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C. P. of

Delaware Co.

1

with his account. He failed to do this,

COMMON PLEAS. and considerable of the time taken in the hearing of this case has been consumed

Esrey v. Gray. in endeavoring to arrive at a proper apportionment of the cost of the building.

PracticePleadingsInconsistent Rules. He also intermingled in the account filed

A rule to plead and a rule to arbitrate are inconsisteut

and cannot be entered at the same time. receipts and disbursements made on ac- Sur rule to strike off a rule to plead. count of the building erected on the lease

The plaintiff in this case entered a rule hold, of which this court has no juris- to arbitrate and a rule to plead at the diction, making it necessary to restate the

same time, upon which the defendant account. For these reasons the costs took this rule. must be imposed upon him.''

December 3, 1883. CLAYTON, P. J. November 5, 1883. MERCUR, C. J. The plaintiff, entered a rule of referThis decree is so definitive in form, as ence and rule to plead at the same time. well as in law, that we must refuse to The defendant has moved to strike off quash the appeal. Nevertheless we think the latter rule as inconsistent with the that a party dissatisfied with the finding former one. of facts or of the law by the auditing The effect of the rule of reference is to judge should file exceptions thereto, and take the case away from the common law have them considered and decided mode of trial, and to submit all matters at by the Orphans' Court, before the variance between the parties, without final decree is made. Justice to the im- further pleading, to the arbitrament of portant interests passed upon by that referees to be chosen by the parties. court requires this. If the decree be While the jurisdiction of the court is not brought here for review we are entitled perfectly taken away until the arbitrators to all the aid to be derived from the last are chosen, the effect of the rule is to give consideration of the case.

notice that the case is to take that course. A careful examination of the evidence Having elected to pursue the statutory and of the finding fails to convince us mode of trial, the plaintiff cannot have that there is any error in the decree. That two strings to his bow and follow both the account was irregularly kept and at modes at one and the same time. The infirst improperly presented is unquestioned; consistency of the two rules will more but it is restated and corrected, and all clearly appear by reversing the parties. the costs resulting from its improper pre- Suppose the defendant, without the rule sentation were imposed on the account- to plead, were to do so, and to file a plea ant.

requiring a replication ; could he rule the In expending a greater sum in the erec

plaintiff to take judgment? Pleadings

are often very long and intricate, running tion of the building than was at first au

through several months; subject to dethorized by the order of court, the appellee murrers, and rules to strike off, alter and ran the risk of not having his increased amend. If the case could proceed under expenditure meet the approval of the the rule of reference, and at the same time court.

It was, however, approved, and go on in the common law form, until the we think justly. The money appears to

arbitrators are chosen, there is no good .

reason why it could not go on afterwards have been judiciously expended, and until finally settled by award or appeal. much of the work was done on consulta- The entry of the rule of reference is a tion with the appellant and under his im- stop to all further proceedings. The two mediate observation. It would now be rules are, therefore, inconsistent. They

cannot be both in force at the same time, inequitable to disturb the decree.

and as the defendant has elected to have Decree affirmed and appeal dismissed the rule to plead stricken off, the rule for at the costs of the appellant.

that purpose must be made absolute.

VOL. IV.

NO 44.

YORK LEGAL RECORD. from another source to her house and

grounds. Failing to obtain any compenTHURSDAY, JANUARY 3, 1884.

sation from defendants for the injury thus

done her, she finally brought the present SUPREME COURT.

action on the case.

The cause was first tried in 1878, and Sanderson v. Pennsylvania Coal Company. the court below then awarded a com

Plaintiff brought suit for damages sustained by the pollution of a stream of water flowing through her prop

pulsory nonsuit, on the ground that this erty. Held. That it was error for the Court below to instruct the jury that the amount of damages are alto

was damnum absque injuria, the disgether in your dis retion."

charge of the mine water being necessary Error to the Court of Common Pleas of in mining. This judgment was reversed Lackawanna county.

by the Supreme Court and a venire de This was an action of trespass on the

novo awarded. The case is reported in case by J. G. Sanderson and Eliza Mc- 86 Pa. St.,

86 Pa. St., 401. Upon the second trial

. Brair, his wife, in right of said wife, in the court below, the defendants set up against the Pennsylvania Coal Company. the same defense as before, and upon The facts were as follows:

judgment being entered against them Eliza McBrair Sanderson

was the

took a writ of error and brought the case owner of a valuable lot of land situate in again before the Supreme Court for the the city of Scranton, Lackawanna county, purpose of having the former decision rewhich she had improved for a residence, considered. The judgment was, howat a very large expenditure. One of the ever, affirmed. chief attractions inducing her to select this place for a residence, was a private

Verdict and judgment for plaintiffs for stream or water-course of pure water run

$250. Plaintiffs took this writ. ning on the surface through this land. April 16, 1883. TRUNKEY, J.-The And a considerable amount of the ex- controlling principles in this case respectpenditure above mentioned was applied ing the plaintiff's right to recover, if inin making the water of this stream use- jury was caused to her by the defendant ful and convenient for domestic purposes polluting the waters of Meadow creek in her dwelling house and its appurte- with water from its colliery, were stated nances. Shortly after the plaintiff had in an exhausitive opinion by the late Juscompleted the said arrangements, the de- tice Woodward (86 Pa. St., 401.) Upon fendants, who are the owners of lands the second hearing there was quite as further up the stream, established one of little recognition of a right in the owner their collieries a couple of miles above the of a colliery to materially injure the propsaid land of plaintiff, and so opened and erty of another by fouling a stream with managed the working of their mine, as to mine water, as upon the first: 94 Pa. St., discharge their mine water into this 302. Now the question is, whether the stream. Instead of attempting to pre- plaintiff is entitled to compensation for vent such discharge, they, on the con- the direct and immediate loss resulting trary, for their own convenience, dug a from the injury. ditch or channel of nearly half a mile in In affirming the plaintiff's point the length, to carry the mine water from the court ruled that if the defendant polluted point where it is pumped out of the shaft the waters of Meadow brook, thereby directly down into this stream. By causing an injury to the plaintiff, she is reason thereof the water was so cor- entitled to recover damages, that the rupted that the plaintiff was compelled to measure of damages is compensation for give up the use of it entirely, and have the injury resulting from the defendant's water brought at a considerable expense 'acts, and that the verdict should be for a

recover.

sum that will compensate the plaintiff for tiff's house had been destroyed and the the actual loss she suffered, caused by the jury were to find its value from the testidefendant, previous to bringing the mony in the cause. Even if deduction action. That was in accord with the gen- could be made for benefits, the value of eral rule in actions of tort, where the in- | the loss should first be found. jury was unintentional and unaccom- There was no allegation of injury from panied with malice; but, though sound, overflow, or for swelling the waters of it was frittered away by other instruc- the stream ; but the plaintiff complained tions.

that the defendant had made the water Near the end of the charge the court unfit for the uses she had enjoyed. said : “Now you have it in your power, / "Though fouled there is more of it,” is after you have examined all the evidence not a good answer. A large stream of in this case, to say what damage the impure and unwholsome water may be plaintiff is entitled to

The of greater market value than a small one amount of damages are altogether in your that is pure and wholesome; and if the discretion; what damages you may benefits of a large and constant flow of award the plaintiff is purely for you. You unwholsome water, which spoils a small . may, in your discretion, say that she is pure stream for the uses of a dwelling entitled to nothing more than nominal house, can be offset against the owner's damages, which would be nothing more claim for the injury, he is without remthan six cents; you may say that she is edy. His property can be taken or inentitled to $500; you may say she is en- jured against his will, with impunity, for

, titled to $1,000; you may go as high as private use. This is not the law. He the amount named in the evidence, if you may hold and enjoy his property so long believe that is the plaintiff's actual dam- as he chooses, except when taken, inage. After ascertaining whether the jured or destroyed, for the use of the pubflow of water in this stream is a benefit to lic. A man has no right to turn a stream her or not. If

you find it is not a benefit out of its natural channel into another and that she ought to recover, then, of stream, thereby increasing the flow of course, you will give to the plaintiff dam- the latter through another man's land, ages to that amount, if you please.” All and though

All and though no appreciable damage that was error. It gave the jury full lib- could be proved, an action would lie. If erty to give damages in their discretion; it be conceded that the turning of water to do as they pleased. To exercise the from a colliery into a stream is an exceppower to find nominal damages, or a frac- tional case, for which an action will not tion of what was used, was against law ; lie where it has done no injury in fact; their duty, under their oaths, was to de- yet if it has fouled the stream the injured termine from the evidence what sum party is entitled to redress. The plaintiff would be a full compensation for the loss avers that the defendant has subjected her suffered by the plaintiff from the defend- to conditions that did not exist when she ant's fouling of the waters of Meadow built the dams, laid pipes, improved her brook and they had no lawful power to property, and began to use the water of find damages for less. They were bound the stream, not by increasing the quan

, to “go as high as the amount named in tity, but by spoiling the water for her the evidence ;' if they believed she suf

“There is no set-off, or recoupment fered so much damage. It was no matter of damages, not founded on the und :of discretion, but a sum to be determined taking or default of the party sought to be from the evidence that would compen- subjected to such adjustment, nor can he sate the loss, as clearly so as if the plain-' who has inflicted a wrong require the in

uses.

a

N. H. 90.

jured party to accept indemnity in any proper constructions for its convenient other way than such as the law pro

use, and the defendant injured or rendered vides :" Gerrish vs. New Market Man

them useless, the plaintiff is entitled to

compensation. What rule limits the ufacturing Co., 10 Fost. (N. H.), 478. damages to the value of the water in its No infringement on the rights of another channel exclusive of all improvements for can be justified on the ground that the act its convenient and reasonable use? As is a benefit to the owner, if it is done well might a court and jury in case of diagainst his will: Tillotson vs. Smith, 32

verting the waters of a creek from a val

uable mill property, and consequent deBenefit to a meadow below a

struction of its use as a mill, limit the dam by a ditch, dug at the time of the owner's damages to the value of the mill erection of the dam by the owner of the site in its natural state, exclusive of loss dam, through his own land, cannot be set

for injury to and uselessness of the dam, off against damage to the meadow by sub- building, machinery and other improve

ments. The point and its answer limsequent overflowing occasioned by the ited the plaintiff's damages to the water dam, and the cost of the ditch is imma

in the channel, with instructions to deduct terial in assessing such damages : Giles the amount of benefit, and the ninth asvs. Stevens, 13 Gray, 146.

signment must be sustained. A few cases may be found that are in

Testimony was received to show that

the mining of coal in the anthracite reseeming conflict with the rule that in the gion is below water level; that water is matter of nuisance there is no set-off or encountered wherever coal is mined in recoupment, but none in Pennsylvania. that region, and that what was done by Where a

ase arises of permanent injury, the defendant in working its mines and where the measure of damages is the dif- pumping water therefrom was in the or

dinary, reasonable and proper mode of ference in value of the land as affected by working its mines, "for the purpose of the nuisance and what it would be worth mitigating damage in this case.

It was if unaffected, in some sense it may be offered also for other purposes, for which that benefits are properly considered ; but it was rightly rejected. It should not the real question is, what is the amount of have been received at all, for it was irrel

evant lumber. This was a first suit for loss? Here the court, upon the defendant's

an alleged nuisance, and the unmistakaobjection, properly overruled the plaintiff's ble points raised in the proceedings were offer to prove "what was the permanent the plaintiff's right of recovery, if she was injury and damage to the property itself, actually injured by the mine water, and that is the freehold, in the loss of value

the amount of merely compensatory dam

ages. Where the measure of damages is caused by the destruction of this water?”' compensation only for the loss by the Is it not apparent that the destruction is injury, it is difficult to conceive how the permanent. The defendant may abate mode of working a mine below the water the nuisance.

level would be a proper thing to consider We are also of the opinion that it was

in ascertaining the amount. error to affirm the defendant's tenth

Delaware Co. point: "All that the plaintiff in this case

COMMON PLEAS. can claimi, if anything, is the use as a riparian owner of the water in its natural

Hinkson v. Fairlamb. state, and she cannot claim for the loss of Mechanic's Lien-Can surety on contracor damages to any artificial construction

tor's bond file a lien ? One who has joined, as surety, in a contractor's bond

conditioned that no lien shall be filed ag inst the building put up by her for the use of the water

cannot subsequently acquire a lien as a sub-contractor. from this stream, nor for the cost of in- Sur rule for judgment for want of a suf

ficient affidavit of defence. troducing other water for such artificial

The facts are fully set forth in the opinpurposes."

If, before the defendant ion of the court below. spoiled the water, the plaintiff had erected J. B. Hinkson, for rule.

C. P. of

C. P. of

The affidavit of defense does not allege

Philadelphia Co. that there is nothing due the plaintiff.

City vs. McManes. The defendant's claim is joint, against A subpæna duces tecum served on a witness requiring the plaintiff and another, and cannot be him to produce certain books or papers in his custody and set off against this lien. It is in the nature control is complied with by their being brought into

court at the time specified. of an equitable set-off, which is never allowed between different parties or for dif- December 29, 1883. BIDDLE, J.-A ferent causes.

subpena duces tecum served on a witness The claims are not in the same light. requiring him to produce certain books

Set-off will not be allowed when it will and papers in his custody and control is work harm to the parties.

complied with by their being brought See Jackson vs. Clymer, ? Wr. 79.

into court at the time specified; whether McDowell vs. Tyson, 14 S. & R. 300. Singerly vs. Swain's Adm'rs, 9 C. 102.

the party who has issued the subpæna Wm. Ward, contra, cited

shall be allowed to examine them is Given vs. Bethlehem Church, 1 W. N. C. 371.

an entirely different matter. The is. Lug vs. Caffrey, 12 N. 52.

suing of the subpoena is, of course; Dec. 3, 1883. THE COURT: The pro- the permission to examine requires the ceeding is a sci. fa. upon a mechanic's judgment of the court. If the law claim. The defence is that the building were otherwise, it would be in the was erected under a written contract for power of either of the suitors to examine a round sum, which has been fully paid to the private papers or books of any inthe contractor ; that the plaintiff's claim is dividual or firm whom they might choose for material furnished the contractor un- to bring into court. The eighth section der the written contract; and that the of the Bill of Rights provides that all plaintiff, together with another, were sur- people shall be secure in their persons, ties for the contract to the owner, (the houses, pers, and possessions, from undefendant) for the faithful performance reasonable searches and seizure; and that of said contract on the part of the contrac- no warrant to search any place, or to seize tor. Said contract among other things any person or things, shall issue, without stipulated as follows : “The said John describing them as nearly as may be, not W. Barnes hereby agrees to deliver said without probable cause, supported by building all complete within the specified oath or affirmation. If without oath or

' . time of three months and free from all affirmation, and by merely issuing a subclaims of mechanics or material men.'

| pæna, papers can be seized, the ConstituThe case of Given vs. Bethlehem Church tion would clearly be violated. Books 11 W. N., 371, is in point. One who is and papers of the parties to the suit, under surety for the contractor in an agreement the Act of 1798, cannot even be ordered which stipulates that no liens shall be filed by the Court to be produced, except on against the building, cannot subsequently motion and good and sufficient cause acquire a lien. The reason is too clear shown by affidavit and due notice, and for argument. If this claim could be re- then only when they contain evidence covered against the owner, he could at pertinent to the issue. So that in no case, once sue the plaintiff and his co-surety on until the Court is satisfied that the books their agreement of suretyship, which contain matters relevant to the suit, will would be an unnecessary circuity of ac- the party who has issued the subpæna be tion, and a useless expenditure of time permitted to examine them. Whether and costs. It is not necessary now to the books called for by the subpæna have decide whether an independent agreement been brought into Court is a question for between the owner and contractor for the Court to investigate, and not for the extra work would alter the case. If there

| party who issued it to determine. The was such an agreement, and the materials question is, whether the process, issued for which this claim is filed were furnish- by permission of the Court, has been for such extra work, it may be that the obeyed. Of this the Court will satisfy itlien can be sustained, but this is not alleg- self in the mode it deems proper. In the ed in the claims filed, and the affidavit of present case the Examiner will report to defence positively avers that the materials us what books were called for by the named in the claim filed were furnished subpæna, and what books have been promaterials comprised in said written con- duced before him, we will then decide tract. The affidavit is therefore sufficient.

whether the witness has rendered himself Rule discharged.

liable to be attached.

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