were inserted in the body of the quotation by Mr. Justice Woodward, who delivered the opinion of this court.

It is said the defendants created an artificial watercourse from their mine to Meadow brook, but this artificial water-course was upon their own land, and conducted no more water to the brook than by the natural conformation of the surface could otherwise have reached it. If it be suggested that the defendants might have extended this artificial water-way, in form of a sewer, to some point of safety, it may be asked where short of the sea might the sewer be discharged, that the same complaint might not be made?

We do not say that a case may not arise in which a stream, from such pollution, may be regarded as a public nuisance, and that the public interests, as involved in the general health and well-being of the community, may not require the abatement of that nuisance. This is not such a case. It is shown that the community in and around the city of Scranton, including the complainant, is supplied with abundant pure water from other ources. There is no complaint as to any injurious effects from this water to the gen. eral health. The community does not complain on any ground. The plaintiff's grievance is for a mere personal inconvenience; and we are of opinion that mere private personal inconveniences, arising in this way and under such circumstances, must yield to the necessities of a great public industry, which although in the hands of a private corporation, subserves a great public interest. To encourage the development of the great natural resources of a country trifling inconveniences to particular persons must sometimes give way to the necessities of a great community. Nor do we say that a miner, in order that his mines may be made available, may enter upon his neighbor's lands, or inflict upon him any other immediate or direct injury, but we do say, that in the operation of mining in the ordinary and usual manner, be may, upon his own lands, lead the water which percolates into his mine into the streams which form the natural drainage of the basin in which the coal is situate, although the quantity as well as the quality of the water in the stream may thereby be affected.

In the previous disposition of this case in this court, as reported in 86 Penn. St. 401, the principle of law mainly relied upon was stated as follows: "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 R. Co., L. R., 3 Q. B. 736.” "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 Northern R. Co., 3 Hurl. & 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. C'as. 612), is damuified 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 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 Exch. 280."

The parenthetic references to authorities are not found in the opinion in Fletcher v. Rylands, but

not open to criticism in England, but it is subject to many and obvions exceptions there, and has not been generally received in this country. A rule which casts upon an innocent person the responsibility of an insurer is a hard one at the best, and will not be generally applied unless required by some public policy or the contract of the parties. The later decisions in the English courts seem to encourage, rather than to discourage, exceptions to it. But we regard the rule in Fletcher v. Rylands as wholly inapplicable to the case under consideration. Referring to the judgment, we find the facts of that case to have been as follows: The plaintiff was damaged by his property being flooded with water, which without any fault on his part, broke out of a reservoir constructed and maintained on the defendant's land by the defendants' orders. The coal under the defendants' land had, at some remote period, been worked out, but this was unknown at the time the defendants gave directions to erect the reservoir. Although the persons employed did not in fact use proper care and skill to provide for the sufficiency of the reservoir with refrence to these old shafts, the defendants were personally free from all blame. The consequence was that the reservoir, when filled with water, burst into the shafts. The water flowed down through them, into the old workings, and thence into the plaintiff's mine, and there did the mischief. "We think that the true rule of law is," says Blackburn, J., "that the person, who for his own purposes brings on his lands, and collects and keeps there, any thing likely to do mischief if it escapes, must keep it in at his peril, and if he does not do so, is prima facie answerable for all the damage which is the natural consequence of its escape. He can excuse himself by showing that the escape was owing to the plaintiff's default; or perhaps that the escape was the consequence of vis major or the act of God; but as nothing of this sort exists here, it is unnecessary to inquire what excuse would be sufficient. The general rule, as above stated, seems on principle just." Then follows the clause which we find quoted in the opinion of Mr. Justice Woodward.

But the defendants in the case at bar brought nothing upon the land; they accumulated nothing there; the water was there without any act of theirs; and it was the accumulation of it which they sought to prevent. They were in the natural user of their lands for a lawful purpose, and the discharge of the mine water was an absolute necessity in order to that use of the land. The distinction is obvious; and we cannot see how Rylands v. Fletcher can be supposed to have any application in the consideration of this case.

The case was taken to the House of Lords on a proceeding in error against the judgment of the exchequer chamber, which had reversed the judgment of the court of exchequer. The judgment was there affirmed (Rylands v. Fletcher, L. R., 3 H. L. 330), and the ganeral legal proposition involved in the case thus stated by Lord Cranworth: "If a person bring or accumulate on his land any thing which if it should escape may cause damage to his neighbor, he does so at his peril. If it does escape, and cause damage, he is responsible however careful he may have been, and whatever precautions he may have taken to prevent damage.'

But the very distinction we have endeavored to point out between that case and this was suggested in the judgment of the House of Lords in the case re

ferred to. Lord Cairns says: "The defendants might lawfully have used that close for any purpose for which it might, iu the ordinary course of the employment of land, be used; and if in what I may term the natural user of that land, there had been any accumulation of water, either on the surface or underground, and if by the operation of the laws of nature, that accumulation of water had passed off into the close occupied by the plaintiff, the plaintiff could not have complained that the result had taken place."

A line was thus drawn between the rule recognized in the case adjudged and the general immunity which the law extends to land-owners for acts done in the natural and lawful user of their land. In the first head-note of the case, as reported in L. R., 3 H. L. 330, the general legal proposition embodied in the judgment of the House of Lords is thus stated: "Where the owner of land, without willfulness or negligence, uses his land in the ordinary manner of its use, though mischief should thereby be occasioned to his neighbor, he will not be liable for damages." Thus it seems that the liability, even under the ruling of Rylands v. Fletcher, is rested on the manifestly hazardous state of things artificially maintained on the land, and not on the natural user of it.

As we have said, even in England the later decisions favor exceptions to the rule of Rylands v. Fletcher. Thus in Nichols v. Marsland, L. R., 10 Exch. 255, the defendant was an owner of artificial pools formed by damming a natural stream into which the water was finally let off by a system of weirs. The rainfall accompanying an extremely violent thunder-storm broke the embankments, and the rush of water down the stream carried away four county bridges, in respect of which the action was brought. It was held that the rule referred to did not apply in the operation of natural forces so violent and unexpected that human foresight could not have been reasonably expected to anticipate it. So it has been held not to apply where the immediate.cause of the damage is the act of a stranger (Box v. Jubb, 4 Exch. Div. 76), nor when the artificial construction is maintained for the common benefit, and the immediate cause of the injury of such a trivial character as to have been wholly unexpected (Carstairs v. Taylor, L. R., 6 Exch. 217), or in the exercise of powers specially conferred by law. Madras Ry. Co. v. Zemindar, etc., L. R., 1 Ind. App. 364.

The principle of Rylands v. Fletcher was again enforced by the court of exchequer in Smith v. Fletcher, L. R., 7 Exch. 305, a case referred to in the argument of counsel, growing out of injury from the same premises. The case was carried up however to the exchequer chamber, where the judges thought that under the circumstances of the case, evidence might have been received to show that every reasonable precaution had been taken to guard against ordinary emergencies, and that it was desirable the opinion of the jury should be taken as to whether the acts of the defendants wer done in the ordinary, reasonable, and proper mode of working the mine. It was not altogether clear therefore since the decision of this case in the exchequer chamber, what the English doctrine is as to cases which are not strictly like Rylands v. Fletcher.

Nor has the doctrine of Rylands v. Fletcher been generally received in this country. It has been cited with approval in Massachusetts (Shipley v. Fifty Associates, 106 Mass. 194; Gorham v. Gross, 125 id. 232; Mears v. Dole, 135 id. 508), but it has been expressly denied in New York (Losee v. Buchanan, 51 N. Y. 477), in New Jersey (Marshall v. Welwood, 38 N. J. Law, 339), and in New Hampshire (Swett v. Cutts, 50 N. H. 439; Garland v. Towne, 55 id. 57).

In Losee v. Buchanan, Earl, C., says: "It is sufficient however to say that the law as laid down in these

cases (Rylands v. Fletcher and Smith v. Fletcher) is in direct conflict with the law as settled in this country. Here if one builds a dam upon his own premises, and thus holds back and accumulates the water for his benefit, or if he brings water upon his premises into a | reservoir, in case the dam or the banks of the reservoir give way, and the lands of a neighbor are thus flooded, he is not liable for the damage without proof of some fault or negligence on his part. Ang. Watercourses, § 336; Laphan v. Curtis, 5 Vt. 371; Todd v. Cochell, 17 Cal. 97; Everett v. Hydraulic, etc., Co., 23 id. 225; Shrewsbury v. Smith, 12 Cush. 177; Livingston ▼. Adams, 8 Cow. 175; Bailey v. Mayor, etc., of N. Y., 3 Hill, 531; S. C., 2 Denio, 433; Pixley v. Clark, 35 N. Y. 520, 524; Sheldon v. Sherman, 42 id. 484."

The true rule is laid down in the case of Livingston v. Adams, as follows: Where one builds a mill-dam upon a proper model, and the work is well and substantially done, he is not liable to an action though it break away, in consequence of which his neighbor's dam and mill below are destroyed. Negligence should be shown in order to make him liable." "The

In Marshall v. Welwood, Beasley, C. J., says: fallacy in the process of argument by which judgment is reached in the case of Rylands v. Fletcher, appears to me to consist in this, that the rule, mainly applicable to a class of cases, which I think should be regarded as in a great degree exceptional, is amplified and extended into a general, if not universal, principle."

In Garland v. Towne, Ladd, J., referring to the case of Rylands v. Fletcher, says: "I am not aware that any court this side of the Atlantic has gone so far as this, and I apprehend it would be a surprise, not only to that large class of our people engaged in various manufacturing operations, who use water-power to propel their machinery, and for that purpose maintain reservoirs, but to the legal profession, to hold that in case of the breaking away of such reservoirs, there is no question of care or negligence to be tried, but that he who has thus accumulated water in a non-natural state, on his own premises, is liable at all events, as matter of law, in case it escapes, for the damage caused by it. As a general proposition, it is safe to say that the owner of the land has a right to make reasonable use of his property, and that right extends as well to an unlimited distance above the earth's surface as to an unlimited distance below."

See also Whart. Neg. 934; Aug. Water-courses, 336; Washb. Easem., ch. 3, § 7; Jones v. R. Co., 27 Vt. 399.

If a man erect a mill upon a stream of water, and build a dam wholly upon his own land in order to apply the weight and power of the water to the propelling of his mill, or if he erect tanks or basins to retain water for the irrigation of his land, it seems a severe rule to put upon him the strict and unbending obligation of an insurer, to hold him liable for any injury whatever which may result from the escape of the water, whether in the construction and maintenance of the works he was negligent or not. As a general rule, those who engage in an undertaking attended with risks to their neighbors are answerable for the conduct of that undertaking with diligence proportioned to the apparent risk, and this would seem to be the better rule. Where one places a steam-boiler upon his premises, and operates the same with care and skill, so that it is no nuisance, in the absence of proof of fault or negligence upon his part. he is not liable for damages to his neighbor, occasioned by the explosion of his boiler. Losee v. Buchanan, supra. A railway company may bring upon its lands locomotive engines, and if notwithstanding the best practicable care and caution, and the use of the best approved appliances, sparks escape, and fire the property of the adjacent

addition to several annuities secured under former treaties. By the treaty large reservations of land east of the river were made, and those Indians desiring to remain and become citizens of the United States were promised grants in fee-simple, after a certain term of settlement thereon. The United States failed to fulfill the obligations imposed upon it by this treaty in various particulars, especially as to the lands reserved; and as to some of the claims, but not all, arising from such violations, it made a settlement with the Indians in making which advantage was taken of their necessities. Held, that under the circumstances the award of the Senate, under the Treaty of 1855 (giving to the award the effect of prima facie evidence of the correctness of the claim thereby reduced to judgment), by which the United States was required to account to the Choctaws for all the pecuniary benefits derived from the land ceded by the act of 1830, was a fair, just and equitable settlement, and the amounts thereby awarded should be adjudged due in this action, deducting the amount of a payment made on account of said award under the act of March 2, 1861. Upon this principle of settlement, and in accordance with the award, the Choctaws are ordered to receive the proceeds of the sales of the lands by the government, deducting expenses of survey and sale, and reckoning the unsold portions at an estimated value of 12 cents per acre, and deducting payments and expenditures made under the Treaty, but disregarding the release executed in pursuance of the settlement referred to. Held, also, a mistake having been made by the government in surveying the territory west of the Mississippi ceded to the Indians, so that a large tract was excluded therefrom which should have been included, that the value of this should be paid to the Indians. Held, also, that unpaid annuities due under treaties prior to that of 1855 should be included in the judgment. Nov. 15, 1886. Choctaw Nation v. United States. Opinion by Matthews, J.

MUNICIPAL CORPORATION-TOWNSHIP BONDS-BONA

FIDE

HOLDER-RECITALS-ESTOPPEL-ILLINOIS ACT OF MARCH 30, 1869, § 6.—The supervisor and the town clerk of the town of Oregon, Ill., under section 6 of the act of March 30, 1869, providing for the issuance of bonds, etc., in aid of the Ogle & Carroll County Railroad Company, by towns and villages along its route, are the officers to sign the bonds, and the "corporate authorities to act for the town in issuing them to the company, and are the persons intrusted with the duty of deciding, before issuing the bonds, whether the conditions determined at the election authorizing the issue existed. Having certified to that effect in the bonds, the town is estopped from asserting, as against a bona fide holder, that the conditions prescribed by the popular vote were not complied with. The effect of section 6, Illinois act of March 30, 1869, that the election to pass upon the issuance of bonds, etc., in aid of the Ogle & Carroll County Railroad Company, by towns along the route, should be held and conducted, and return thereof made, as is provided by law." is that the election in the town of Oregon could properly be conducted in t be manner prescribed by law for the election in towns of town officers, viz., by a moderator and the town clerk, the town clerk having given, as required by the act, the prior notice of the election, and the return of the election being filed in the office of the town clerk, and the two officers being paid by the town. The officers of a town organized under the Illinois Township Organization Law are one supervisor, two justices of the peace, and one town clerk; and where the supervisor has resigned December 30, 1870, and one of the justices March 2, 1871, his successor not being elected until April 4, 1871, there is on April 3 a "vacancy" in the office of super

visor, for the purpose of filling it under section 1, 1 Gross St. (3d ed.) 1869, ch. 103, art. 7, pp. 750, 751, and a vacancy in the office of the retiring justice, for the purpose of the town clerk and the other justice, as the remaining officers of the appointing board, to appoint a supervisor under section 2 of the same act. The fraud or circumvention intended by the eleventh section of the Illinois statute (1 Gross St. [3d ed. 1869], ch. 73, p. 462) is not that which goes merely to the consideration of the instrument, but it must go to the execution or making, and there must be a trick or device by which one kind of instrument is signed in the belief that it is of another kind, or the amount or nature or terms of the instrument must be misrepresented to the signer. Query, as to the application of this statute to town bonds and their coupons. Nov. 15, 1886. Town of Oregon v. Jennings. Opinion by Blatchford, J.

PUBLIC LANDS-GRANT OF 1864 TO NORTHERN PACIFIC RAILROAD COMPANY - INDIAN TITLE. The grant by the act of Congress of July 2, 1864, to the Northern Pacific Railroad Company of lands to which the Indian title had not been extinguished, operated to convey the fee to the company, subject to the right of occupancy by the Indians. The manner, time and conditions of extinguishing such right of occupancy were exclusively matters for the consideration of the government, and could not be interfered with, nor put in contest by private parties. The agreement of the Sisseton and Wahpeton bands of Dakota or Sioux Indians for the relinquishment of their title was accepted on the part of the United States when it was approved by the secretary of the interior, on the 19th of June, 1873. That agreement stipulating to be binding from its date, May 19, 1873, and the Indians having retired from the lands of their reservations, the relinquishment of their title, so far as the United States are concerned, held to have then taken place. Upon the definite location of the line of the railroad on the 26th of May, 1873, the right of the company, freed from any incumbrance of the Indian title, immediately attached to the alternate sections; and no pre-emptive right could be initiated to the land, so long as the Indian title was unextinguished. When the general route of the road provided for in section 6 of the act of July 2, 1864, was fixed, and information thereof was given to the land department by the filing of a map thereof with the secretary of the interior, the statute withdrew from sale or pre-emption the odd sections to the extent of forty miles on each side thereof; and by way of precautionary notice to the public, an executive withdrawal was a wise exercise of authority. The general route may be considered as fixed when its general course and direction are determined, after an actual examination of the country, or from a knowledge of it, and it is designated by a line on a map, showing the general features of the adjacent country, and the place through or by which it will pass. That part of section 3 of said act which excepts from the grant lands reserved, sold, granted, or otherwise appropriated, and to which pre-exemption and other rights and claims have not attached, when a map of definite location has been filed, does not include the Indian right of occupancy within such "other rights and claims;" nor does it include pre-emptions, where the sixth section declares that the land shall not be subject to pre-emption. Nov. 15, 1886. Buttz v. Northern Pacific R. Co. Opinion by Field, J.

ABSTRACTS OF VARIOUS RECENT DECISIONS.

EVIDENCE-AGE OF WRITING-EXPERTS.-The age or date of the actual execution of a written paper is

not a question of science, skill or trade, nor one of the like kind, upon which a witness may testify and give bis opinion as an expert upon its mere inspection. Greenleaf thus states the case: "On questions of science, skill or trade, or others of the like kind, persons of skill, sometimes called experts, may not only testify to facts, but are permitted to give their opinions in evidence." 1 Greenl. Ev., § 440. Having examined the books as thoroughly as the time at my disposal will permit,and failed to find any case involving facts similar to to those of this case, and none being cited by counsel, the question of the sufficiency of the evidence to sustain the finding and judgment must be determined in the main by original considerations. I have found

two cases however which will be cited as worthy of some consideration in support of the conclusion to which I have arrived. The case of Clark v. Bruce, 12 Hun, 271, was brought upon three promissory notes. The statute of limitations was set up as a defense. The plaintiff relied upon certain partial payments indorsed thereon. Stephen Lockwood was called as a witness by the defendant, and testified "that he was and had been an attorney for over twenty years; that in his business he had had occasion to examine old and new writings, and to examine when they were claimed not to be genuine; and that he had examined the notes in suit, and the indorsements on them of 13th June, 1858, and 3d January, 1862. He was then asked: 'In your opinion, were the indorsements of June 13 upon those notes written as long ago as they bear date?' He was also asked: 'Are the indorsements of 13th June, 1858, and 3d January, 1862, written with the same pen and ink?' The defendant also offered to show by the witness that each of the indorsements, in the opinion of the witness, was written at a more recent time than its date, and that they were all written within two years past, judging from the appearance or the writing and ink." Upon objection, the evidence was rejected. There was a judgment for the plaintiff. Upon appeal, the Supreme Court say: "The questions and offer called for the opinion of the witness. He was not asked to state facts-to describe the appearance of the indorsements in any respectbut to give an opinion as to the time when the indorsements were made, based upon the appearance of the writing and the ink. What was the appearance of the writing and the ink does not appear by the evidence. We do not think the witness had shown himself to be an expert on that subject. To judge of the genuineness of handwriting-that is, to judge whether it was written by the person whose hand writing it purports to be-is one thing; to determine its age from its appearance is quite another. The witness may have had occasion to pass upon the genuineness of many writings, old and new, and yet never have been called on to form an opinion from the appearance of handwriting as to whether or not it was written at the time it bore date. We think the objection was prop erly sustained." The other case is that of Ellingwood v. Bragg, 52 N. H. 290. I will quote only a part of the syllabus: Upon the question of whether a long account upon a party's books was written at different times, as it purported to be, or whether it was all written with the same pen and ink, and at the same time, a witness testified that he had been in practice as a lawyer some forty years, and had about the same experience as lawyers in general in the examination and comparison of handwritings; that he had been engaged in one or two cases which had led him particularly to examine and compare handwritings, but he did not claim to be able to give an opinion upon which any great reliance could be placed. Held, that the admission of the witness to testify as an expert was erroueous." A new trial was granted. Whatever reading, examination and reflection I have been able to

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give to the case has led me to the conclusion that it does not present a question of science, skill or trade, nor one of a like kind. In other words, I do not think that any amount of science, study or skill would enæble a person, by mere inspection, to judge or testify of the age of handwriting with that accuracy necessary to its value or safety in judicial proceedings. The appearance of a written paper, some years, or even months, old, will depend greatly upon the color, kind and quality of the ink used, and greatly upon the receptacle or place where the paper has been keptwhether excluded from the air or sunshine; whether in a dry or damp, hot or cool, place; and other conditions, the knowledge of which must be derived from sources other than inspection. Again, there is no recognized science or trade in which it can be said to be necessary that persons engaged in it should be skilled in detecting the age of writings by inspection. The science of the law perhaps comes nearer to it than any other, and the instances in which it becomes necessary or even useful, that the legal practitioner should possess such skill, are very rare. Neb. Sup. Ct., Oct. 27, 1886. Cheney v. Dunlap. Opinion by Cobb, J.

HEARSAY-IDENTITY-CLAIM UNDER WILL.

One seeking to establish title under a will cannot prove her identity by unrelated persons, acquainted with the family, and its history, by information derived from members of the family. The declarations of different members of the family that are deceased can be proved, but if they are alive they must themselves be called. The party herself is competent. The appellee undertook in the court below to prove her identity as the Mrs. Henderson, now Mrs. Gagoni, by N. P. Moss, who swore that he had known George S. Badger and wife, Jane D. Chitwood, and Mary A. Gagoni for about fifteen years, and that from the family history derived from these parties he knew that Mrs. Henderson, named in the will of Baker Woodruff, was Mrs. Gagɔni, the appellee. Mr. Greenleaf, in the first volume, § 103, of his work on Evidence, says: "But the rule is now settled that the law resorts to hearsay evidence, in cases of pedigree, upon the ground of the interest of the declarants in the person from whom the descent is made out, and their subsequent interest in knowing the connections of the family. The rule of admission is therefore restricted to the declarations of deceased persons who were related by blood or marriage to the person, and therefore interested in the succession in question; and general repute in the family, proved by a surviving member of it, has been considered as falling within the rule." It is only in the instance that the declarant is dead, and was related to the person in question by blood or marriage, that his declarations as to the relationship, and the degree of it, of such person can be proved by third persons; and any other, whether related or not, if otherwise competent as a witness, who heard such declarations, may prove them. If however such relationship is attempted to be proven by the general repute in the family, and not by the declarations of its deceased members, then the proof must be confined to the surviving members of it. If the declarant is not dead, then it is not competent to prove his declarations, because he can himself testify to the fact, which is the best testimony. The record does not show that these declarants were dead, nor that they were related to the devisor. They were all, as far as the record shows, competent to swear to the fact in question; and if their evidence was desired, they should have been introduced as witnesses, in person or by deposition. Besides the appellee was herself a competent witness to prove the facts. She was not introduced at all. Ky. Ct. App., Oct. 28, 1886. Dupoyster r. Gagoni. Opinion by Bennett, J.