all the rights of a riparian owner, and also a right by prescription, was conceded; upon this the court granted an injunction. What the plaintiff's rights as a riparian owner were was not separately discussed in the judgment of the court; indeed, that question was not discussed at all, and cannot be said to have been decided, because, as we have said, the defendant conceded the prescriptive right. The opinion of the court FRY, J.- is wholly occupied with the discussion of a question which is irrelevant here, whether, where the right is conceded, damages might or should be awarded in lieu of the injunction. As the question now under consideration was neither discussed nor decided, we cannot see how the case can be supposed to have any importance here. If it be assumed, however, that it was decided upon the plaintiff's rights as a riparian owner alone, we think the case was not well considered; the authorities cited by the learned judge in that view certainly do not sustain him.*

-

There is a well known line of cases in Pennsylvania and elsewhere, which decide that a 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. Howell v. McCoy, 3 Rawle, 256; Barclay v. Com., 1 Casey, 503; McCallum v. Germantown Water Co., 54 Penn. St. 40; Wood v. Sutcliffe, 16 Jur. 75; Wood v. Waud, 3 Exch. 748; St. Helen Smelting Co. v. Tipping, 4 B. & S. 608; 11 H. L. 642, are cases of this kind. But we do not understand the principle of these cases to be denied, as we think they are not pertinent to the question now under consideration. The defendants introduced nothing into the water to corrupt 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.

It 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 Wheatley v. Baugh, 1 Casey, 532, "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."

In the case of New Boston Coal Co. v. Pottsville Water Co., 54 Penn. St. 164, a question of a somewhat similar nature was sought to be raised in this court, but the cause was determined on other grounds, and the question referred to was not decided. No case in Pennsylvania has been brought to our notice in which the precise question appears to have been decided.

As the discharge of mine water is incident to all mining, it is probable that there is scarcely a stream in the mining regions of Lackawanna county which is not to a greater or less extent similarly affected, but adopting the language of our brother PAXSON in his dissenting opinion -6 W. N. C. 100"The population, wealth and improvements are the result of mining, and of that alone. The plaintiffs knew when they purchased their property that they were in a mining region; they were in a city born of mining operations, and which had become rich and

"While their claim included the assertion of a prescriptive right, it was discussed mainly in view of the position of plaintiffs' rights as sub-riparian owners." WOODWARD, J., 86 Penn. St. 401.

populous as the result thereof. They knew that all mountain streams in that section were affected by mine water, or were liable to be. Having enjoyed the advantages which coal mining confers, I see no great hardship, nor any violence to equity, in their also accepting the inconveniences necessarily resulting from the business."

We are of opinion, for the reasons stated, this judgment should be reversed. It is with the greatest reluctance we conclude to revise and reverse a former judgment of this court. We feel much more embarrassed in so doing, because of the well-known ability and learning of the distinguished judge who delivered the previous opinion, and of the fact that two at least of our number have given that opinion their formal approval, but a majority of this court as it is now constituted, satisfied that the rule laid down in that opinion and judgment is a wrong one, feel constrained to adopt a different rule, and enter a different judgment.

The view which we have taken of this case renders it unnecessary that we should consider the other errors assigned.

The judgment is reversed.

MERCUR, Ch. J., GORDON and TRUNKEY, JJ., dissent.

NOTE. The case of Wheatley v. Chrisman, 24 Penn. St. 298, does not appear to have been called to the attention of the court. The remarks of BLACK, J., in that case seem to us to be directly in point. He said: "There was no trouble in the court below and there can be none here about determining what are the main and principal rights of the parties in regard to the subject-matter of the controversy. A small stream of water runs through the land of both. The defendant is the upper and the plaintiff the lower proprietor. It is asserted that the defendant, who is working a lead-mine, has corrupted the water and sensibly diminished the volume of the stream. If either of these allegations be true, the plaintiff has a right to recover in this action; and if one verdict be not enough to make the defendant discontinue the nuisance a second jury will be instructed to give such damages as will cause him to wish that he had taken the warning of the first. The wrong must cease no matter how trifling it may seem. The right of the plaintiff is absolute to be restored to the full enjoyment of his own property, and is not dependent in any manner upon its value either to himself or his adversary. The proposition of the defendant was that he had a legal right to use a reasonable quantity of the water for the purposes of his business. The court replied, that his business might reasonably require more than he could take consistently with the rights of the plaintiff. We cannot see how or on what principle the correctness of this can be impugned. The necessities of one man's business cannot be the standard of another's rights in a thing which belongs to both. The true rule was given to the jury. The defendant had a right to such use as he could make of the water without materially diminishing it in quantity or corrupting it in quality. If he needed more he was bound to buy it. However laudable his enterprise may be he cannot carry it on at the expense his neighbor. One who desires to work a lead-mine may require land and money as well as water, but he cannot have either unless he first makes it his own."

In Mayor of Baltimore v. Warren Manuf. Co., 27 Alb. L. J. 387; s. c., 59 Md., the city of Baltimore, under a statute authorizing it to do so, acquired lands upon which ran a stream for the purpose of supplying the city with pure water. Thereafter the city filed a bill to restrain defendants, who were riparian owners upon the stream above it, from polluting said stream, and charged that one defendant suffered to flow from a factory operated thereon into the stream refuse water, impregnated with divers injurious ingredients and substances, whereby the water of the stream was rendered less pure and less fit for use by man as drinking water. As a distinct cause of defilement or pollution of the stream, it was charged that the defendants "have erected, and do keep, maintain and use divers large privies and hog-pens at or near said factory, the excrement and filth whereof the defendants cause, or willfully suffer and permit to be discharged into the stream," whereby it was greatly polluted. Held, that the city was entitled to all the rights of a riparian proprietor, among which was the right to have the stream flow in its ordinary natural purity, etc. The

court said: Assuming then that the land was acquired as authorized by the statuteas we may well do the complainants are riparian proprietors in the strictest sense, in respect of the property purchased and held by them on the stream in question. They are entitled to all the riparian rights to which the parties under whom they claim, and from whom they purchased the land, were entitled at the time of the purchase. If, therefore, the defendants, being upper riparian proprietors, and, as such, entitled to the ordinary use of the water, including the right to apply it in a reasonable way to purposes of trade and manufacture, are using the water of the stream in an unreasonable manner, and have defiled the same in such manner and to such an extent as to operate an actual invasion of the rights of the complainants, the latter are clearly entitled to redress by action at law, and, in case the nuisance be continued, to summary relief by injunction. This is clearly settled by a great number of decided cases, both English and American. Swindon Water-works Co. v. Wilts. & Berks. Canal Co., L. R., H. L. 697; Clowes v. Staffordshire Potteries Water-works Co., L. R., 8 Ch. App. 125; Pennington v. Brinsop Hall Coal Co., 5 Ch. Div. 769; Saunderson v. Penn Coal Co., 86 Penn. St. 401; Chipman v. Palmer, 77 N. Y. 51, and this court has but recently held, in the case of Woodyear v. Shafer, 57 Md. 1, that an injunction should be granted to prevent the fouling and improper use of the water of a running stream, when prejudicial to the rights of others interested in having the water descend to them in its ordinary natural state of purity. Among the more recent leading cases upon this subject are those of Goldsmid v. Tunbridge Wells Co., L. R., 1 Ch. App. 349, and Baxendale v. McMurray, L. R., 2 Ch. App. 740, in which will be found fully discussed the principles and grounds upon which the court proceeds in such cases.

"What nature and extent of pollution of the stream will call for the active interference of the court is not in all cases easy to define. It is not every impurity imparted to the water, however small in degree, that will be the subject of an injunction. All running streams are, to a certain extent, polluted; and especially are they so when they flow through populous regions of country, and the waters are utilized for mechanical and manufacturing purposes. The washings of the manured and cultivated fields, and the natural drainage of the country, of necessity bring many impurities to the stream; but these and the like sources of pollution cannot ordinarily be restrained by the court. Wood v. Sutcliffe, 2 Sim. (N. S.) 163. Therefore, when we speak of the right of each riparian proprietor to have the water of a natural stream flow through his land in its natural purity, those descriptive terms must be understood in a comparative sense; as no proprietor does receive, nor can he reasonably expect to receive, the water in a state of entire purity. But any use that materially fouls and adulterates the water, or the deposit or discharge therein of any filthy or noxious substance, that so far affects the water as to impair its value for the ordinary purposes of life, will be deemed a violation of the rights of the lower riparian proprietor, and for which he will be entitled to redress. Any thing that renders the water less wholesome than when in its ordinary natural state, or which renders it offensive to taste or smell, or that is naturally calculated to excite disgust in those using the water for the ordinary purposes of life, will constitute a nuisance, and for the restraint of which a court of equity will interpose."

Public convenience is no justification. Wood Nuis., § 684.

The usefulness of the works, their absolute necessity, or the fact that they cannot be carried on without producing the result in question, or the fact that the highest degree of care and skill is exercised to prevent injury will be no excuse. Wood Nuis., 686, citing Attorney-General v. Birmingham, 4 K. & J. 528; Stockport Water-works Co. v. Potter, 7 H. & N. 159.

In the principal case as reported in 86 Penn. St. 401, in answer to the argument that immense public and private interests demand that the right which the defendants exercised in ejecting the water from their mine should have recognition and be established, WOODWARD, J., said: "The consequences that would flow from the adoption of the doctrine contended for could be readily foretold. Relaxation of legal liabilities and remission of legal duties to meet the current needs of great business organizations, in one direction, would logically be followed by the same relaxation and remission, on the same grounds, in all other directions. One invasion of individual right would follow another, and it might be only a question of time when, under the operations of even a single colliery, a whole country side would be depopulated.' The owner of an upper mine must use reasonable diligence to prevent the flow of water from his mine into a lower mine. The maxim, sic utere tuo ut alienum non ladas, applies to such a case. Locust Mountain, etc., v. Gorrell, 9 Phila. 247.

In Moak's Underhill on Torts, 482, it is said that "a right to discharge water on to

another's land may be acquired by grant or prescription, but it is a rule that a person having a right to discharge pure water on to the land of another has no right to discharge water in a polluted state. Magor v. Chadwick, 11 A. & E. 571."

If a party who is engaged in mining for coal, causes water, sand and clay, in a flow. ing mass, to descend upon the land of another so as to destroy its value for cultivation, and such descent is the direct result of the act of such party and not the mere result of the law of gravitation, the person whose land is thus injured may recover damages, and enjoin the future commission of said acts. Robinson v. Black, etc.,

50 Cal. 460.

In Seaman v. Lee, 10 Hun, 607, plaintiff built three ponds, for hatching and rearing trout, in a stream running through his land which entered the same from the land of H. Defendants dug a ditch from the rear of certain dwellings erected by them, through H.'s land to the stream, and discharged drainage and waste-water therein, whereby plaintiff's trout were killed. Held, that he was entitled to an injunction restraining the defendants from further corrupting and polluting said

stream.

An engine-house erected by a railroad company adjacent to plaintiff's dwellinghouse, and so used as practically to deprive plaintiff of the use of the house as a residence, and by filling it with smoke and dust, and corrupting and tainting the air with offensive gases, makes life therein uncomfortable and unsafe, is a palpable nuisance for which an action for damages will lie, and a court of equity will enjoin the same. Cogswell v. New York, etc., 7 East. Rep'r, 421. In that case the defendant sought to escape liability, upon the ground that the legislature had authorized the The complaint, at the trial, was dismissed on the ground that whatever damages had resulted to plaintiff, or her property, by reason of defendant's use and occupation of its engine-house and coal bins was damnum absque injuria. The general term affirmed the judgment and the court of appeals reversed it. See, also, Lahr v. Metropolitan Railway Co., 9 East. Rep'r, 583.

wrong.

If local results either are or may be produced by a piece of legislation, it offends against the provision of the Constitution, and is void.

As the act of 18th March, 1875-P. L. 15-excludes from its operation all cities of the third class, and all cities containing less than ten thousand population previously incorporated, which do not accept by an ordinance duly passed the provisions of the act, it is obnoxious to the seventh section of the third article of the Constitution, which prohibits the general assembly from passing any local or special law regulating the affairs of counties, cities, townships, wards, boroughs, or school districts.

Appeal from the decree of the court of common pleas of Lackawanna county. The facts are sufficiently stated in the opinion.

Fred. W. Gunster and Charles H. Welles, for appellants. "The assessor values and returns to the commissioners, who apportion the sum to be raised in the township on the several tracts, in fact who perform the most important part of the assessment. The list returned to them, and their action on it, is the assessment." Wells v. Smythe, 5 P. F. S. 159. For definition of assessment, see Bratton v. Mitchell; see, also, Cooley Taxation, 275, 276; Lyman v. Philadelphia, 6 P. F. S. 488, 501. The intention not being clearly expressed in the title of the ordinance, the five sections in question were not accepted thereby. Dorsey's Appeal, 22 P. F. S. 192; Beckert v. Allegheny, 4 W. N. C. 530. No classification of school districts has as yet been attempted, and until they are classified any act affecting them must affect all or none. Commonwealth, ex rel. Fertig, v. Patton, 7 Norr. 258; Scowden's Appeal,

15 id. 422; Davis v. Clark, 15 W. N. C. 209; McCarty v. Commonwealth, 16 id. 497.

E. N. Willard and Everett Warren, for appellee. "Nothing but a clear violation of the Constitution, a clear usurpation of the powers prohibited, will justify the courts in pronouncing an act of the legislature unconstitutional and void." Soper v. School District, 11 Wr. 150; Sharpless v. The Mayor, 9 Harr. 164; Hillbish et al. v. Catherman, 14 P. F. S. 154; Penna. R. R. Co. v. Riblet, 16 id. 164; Commonwealth v. Butler, 11 W. N. C. 241. See Craigh v. First Presbyterian Church, 7 Norr. 42. "The title should not mislead nor tend to avert inquiry into the contents of the act." Allegheny County, Home's Case, 27 P. F. S. 77. "The true rule is, that where the legislation in the supplement is germane to the subject of the original bill, the object of such supplement is sufficiently expressed in the title." PAXON, J., in State Line & Juniata R. R. Co.'s Appeal, 27 P. F. S. 429. We also cite on this point, Craigh et al. v. The Church, 7 Norr. 42; Mauch Chunk v. McGee, 31 P. F. S. 433; Borough of McKeesport v. Owens, 6 W. N. C. 492. If the title of an ordinance fairly gives notice of its subject-matter, it is sufficient. Esling's Appeal, 8 Norr. 205. See, also, Nutt's Appeal, 2 Chester County Reports, 49.

GREEN, J. The plaintiff in this case claims the benefit of the provision of the first section of the act of 18th March, 1875 — P. L. 15 which directs that in cities of the third class, for purposes of taxation all real estate and the improvements thereon shall be classified and arranged in three classes upon which different rates of assessment shall be imposed. The rate claimed by the plaintiff is less than the full rate levied upon the adjusted valuation made for city purposes, upon which the defendant has caused the school tax to be assessed. The proviso to the fifth section of the act of 18th March, 1875, excludes from the operation of the act all cities of the third class, and all cities containing less than ten thousand population previously incorporated, which do not accept, by an ordinance duly passed, the provisions of the act. According to this all cities that do accept will be subject to the methods of assessment and collection prescribed by the first five sections, and all that do not will not be so subject, and as to them different methods will prevail. Whether the methods prescribed by the act shall be the law will depend, not upon the terms of the legislation but upon the will of others who are not lawmakers at all, and what may be the law in one city of the third class may not be the law in another city of the same class. In other words, a majority of the members of the city councils of any one city of the third class may impose upon the inhabitants of that city a method of taxation which may not prevail in any other city of the Commonwealth. A law which authorizes this to be done is in our judgment clearly obnoxious to the seventh section of the third article of the Constitution, which prohibits the general assembly from passing any local or special law regulating the affairs of counties, cities, townships, wards, boroughs or school districts. The circumstance that the power to determine the question is delegated to another body does not at all affect the question. The practical result is the same; the law of 1875 will be