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to the estate, as not inherently identical in nature with land, but from being joined to it and contributing to its uses and value legally identified with it as a fixture or a right of way or other appurtenance that passes with land. The mere planting or depositing of oysters in the water implies no essential union or relation between the main land and the soil under the water contiguous; and therefore does not effect an improvement of the former implied in something erected or constructed attached to the shore, and together with the land furnishing convienence and facilities that enlarge the advantages of the latter."
BENDING THE KNEE.
HE editor of this journal once roundly asserted
the reports of the ecclesiastical cases, as given in the volumes of the London Law Journal" of that day. In that article reference is made to the Rev. Alexander Heriot MacKonochie, and the trouble he got into by bending his one knee and occasionally touching the ground with it, which action the Privy Council considered kneeling. History repeats itself, and now an unfortunate French Canadian is in hot water because he only went down upon one knee during divine service. The facts appear to be these: One Poitras attended service at the Church of Ste. Anne du Bout de l'Ile. (There are at least a dozen villages named after the mother of the Virgin in the Province of Quebec. They are distinguished by euphonious additions, such as Ste. Anne de la Perade, Ste. Anne de la Pocatiere, Ste. Anne de Restigouche, Ste. Anne de Stukely, and Ste. Anne du Machiche; the one in question is that beside "Ottawa's tide," where "the stream runs fast, and the rapids are near, " and it was the evening chime from that church that Tom Moore heard faintly tolling as sweetly he rested on weary oar.)
Poitras being sick and indisposed, during part of the mass kneeled on one knee only, but apparently his attitude was by some not considered reverential. The beadle of the church expostulated with Poitras, and pointed out that according to the rules of the church, which are duly published from the pulpit every year), those attending mass should devoutly kneel upon both knees. Sickness was pleaded as an excuse. The beadle, or marquillier sortant de charge, Lebeau, discussed the matter with Poitras afterward outside, and then referred the affair to one Madore, his superior officer, who was marquillier en charge. This functionary instituted proceedings against Poitras to recover a statutory penalty of $5 for misbehavior in church. No arrest was made, for when Lebeau came with the warrant, and was about to arrest, Poitras yielded to the tears and entreaties of his wife, and to avoid arrest, paid the fine and costs under protest, and threatening to have the law of him or them, or whoever was at the bottom of the affair. Poitras sued Madore, the church warden who ordered his arrest, but the Circuit Court dismissed his action; he also ineffectually sued the magistrate. Then he sued Lebeau, the bailiff, and the action was tried by a special jury in October last, before Mr. Justice Johnson. His honor charged the jury that improper behavior in church, whether any special written rule was proven not, authorized the defendant under the statute to take out the summons; that whether it was taken without reasonable cause and maliciously was a question for the jury; and in the absence of malice the action must fail. The jurors had to consider whether
the bailiff had done wrong, and whether the plaintiff had suffered any injury. He himself saw no proof of either the one or the other. The jurors found a verdict for the defendant.
Mr. Poitras however was not to be stopped so soon in his search after justice, so he went to the Court of Review for a new trial. The majority of the court was with him, and agreed to give him another chance. Jette, J., speaking for the majority of the court, said that if the rule requiring those who attended mass to kneel on both knees was so absolute, it would follow that sick people could not attend mass. Here was a man who had no intention of misbehaving; he was ill, and the attitude he assumed was respectful and proper; and yet he had been subjected to arrest and ill treatment. It was Lebeau who instigated the prosecution. Could it be said that the plaintiff was without remedy? He was the victim of a prosecution under 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 granting a new trial; he thought that there could be no action for an unfounded prosecution without malice, and without want of probable cause, and there was no evidence that he could see of either; nor could he perceive that the plaintiff in his motion urged the usual ground of injustice. If the plaintiff was in good faith he should have contested the summons for the penalty. He admitted the objectionable and even proverbial fussiness of bumbledom, but thought it was going rather far to express it by an action of damages such as this.
Lebeau did not relish the idea of having the matter submitted a second time to a jury, so he applied to the Court of Queen's Bench for leave to appeal from the judgment of the Court of Review. Dorion, C. J., and Ramsay, Cross and Baby, JJ., formed the court. Ramsay, J., in delivering the judgment of the court, took the opportunity of saying that the taking of the $5 was an indefensible exaction, and that the questions submitted to the jury were a Chinese puzzle, and were evidently made purposely to confuse the jurors. (Johnston, J., does not sit in this court.) "It was impossible to see how Lebeau could be held responsible at all. A great wrong was done to Poitras, but Lebeau had nothing to do with that wrong. He merely reported the facts to the marquillier de charge. The evidence had all come up, and Madore, the marquillier, swore in the most absolute manner that Lebeau did nothing but tell him the story of what had occurred. To allow a new trial would be to encourage these persons to ruin themselves for no purpose."
Leave to appeal was granted. Here meanwhile Poitras and his one knee rests. If it be needed we will bring up the matter again.
NEGLIGENCE-IMPUTED CONTRIBUTORY NEGLIGENCE-DEFECTIVE WAY.
PENNSYLVANIA SUPREME COURT, OCT. 4, 1886.
BOROUGH OF CARLISLE V. BRISBANE.
The borough of Carlisle was macadamizing one side of a street. A., a resident of Philadelphia, was riding in a sleigh owned and driven by B.. a resident of Carlisle, who knew of the work going on. The sleigh was upset by one runner going on an embankment made by stone, and A was thrown out and injured. Held, that the borough of Carlisle was liable for the injury; that the knowledge of B. could not be imputed to A.; and as the former was not a common carrier for hire, he was not bound to use the highest skill and care, but only such as an ordinary per-, son would have used under the circumstances.
streets over which they might pass. There is no evi-
F. Maust, F. E. Beltzhoover and J. N. Weakley, for personally aware of either, and no question can arise
involving this view of the case.
RROR to Common Pleas, Cumberland county. The head-note states the case. The plaintiff had judgment below.
Hepburn, Jr., & Stuart and Martin C. Herman, for plaintiff in error.
CLARK, J. The general rule of the law undoubtedly is, where one suffers an injury through the concurrent negligence of two or more persons, they are jointly liable, and may be proceeded against for daniages sustained, either jointly or severally, at the option of the party injured, unless the latter, by his own negligence, has contributed to the injury, in which case the law will not afford him any remedy whatever against any or all of the persons whose wrong, in concurrence with his own, caused the injury. The rule is however not without its exceptions. Where goods in the hands of a common carrier are injured by the negligent act of a third party, to which the negligence of the carrier contributes, and an action is brought by the owner against the third party, the carrier's contributory negligence is a good defense. Vanderplank v. Miller, Mood. & M. 169; Simpson v. Hand, 6 Whart. 311. So also where a passenger is personally injured by the joint negligence of his carrier and another party, his remedy is against the common carrier alone. The latter question was first raised in this court, and was very fully discussed, in the case of Lockhart v. Lichtenthaler, 46 Penn. St. 151. The decision in that case was grounded upon the doctrine of the English cases, Bridge v. Grand Junction Ry. Co., 3 Mees. & W. 247 (1838, in the Court of Exchequer); Thorogood v. Bryan, 65 E. C. L. 114; and Cattlin v. Hills, id. 123 (in the Common Bench, 1849). These cases have since been followed and approved in the Exchequer by Armstrong v. Lancashire & Y. Ry. Co., 44 L. J. Exch. 89. The principle upon which these English cases appear to have been determined is that the passenger is so far identified with the carriage in which he is travelling that want of care on the part of the driver will be a defense of the owner of the other carriage that directly caused the injury.
Our own case of Lockhart v. Lichtenthaler, supra, was followed by Philadelphia & R. R. Co. v. Boyer, 97 Penn. St. 91, an action against the railroad company to recover damages for the death of a person caused by a collision of the defendant's train with a street car in which the deceased was a passenger. It was held, that in order to recover, the plaintiffs must show not only that the death resulted directly from the defendant's negligence, but that the negligence of the carrier company did not contribute to the result. Therefore although there is certainly a wide difference of opinion between the courts of this and other States on the subject, it seems to be well settled as the law of Pennsylvania that the remedy of a passenger injured by the joint negligence of his carrier and another is against the common carrier only.
Cornman however was not a common carrier. He was. the owner of the horse and sleigh, and was the driver. Brisbane was a friend of Cornman's, visiting Carlisle, and occupied a seat in the sleigh by his invitation. The accident occurred while returning from a visit to the poor-house. Nor was Cornman the servant of Brisbane. As the driver, he was neither under Brisbane's direction or control, nor was Brisbane under his control. Brisbane had simply accepted the friendly offer of a seat in Cornman's sleigh. He had a right to expect from Cornman ordinary skill and care in the management of the conveyance, and precisely the same degree of care from the municipality of the borough of Carlisle in the condition and repair of the
It is said however that although there is no evidence of any actual negligence on the part of Brisbane, upon the principle of Lockhart v. Lichtenthaler the negli gence of Cornman is to be imputed to him.
The rationale of the rule in Thorogood v. Bryan is said by Colton. J., to be the identity of the passenger with his own vehicle; but in Lockhart v. Lichtenthaler this reason is rejected, and we think the foundation of the principle is expressed by Mr. Justice Thompson with much more care and accuracy, as follows "I would say the reason for it is that it better accords with the policy of the law to hold the carrier alone responsible in such circumstances as an incentive to care and diligence. As the law fixes responsibility upon a different principle in the case of the carrier, as already noticed, from that of a party who does not stand in that relation to the party injured, the very philosophy of the requirement of greater care is that he shall be answerable for omitting any duty which the law has defined as his rule and guide, and will not permit him to escape by imputing negligence of a less culpable character to others, but sufficient to render them liable for the consequences of his own. It would be altogether more just to hold liable him who has engaged to observe the highest degree of diligence and care, and has been compensated for so doing, rather than him upon whom no such obligation rests, and who, not being compensated for the observance of such a degree of care, acts only on the duty to observe ordinary care, and may not be aware even of the presence of a party who might be injured."
When the reason of a rule of law ceases, the rule itself ceases. The law fixes the responsibility of the persons or parties involved in this transaction upon precisely the same basis. There is certainly no policy of aw which requires that the driver of a private carriage or sleigh, who, actuated by the motives of kindness alone, and without compensation, may undertake to convey a friend through the streets of a city or town, shall be held to a higher standard of care toward that friend than the city or town through whose streets they pass. Both Cornman and the municipality of Carlisle borough were bound to Brisbane for the exercise of ordinary care and diligence only. If Cornman had been a common carrier, he would have been a carrier for compensation, and would have been obliged to observe the highest degree of diligence and care. The policy of the law in such a case, it is said, would not permit him to escape by interposing the negligence of others of a less culpable character. The doctrince declared in Lockhart v Lichtenthaler and Philadelphia & R R. Co. v. Boyer is not applicable to this case, and there is no sound principle of law which will preclude the plaintiff from seeking redress from both or either of the persons through whose negligence he was injured. Brisbane was answerable for his own negligence alone. The negligence of Cornman under the circumstances cannot be imputed to him so as to bar his recovery in this case.
The case at bar is in every respect similar to the case of Robinson v. New York Cent. & H. R. R. Co., 66 N. Y. 11, where a female accepted an invitation to ride in a buggy with a person who was entirely competent to manage a horse, and it was held that if the defendant company was negligent, and the plaintiff free from negligence herself, she might recover from the com
THE ALBANY LAW JOURNAL.
pany, although the driver of the buggy might have been guilty of negligence which contributed tp the injury. This case was followed by Dyer v. Erie R., 71 N. Y. 228. Mr. Justice Miller, delivering the opinion of the court, says: "It is insisted that the court erred in charging the jury that the negligence of Stimpson was no bar to the action, and that the negligence of the driver would not prevent a recovery. The solution of the question raised must depend on the position which Stimpson occupied toward the plaintiff. The plaintiff rode with Stimpson, at his invitation, gratuitously, in Stimpson's wagon. The latter, driving the team, exercised entire control over it, and was travelling entirely on business of his own. Stimpson was not hired by the plaintiff, or in his employ, or in any sense his agent, nor had the plaintiff any control or direction of the team, or its management, or over Stimpson himself. There is no pretense but that Stimpson was entirely competent to take charge of the team himself, nor that he did not possess the requisite skill to manage and control the same. It is difficult to see upon what principle the negligence of Stimpson can affect the plaintiff, or be imputed to him."
ground to prevent the use of the central part of the road at this point, or to warn the plaintiff that the travelled route was not in the center, but along the side, of the street. It is an undoubted, and indeed an undisputed fact, that the center of the street had been the usual course of travel, and we think it was certainly competent to show it. The learned court very plainly instructed the jury that if the way provided was safe, convenient, and so well marked that no man of ordinary prudence could mistake it, it was not necessary that it should have been along the middle of the street, and that in providing such a way at the side of the street they did their whole duty to the public, unless on the central part, where it had previously been used as the highway, they placed a dangerous obstruction without giving any warning of the fact.
The principle upon which this evidence was admitted is perhaps inaccurately stated; but as the proof was properly received, we cannot reverse upon the ground that proper reasons were not assigned for its admission.
The judgment is affirmed.
These causes in New York were afterward followed by Masterson v. New York Cent. & H. R. R. Co., 84 N. Y. 247, which is to the same effect.
It is true that the authority of these cases may be supposed to be somewhat impaired in Pennsylvania by the fact that in New York the rule of Thorogood v. Bryan has been repudiated (Chapman v. New Haven R. Co., 19 N. Y. 341), but as we hold the rule of policy only to apply to the case of a common carrier, there is no reason to discredit the authority of that court in cases where this rule of policy does not apply.
In this view it is not important what Corumau may have previously known as to the condition of the road; and as it is shown that Brisbane never had any knowledge of it, the case was to be considered by the jury, so far as Brisbane is concerned, just as if both were passing over the road for the first time. A stranger, in the twilight, or when snow was on the ground, as a matter of fact, might certainly assume that the center of a public road or street within the corporate limits of a populous town, over which hundreds of wagons passed
every day, especially if no other route is plainly desig-ERR
nated, was in a passable condition.
In the consideration of a question of negligence on
Nor can we see any valid objection to the evidence the
WATERS AND WATER-COURSES — POLLUTION—
PENNSYLVANIA SUPREME COURT, OCT. 4, 1886.
PENNSYLVANIA COAL Co. v. SANDERSON.
Land on a lower level owes a natural servitude to that on a higher level in respect of receiving, without compensation by the owner, the water naturally flowing from it, and although the existence of a stream, the purity of its water, and its utility for domestic purposes were leading inducements to the purchase of the lower land, a pollution of the stream by the running into it of acidulated water from a coal mine on the higher land is damnum absque injuria, where the stream forms the natural drainage of the basin in which the coal is situated, and the mine is conducted in the ordinary and usual mode of mining.
RROR to Common Pleas, Luzerne county. Trespass on the case by J. Gardner Sanderson and Eliza, his wife, in right of the wife, against the Pennsylvania Coal Company, for damages for corruption of plaintiff's water-course, caused by the working of the defendant's colliery. The facts are stated in the opinion. Verdict for plaintiff, $2,872.74, and judgment thereon.
J. M. & W. P. Gest, Henry W. Palmer, Willard & Warren, Henry M. Hoyt, and Andrew T. McClintock, for plaintiff in error.
A. Ricketts, for defendant in error.
CLARK, J. The Pennsylvania Coal Company is the owner of some 1,600 acres of anthracite coal lands in the Lackawanna valley, situate above the city of Scranton, in the basin of a small tributary of the Lackawanna river known as Meadow brook, into which, owing to the natural conformation of the surface, the water from these lands is drained. The company first opened the coal seams on this land by a drift, or tunnel, in the year 1867 or 1868. They drove three other tunnels, and sunk a shaft, and thereafter mining operations were extensively engaged in; the establishment being known as the "Gipsy Grove Coalworks." From the time the first tunnel was driven the mine water flowed, by the natural course of gravinto the Meadow brook. As the operation of the mines was increased, the volume of mine water increased. The water which percolated into the shaft
was by powerful engines pumped therefrom, and as it was brought to the surface, it passed, with the flow from the tunnel, by an artificial water-course, over the defendant's own land into the Meadow brook, which we have said, was the natural water-course for drainage of the entire basin. The plaintiff, Mrs. Sanderson, in the year 1868, purchased a tract of land in the city of Scranton, some three miles below the Gipsy Grove works, on the Meadow brook, near its mouth. The existence of the stream, the purity of its water, and its utility for domestic and other purposes, it is said, was a leading inducement to the purchase. She began, and in the year 1870 finished the erection of a house upon the land. In connection therewith dams were built across the brook to form a fish and ice pond, and to supply a cistern. The water was forced by a hydraulic ram from the cistern to a tank in the house, and was used for domestic purposes and for a fountain.
It is alleged that the large volume of mine water which the defendants poured into the Meadow brook has corrupted the water of that stream to such an extent as to render it totally unfit for domestic use; that the fish in the brook have been totally destroyed, the plaintiff's pipes corroded, and his entire apparatus for the utilization of the water rendered wholly worthless; and that in consequence, about the year 1875, the same was abandoned. This action was brought to recover the damages which the plaintiff alleges she has sustained in consequence of the alleged pollution of the stream.
At the trial of the cause, in February, 1878, in the Common Pleas of Luzerne county, the court, after hearing the plaintiff's case, entered a nonsuit on the ground that the discharge of the mine water was a necessary incident to mining; that there was neither malice nor negligence shown in the operation of the mine, and the case was therefore one of damnum absque injuria. A writ of error was taken to the refusal of the court to take off the nonsuit, and the case was presented for the consideration of this court. 86 Peun. St. 401. Upon consideration of the question involved, this court was then of opinion, that 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;" that this case exhibited none of those peculiar conditions; and that the plaintiff's proofs exhibited a case which should have been submitted to the jury. A procedendo having been awarded, the cause was again brought to trial in the Common Pleas of Lackawanna county, where, in October, 1879, a verdict was rendered for the plaintiff. A writ of error was then taken by the defendants; but this court adhering to the opinion contained in 86 Penn. St. 401, the judgment was aflirmed. The plaintiffs however sued out a second writ to the same judgment, and assigned for error the ruling of the court as to the proper measure of damages, and upon this the judgment was reversed, and a venire facias de novo awarded. The cause was again tried in the Common Pleas of Lackawanna county in February, 1885. Judgment was again entered for the plaintiff, and it is to this judgment that the present errors are assigned.
The questions which are now to be considered, with a single exception, perhaps being identical with those which were previously considered and embraced in the judgment reported in 86 Penn. St. 401, the argument has been practically a reargument of the original case. We have before us not only the same parties, and the same questions, but the same case; and if it be true, as it is most persistently argued, that this court was mistaken in its former ruling, it is well that the error should be righted in the same case in which it occurred. If we lay aside our own previous
decisions of this case, and regard the cause as coming before us upon a reargument, the main question involved is one of new impression in this State. This court was not then, and is not now, in harmony with reference to it.
It has been stated that 30,000,000 of tons of anthracite and 70,000,000 of bituminous coal are annually produced in Pennsylvania. It is therefore a question of vast importance, and cannot, on that account, be too carefully considered; for if damages may from time to time be recovered, either in the present form or as for a nuisance, punitive sums may be resorted to to prevent repetition, or to compel the abatement of the nuisance. Indeed if the right to damages in such cases is admitted, equity may, and under the decisions of this court undoubtedly would, at the suit of any riparian owner, take jurisdiction, and upon the ground of a continuous and irreparable injury, enjoin the operation of the mine altogether. Whatever rights Mrs. Sanderson may have to the use of this water, and whatever remedy she may have in this case, or in any other form, in law or in equity, is the right and remedy of every other riparian owner along Meadow brook; and whatever may be the rights and remedies of the owners on Meadow brook are, of course, the rights and remedies of all other riparian owners throughout the Commonwealth. It may be that Mrs. Sanderson adopted a more extensive arrangement for the use of this water than any other person, and is consequently more inconvenienced on that account; but the law is the same in her case as in all other cases. If she may recover damages in a large amount, others similarly but less affected may recover in a less Besides these riparian owners are not limited to their present modes of enjoyment. It is impossible to foresee what other modes of enjoyment they or their successors in title may adopt, or to estimate the extent of damages to which the continued pollution of the stream might proceed. Hence if the responsibil ity of the operator of a mine is extended to injuries of the character complained of, the consequences must be that mining cannot be conducted except by the general consent of all parties affected.
It will be observed that the defendants have done nothing to change the character of the water, or to diminish its purity, save what results from the natural use and enjoyment of their own property. They have brought nothing onto the land artificially. The water as it is poured into Meadow brook is the water which the mine naturally discharged. Its impurity arises from natural, not artificial, causes. The mine cannot, of course, be operated elsewhere than where the coal is naturally found, and the discharge is a necessary incident to the mining of it.
It must be conceded, we think, that every man is entitled to the ordinary and natural use and enjoy. ment of his property. He may cut down the forest trees, clear and cultivate his land, although in so doing he may dry up the sources of his neighbor's springs, or remove the natural barriers against wind and storm. If in the excavation of his land, he should uncover a spring of water, salt or fresh, acidulated or sweet, he will certainly not be obliged to cover it again, or to conduct it out of its course, lest the stream in its natural flow may reach his neighbor's land. It has always been considered that land on a lower level owes a natural servitude to that on a higher level, in respect of receiving, without claim for compensation by the owner, the water naturally flowing down to it. In sinking his well, he may intercept and appropriate the water which supplies his neighbor's well (Acton V. Blundell, 12 Mees. & W. 324; Wheatley v. Baugh, 25 Penn. St. 528; Haldeman v. Bruckhart, 45 id. 514), or if his own well is so close to the soil of his neighbor as to require the support of a rib of clay or of stone on
The defendants, being the owners of the land, had a right to mine the coal. It may be stated, as a general proposition, that every man has the right to the natural use and enjoyment of his own property; and if while lawfully in such use and enjoyment, without negligence or malice on his part, an unavoidable loss occurs to his neighbor, it is damnum absque injuria; for the rightful use of one's own land may cause damage to another, without any legal wrong. Mining in the ordinary and usual form is the natural user of coal lands. They are, for the most part, unfit for any other use. "It is established," says Cotton, L. J., in West Cumberland Iron Co. v. Kenyon, L. R., 6 Ch. Div. 773, "that taking out minerals is a natural use of mining property, aud that no adjoining proprietor can complain of the result of careful, proper mining operations." In the same case, Brett, L. J., says: "The cases have decided, that where that maxim (sic utere tuo ut alienum non lædas) is applied to landed property, it is subject to a certain modification; it being necessary for the plaintiff to 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."
his neighbor's land to retain the water in the well, no
Supreme Court at September Term, 1848. These
The right to mine coal is not'a nuisance in itself. It is, as we have said, 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 effected. There are, it is well known, percolations of mine water into all mines. Whether the mine be operated by tunnel, slope, or shaft, water will accumulate, and unless it can be discharged, mining must cease. The discharge of this acidulated water is practically a condition upon which the ordinary use and enjoyment of coal lands depends. The discharge of the water is practically part and parcel of the process of mining; and as it can only be effected through natural channels, the denial of this right must inevitably produce results of a most serious character to this, the leading industrial interest of the State. The defendants were engaged in a perfectly lawful business, in which they had made large expenditures, and in which the interests of the entire community were concerned. They were at liberty to carry on that business in the ordinary way, and were not, while so doing, accountable for consequences which they could not control. As the mining operations went on, the water, by the mere foree of gravity, ran out of the drifts, and found its way over the defendant's own land to the Meadow brook. It is clear that for the consequences of this flow, which by the mere force of gravity naturally, and without any fault of the defendants, carried the
water into the brook, and thence to the plaintiff's pond, there could be no responsibility as damages on part of the defendants.
A person in the lawful use of his own land may cause to flow over the land of another a greater quantity of water than it is naturally subjected to. "I am aware," says Woodward, J., in Kauffman v. Griesemer, 26 Penn. St. 414, "that in Merrit v. Parker, 1 N. J. Law, 460, Chief Justice Kinsey denied these principles, and held that by no contrivance and under no pretense can one man cause to flow over the land of another a greater quantity of water than it is naturally subjected to; but on the other hand, there is a Maryland ease of equal authority (Williams v. Gale, 3 Har. & J. 231), which in its facts bears a striking resemblance to the case at bar, and the case of Martin v. Riddle, decided by my Brother Lowrie in the Dis
It may be said that under the doctrine of Baird v. Williamson, 15 C. B. (N. S.) 376, when the flow of water is increased artificially, or is greater than would result from gravitation alone, the mine-owner who causes it is liable for the increased injury; that this may be termed a non-natural use of the land, and the mine-owner would be held for any injury which would be sustained in consequence of this artificial increase in the amount. We understand the rule of Baird v. Williamson to be this: Where coal may be successfully mined by tunnel or drift, the owner of the land may be deemed to have the natural use and enjoyment of it in that form of mining, and he will, in such a case, not be allowed to add merely to the efficiency of his enterprise, to the injury of his neighbor's land, by the artificial accumulation of water in large quantities through the use of powerful engines and pumps. But it does not appear from any evidence in this cause that the mine was conducted by the defendant in any but the ordinary and usual mode of mining in this country. The deeper strata can only be reached by shaft, and no shaft can be worked until the water is withdrawn. A drift is in some sense an artificial opening in the land, and accumulates and discharges water in a greater volume and extent than would otherwise result from purely natural causes; yet mining by drift has, as we have seen, been held to be a natural user of the land. So too we think, according to the present practice of mining, the working of the lower strata by shaft, in the usual and ordinary way, must be considered the natural user of the land for the taking out of the coal which can be reached by shaft only; and as the water cannot be discharged by gravity alone, it must necessarily, as part of the process of mining, be lifted to the surface by artificial means, and thence be discharged through the ordinary natural channels for the drainage of the country.
But if we should be wrong as to the water which was pumped out of the mine, how can we discriminate as to the effect of the water which flowed from the mine by mere gravity, and that which was pumped out? The witnesses did not discriminate in their testimony, and the learned court did not instruct the jury to make any discrimination. The injury done to the plaintiff was estimated without any effort to distinguish between the effects of the water from one or other of these sources. If the stream was already corrupted by the water which flowed from the tunnels, or if that water was sufficient of itself to corrupt it, so as to render it useless for domestic purposes, the