& W. 419; Wistar's Appeal, 4 P. F. S. 60; Speakman's Appeal, 21 id. 30; Parker's Estate, 14 id. 307.

STERRETT, J. In addition to what has been said by the learned judge of the orphans' court in justification of his refusal to allow further compensation to appellants, as executors, for what they term "their extraor dinary services in settlement of the partnership affairs of Fisher & Arndt," it is sufficient to observe that, if such services were required in consequence of the incapacity of the surviving partner to wind up the business of the firm without assistance, they were, perhaps, a proper charge on the partnership assets, but clearly not against the separate estate of the deceased partner. As the legal representatives of that estate, appellants were entitled to their testator's share of the net assets of the partnership remaining after payment of the firm liabilities and expense of winding up the partnership business. The duty of settling the partnership devolved primarily on the surviving partner, and if appellants rendered any assistance therein for which they are entitled to compensation, they should and, for aught we know, may have been paid by him out of the partnership assets or otherwise. The first specification of error is not sustained.

There is nothing connected with the second and third specifications that requires special notice. The amount claimed as compensation by appellants was $2,513.18. The court regarded this as excessive, and reduced it to the ordinary commission of five per cent on the personalty and two and a half per cent on the realty, amounting together to $1,503.05. We are not prepared to say that this is not adequate compensation for all the services rendered by appellants in their capacity as executors. Appellants have no just reason to complain that they were charged with one-half the costs of audit. It was partly at least their fault these expenses became necessary.

There is nothing in either of the specifications of error that calls for any modification of the decree.

Decree affirmed, and appeal dismissed at costs of appellants.

INSURANCE

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SIEGRIST V. SCHMOLTZ.

October 4, 1886.

SPECULATIVE MAINTENANCE-INSURABLE INTEREST.
Speculative life insurance is contrary to public policy.

On entering into an agreement for the maintenance of another, and for his own protection taking an insurance on the life of the person to be maintained, is limited as to his insurable interest in the life of the insured, to the amount he may have paid or advanced in fulfillment of his contract, and to the money he may have expended in taking out and maintaining the policy.

Error to the court of common pleas of Lebanon county.

A policy of insurance was issued upon the life of Seigrist; it contained an agreement by which Schmoltz agreed that Seigrist should not become a pauper as long as the certificate was in force. On the death of Sigrist the amount of the policy was paid to Schmoltz, whereupon an action of assumpsit was brought by the administrator of Seigrist against Schmoltz to recover. The verdict was for the defendant.

J. P. S. Gobin and Bassler Boyer, for plaintiff in error, cited Downey v. Hoffer, 16 W. N. C. 185; Gilbert v. Moose, 8 Out. 74. "The insurable interest is that which existed at the time the insurance was effected, not that which may exist at the time of the death of the assured." Scott v. Dickson, 16 W. N. C. 182. "The essential thing is, that the policy shall be obtained in good faith, and not for the pose of speculating upon the hazard of a life in which the assured has no interest." Id. It was for the court to say whether the transaction was speculative or not, instead of submitting it to the jury on a question of good faith. Moore v. Small, 7 Harr. 468; De France et al. v. De France et al., 10 Casey, 390; Todd v. Campbell et al., 8 id. 252.

pur

John Benson, Grant Weidman and Josiah Funck, for defendant in error, cited Keystone Mutual Association v. Beaverson, 16 W. N. C.

188.

GORDON, J. John Schmoltz, the defendant below, who was named as the beneficiary in the policy on the life of Jacob Siegrist, being neither a creditor nor near relative of the assured, took no interest therein, except as hereinafter stated. The court below fell into the error of holding that the question was one of good faith on part of the beneficiary. Now says the learned judge, in his charge to the jury, "the question that we intend to submit to you is entirely a question of fact, namely: whether or not this transaction was speculative in its character; whether it was so on part of Schmoltz, because that is the important question. Whether it was on part of Schmoltz a speculation on the life of Jacob Siegrist, or whether it was a bona fide transaction; a transaction entered into on his part in good faith; upon good motives, charitable or benevolent motives; with the disposition to befriend the man who seemed to need friends; to support a man who seemed to need support; whether, in other words, the transaction is free from that taint which would make it void; namely, the taint of speculation."

But as we have intimated, the question is not one of good faith but of public policy. Downey v. Hoffer, 16 W. N. C. 185. The intention of John Schmoltz in obtaining this policy may have been innocent and pure, but this cannot be regarded, for the fact remains that he was in no way interested to maintain the life of Jacob Siegrist, and it is certain the sooner that life was extinguished the better it was, in a pecuniary point of view, for the beneficiary. Nor does it help the matter, but rather the contrary, that the defendant had charged himself with the support of Siegrist, for all the more would his pecuniary interest be advanced by the termination of Siegrist's life.

Doubtless, the defendant having entered into an agreement for the Inaintenance of the insured, might take a policy on his life in order to protect himself to the extent of that charge, even as a creditor may insure his debtor to the extent of his debt, for in that case he could gain nothing by Siegrist's death, though he might not be interested to maintain his life. It follows, that Schmoltz had an insurable interest in the life of Siegrist to the amount that he actually paid for his support, or which he advanced in money or otherwise, in fulfillment of his contract. So, in addition to this, would he be entitled to the money he expended

in taking out and maintaining the policy; in other words, he must be fully reimbursed for all his legitimate expenses, including lawful interest and for the balance the administrator is entitled to a judgment. As what we have said in effect sustains all the assignments of error, we need not consider them in detail. The judgment of the court below is reversed and a new venire ordered.

Judgment reversed.

PENNSYLVANIA COAL Co. v. SANDERSON.

October 4, 1886.

SIC UTERE TUO UT ALIENUM NON LÆDAS-DAMNUM ABSQUE INJURIA— MINING — COAL-WATER-WATER-COURSE INCONVENIENCE.

Every one has the right to the use and enjoyment of his own property, and if, whilst lawfully in such use and enjoyment, without negligence or malice on his part, an unvoidable loss occurs to his neighbor, it is damnum absque injuria.

The right to mine coal is not a nuisance in itself, it is a right incident to the ownership of coal property, and when exercised in the ordinary manner and with due care, the owner cannot be held for permitting the natural flow of mine water over his own land into the water-course, by means of which the natural drainage of the country is affected.

B., a coal company, was extensively engaged in mining by means of a shaft; the acidulated water accumulating in the mine was pumped up in the ordinary and usual manner, and discharged upon the land of B., over which it found its way to a natural stream, and thence to a pond used by C. as a fish pond, and also a basin for the storage of water with which to supply his residence. Held, under the circumstances, B. was not responsible to C. in damages for the tainting of the water in the pond.

To encourage the development of the natural resources of the country, trifling inconveniences to particular persons must at times give way to the necessities of a great public industry, which, although in the hands of a private corporation, subserve a great public interest. Sanderson v. Pennsylvania Coal Co., 86 Penn. St. 401, reversed.

Error to the court of common pleas of Lackawanna county. The facts are stated in the opinion.

J. M. & W. P. Gest, Henry W. Palmer, Willard & Warren, Henry M. Hoyt and Andrew T. McClintock, for plaintiffs in error. The question involved is one of new impression in this State. See 5 Norr. 401; 6 W. N. C. 101; 13 Norr. 302, and 6 Out. 370. The rule "sic utere tuo ut alienum non lædas," from necessity, is sometimes relaxed. See Acton v. Blundell, 12 M. & W. 324. The rule laid down. in Smith v. Kendrick, 7 C. B. 715, does not apply to a case where the upper mine-owner has been guilty of malice or negligence, which no one pretended it did. Locust Mountain Co. v. Gorrell, 9 Phila. 247. In England, Smith v. Kenrick has been ever since recognized as authority. Crompton v. Lea, L. R., 19 Eq. 115. Lord Chancellor CAIRNS, in the house of lords, in Fletcher v. Rylands, L. R., 3 H. L. 330. Bramwell, B., in Fletcher v. Smith, L. R., 7 Exch. 305, said that he fully agreed with the case. See, also, Baird v. Williamson, 15 C. B. (N. S.) 390, and Jagon v. Vivian, L. R., 6 Ch. App. 628. This point is important, as the principle of Smith v. Kenrick, as we show in our argument, is strongly in our favor. When the maxim "sic utere tuo ut alienum non lædas" is applied to landed property, the plaintiff must show not only that he has sustained damage, but that the defendant has caused

it by going beyond what is necessary in order to enable him to have the natural use of his own land. BRETT, L. J., in West Cumberland Iron Co. v. Kenyon, 11 Ch. Div. 783. In Losee v. Buchanan, 51 N. Y. 476, a valuable and leading case, it was said: "One who does an act lawful in itself, from which damage results to another, is not answer. able for such damage, unless he has been guilty of negligence or other fault in the manner of doing the act." See, also, Marshall v. Wellwood, 38 N. J. Law, 339. The New York cases indeed go much further than this court is asked in reference to the present case. In Phelps v. Now lan, 72 N. Y. 39, it is ruled that the maxim sic utere tuo, etc., does not apply at all to an act lawful in itself, even where the act complained of was done with the express intention to injure the plaintiff. See, also, Pixley v. Clark, 22 Barb. 268; Nichols v. Marsland, L. R., 10 Exch 255; s. o., 2 Exch. Div. 1. Box v. Jubb, 27 W. R. 415, went a step further in extending the defense of vis major to a case where the damage was caused by a third party over whom defendants had no control, releasing water from defendant's reservoir, and thus overflowing the plaintiff's land.

A still greater departure from Fletcher v. Rylands is found in the case of Ross v. Fedden, L. R., 7 Q. B. 661, where it was held that the tenant of an upper floor of a building is not liable, in the absence of negligence, for damages caused by water escaping from his water-closet to the lower floor. The same point arose in Pennsylvania in Warren v. Kauffman, 2 Phila. 259, and the court ruled that, while negligence was prima facie made out, yet the defendant was not responsible if he could show that the damage was not caused by his negligence. It has been expressly decided that a custom even to pollute a stream is good. Carlyon v. Levering, 1 H. & N. 784, decided that the custom of miners in the stannaries of washing away the sand, stones and rubble, which were dislodged in working the mines, in the stream, and having the same washed by the flow of the stream toward the sea, through the plaintiff's land, was good. See, also, Wright v. Williams, 1 M. & W. 77; Snow v. Parsons, 28 Vt. 459; English v. Johnson, 17 Cal. 107. In Tipping v. St. Helen's Smelting Co., L. R., 1 Ch. 66; 11 H. L. C. 642, the necessities of commerce are admitted as a ground for compelling persons in a populous town to put up with poisonous vapors, although the superior sanctity of property, always in England better considered than life or limb, is duly asserted. In Cavey v. Ledbitter, 13 C. B. (N. S.) 476, the chief justice points out the influence of time, place and circumstance upon the question of nuisance. In Bamford v. Turnley, 3 B. & S. 66, all the judges recognize the doctrine. Water flowing on to land is a sort of common enemy against which each man must defend himself. Rex v. Commissioners, 8 B. & C. 355. In Fletcher v. Smith, 2 App. Cases, 781 (1877); Smith v. Fletcher, L. R., 7 Exch. 305; L. R., 9 Exch. 64, it was decided by the house of lords. that "a mine-owner will not be liable to the owner of an adjacent mine for injury occasioned to such adjacent mine, where such injury proceeds from natural causes in themselves beyond his control. West Cumberland Iron Co. v. Kenyon, 6 Ch. Div. 733; s. c., 11 id. 783 (April, 1879). The right of mines to drain into rivers has

always been recognized at least it has always been acquiesced in in this State. See Kauffman v. Greisemer, 2 Casey, 407; Martin v. Riddle, id. 415; Hughes v. Anderson, 68 Ala. 280; Wheatley v. Baugh, 1 Casey, 528. If necessity was a good reason in Wheatley v. Baugh, why does it not apply to Sanderson v. Pennsylvania Coal Co.? Wheatley v. Baugh was affirmed in Lybe's Appeal, 10 Out. 626. Private inconvenience must yield to public necessity. This is acknowledged by Judge WOODWARD, in 5 Norr. 409, where he quoted St. Helen's Smelting Co. v. Tipping, 11 H. L. Cas. 642. See Huckenstein's Appeal, 70 Penn. St. 102; Rhodes v. Dunbar, 7 P. F. S. 287. In Snow v. Parsons, 28 Vt. 459, the reasonableness of the use of a stream by the upper riparian owner was held to be a question of fact, to determine which testimony showing the uniform usage of the country was admissible. The Pennsylvania cases have always recognized custom or usage as exercising a controlling influence. In Watt v. lloch, 1 Casey, 411, it was held that the custom of the merchants of Pittsburgh to charge interest on goods sold after six months is so universal and notorious that the courts are bound to take notice of this custom as a part of the law, following Koons v. Miller, 3 W. & S. 271, where a similar custom of the Philadelphia merchants were recognized as valid and binding. See Frankford & Bristol Turnpike Co. v. Phila. & Trenton R. R., 4 P. F. S. 345; McMasters v. Penna. R. R., 19 id. 374; Carter v. Phila. Coal Co., 27 id. 286. It is well established that whatever is authorized by an act of the legislature cannot be a nuisance; neither an injunction nor an action will lie to redress a consequential injury, necessarily resulting from the lawful exercise of a right granted by the sovereign power of the State. See Williams v. The New York, etc., 18 Barb. 222; Magette v. New York, 3 E. D. S. 98; Com. v. Reed, 10 Casey, 275. In the case of malice or negligence the rule does not apply for such acts as are not authorized by the legislature. The leading case is the familiar one of Vaughan v. Taff Vale Ry. Co., 3 H. & N. 742; s. c., 5 id. 678, and has often been followed in this State. Railroad Co. v. Yeiser, 8 Penn. St. 366; Turnpike Co. v. The Railroad, 54 id. 345; Phila. R. R. Co. v. Yerger, 73 id. 121; AGNEW, J., 54 id. 349. As to whether damages should be allowed for permanent injury to the land, see 6 Out. 376; Pennington v. Brinsop Hall Coal Co., L. R., 5 Ch. Div. 773. Interest cannot be allowed upon unliquidated damages. Pittsburg Southern R. R. v. Taylor, 8 Out. 317; Weir v. County of Allegheny, 14 Norr. 413.

A. Ricketts, for defendants in error. As to the allowance of interest, see Bare v. Hoffman, 79 Penn. St. 71, a case where damages were claimed for diverting water, fully sustained by Railroad Co. v. Gesner, 8 Harr. 240; Penna. R. R. Co. v. Cooper, 8 P. F. S. 408; and by D., L. & W. R. R. Co. v. Burson, 11 id. 369. See, also, Phila. v. Dyer, 41 Penn. St. 463; Penna. R. R. Co. v. Patterson, 73 id. 491; City of Allegheny v. Campbell, 107 id. 530. The principles declared in Locust Mountain Iron & Coal Co. v. Gorrell, 9 Phila. 247, precisely apply to this case. There the maxim sic utere tuo ut alienum non ladas is declared to be the true principle of the law.