A

In 1868 the plaintiffs purchased a tract of land which is within the limits of the city of Scranton, on which they erected a handsome residence and other valuable improvements. stream of water called "Meadow Brook," runs through this tract, and before its purchase Mr. Sanderson traced it to its source, and it appeared that the existence of this stream was one of the principal inducements to the purchase of the land. This stream was about an average width from its source to the house of plaintiffs. When traced by Mr. Sanderson the water was perfectly pure. Dams were built across the stream for the purpose of fish and ice ponds and to supply a cistern, and the water was carried in pipes from the cistern to a ram and thence forced to a tank in the attic of the house. After these improvements had been made the defendants opened a coal mine on the side of a hill about three miles above the house of plaintiffs. A drift was first made into this mine, and a shaft afterward sunk. The water which collected in this drift, as well as that pumped by engines from the shaft, ran into the creek. The water from the drift, following the law of gravitation, naturally flowed into the stream. It was shown that the effect of this was that the water of the stream was so corrupted that the fish in the pond were destroyed; that the willows along the bank died; that the pipes carrying the water were corroded and eaten out; that the water was unfit for domestic use, and that finally its use had to be abandoned for every purpose. No analysis was furnished of the water, but it was conceded that it was acid and unfit for use, although unchanged in appearance. It appeared that mine water is usually impregnated with acid. Upon the above facts the court, STANTON, J., entered a compulsory nonsuit, on the ground that there appeared to be no negligence or malice, and the discharge of the mine water being necessary in mining, was damnum absque injuria.

The action was assigned for error by plaintiffs, who took this writ.

A. RICKETTS, for plaintiffs in error.

HENRY M. HOYT and ANDREW T. MCCLINTOCK, for defendants in error.

WOODWARD, J., delivered the opinion of the court.

In the year 1868 the plaintiffs purchased a tract of land in the city of Scranton, and began the erection of a house upon it, which was finished in the year 1870. Before the purchase a stream of water which ran through the land was examined by Mr. Sanderson, who traced it to its source. It appears from his testimony that the existence of this stream was a leading inducement to the plaintiffs to buy and build. It was called by some of the witnesses Meadow Brook, and was of an average width of perhaps seven feet throughout the distance. from the house of the plaintiffs to the springs from which it flowed. Mr. Sanderson testified that when he traced it, in 1868, the water was perfectly pure. Dams were built across it for the purposes of a fish and ice pond, and to supply a eis. tern. Water was carried in pipes from the cistern to a ram, and thence to a tank in the attic of the house.

After the improvements were completed the defendants established a colliery on lands belonging to them along the stream, and about two miles above the land of the plaintiff. A drift was first made into their mine, and a shaft was afterward sunk. The water which collected in the drift, as well as that pumped by powerful engines from the shaft, ran into Meadow Brook, and was carried to its outlet in the Lackawanna river. It was alleged on the trial that the effect of the mine water was to corrupt the water of the stream, and to render it worse than worthless for any domestic or household There was evidence that the fish in the brook were destroyed; that the willows along the banks died; that the pipes connecting it with the cistern, the ram and the house, were corroded and eaten out; that the water became unfit for domestic uses as early as 1873; and that its use for all purposes was abandoned in 1875. After the evidence of the plaintiffs had been given, it was held by the court to be inadequate to warrant or support a verdict, and a nonsuit was directed.

use.

In the summary disposition that was made of the cause, sight appears to have been lost of some distinctions which the law has settled, and a mistake seems to have been made in choosing the class of precedents that were followed. The water in the mine of the defendants was in the ground before

the colliery existed, but the drift and shaft collected it in such volume, and the mining operations made its ejection necessary in such a direction as to render what was harmless in its natural state a source of material discomfort, mischief and disaster. Undoubtedly the defendants were engaged in a perfectly lawful business, in which large expenditures had been made, and with which widespread interests were connected. But however laudable an industry may be, its managers are still subject to the rule that their property can not be so used as to inflict injury on the property of their neighbors. "Every man,” Lord Truro observed, in Egerton v. Earl Brownlow, 4 H. L. C. 195," is restricted against using his property to the prejudice of others." The invasion of an established right will in general, per se, constitute an injury for which damages are recoverable, for in all civil acts the intent of the actor is less regarded than the consequences to the party suffering. Thus, if a man lop a tree, and the boughs, ipso invito, fall upon another, or he shoot at a butt, and hit another unawares, an action lies. So, one is liable who has land through which a river runs to turn his neighbor's mill, and lops the trees growing on the river side, and the loppings impede the progress of the stream, which hinders the mill from working: Broom's Leg. Max. 366, 367. To render a particular case an exception to the general principles controlling the exercise of dominion over property by its proprietor, it must be ascertained to be exceptional in its surroundings or its facts. From necessity the principles are sometimes relaxed. They do not apply where it is impossible to gather safe facts to become bases for safe rules. With respect to water flowing in a subterraneous course, it has been held that the owner of land through which it flows has no right or interest which will enable him to maintain an action against an owner who, in carrying on mining operations in his own land, in the usual manner, drains away the water from the other's land, and lays his well dry. Acton v. Blundell, 12 M. & W. 324, Haldeman v. Bruckhart, 9 Wright, 514, and Wheatley v. Baugh, 1 Casey, 528, were ruled in the same way. So, rights and liabilities in respect of artificial streams, when first flowing on the surface, are in some particulars distinct from those respecting natural streams so flowing. They are distinct at least to the extent that the user

of the easement of sending on the water of an artificial stream to the land of a neighbor, is no evidence that the land from which the water is sent has become subject to the servitude of being bound to send it on: Gared v. Martyn, 19 C. B. N. S. 758. Perhaps Smith v. Kenrick, 7 C. B. 515, may be classed as an exceptional case also in its circumstances, although as a precedent it will probably prove of doubtful value. It was held there that each of two owners of adjoining mines has a natural right to work his own mine in the manner most convenient and beneficial to himself, although the natural consequence may be that some prejudice will accrue to the owner of the adjoining mine.

But except where it is qualified by the existence of peculiar conditions, the duty of the owner of property is defined by the maxim sic utere tuo ut alienum non lædas. Can it be said, as a conclusion of law, that the duty of these defendants is qualified by such conditions? They created an artifical watercourse from their mine to Meadow Brook. The plaintiffs insisted that the act resulted in grave injury to them. Why ought not the jury to have been left to determine the truth or falsity of their allegation? It was declared in Gaved v. Martyn, supra, that if the water in an artificial stream when brought to the surface is made to flow on the land of a neighbor without his consent, it is a wrong for which the party causing it so to flow is liable. If a man brings or uses a thing of a dangerous nature on his own land, he must keep it at his own peril, and is liable for the consequences if it escapes and does injury to another: Jones v. Festiniog, L. R., 3 Q. B. "The person whose grass or corn is eaten down by the escaping cattle of his neighbor, or whose mine is flooded by the water from his neighbor's reservoir (Harrison v. Great North Western Railroad Co., 3 H. & C. 238), or whose habitation is made unhealthy by the fumes and noisome vapors of his neighbor's alkali works (St. Helen's Smelting Co. v. Tipping, 11 H. L. Cas. 642), is damnified without any fault of his own, and it seems but reasonable and just that the neighbor who has brought something on his own property which was not naturally there, harmless to others so long as it was confined to his own property, but which he knows will be mischievous if it gets on his neighbor's, should be obliged

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to make good the damage which ensues if he does not succeed in confining it to his own property." Fletcher v. Rylands, L. R., 1 Ex. 280. In an elaborate and carefully considered opinion in Mason v. Hill, 5 B. & Ad. 1, Denman, C. J., held that the possessor of land through which a natural stream runs, has the right to the advantage of that stream flowing in its natural course, not inconsistent with a similar right in the proprietors of the land above and below; and that neither can any proprietor above diminish the quantity or injure the quality of the water, nor can any proprietor below throw back the water without his license or grant. It was one of the features of that case that the water which the defendant had the right to use, subject to the duty of returning it, was heated when it was returned to the stream, and the jury had assessed damages for that. The chief justice said in entering judgment: "As to the right to recover for the injury sustained by the water being returned in a heated state, there can be no question." In Wood v. Sutliffe, 16 Jur. 75, and 8 Eng. L. & Eq. R. 217, an injunction was granted to restrain the defendant, against whom a recovery had been had at law, from pouring dye-wares, dye-liquors, madder, indigo or potash into a channel that connected his dye works with a stream called the "Bowling Beck," on which, below the works, the cotton mill of the plaintiffs was situated, and in the use of the water of which they claimed prescriptive rights. am satisfied from the evidence," the vice chancellor remarked in the course of his opinion, "that to some considerable extent, the pollution of this stream is inevitable, and that no court of law, or court of equity, nor all the courts in the world, except there were a power of removing all that mass of human beings which now congregate about its banks, ever could restore it to the state in which it once was. But still it does not follow, because there be a certain degree of pollution which can not be very accurately measured and which is inevitable, that therefore everybody has a right to pollute the stream by pouring in immense quantities of filth and pollution from his own works, to make it ten thousand times worse." Pennington v. Brinksop Hall Coal Co., 5 Ch. Div. 769, was a case where an injunction was granted to restrain the defendants from pumping water from their colliery

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