immutable principles of right to the altered conditions of fact. The learned judge in his charge said, "there is evidence from which the jury could fairly find that the defendant when the well was drilled knew or ought to have known, if it had exercised any reasonable judgment or investigated or paid attention to it, that the boring of this well in the way it was done, without shutting off the salt water from the fresh water, would almost inevitably ruin these and other wells in the immediate vicinity. And I think there is evidence from which the jury could fairly find that the defendant could, with the outlay of a small amount of money, have shut off the salt water from the fresh water so that it could not have done any injury." If the jury had found the facts, as this charge assumes that they fairly might on the evidence, then the plaintiff had made out a case of neg ligence and was entitled to recover. Negligence in this sense is the absence of such care and regard for the rights of others as a prudent and just man would and should have in the same situation. If the plaintiff showed that the injury was plainly to be anticipated, and easily preventable with reasonable care and expense, he brought himself within the exception of all the cases from Wheatley v. Baugh to Pennsyl vania Coal Co. v. Sanderson inclusive. It may be well to say that in cases of this nature juries should be held with a firm hand to real cases of negligence within the exception, and not allowed to pare down the general rule by sympathetic verdicts in cases of loss or hardship from the proper exercise of clear rights. The danger of such result is not to be ignored, but we cannot, on that account, shut the door to suitors entitled to redress for genuine wrongs. The duty to maintain the line firmly where justice and law put it is in the first instance and chiefly upon the trial courts. Judgment reversed, and venire de novo awarded. MASSACHUSETTS SUPREME JUDICIAL COURT. Julian A. HOLMES v. TURNERS FALLS LUMBER CO. et al. (....Mass.....) 1. A reference to an auditor in a writ of entry "to examine the claims and vouchers and hear the parties thereon" includes all claims made by the parties, and therefore embraces a disputed question as to division lines. 2. Power to refer a cause at issue, under Mass. Pub. Stat., chap. 159. § 51, "whether the form of the action is contract, tort or replevin," is not restricted to actions of the forms specified, but extends to all civil proceedings at law including a writ of entry. 3. Statements as to boundaries made by an officer of a corporation while negotiating a sale or lease of real estate, which he had authority to sell or lease, may be proved after his death against the corporation or its subsequent grantees. 4. Declarations of the treasurer of a corporation, who had no authority to bind it by his statements, may be admissible if made in the course of negotiations for the corporation by himself and the president, and in the presence of the latter, who did not dissent therefrom, where the declarations of the president would be competent evidence. his 7. Neither the mortgagor nor grantee holds adversely to the mortgagee until he has distinctly disclaimed holding under him, and asserted title in himself. 8. An assignee of a mortgage for collateral security can, as against the mortgagor and those who claim under him, execute a power of sale as fully as if the assignment were absolute. 9. Land may be sold in parcels to separate purchasers at one sale under a power in a mortgage if the sale is made in such a manner as to obtain the most money for the land. ΟΝ (January 4, 1890.) defendants' exceptions. Overruled. This was a writ of entry against the Turners Falls Company and the Turners Falls Lumber Company in the Superior Court, Franklin County, to recover the possession of and try the title to a strip of land lying on the easterly side of the Connecticut River at Turners Falls. The action was by order of court referred to an auditor, and to the admission of his report in evidence an exception was taken. The facts appear in the opinion. Messrs. George D. Robinson, Samuel T. Field and Franklin G. Fessenden, for demandant: The court has power to appoint auditors in such cases, even though the parties to the suit object. 5. A general objection to declarations of two persons whose statements are not distinguished is insufficient to question the admissibility of the declarations of one of them. 6. The possession of a tenant beyond the boundaries of the land contained in the lease, even if he believes that he is occupying The words "whether the form of the action only the land demised, will not be the possession is contract, tort or replevin," in Pub. Stat., Clark v. Fletcher, 1 Allen, 53. chap. 159, § 51, do not limit the effect of the | ditor, he should have confined his report to section. This section, so far as material to this case, is a re-enactment of Gen. Stat., chap. 121, § 46. It did not restrict the class of cases which might be referred to auditors. It has been said by the courts to extend so as to embrace all causes at issue. Quimby v. Cook, 10 Allen, 32-a bill in equity to redeem from mortgage; Corbett v. Greenlaw, 117 Mass. 167,-petition to enforce mechanics' lien. Declarations of a deceased former owner of land are admissible, even though they make in his favor. Daggett v. Shaw, 5 Met. 223; Wood v. Foster, 8 Allen, 24; Niles v. Patch, 13 Gray, 254; Long v. Colton, 116 Mass. 414. Declarations of a party in disparagement of his title are admissible against him. Church v. Burghardt, 8 Pick. 327; Kellenberger v. Sturtevant, 7 Cush. 465; Flagg v. Mason, 2 New Eng. Rep. 162, 141 Mass. 64. And the rule extends to declarations made by a former owner, under whom the present owner claims. Tyler v. Mather, 9 Gray, 177; Osgood v. Coates, 1 Allen, 77; Blake v. Everett, 1 Allen, 248; Chapman v. Edmands, 3 Allen, 512; Pickering v. Reynolds, 119 Mass. 111; Simpson v. Dix, 131 Mass. 179; Rowell v. Doggett, 3 New Eng. Rep. 756, 143 Mass. 483. A corporation must always act through agents; and the rule is that admissions or acts of agents, made or done while in the performance of duty, are the admissions and acts of the corporation. such subjects as were expressly embraced in the order appointing him. He had no power to report upon the division line, and his report in this matter was not admissible in evidence. Jones v. Stevens, 5 Met. 373; Flint v. Hubbard, 1 Allen, 252. An agreement between the parties that an auditor may consider and report upon every item of the matters submitted to him according to his judgment does not confer upon him any additional powers. Flint v. Hubbard, supra. Nor does the fact that both parties went into evidence before the auditor on the matter of the division line confer additional powers. Parties cannot, by an implied assent, confer power which they cannot confer by express consent. Jones v. Stevens, supra. If one of the findings of an auditor is erroneous in matter of law, or in excess of the authority conferred by the rule of reference, the jury should be instructed accordingly, and so much of the report stricken out. Briggs v. Gilman, 127 Mass. 530. An agent's declarations are admissible in evidence against his principal only when they are a part of the res gesta. Woods v. Clark, 24 Pick. 35; Cooley v. Norton, 4 Cush. 93. These alleged declarations were not admissible as a part of the res gesta. Nutting v. Page, 4 Gray, 581. The president of the Company was merely its agent, and his declarations are like those of an agent of an individual. Ang. & A. Corp. ed. 1882, § 309. Morse v. Connecticut River R. Co. 6 Gray, 450; Blanchard v. Blackstone, 102 Mass. 343; The declarations of the president of the ComGott v. Dinsmore, 111 Mass. 45; Lane v. Boston pany were not the declarations of a person who & A. R. Co. 112 Mass. 455; McGenness v. Adri-owned the land. It does not appear that he atic Mills, 116 Mass. 177; Wiggin v. Boston & had the interest of a stockholder of the ComA. R. Co. 120 Mass. 201; Green v. Boston & L. pany. A person may be president of a comR. Co. 128 Mass. 221; Richmond Iron Works v. pany and not be a stockholder. Hayden, 132 Mass. 190; Kirkstall Brewery Co. v. Furness R. Co. L. R. 9 Q. B. 468; Parrott v. Watts, 47 L. J. N. S. C. P. Div. 79; The Solway, L. R. 10 Prob. Div. 137. Pub. Stat. chap. 106, § 25; Gen. Stat. chap. 60, 5; Wight v. Springfield & N. L. R. Co. 117 Mass. 226. All declarations made by an agent while neThe cases in which it has been held that dec-gotiating a transaction for another are not evilarations of agents are not admissible were de- dence against the principal and those claiming cided on the grounds that the declarations were under him. not made within the scope of the employment, or that they were made after the particular transaction was ended. Burgess v. Wareham, 7 Gray, 345; Blanchard v. Blackstone, supra; Boston & M. R. Co. v. Ordway, 1 New Eng. Rep. 721, 140 Mass. 510; Williamson v. Cambridge R. Co. 3 New Eng. Rep. 750, 144 Mass. 148. It was not only the mortgagee's right, but also his duty, to sell in parcels, if by so doing a better sale could be made. It appears by the affidavit that the premises divided into parcels in this way "would sell for the highest price." Olcott v. Bynum, 84 U. S. 17 Wall. 44 (21 L. ed. 570); Jones, Mort. 1858, 1859. The power of sale was full. The sale was made in good faith. The mortgagors were not prejudiced. Pryor v. Baker, 133 Mass. 459. Messrs. Bond & Mason and Austin De Wolf, for defendants: If the court had authority to appoint an au Fairlie v. Hastings, 10 Ves. Jr. 127; Hannay v. Stewart, 6 Watts, 489. It has been held that neither the treasurer nor the individual directors of a corporation were authorized to admit that the condition of a contract had been performed and that the money was due under it. Tripp v. New Metallic Packing Co. 137 Mass. 503. The possession of the Turners Falls Lumber Company, under the lease of the Turners Falls Company, was the possession of the Turners Falls Company. Melvin v. Proprietors of Locks & Canals, 5 Met. 15. Field, J., delivered the opinion of the court: Since the enactment of the Revised Statutes the demandant in a writ of entry is entitled to recover rents and profits, although damages therefor are not specifically claimed in the writ; and the tenant, if he make the claim, is entitled to an allowance for improvements, and the amount of both these claims may be assessed by a jury. Pub. Stat. chap. 173, §§ 12-35. Raymond v. Andrews, 6 Cush. 265. state the accounts between the parties and to make report thereof to the courts as soon as may be," etc. The first statute authorizing the appointment of masters in chancery is Stat. 1826, chap. 109, $4. Lyman v. Warren, 12 Mass. 412, decided in 1815, was an action of debt on a probate bond in which the defendant confessed a forfeit On December 1, 1886, the superior court referred the present cause to an auditor. The rule recites that it appears, upon an examination of the issue, that the trial of said action will require an investigation of accounts, and an ex-ure and "prayed to be heard in chancery," on amination of vouchers by the jury, and therefore the court appoints "Edward E. Lyman of Greenfield, in said county, an auditor to examine the claims and vouchers, and hear the parties thereon, and make report thereof to the court; and if either of the parties shall neglect to appear before the auditor, after due notice given of the time and place appointed for hearing them, the auditor may proceed ex parte." When this rule was entered, the tenants had pleaded nul disseisin and has filed a claim for an allowance for improvements. Pending the hearing before the auditor, the parties filed an agreement in writing "that all questions concerning rents and profits and the value of improvements by the tenants shall be postponed till after the trial of the question of title, to be determined by an assessor. The hearing proceeded and the auditor subsequently made and filed his report, in which he found that both tenants had disseised the demandant of a portion of the demanded premises, which he defined by metes and bounds. The demandant at the trial offered this report in evidence. The tenants objected to its admission on two grounds: "first, that there is no authority to appoint an auditor in a real action;" and, "second, that the matter of the division line was not included in the reference to the auditor." The exceptions then state that, "it appearing to the court that no exception had been taken to the order referring the case to an auditor, and that all parties had appeared before the auditor and proceeded to a full hearing, and no objection was made till the report was of fered in evidence, the court admitted the auditor's report. The tenants excepted.” It may be that it was competent for the court to find, on the facts which appeared, that the parties had consented that the cause should be referred to an auditor, with the usual powers, and that a reference of a cause to an auditor by consent of parties may be made by rule of court as well as a reference to an arbitrator or a referee; and that it was too late for the tenants to take this objection when they made it, even if the court had no authority to appoint an auditor in a real action. See Kimball v. Amesbury Baptist Society, 2 Gray, 517. We prefer, however, to consider the principal question. The history of the practice of referring causes to auditors is examined in Holmes v. Hunt, 122 Mass. 505, and in Locke v. Bennett, 7 Cush. 445. The first statute on the subject is Stat. 1817, chap. 142, and it is entitled "An Act for Facilitating Trials in Civil Causes." It provided "that whenever in any action before the supreme judicial court or any circuit or other court of common pleas, it shall appear to said courts that an investigation of accounts or an examination of vouchers is necessary for the purposes of justice between the parties, it shall be lawful for the said courts to appoint an auditor or auditors to the amount for which execution should issue, and the court, with consent of the parties, appointed three persons as auditors, "to examine and take and state the accounts in the action." The opinion indicates that the appointment of auditors in such a suit was not unknown in practice, although at that time there was no statute authorizing either the appointment of auditors or masters in chancery. The phraseology of Stat. 1817, chap. 142, shows that it was the intention of the Legislature to authorize the courts named in the Act to appoint an auditor or auditors in any civil action in which "an investigation of accounts or an examination of vouchers," was necessary. The Revised Statutes, chap. 96, §§ 25-31, are a reenactment of Stat. 1817, chap. 142, "with the addition of some practical details, but without any material change," as the commissioners say in their report which was adopted by the Legislature. Section 25, Id., provides that "whenever a cause is at issue, and it shall appear that the trial will require an investigation of accounts, or an examination of vouchers by the jury," the court may appoint one or more auditors to hear the parties and examine their vouchers and evidence, and to state the accounts and make report thereof to the court. In Whitwell v. Willard, 1 Met. 216, decided in 1840, a majority of the court held that the Revised Statutes did not authorize the court, without the consent of the parties, to appoint an auditor in an action against an officer for not attaching numerous articles of personal property, and Shaw, Ch. J., said that the issue "involves no question of debtor and creditor, no examination of book accounts or other vouchers, no relation in which one party is accountant to the other, or in which any question of account can come collaterally in issue." He also said that "the court would not be understood to intimate that the authority to appoint auditors to examine vouchers and state an account depends upon the form of the action, and may not extend to an action sounding in tort. The opinion in Locke v. Bennett, supra, perhaps suggests that the court were not entirely satisfied with the decision of the majority in Whitwell v. Willard. See Rich v. Jones, 9 Cush. 329; Kimball v. Amesbury Baptist Society, supra. Stat. 1856, chap. 202, did not purport to repeal pre-existing statutes, but it provided that "whenever a cause is at issue in any court, whether the form of the action be contract, tort or replevin, the justice of the court before whom the same is pending may in his discretion appoint one or more auditors to hear the parties, and report upon such matters therein as may be directed by the said court, and the report in such case shall be prima facie evidence upon such matters only as are expressly embraced in the order of the court." Gen. Stat., chap. 121, §§ 46-50, were in tended, as stated in Fair v. Manhattan Ins. Co., § 46, the power (of auditors) is extended so as 112 Mass. 320, to be “a condensed re-enactment to embrace all causes at issue in every court, of the earlier statutes." whatever may be the form of action," etc. Stat. 1883, chap. 197, provided that "justices of police courts shall have no power to send any case to an auditor unless both parties shall assent thereto in writing." This, and the sections of the General Statutes which have been cited, were re-enacted in Pub. Stat., chap. 159, $$ 51-55. Pub. Stat., chap. 159, § 51, provides that "when a cause is at issue, whether the form of the action is contract, tort or replevin, a police district or municipal court, where both parties assent thereto in writing, and any other court in its discretion, may appoint one or more auditors to hear the parties, examine their vouchers and evidence, state accounts and report upon such matters therein as may be ordered by the court," etc. It is not necessary, however, in the present case, to determine whether under existing statutes a court can appoint auditors in an equity suit. It may be said that the existing statutes seem to indicate that masters are to be appointed in suits in equity, and auditors in civil actions at law. Pub. Stat., chap. 159, § 46-55, and Stat. 1817, chap. 142, relate to actions, and the Statute of 1817 provides that the report of the auditor or auditors "shall, under the direction of said court, be given in evidence to the jury, subject, however, to be impeached by evidence from either party," and this language is not directly applicable to suits in equity. as distinguished from masters in chancery in suits in equity; and since the passage of Stat. 1826, chap. 109, there has been no need of auditors in suits in equity, whatever may have been the early practice in equity in this Commonwealth. At the time this Statute was passed the equity jurisdiction of the supreme judicial court was extremely limited, and it may be doubted The question is, whether the clause "whether whether the Legislature intended by this Statthe form of the action is contract, tort or re-ute to authorize the appointment of auditors, plevin," restricts the authority of a court to appoint an auditor to these divisions of personal actions. We are of opinion that it does not. An action of waste, an action of ejectment, a writ of entry upon disseisin, and a writ of dower, are, in our practice, mixed actions, in which damages are recovered as well as the possession of land; and the appointment of an auditor in these actions is often as necessary for the purposes of justice as in personal actions. The writ of entry to foreclose a mortgage has been held to resemble a suit in equity as much as an action at law, and there is especial need, in such an action, for the appointment of an auditor. The original Statute of 1817 authorized the appointment of auditors in any civil action, but it restricted them to an investigation of accounts. The Statute of 1856, chap. 202, was passed for the purposes of extending the authority of auditors to hear and report upon any matters in a cause upon which they were directed by the court to report. As the investigation of accounts would arise usually, although not exclusively, in actions of contract, and as the appointment of auditors before the Statute of 1856, chap. 202, had generally been made in actions of contract, the clause, whether the form of the action be contract, tort or replevin," was inserted to show that the Legislature did not intend to confine the appointment of auditors to any particular form of personal actions. It may be true that the Legislature in making this enactment had in mind only personal actions, but the principal clause of the Statute is general and must be held to include any cause at issue, and this Statute has been incorporated with the re-enactment of the Statute of 1817, which in terms gave authority to appoint an auditor in any civil action. In Corbett v. Greenlaw, 117 Mass. 167, no doubt was expressed of the power of the court to appoint an auditor in a petition to enforce a mechanics' lien. Indeed in Quimby v. Cook, 10 Allen, 32, which was a bill in equity to redeem land from a mortgage, the court referred the case to an auditor to state the accounts between the parties, and the question raised was, whether the auditor in his report had exceeded his powers; and the court says that "by Stat. 1856, chap. 202, re-enacted in Gen. Stat., chap. 14, However this may be, we think that the existing statutes were intended to authorize the supreme judicial and superior courts to appoint an auditor or auditors in all civil proceedings at law, and that the appointment of an auditor in the case at bar was within the power of the court. The rule to the auditor in the present case was not drawn in a form the most appropriate to the action, but it directs the auditor "to examine the claims and vouchers and hear the parties therein, and make report thereof to the court," and we think that this includes all the claims made by the parties to the action. It appears in the exceptions that the demandant claimed title to the land "on the east of the centre line of the road referred to in the deed from Stoughton to the Turners Falls Company in 1857, and in the deed from Stoughton to Holmes and Wood in 1869," and "claimed no land west of" this centre line; and that the tenants "claimed no title to any land east of the centre line of said road." It does indeed appear that the tenants claimed that the westerly boundary of the demandant's land was to the centre of the old road, southerly from a point where a line drawn from the bound under the old mill, and running it 45° E., crossed the old road, and thence northerly on said line to the east side of said road, and thence on the east side of the road to the northerly end of the demanded premises. The difference between these statements is that in one the centre line of the old road constitutes the entire westerly boundary line of the demandant's land, and in the other it constitutes only a part of that boundary. The demandant's title is as follows: Timothy M. Stoughton conveyed certain lands, including the land in dispute, to Holmes and Wood, by deed dated April 10, 1869, and on the same day Holmes and Wood gave Stoughton a mortgage on the same lands. Both these deeds were recorded June 14, 1869. Certain parcels, not including the land in dispute, were released |