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THE editor of this journal once roundly asserted
to the estate, as not inherently identical in nature the bailiff bad done wrong, and whether the plaintiff with land, but from being joined to it and con
had suffered any injury. He himself saw do proof of tributing to its uses and value legally identified
either the one or the other. The jurors found a verwith it as a fixture or a right of way or other appur
dict for the defendaut.
Mr. Poitras however was not to be stopped 80 8000 tenance that passes with land. The mere planting or in bis search after justice, so he went to the Court of depositing of oysters in the water implies no essen- Review for a new trial. The majority of the court tial union or relation between the main land and was with him, and agreed to give him another chance. the soil under the water contiguous; and therefore Jette, J., speaking for the majority of the court, said does not effect an improvement of the former im
that if the rule requiring those who attended mass to
kneel on both kuees was so absolute, it would follow plied in something erected or constructed attached
that sick people could not attend mass.
Here was a to the shore, and together with the land furnishing man who had no intention of misbehaving; he was ill. convienence and facilities that enlarge the advant- and the attitude he assumed was respectful and ages of the latter."
proper; and yet he had been subjected to arrest and ill treatment. It was Lebeau who iustigated the prosecution. Could it be said that the plaintiff was with
out remedy? He was the victim of a prosecution unBENDING THE KNEE.
der the color of law. This constituted a delit, and the persons committing the offense were responsible jointly and severally. The trial judge, Johnson, who
also sat in the Court of Review, was opposed to grantthe reports of the ecclesiastical cases, as given in the
ing a new trial; he thought that there could be no acvolumes of the London Law Journal” of that day. In
tion for an upfounded prosecution without malice, that article reference is made to the Rev. Alexander and without want of probable cause, and there was no Heriot MacKonochie, and the trouble he got into by evidence that he could see of either; uor could he bending his ove knee and occasionally touching the
perceive that the plaintiff in his motion urged the ground with it, which action the Privy Council consid
usual ground of injustice. If the plaintiff was in good ered kneeling. History repents itself, and now an un- faith be should have contested the summons for the fortunate French Canadian is in hot water because he
penalty. He admitted the objectionable and even only went down upon one kuee during divine service.
proverbial fussiness of bumbledom, but thought it was The facts appear to be these: One Poitras attended
going rather far to express it by an action of damages service at the Church of Ste. Anne du Bout de l'Ile.
such as this. (There are at least a dozen villages named after the
Lebeau did not relish the idea of having the matter mother of the Virgin in the Province of Quebec. submitted a second time to a jury, so he applied to the They are distinguished by euphonious additions, such
Court of Queen's Bench for leave to appeal from the as Ste. Anne de la Perade, Ste. Anne de la Pocatiere,
judgment of the Court of Review. Dorion, C. J., and Ste. Anne de Restigouche, Ste. Anne de Stukely, and
Ramsay, Cross and Baby, JJ., formed the court. Ste. Anne du Machiche; the one in question is that
Ramsay, J., in delivering the judgment of the court, beside “Ottawa's tide," where “the stream runs
took the opportunity of saying that the taking of the fast, and the rapids are near,” and it was the eve
$5 was an indefensible exaction, and that the questions ning chime from that church that Tom Moore heard
submitted to the jury were a Chinese puzzle, and faintly tolling as sweetly he rested on weary oar.)
were evidently made purposely to confuse the jurors. Poitras being sick and indisposed, during part of
(Johuston, J., does not sit in this court.) • It was imthe mass kneeled on one knee only, but apparently his
possible to see how Lebeau could be held responsible attitude was by some not considered reverential. The
at all. A great wrong was done to Poitras, but Lebeau beadle of the church expostulated with Poitras, and
had nothing to do with that wrong. He merely repointed out that acoording to the rules of the church,
ported the facts to the marquillier de charge. The which are duly published from the pulpit every year), evidence had all come up, and Madore, the marquilthose attending mass should devoutly kneel upon
lier, swore in the most absolute manner that Lebeau both knees. Sickness was pleaded as an excuse. The
did nothing but tell him the story of what had ocbeadle, or marquillier sortant de charge, Lebeau, dis- curred. To allow a new trial would be to encourage cussed the matter with Poitras afterward outside, and
these persons to ruin themselves for no purpose.” then referred the affair to one Madore, his superior Leave to appeal was granted. Here meanwhile Poi. officer, who was marquillier en charge. This function
tras and his one knee reste. If it be needed we will ary instituted proceedings against Poitras to recover
bring up the matter again. a statutory penalty of $5 for misbebavior in church. No arrest was made, for when Lebeau came with the warrant, and was about to arrest, Poitras yielded to NEGLIGENCE-IMPUTED CONTRIBUTORY NEG. the tears and entreaties of his wife, and to avoid ar
LIGENCE-DEFECTIVE WAY. rest, paid the fine and costs under protest, and threatening to have the law of him or them, or whoever was PENNSYLVANIA SUPREME COURT, OCT. 4, 1886. at the bottom of the affair. Poitras bued Madore, the church warden who ordered his arrest, but the Cir.
BOROUGH OF CARLISLE V. BRISBANE. cuit Court dismissed his action; he also ineffectually The borough of Carlisle was macadamizing one side of a bued the magistrate. Then he sued Lebeau, the bail- street. A., a resident of Philadelphia, was riding in a iff, and the action was tried by a special jury in Octo- sleigh owned and driven by B.. a resident of Carlisle, who ber last, before Mr. Justice Johnson. His honor knew of the work going on. The sleigh was upset by one charged the jury that improper behavior in church, runner going on an embankment made by stone, and A whether any special written rule was proven or was thrown out and injured. Held, that the borough of vot, authorized the defendant under the statute to Carlisle was liable for the injury; that the knowledge of take out the summons; that whether it was taken B. could not be imputed to A.; and as the former was not without reasonable cause and maliciously was a ques- a common carrier for hire, he was not bound to use the tion for the jury; and in the absence of malice the ac- highest skill and care, but only such as an ordinary per-, tiou must fail. The jurors had to consider whether son would have used under the circumstances.
"RROR to Commou Pleas, Cumberland county. streets over which they might pass. There is no evi
The head-note states the case. The plaintiff had dence wbatever that Brisbane kuew that Cornman was judgment below.
a reckless or unskilful driver, or that he saw, or by
the exercise of reasonable care at the time could see, Hepburn, Jr., & Stuart and Martin C. Herman, for
or ought to have seen, the dangerous condition of the plaintiff in error.
street. Indeed the jury has found that he was not F. Maust, F. E. Beltzhoover and J. N. Weakley, for personally aware of either, and uo question can arise defendant in error.
involving this view of the case. CLARK, J. The general rule of the law undoubtedly
It is said however that although there is no evidence is, where one suffers an injury through the concur- of any actual negligence on the part of Brisbane, upon rent negligence of two or more persons, they are the principle of Lockhart v. Lichtenthaler the veglijointly liable, and may be proceeded against for danı- gence of Cornman is to be imputed to him. ages sustained, either jointly or severally, at the op
The rationale of the rule in Thorogood v. Bryan is said tion of the party injured, unless the latter, by his own by Coltou. J., to be the identity of the passenger with pegligence, has contributed to the injury, in which his own vehicle; but in Lockhart v. Lichtenthaler this case the law will not afford him any remedy whatever reason is rejected, and we thiuk the foundation of the against any or all of the persons whose wrong, iu con. principle is expressed by Mr. Justice Thompson with currence with bis own, caused the injury. The rule much more care and accuracy, as follows: "I would is however not without its exceptions. Where goods say the reason for it is that it better accords with the in the hands of a common carrier are injured by the policy of thc law to hold the carrier alone responsible negligent act of a third party, to which the negligence in such circumstances as an incentive to care and diliof the carrier contributes, and an action is brought by gence. As the law fixes responsibillty upon a different the owner against the third party, the carrier's con- principle in the case of the carrier, as already noticed, tributory negligence is a good defense. Vanderplank from that of a party who does not stand in tbat relav. Miller, Mood. & M. 169; Simpson v. Hand, 6 Whart. tion to the party injured, the very philosophy of the 311. So also where a passenger is personally injured requirement of greater care is that he shall be anby the joint negligence of his carrier and another swerable for omitting any duty wbich the law has departy, his remedy is against the common carrier fined as bis rule and guide, and will not permit him to alone. The latter question was first raised in this escape by imputing negligence of a legs culpable charcourt, and was very fully discussed, in the case of acter to others, but sufficient to render them liable for Lockhart y. Lichtenthaler, 46 Peun. St. 151. The de- the consequences of his own. It would be altogether cision in that case was grounded upon the doctrine of more just to hold liable him who has engaged to obthe English cases, Bridge v. Grand Junction Ry. Co., serve the highest degree of diligence and care, and 3 Mees. & W. 247 (1838, in the Court of Exchequer); / has been compensated for so doing, rather than him Thorogood v. Bryan, 65 E. C. L. 114; and Cattlin v. upon whom no such obligation rests, and who, not Hills, id. 123 (in the Common Bench, 1849). These being compensated for the observance of such a decases have since been followed and approved in the gree of care, acts only on the duty to observe ordinary Exchequer by Armstrong v. Lancashire & Y. Ry. Co., care, and may not be aware even of the presence of 44 L. J. Exch. 89. The principle upou which these a party who might be injured." English cases appear to have been determined is that When the reason of a rule of law ceases, the rule itself the passenger is so far identified with the carriage in ceases. The law fixes the responsibility of the persons which he is travelling that want of care on the part of or parties involved in this transaction upon precisely the driver will be a defense of the owner of the other the same basis. There is certainly no policy of law carriage that directiy caused the injury.
wbich requires that the driver of a private carriage or Our own case of Lockhart v. Lichtenthaler, supra, sleigh, who, actuated by the motives of kindness was followed by Philadelphia & R. R. Co. v. Boyer, 97 alone, and without compensation, way undertake to Penn. St. 91, an action against the railroad company convey a friend through the streets of a city or town, to recover damages for the death of a person caused shall be held to a higher standard of care toward that by a collision of the defendant's train with a street friend than the city or town through whose streets car in which the deceased was a passenger. It was they pass. Both Cornman and the municipality of held, that iu order to recover, the plaintiffs must Carlisle borough were bound to Brisbane for the exshow not only that the death resulted directly from ercise of ordinary care and diligence only. If Cornthe defendant's negligence, but that the negligence of man had been a common carrier, he would have been the carrier company did not coutribute to the result. a carrier for compensation, and would have been Therefore although there is certainly a wide difference obliged to observe the highest degree of diligence and of opinion between the courts of this and other States care. The policy of the law iu such'a case, it is said, on the subject, it seems to be well settled as the law of would not permit him to escape by interposing the Pennsylvania that the remedy of a passenger injured | negligence of others of a less culpable character. The by the joint negligence of his carrier and another is doctrince declared in Lockhart v Lichtenthaler and agaiust the commou carrier only.
Philadelphia & R R. Co. v. Boyer is not applicable to Coruman bowever was not a common carrier. He this case, and there is no sound principle of law which was.the owner of the horse and sleigh, and was the will preclude the plaintiff from seeking redress from driver. Brisbane was a friend of Cornman's, visiting both or either of the persons through whose negliCarlisle, and occupied a seat in the sleigh by his invi
gence he was injured. Brisbane was answerable for tation. The accident occurred while returning from his own negligence alone. The negligence of Cornmau a visit to the poor-bouse. Nor was Cornman the ser- under the circumstances cannot be imputed to him 80 vant of Brisbane. As the driver, he was either under as to bar his recovery in this case. Brisbane's direction or control, nor was Brisbane un- The case at bar is in every respect similar to the case der his control. Brisbane had simply accepted the of Robinson v. New York Cent. & H. N. R. Co., 66 N. friendly offer of a seat in Corpman's sleigh. He had a Y. 11, where a female accepted an invitation to ride in right to expect from (orimau ordinary skill and care a buggy with a person who was entirely competent to in the management of the conveyance, and precisely manage a horse, and it was held that if the defendant the same degree of care from the municipality of the
company was negligent, and the plaintiff free from borough of Carlisle in the condition and repair of the negligence herself, she might recover from the com
pany, although the driver of the buggy might have ground to prevent the use of the central part of the
These causes in New York were afterward followed
WATERS AND WATER-COURSES - POLLUTION-
NATURAL DRAINAGE-COAL MINES.
PENNSYLVANIA SUPREME COURT, OCT. 4, 1886.
PENNSYLVANIA COAL Co. V. SANDERSON.
tion by the owner, the water naturally flowing from it, In this view it is not important what Corumay may and although the existence of a stream, the purity of its have previously known as to the condition of the road; water, and its utility for domestic purposes were leading and as it is showo that Brisbane never had any knowl- inducements to the purchase of the lower land, a polluedge of it, the case was to be considered by the jury, so tion of the stream by the running into it of acidulated far as Brisbane is concerned, just as if both were pass- water from a coal mine on the higher land is damnum ing over the road for the first time. A stranger, in the absque injuria, where the stream forms the natural draintwilight, or when snow was on the ground, as a matter age of the basin in which the coal is situated, and the of fact, might certainly assume that the center of a mine is conducted in the ordinary and usual mode of public road or street within the corporate limits of a mining
RROR to Common Pleas, Luzerne county. Trog
pass on the case by J. Gardner Sanderson and nated, was in a passable condition. In the consideration of a question of negligence on
Eliza, his wife, in right of the wife, against the Penn
sylvania Coal Company, for damages for corruption part of a stranger, certainly under such circumstances
of plaintiff's water-course, caused by the working of it was proper to show that he took the center, and not
the defendant's colliery. The facts are stated in the the side, of the opened street. There may be cases
opinion. Verdict for plaintiff, $2,872.74, and judgment where the conformation of the ground itself would
thereon. clearly indicate that the center of a public road is not the travelled route, and in such case this circumstance J. M. & W. P. Gest, Henry W. Palmer, Willard & may be sufficient to give notice; but in all ordinary Warren, Henry M. Hoyt, and Andrew T. McClintock, cases the center of a publio street, passing between the for plaintiff in error. open lots of a populous town, in the usual course of
A. Ricketts, for defendant ip error. travel, and in the night-time, or when the route is obsoured by slow, may be taken as the travelled route. CLARK, J. The Pennsylvania Coal Company is the If the municipal officers caused an obstruction to be
owner of some 1,600 acres of anthracite coal lands in placed on part of the highway, it was their duty to the Lackawanna valley, situate above the city of give some appropriate warning of the fact.
Scranton, in the basin of a small tributary of the Nor can we see any valid objection to the evidence the Lackawanna river known as Meadow brook, into showing where the actual travelled route was before which, owing to the natural conformation of the surthe street was macadamized. If there was nothing to
face, the water from these lands is drained. The comindicate to a stranger that the route for travel was at pany first opened the coal seams on this
land by a the side of the road, we have said he might assume the drift, or tunnel, in the year 1867 or 1868. They drove route to be in the center. How then could it harm the three other tunnels, and sunk a shaft, aud thereafter defendant to show that the route had previously been mining operations were extensively engaged in; the in the center, although the plaintiff did not know the establishment being known as the “Gipsy Grove Coalfact? The evidence was clearly competent however.
works." From the time the first tunnel was driven Its tendency was to show that the only obstruction of
the mine water flowed, by the natural course of graythe street was tbat which the officers of the municipal- ity, into the Meadow brook. As the operation of the ity had themselves negligently placed there, and that mines was increased, the volume of mine water inthere was nothing in the natural conformation of the creased. The water which percolated into the shaft
every day, especially it no other route is plainly
desig- | ERDE
was by powerful engines pumped therefrom, and as it decisions of this case, and regard the cause as coming was brought to the surface, it passed, with the flow before us upon a reargument, the main question infrom the tunnel, by an artificial water-course, over volved is one of new impression in this State. This the defendant's own land into the Meadow brook, court was not then, and is not now, in harmony with which we have said, was the patural water-course for reference to it. drainage of the entire basin. The plaintiff, Mrs. San. It has been stated that 30,000,000 of tons of anthraderson, in the year 1868, purchased a tract of land in cite and 70,000,000 of bituminous coal are annually the city of Scranton, some three miles below the produced in Pennsylvania. It is therefore a question Gipsy Grove works, on the Meadow brook, vear its of vast importance, and cannot, on that account, be mouth. The existence of the stream, the purity of too carefully considered; for if damages may from its water, and its utility for domestic and other pur- time to time be recovered, either in the present form poses, it is said, was a leading inducement to the pur
or as for a nuisance, punitive sums may be resorted to ohase. She began, and in the year 1870 finished the to prevent repetition, or to compel the abatement of erection of a house upon the land. In connection the nuisance. Indeed if the right to damages in such therewith dams were built across the brook to form a
cases is admitted, equity may, and under the decisions fish and ice pond, and to supply a cistern. The water of this court undoubtedly would, at the suit of any was forced by a hydraulic ram from the cistern to a riparian owner, take jurisdiction, and upon the ground tank in the house, and was used for domestic purposes of a continuous and irreparable injury, enjoin the and for a fountain.
operation of the mine altogether. Whatever rights It is alleged that the large volume of mine water Mrs. Sanderson may have to the use of this water, and which the defendants poured into the Meadow brook whatever remedy she may have in this case, or in any has corrupted the water of that stream to such an ex- other form, in law or in equity, is the right and remtent as to render it totally unfit for domestic use; that edy of every other riparian owner along Meadow the fish in the brook have been totally destroyed, the brook; and whatever may be the rights and remedies plaintiff's pipes corroded, and his entire apparatus for of the owners on Meadow brook are, of course, the the utilization of the water rendered wholly worth- rights and remedies of all other riparian owners less; and that in consequence, about the year 1875, the throughout the Commonwealth. It may be that Mrs. same was abandoned. This action was brought to Sanderson adopted a more extensive arrangement for recover the damages which the plaintiff alleges she the use of this water than any other person, and is has sustained in consequence of the alleged pollution consequently more inconvenienced on that account; of the stream.
but the law is the same in her case as in all other At the trial of the cause, in February, 1878, in the cases. If she may recover damages in a large amount, Common Pleas of Luzerne comty, the court, after others similarly but less affected may recover in a less hearing the plaintiff's case, entered a nonsuit on the sum. Besides these riparian owners are not limited ground that the discharge of the mine water was a to their present modes of enjoyment. It is impossible necessary incident to mining; that there was neither
to foresee wbat other modes of enjoyment they or malice nor negligence shown in the operation of the their successors in title may adopt, or to estimate the mine, and the case was therefore one of damnum extent of damages to which the continued pollution of absque injuria. A writ of error was taken to the refusal the stream might proceed. Hence if the responsibilof the court to take off the nonsuit, and the case was ity of the operator of a mine is extended to injuries presented for the consideration of this court. 86 Penn. of the character complained of, the consequences St. 401. Upon consideration of the question involved, must be that mining cannot be conducted except by this oourt was then of opinion, that except where it is the general consent of all parties affected. qualified by the existence of peculiar conditions, the It will be observed that the defendants have done duty of the owner of property is defined by the maxim, nothing to change the character of the water, or to "sic utere tuo ut alienum non lædas;” that this case diminish its purity, save what results from the natexbibited none of those peculiar couditions; and that ural use and enjoyment of their own property. They the plaintiff's proofs exhibited a case which should have brought nothing onto the land artificially. The bave been submitted to the jury. A procedendo bav- water as it is poured into Meadow brook is the water ing been awarded, the cause was again brought to which the mine naturally discharged. Its impurity trial in the Common Pleas of Lackawanna county, arises from natural, not artificial, causes. The mine where, in October, 1879, a verdict was rendered for the
cannot, of course, be operated elsewhere than where plaintiff. A writ of error was then taken by the de- the coal is naturally found, and the discharge is a fendants; but this court adhering to the opinion con- necessary incident to the mining of it. taived in 86 Penn. St. 401, the judgment was aflirmed. It must be conceded, we think, that every man is The plaintiffs however sued out a second writ to the entitled to the ordinary and natural use and enjoy. same judgment, and assigned for error the ruling of ment of his property. He may cut down the forest the court as to tbe proper measure of damages, and trees, clear and cultivate bis land, although in so doupon this the judgment was reversed, and a venire ing he may dry up the sources of his neighbor's faciaz de novo awarded. The cause was again tried in springs, or remove the natural barriers against wind the Common Pleas of Lackawanna county in Febru- and storm. If in the excavation of his land, he should Judgment was again entered for the
uncover a spring of water, salt or fresh, acidulated or plaintiff, and it is to this judgment that the present sweet, he will certainly not be obliged to cover it errors are assigned.
again, or to cond it out of its course, lest the stream The questions which are now to be considered, with in its natural flow may reach his neighbor's land. It a single exception, perhaps being identical with those
has always been considered that land on a lower level which were previously considered and embraced in
owes a natural servitude to that on a higher level, in the judgment reported in 86 Penn. St. 401, the
respect of receiving, without claim for compensation argument has been practically a reargument of the hy the owner, the water naturally flowing down to it. original case. We have before us not only the same
In sinking his well, he may intercept and appropriate parties, and the same questions, but the same case; the water which supplies his neighbor's well (Acton v. and if it be true, as it is most persistently argued, that Blundell, 12 Mees. & W. 324; Wheatley v. Bough, 25 this court was mistaken in its former ruling, it is well Penn. St. 528; Haldeman v. Bruckhart, 45 id. 514), or that the error should be righted in the same case in if his own well is so close to the soil of his neighbor as which it occurred. If we lay aside our own previous to require the support of a rib of clay or of stone on
his neighbor's land to retain the water in the well, no water into the brook, and thence to the plaintiff's
Supreme Court at September Term, 1848. These
cause that the mine was conducted by the defendant The right to mine coal is not'a nuisance in itself. It in any but the ordinary and usual mode of mining in is, as we have said, a right incident to the ownership this country. The deeper strata can only be reached of coal property; and when exercised in the ordinary by shaft, and no shaft can be worked until the water manner, and with due care, the owner cannot be held is withdrawn. A drift is in some sense an artiticial for permitting the natural flow of mine water over his opening in the land, and accumulates and discharges own land into the water-course, by means of which water in a greater volume and extent than would otherthe natural drainage of the country is effected. There wise result from purely natural causes; yet mining are, it is well known, percolations of mine water into by drift has, as we have seen, been held to be a natural all mines. Whether the mine be operated by tunnel, user of the land. So too we think, according to the slope, or shaft, water will accumulate, and unless it present practice of mining, the working of the lower can be discharged, mining must cease. The discharge strata by shaft, in the usual and ordinary way, must of this acidulated water is practically a condition be considered the natural user of the land for the takupon which the ordinary use and enjoyment of coal ing out of the coal which can be reached by shaft only; lands depends. The discharge of the water is prac- | and as the water cannot be discharged by gravity tically part and parcel of the process of mining; and alone, it must necessarily, as part of the process of as it can only be effected through natural channels, mining, be lifted to the surface by artificial means, the denial of this right must inevitably produce re- and thence be discharged through the ordinary natBults of a most serious character to this, the leading ural channels for the drainage of the country. industrial interest of the State. The defendants were But if we should be wrong as to the water which engaged in a perfectly lawful business, in which they was pumped out of the mine, bow can we discriminate had made large expenditures, and in which the inter- as to the effect of the water which flowed from the ests of the entire community were concerned. They mine by mere gravity, and that which was pumped were at liberty to carry on that business in the ordi- out? The witnesses did not discriminate in their tesnary way, and were not, while so doing, accountable timony, and the learned court did not instruct the for consequences which they could not control. As jury to make any discrimination. The injury done to the mining operations went on, the water, by the mere the plaintiff was estimated without any effort to disforee of gravity, ran out of the drifts, and found its tinguish between the effects of the water from one or way over the defendant's own land to the Meadow other of these sources. If the stream was already corbrook. It is clear that for the consequences of this rupted by the water which flowed from the tunnels, flow, which by the mere force of gravity naturally, or if that water was sufficient of itself to corrupt it, 80 and without any fault of the defeudants, carried the as to render it useless for domestic purposes, the