with his account. He failed to do this, and considerable of the time taken in the hearing of this case has been consumed in endeavoring to arrive at a proper apportionment of the cost of the building. He also intermingled in the account filed receipts and disbursements made on account of the building erected on the leasehold, of which this court has no jurisdiction, making it necessary to restate the account. For these reasons the costs must be imposed upon him."

as

November 5, 1883. MERcur, C. MERCUR, J. This decree is so definitive in form, well as in law, that we must refuse to quash the appeal. Nevertheless we think that a party dissatisfied with the finding of facts or of the law by the auditing judge should file exceptions thereto, and have them considered and decided by the Orphans' Court, before the final decree is made. Justice to the important interests passed upon by that court requires this. If the decree be brought here for review we are entitled to all the aid to be derived from the last consideration of the case.

A careful examination of the evidence and of the finding fails to convince us that there is any error in the decree. That the account was irregularly kept and at first improperly presented is unquestioned; but it is restated and corrected, and all the costs resulting from its improper presentation were imposed on the account

ant.

In expending a greater sum in the erection of the building than was at first authorized by the order of court, the appellee ran the risk of not having his increased expenditure meet the approval of the court. It was, however, approved, and we think justly. The money appears to have been judiciously expended, and much of the work was done on consultation with the appellant and under his immediate observation. It would now be inequitable to disturb the decree.

Decree affirmed and appeal dismissed at the costs of the appellant.

Practice-Pleadings-Inconsistent Rules.

A rule to plead and a rule to arbitrate are inconsistent and cannot be entered at the same time.

Sur rule to strike off a rule to plead. The plaintiff in this case entered a rule to arbitrate and a rule to plead at the same time, upon which the defendant took this rule.

December 3, 1883. CLAYTON, P. J.

The plaintiff, entered a rule of reference and rule to plead at the same time. The defendant has moved to strike off the latter rule as inconsistent with the former one.

The effect of the rule of reference is to take the case away from the common law mode of trial, and to submit all matters at variance between the parties, without further pleading, to the arbitrament of referees to be chosen by the parties. While the jurisdiction of the court is not perfectly taken away until the arbitrators are chosen, the effect of the rule is to give notice that the case is to take that course. Having elected to pursue the statutory mode of trial, the plaintiff cannot have two strings to his bow and follow both modes at one and the same time. The inconsistency of the two rules will more clearly appear by reversing the parties. Suppose the defendant, without the rule to plead, were to do so, and to file a plea requiring a replication; could he rule the plaintiff to take judgment? Pleadings are often very long and intricate, running through several months; subject to demurrers, and rules to strike off, alter and amend. If the case could proceed under the rule of reference, and at the same time go on in the common law form, until the arbitrators are chosen, there is no good reason why it could not go on afterwards until finally settled by award or appeal. The entry of the rule of reference is a stop to all further proceedings. The two rules are, therefore, inconsistent. They cannot be both in force at the same time, and as the defendant has elected to have the rule to plead stricken off, the rule for that purpose must be made absolute.

VOL. IV. THURSDAY, JANUARY 3, 1884.

SUPREME COURT.

No 44.

Sanderson v. Pennsylvania Coal Company.

Plaintiff brought suit for damages sustained by the pollution of a stream of water flowing through her property. HELD.. That it was error for the Court below to instruct the jury that "the amount of damages are altogether in your discretion."

The cause was first tried in 1878, and the court below then awarded a compulsory nonsuit, on the ground that this was damnum absque injuria, the discharge of the mine water being necessary

was the

This was an action of trespass on the case by J. G. Sanderson and Eliza McBrair, his wife, in right of said wife, against the Pennsylvania Coal Company. The facts were as follows: Eliza McBrair Sanderson owner of a valuable lot of land situate in the city of Scranton, Lackawanna county, which she had improved for a residence, at a very large expenditure. One of the chief attractions inducing her to select this place for a residence, was a private stream or water-course of pure water running on the surface through this land. And a considerable amount of the expenditure above mentioned was applied in making the water of this stream useful and convenient for domestic purposes in her dwelling house and its appurteShortly after the plaintiff had completed the said arrangements, the defendants, who are the owners of lands further up the stream, established one of their collieries a couple of miles above the said land of plaintiff, and so opened and managed the working of their mine, as to discharge their mine water into this stream. Instead of attempting to prevent such discharge, they, on the contrary, for their own convenience, dug a ditch or channel of nearly half a mile in length, to carry the mine water from the point where it is pumped out of the shaft directly down into this stream. By reason thereof the water was so corrupted that the plaintiff was compelled to give up the use of it entirely, and have water brought at a considerable expense

nances.

by the Supreme Court and a venire de novo awarded. The case is reported in 86 Pa. St., 401. Upon the second trial in the court below, the defendants set up the same defense as before, and upon judgment being entered against them took a writ of error and brought the case again before the Supreme Court for the purpose of having the former decision reconsidered. considered. The judgment was, however, affirmed.

Verdict and judgment for plaintiffs for $250. Plaintiffs took this writ.

April 16, 1883. TRUNKEY, J.-The controlling principles in this case respecting the plaintiff's right to recover, if injury was caused to her by the defendant polluting the waters of Meadow creek with water from its colliery, were stated in an exhausitive opinion by the late Justice Woodward (86 Pa. St., 401.) Upon the second hearing there was quite as little recognition of a right in the owner of a colliery to materially injure the property of another by fouling a stream with mine water, as upon the first: 94 Pa. St., 302.

Now the question is, whether the plaintiff is entitled to compensation for the direct and immediate loss resulting from the injury.

In affirming the plaintiff's point the court ruled that if the defendant polluted the waters of Meadow brook, thereby causing an injury to the plaintiff, she is entitled to recover damages, that the measure of damages is compensation for the injury resulting from the defendant's acts, and that the verdict should be for a

sum that will compensate the plaintiff for the actual loss she suffered, caused by the defendant, previous to bringing the action. That was in accord with the general rule in actions of tort, where the injury was unintentional and unaccompanied with malice; but, though sound, it was frittered away by other instructions.

may

Near the end of the charge the court said: "Now you have it in your power, after you have examined all the evidence in this case, to say what damage the plaintiff is entitled to recover. The amount of damages are altogether in your discretion; what damages you award the plaintiff is purely for you. You may, in your discretion, say that she is entitled to nothing more than nominal damages, which would be nothing more than six cents; you may say that she is entitled to $500; you may say she is entitled to $1,000; you may go as high as the amount named in the evidence, if you believe that is the plaintiff's actual damage. After ascertaining whether the flow of water in this stream is a benefit to her or not. If you find it is not a benefit and that she ought to recover, then, of course, you will give to the plaintiff damages to that amount, if you please." All All that was error. It gave the jury full liberty to give damages in their discretion; to do as they pleased. To exercise the power to find nominal damages, or a fraction of what was used, was against law; their duty, under their oaths, was to determine from the evidence what sum would be a full compensation for the loss suffered by the plaintiff from the defendant's fouling of the waters of Meadow brook and they had no lawful power to

find damages for less. They were bound They were bound to "go as high as the amount named in the evidence;" if they believed she suffered so much damage. It was no matter of discretion, but a sum to be determined from the evidence that would compensate the loss, as clearly so as if the plain

tiff's house had been destroyed and the jury were to find its value from the testimony in the cause. Even if deduction could be made for benefits, the value of the loss should first be found.

There was no allegation of injury from overflow, or for swelling the waters of the stream; but the plaintiff complained that the defendant had made the water unfit for the uses she had enjoyed. "Though fouled there is more of it," is not a good answer. A large stream of impure and unwholsome water may be of greater market value than a small one that is pure and wholesome; and if the benefits of a large and constant flow of unwholsome water, which spoils a small. pure stream for the uses of a dwelling house, can be offset against the owner's claim for the injury, he is without remedy. His property can be taken or injured against his will, with impunity, for private use. This is not the law. He may hold and enjoy his property so long as he chooses, except when taken, injured or destroyed, for the use of the public. A man has no right to turn a stream out of its natural channel into another stream, thereby increasing the flow of the latter through another man's land, and though no appreciable damage could be proved, an action would lie. If it be conceded that the turning of water from a colliery into a stream is an exceptional case, for which an action will not lie where it has done no injury in fact; yet if it has fouled the stream the injured party is entitled to redress. The plaintiff avers that the defendant has subjected her to conditions that did not exist when she built the dams, laid pipes, improved her property, and began to use the water of the stream, not by increasing the quantity, but by spoiling the water for her uses. "There is no set-off, or recoupment of damages, not founded on the und :taking or default of the party sought to be subjected to such adjustment, nor can he who has inflicted a wrong require the in

jured party to accept indemnity in any other way than such as the law provides:" Gerrish vs. New Market Man

ufacturing Co., 10 Fost. (N. H.), 478. No infringement on the rights of another can be justified on the ground that the act is a benefit to the owner, if it is done against his will: Tillotson vs. Smith, 32

N. H. 90.

Benefit to a meadow below a dam by a ditch, dug at the time of the erection of the dam by the owner of the dam, through his own land, cannot be set off against damage to the meadow by subsequent overflowing occasioned by the dam, and the cost of the ditch is immaterial in assessing such damages: Giles vs. Stevens, 13 Gray, 146.

A few cases may be found that are in seeming conflict with the rule that in the

matter of nuisance there is no set-off or recoupment, but none in Pennsylvania. Where a case arises of permanent injury, where the measure of damages is the difference in value of the land as affected by the nuisance and what it would be worth if unaffected, in some sense it may be that benefits are properly considered; but the real question is, what is the amount of loss? Here the court, upon the defendant's objection, properly overruled the plaintiff's offer to prove "what was the permanent injury and damage to the property itself, that is the freehold, in the loss of value caused by the destruction of this water?" Is it not apparent that the destruction is permanent. The defendant may abate

the nuisance.

We are also of the opinion that it was error to affirm the defendant's tenth point: "All that the plaintiff in this case can claim, if anything, is the use as a riparian owner of the water in its natural state, and she cannot claim for the loss of or damages to any artificial construction put up by her for the use of the water from this stream, nor for the cost of introducing other water for such artificial purposes." If, before the defendant spoiled the water, the plaintiff had erected

proper constructions for its convenient use, and the defendant injured or rendered them useless, the plaintiff is entitled to compensation. What rule limits the damages to the value of the water in its channel exclusive of all improvements for its convenient and reasonable use? As well might a court and jury in case of diuable mill property, and consequent deverting the waters of a creek from a val

struction of its use as a mill, limit the owner's damages to the value of the mill site in its natural state, exclusive of loss for injury to and uselessness of the dam, building, machinery and other improvements. The point and its answer limited the plaintiff's damages to the water in the channel, with instructions to deduct the amount of benefit, and the ninth assignment must be sustained.

Testimony was received to show that the mining of coal in the anthracite region is below water level; that water is

It was

encountered wherever coal is mined in that region, and that what was done by the defendant in working its mines and pumping water therefrom was in the ordinary, reasonable and proper mode of working its mines, "for the purpose of mitigating damage in this case."' offered also for other purposes, for which it was rightly rejected. It should not have been received at all, for it was irrelevant lumber. This was a first suit for an alleged nuisance, and the unmistakable points raised in the proceedings were the plaintiff's right of recovery, if she was actually injured by the mine water, and the amount of merely compensatory damages. Where the measure of damages is compensation only for the loss by the injury, it is difficult to conceive how the mode of working a mine below the water level would be a proper thing to consider in ascertaining the amount.

The affidavit of defense does not allege that there is nothing due the plaintiff.

The defendant's claim is joint, against the plaintiff and another, and cannot be set off against this lien. It is in the nature of an equitable set-off, which is never allowed between different parties or for different causes.

The claims are not in the same light. Set-off will not be allowed when it will work harm to the parties.

See Jackson vs. Clymer, 7 Wr. 79.
McDowell vs. Tyson, 14 S. & R. 300.
Singerly vs. Swain's Adm'rs, 9 C. 102.
Wm. Ward, contra, cited

Given vs. Bethlehem Church, 11 W. N. C. 371.
Lug vs. Caffrey, 12 N. 52.

Dec. 3, 1883. THE COURT: The proceeding is a sci. fa. upon a mechanic's claim. The defence is that the building was erected under a written contract for a round sum, which has been fully paid to the contractor; that the plaintiff's claim is for material furnished the contractor under the written contract; and that the plaintiff, together with another, were surties for the contract to the owner, (the defendant) for the faithful performance of said contract on the part of the contractor. Said contract among other things stipulated as follows: "The said John W. Barnes hereby agrees to deliver said building all complete within the specified time of three months and free from all claims of mechanics or material men." The case of Given vs. Bethlehem Church II W. N., 371, is in point. One who is surety for the contractor in an agreement which stipulates that no liens shall be filed against the building, cannot subsequently acquire a lien. The reason is too clear for argument. If this claim could be recovered against the owner, he could at once sue the plaintiff and his co-surety on their agreement of suretyship, which would be an unnecessary circuity of action, and a useless expenditure of time and costs. It is not necessary now to decide whether an independent agreement between the owner and contractor for extra work would alter the case. If there was such an agreement, and the materials for which this claim is filed were furnishfor such extra work, it may be that the lien can be sustained, but this is not alleged in the claims filed, and the affidavit of defence positively avers that the materials named in the claim filed were furnished materials comprised in said written contract. The affidavit is therefore sufficient. Rule discharged.

A subpœna duces tecum served on a witness requiring him to produce certain books or papers in his custody and control is complied with by their being brought into court at the time specified.

December 29, 1883. BIDDLE, J.—A subpoena duces tecum served on a witness requiring him to produce certain books and papers in his custody and control is complied with by their being brought into court at the time specified; whether the party who has issued the subpoena shall be allowed to examine them is an entirely different matter. The issuing of the subpoena is, of course; the permission to examine requires the judgment of the court. If the law were otherwise, it would be in the power of either of the suitors to examine the private papers or books of any individual or firm whom they might choose to bring into court. The eighth section of the Bill of Rights provides "that all people shall be secure in their persons, houses, papers, and possessions, from unreasonable searches and seizure; and that no warrant to search any place, or to seize any person or things, shall issue, without describing them as nearly as may be, not without probable cause, supported by oath or affirmation. If without oath or affirmation, and by merely issuing a subpœna, papers can be seized, the Constitution would clearly be violated. and papers of the parties to the suit, under the Act of 1798, cannot even be ordered by the Court to be produced, except on motion and good and sufficient cause shown by affidavit and due notice, and then only when they contain evidence. pertinent to the issue. So that in no case, until the Court is satisfied that the books contain matters relevant to the suit, will the party who has issued the subpoena be permitted to examine them. Whether the books called for by the subpœna have been brought into Court is a question for the Court to investigate, and not for the party who issued it to determine. The question is, whether the process, issued by permission of the Court, has been obeyed. Of this the Court will satisfy itself in the mode it deems proper. In the present case the Examiner will report to us what books were called for by the subpoena, and what books have been produced before him, we will then decide whether the witness has rendered himself liable to be attached.

Books