text:
    Urich’s Appeal. Stoudt’s Estate.
    1. Although a fee is given in the first part of a will, it may be restrained by subsequent words so as to convert it into a life-estate.
    2. Urich v. Merkel, 2 W. N. O. 550, affirmed.
    March 8th 1878.
    Before A&new, C. J., Si-iarswood, Mercur, Gordon, Paxson and Trunkey, JJ. Woodward, J., absent.
    Appeal from the Orphans’ Court of Berks county: Of January Term 1877, No. 10.
    This appeal was taken by Matilda Urich and her husband from the decree of the court dismissing their petition to be made parties to proceedings for the partition of certain real estate, wherein the petitioners claimed dower in the right of the said Matilda Urich. The latter was the widow of John Stoudt, whose father, Jacob Stoudt, died in 1853, leaving a will which contained, among others, the following provisions :—
    “I give and bequeath unto my son, John Stoudt, and to his heirs, all my large farm where I now live, situate * * * containing three hundred acres, more or less, together with all the buildings and improvements and grain seeded out, and grass and hay and straw and manure, and all timber and posts and rails, together with all the farming stock and utensils belong to the farm, unto the said John Stoudt and to his heirs.
    “ Item.. I give and bequeath unto my daughter Catharine, wife of Daniel Reeser, and unto-her heirs, all that certain farm or tract of land situate * * * containing about two hundred and ten acres, more or less, together with all grain seeded out on the premises, and with all buildings and improvements ; further I give and bequeath unto my aforesaid daughter Catharine and to her heirs, a certain tract of land situate * * * containing fifteen acres, twelve perches, more or less, out of which two aforesaid described tracts of land, I order that the sum of four thousand three hundred and fifty dollars be paid out in one year after my decease, as I shall hereinafter direct by my said daughter Catharine, wife of Daniel Reeser, unto her other sisters, namely, Sarah, Polly and Harriet, in such sums as stated — (all grass, hay and straw is to go with and belong to the aforesaid land.) f]
    “ Item. I give and bequeath unto my daughter, Sarah Stoudt, and to her heirs, all that certain farm and tract of land situate * * * containing in the whole about one hundred and thirty-seven acres of land, together with all the grain seeded out, and all hay, straw and manure, and with all buildings and improvements, and timber, wood and posts, and rails on the premises.
    “ Item. I give and bequeath unto my daughter Polly, wife of John Zaeharias, and to her heirs, a, certain farm and tract of land situate * * * containing one hundred and ten acres and one hundred and forty perches, more or less, with all buildings, improvements, and grain seeded out, and with all wood, timber, rails and posts on the premises. Also, I bequeath unto my said daughter Polly, and to her heirs, a certain tract of woodland, situate * * *.
    “Item. I give and bequeath unto my daughter, Harriet Stoudt and to her heirs, a certain farm and tract of land, situate * * * containing one hundred and eighteen acres, more or less, together with all the buildings and improvements, and grain seeded out, and all hay, straw and manure on the premises, with all timber, posts and rails.
    “Item. I order and direct, that my daughter Catharine, wife of Daniel Reeser, shall pay out, in one year after my decease, out of her farm and land aforesaid, the sum of nine hundred and fifty dollars unto my daughter Sarah Stoudt.
    “Item. I order and direct, that my daughter Catharine, wife of Daniel Reeser, shall pay out unto my daughter Polly, wife of John Zaeharias, Jr., in one year after my decease, out of the farm of said Catharine, the sum of twenty-four hundred and fifty dollars.
    “ Item. I order and direct, that my daughter Catharine, wife of Daniel Reeser, shall pay out, in one year after my decease, out of her farm and land aforesaid, the sum of nine hundred and fifty dollars unto my daughter Harriet Stoudt.
    “Item. I give and bequeath the sum of nine hundred and nine dollars unto my daughter Polly, wife of John Zaeharias, to be paid out unto her in one year after my decease, by my executors hereinafter named, out of my personal property, so as to enable her, my said daughter, to settle for the dower and lien, which is on the tract of land bequeathed unto her.
    “Item. I herewith make known and declare it as my will that none of my aforesaid children shall have a right to sell or assign their land or property to them bequeathed as aforesaid, neither shall they have a right to encumber it with debts or liens, but the lands shall remain free for their children or heirs, and they, my said children, shall have the use, income and profit of the said lands and farms during their lifetime.”
    “Item. It is my will and do direct, that all my personal property, consisting of bonds and notes, book account and stocks, and whatever kind of personal property I may own at the time of my decease, shall be equally divided among all my children, to wit: John, Catharine, Sarah, Polly and Harriet, first having paid out unto my said daughter Polly aforesaid, the sum of nine hundred and nine dollars — and also the further sum of one thousand dollars to be paid out unto my daughter Sarah, for extra services to me rendered • — and besides I wish my executors to settle off all my just debts and funeral expenses out of the aforesaid personal property before an equal distribution takes place.
    “Item. Whereas, I have ordained in this, my will, that none of my children shall have a right to sell nor encumber nor involve any of the real estate to them bequeathed, but I do hereby give either of my aforesaid children power, authority and the right to make a will and testament to take effect after their decease, so that either of them, to wit: John, Catharine, Sarah, Polly and Harriet may and shall have privilege to dispose off their several legacies by will as aforesaid, but not otherwise.”
    John Stoudt died intestate in 1870, leaving five children and a widow, the appellant, Matilda Urich, who intermarried with Daniel Urich. One of the children of John Stoudt, in 1876, petitioned the Orphans’ Court for an inquest and partition of the real estate devised to his father in the aforesaid will, in which proceeding the other children of said John Stoudt were made parties. Before partition was made the appellants intervened and asked to be made parties, claiming that Matilda Urich was entitled to her dower in said land.
    The court, Sassaman, A. L. J., in an opinion, said: “As this will was considered by this court in the case off Matilda Stoudt v. Samuel Merkel, and we then held that under it, John Stoudt, the husband of the said Matilda, had but a life-estate in the real estate which is now the subject of partition, which construction was subsequently affirmed by the Supreme Court (see Urich v. Merkel, 2 W. N. O. 550), we must refuse the prayer of the petitioners, and dismiss their petition.”
    From this decree this appeal was taken.

      Q-eorge W. Biddle, Josiah Punch and S. Van Reed, for appellants.
    — The testator in his will gives this real estate to “John Stoudt and his heirs,” which devise is neither in terms nor by implication reduced to a life-estate by any subsequent clause. There is no devise over after the determination of the alleged life-estate. The provision that none of the children can sell, or assign or encumber is an attempt to engraft a repugnant condition on a fee-simple devise and is void. The testator has given to said son the right to dispose of said real estate by will. All these together, with the manifest intent, show that John Stoudt took a fee-simple under this will. Devising the fee the conditions in restraint of alienation were void: Reifsnyder v. Hunter, 7 Harris 41; Walker v. Vincent, Id. 369; McCullough’s Heirs v. Gilmore, 1 Jones 370; Jauretche v. Proctor, 12 Wright 471; Doebler’s Appeal, 14 P. F. Smith 9. The right to dispose of the estate by will carries the fee: Girard Life Insurance and Trust Co. v. Chambers, 10 Wright 490; Anderson v. Jackson, 16 Johnson Rep. 388.
    In the devises to the four daughters the testator has emplo'yed the same language as in the devise to the son. He clearly intended to give them all the same interest in the land, and this view is supported by the fact that upon the devise to Catharine there is a charge of $4350 to be paid one year after testator’s decease, for if Catharine did not take a fee, but only a life-estate, such charge might impose a loss upon her: Fahrney v. Holsinger, 15 P. F. Smith 391; Lessee of Ferguson v. Zepp, 4 W. C. C. 649; and if Catharine took a fee it is plain that John did. The blending of real and personal estate in the same devise is another indication that a fee was intended: Morrison et al. v. Semple et al., 6 Binn. 98; Steele v. Thompson, 14 S. & R. 101; Johnson v. Johnson, 1 Mumf. 548. The absence of the words “for life,” or other language limiting or qualifying the estate, and the general tenor of the whole will plainly indicate that a fee was to pass with the restraining clauses against encumbrance and sale, and these latter we contend were void. If it was the intention that the owners should take an estate for life with remainder over to “ children as heirs,” then “ children” is equivalent to “heirs,” and the rule in Shelley’s case will apply: Kepple’s Appeal, 3 P. F. Smith 211; Physick’s Appeal, 14 Wright 128; Nice’s Appeal, Id. 148; Dodson v. Ball, 10 P. F. Smith 497.

      Amos B. Wanner and W. H. IAvingood, for appellees.
    — Although a fee may be given in the first part of a will it may be cut down by subsequent provisions therein : Greenleaf’s Cruise on Real Property, 3d vol., 343. The fee v?as cut down to a life-estate because the devisees are deprived of the right of alienation; the land is directed to remain free for their children or heirs, and they are to have the use or income for their lifetime, which, together with a power to devise, are all consistent with a life-estate: Greenleaf’s Cruise on Real Property, 3d vol., 324; Dodson v. Ball, supra; Yarnell’s Appeal, supra. The charge of a gross sum upon the estate of Catharine cannot enlarge it into a fee when her estate is plainly indicated: Burkhart v. Bank, 2 Binn. 455. The testator designed that the status which should entitle parties in remainder to the estate on the termination of the life-estate should he that they were “children.” It was not the intent to transmit the estate as an inheritance to an “heir,” but as a remainder to specified objects of his bounty. By the word “heirs,” he meant “children:” North v. Martin, 6 Simons 266; Fearne on Contingent Remainders 151; Guthrie’s Appeal, supra; Findlay v. Riddle, 3 Binn. 139; Dodson v. Ball, supra.

    March 18th 1878.
   Chief Justice Agnew

delivered the opinion of the court,

The will of Jacob Stoudt is brought before us a second time, in the hope of changing our opinion upon it. That opinion, though expressed in a short per curiam, to be found in 2 W. N. C. 650, was maturely formed. Its brevity is not evidence of want of examination, but of the necessity of condensation where there is so much to do. The able arguments of the counsel for the appellants have not changed our deliberate interpretation of the devise to John Stoudt. We agree with all said upon the first expression of this devise, if the testator intended to give him a fee, and used the word heirs in its legal acceptation. But that intention is the pivot of the question and must be carefully gathered from all parts of the will.

The first point of notice is, that on its face it appears that the will was not written by a learned lawyer, or a skilful conveyancer. Hence the language is not so conclusive of intent. The next matter is the evident intent of the testator to equalize his children in a general way; and the portion of John, the only son, is much larger than those of his sisters. John takes his “large farm” of three hundred acres, the grain seeded out, and all farming stock and utensils; Catharine,'two parcels containing two hundred and twenty-five acres, and pays thereout $4300 to her sisters Sarah, Polly and Harriet, and they take smaller farms; Sarah one hundred and thirty-seven acres, Polly one hundred and ten acres and Harriet one hundred and eighteen acres. All the personal estate is then divided equally among the five children, John, Catharine, Sarah, Polly and Harriet, excepting additional to Polly and Sarah, $909 and $1000. It is thus evident that the charge of $4300 against Catharine’s land was to produce equality of division, the children of Catharine taking the advantage of the increased size of her farm.

With this exhibition of general intent we come to the special intent.of the testator, as to the quantity of estate limited to his children. It is brought out clearly in the fourth and second items from the end of the will. The fourth is in these words : “I herewith make known and declare it as my will that none of my aforesaid children shall have a right to sell or assign their land or property to them bequeathed as aforesaid; neither shall they have a right to encumber it with debts or liens, but the lands shall remain free for their children or heirs, and they, my said children, shall have the use, income and profit of the said lands and farms during their lifetime.”

Now if we treat the word “heirs” in the principal devise to John Stoudt as conclusively descriptive of the quantity of his estate, the entire item first quoted is clearly repugnant and nugatory. But we cannot do this if by any proper interpretation the items can he reconciled. To hold to the legal and technical meaning of the word “heirs” we must assume that the testator was grossly ignorant of his own intent, and of the law also, when he came to the quoted item. If this item contained the first two clauses only, perhaps we might reach this result, for then we should have only a technical term interpreted by the law (Criswell’s Appeal, 5 Wright 288), and a mere attempt to clog the fee with illegal conditions. But when we reach the last two clauses in the same item, equally parts of the same thought and expressed uno flatu, we perceive we cannot do this without violating a clear intent of the testator fully and distinctly expressed. Thus he says, without break in the sentence, “ But the lands shall remain free for their children or heirs.” Here we have the clue to the prohibition against alienation and encumbrance. Why shall they not alien or encumber ? Because, says the testator, my will is the estate shall remain free (unaffected by these, acts) for their children. It is argued this purpose is defective, for grandchildren would not take if a parent died before the testator. This is against a settled rule that “ children” will include grandchildren where it is necessary to serve the intent of the testator : Dickinson v. Lee, 4 Watts 82; Pemberton v. Parke, 5 Binn. 601. Various readings of the word “ children” will be seen in the citations in Yarnall’s Appeal, 20 P. F. Smith 341.

This clause further interprets the word “heirs.” Here children, the primary word, precedes “heirs,” the secondary, and the latter, as the alternative of the former, expresses the testator’s own thought. Yet this clause standing alone might still leave the intention liable to some contest. But it is followed by another part of the same united sentence, leaving the intent free of all doubt. Thus — “ and they my said children shall have the use, income and yorofit of the said lands and farms during their lifetime.” Here we have two express declarations of intent: 1. The subject of the children’s devise is clearly defined — the precise interest of a life-tenant by the use, income and profits of the lands. Thus the usufructuary interest alone is given, and this is all a life-tenant can take. Not content with defining the subject, he becomes finally and fully explicit, and expressly defines the term or duration of the estate itself viz., “during their lifetime.” Now the full meaning and intent of the testator is fully developed and clearly expressed. His own children shall have the use, income and profits of the lands devised for life only, without power to alien or encumber, in order that these lands shall remain after their death for their children.

Then follows the item next to the last, which confers a power to dispose by will. Here comes in another thought of the testator, perfectly natural and obvious. Remembering that one daughter is unmarried, and that some of his married children may die without leaving children, or that their children may differ in merits or be unequally provided for, and that he has just prohibited his devisees from enjoying more than a life-estate, he thinks of these contingencies, and now gives a power of appointment by will; and to express this intent more distinctly, says, “ to take effect after their decease.” This is the crowning sheaf of his intention, and shows that he did not intend to give a fee-simple when he used the word “heirs” in the principal devise, as his own alternative expression for “children,” or possibly with a vague conjecture of its meaning. If he used it in a general way, it is plain he clearly defined and restricted it, in the clause we have been considering, and the rule is that between repugnant clauses in a will the last shall govern. Our former decision must therefore stand, with these further reasons for it.

Decree of the Orphans’ Court dismissing the petition affirmed, with costs to be paid by the appellants, and their appeal is dismissed.


source: Caselaw Access Project

author: Mr. Justice Woodward

license: Public Domain

text:
    In re Contested Election of Barber, Prothonotary, &c.

      1. The provisions of.the new constitution and the Act of May 19th 1874, regulating contested elections, modify, but do not repeal, the provisions of the Act of July 2d 1839, relating to the same subject.
    2. The governor has no authority to issue a commission to a prothonotary pending a contest for that office.
    3. For granting commissions to the prothonotary and other county officers, there is sufficient warrant in the Act of July 2d 1839, which, for this purpose, the new constitution and the legislation under it have left unimpaired.
    4. To repeal a statute by implication there must be a repugnancy between the provisions of the new law and the old, so positive as to be irreconcilable.
    5. Where a late statute is absolutely repugnant to a former one only in part, it repeals the former one only so far as the repugnancy extends and leaves all the remainder in force.
    March 11th 1878.
    Before Agnew, C. J., Sharswood, Mercur, Gordon, Paxson, Woodward and Trunkey, JJ.
    Error to the Court of Common Pleas of Luzerne county: Of January Term 1877, No. 128.
    This was a case stated as follows:—
    That on the 24th of March 1875, S. W. Trimmer, in pursuance of a due election, was duly commissioned by the governor of the Commonwealth to have and to hold the office of prothonotary of the Court of Common Pleas of said county until the first Monday of January 1877, and until his successor‘should be duly qualified; and that, in pursuance of said commission, the said Trimmer was duly qualified and exercised and holds, and stills claims to hold and exercise, the said office against the protest and demand of A. P. Barber; that at the general election held in and for said county on the 7th of November 1876, A. P. Barber was returned as duly elected to the said office, and in pursuance of said election and return was, on the 7th day of December 1876, commissioned by tbe Governor of the Commonwealth to hold and exercise the said office of prothonotary from the first Monday of January 1877, for the full term and period of three years and until his successor shall be duly qualified; and that the said Barber has given bond and taken the oath prescribed by law, and claims to be duly qualified to hold and exercise the said office; that on the 6th day of December, 1876, a petition was filed in the Court of Quarter Sessions to contest the election of the said A. P. Barber to the said office, which is still pending, and notice of which was given to the governor on the 7th of December.
    The question to be determined by the court is, whether the said A. P. Barber or S. W. Trimmer is entitled to hold and exercise the said office of prothonotary pending the contest aforesaid; and it is agreed that upon determination of the said question, judgment may be entered by the court in the same manner, and to have the same force and effect, as though a writ of quo warranto had been duly issued, served, returned, and issue joined thereon.
    The following are the provisions of law relied upon to determine this question. The 3d and 5th sections of the Act of July 2d 1839, Pamph. L. 559 ; Purd. Dig. 1181, pi. 66-68, provide:— • Section 3. “ It shall be the duty of the return judges of the election for representatives for each county, when they meet to make out returns for representatives, also to make out true duplicate returns of the elections of prothonotaries, clerks, recorders of deeds and registers of wills, one of which said returns shall be filed in the prothonotary’s office of the proper county, and the other return shall be immediately transmitted by the sheriff, by mail, to the secretary of the Commonwealth, to be filed in his office. And it shall be the duty of such return judges to give to each person elected to any or all of said offices a certificate of his election; and the persons who appear by such certificates and returns to be duly elected, shall be commissioned by the governor for the respective office or offices for which they may have been elected, for three years, if they shall so long behave themselves well, and until their successors shall be duly qualified; Provided, That no commission shall issue, within the lapse of thirty days after the election, and shall commence and take effect from the first day of December next after such election, unless when the same is suspended by reason of a contest under the fifth section of this act, in which case the commission shall take effect from the time of the legal qualification of the officer under the same, and expire on the first day of December, as in other cases.”
    The fifth section of the act is in these words :—
    “ The returns of the elections, under this act, shall be subject to the inquiry, determination and judgment of the Court of Common Pleas of the proper county, upon complaint in writing, of thirty or more of the qualified electors of the proper county, of undue election or return of any such, officer, two of whom shall take and subscribe an oath or affirmation that the facts set forth in §uch complaint are true to the best of their knowledge and belief. And the said court shall, in judging concerning such election, proceed upon the merits thereof, and shall determine finally concerning the same, according to the laws of this Commonwealth; and the prothonotary of the said court shall immediately certify to the governor the decree of the said court on such election, and in whose favor such contested election has determined. And the said court shall hear and determine such contested election, at the next term after the election shall have been held; and such complaint shall not be valid or regarded by the court, unless the same shall have been filed in the prothonotary’s office within ten days after the election; and in case such complaint is filed within the time above mentioned, it shall be the duty of the prothonotary to transmit by mail immediately to the governor a certified copy thereof; and in such case, no commission shall he issued until the court shall have determined and adjudged on such complaint as aforesaid.”

    The Act of May 19th 1874, provides, inter alia, as follows :—
    Section 16. Cases of the fourth class (which include the office of prothonotary), shall be tried and determined by the Court of Quarter Sessions of the Peace of the county in which the election contest shall be held.
    Section 18. The commencement of proceedings in every case shall be by petition, which shall be made and filed as herein required within, thirty days after the day of election. The petition shall concisely set forth the cause of complaint. * * * In cases of. the second class the petition shall be signed by * * *; and in cases of the fourth class by at least twenty-five, and shall be verified by at least five of the petitioners by affidavit. * * * The petition shall be presented to the court or law judge having jurisdiction. * * * Notice of the filing of the petition, with a copy thereof, shall be served upon the person whose right of office shall be contested, together with a rule to answer at the time fixed for hearing, which notice, copy and rule shall be served such length of time before the day fixed for hearing as the said court or judge shall require, not exceeding forty days in cases of the second and third classes, and in all other cases not exceeding thirty days.
    This act contains no direction to notify the governor of a contest, and makes no provision that the commission shall be withheld pending the contest.
    On the 3d of January 1877, the court entered judgment of ouster against Trimmer, who took this appeal.

      Stanley Woodward, John Lynch and Charles L. Lamherton, for plaintiff in error.
    — Unless the Act of 1874 repeals the Act of 1839, Trimmer was right in retaining the office pending contest, and the commission issued by the governor was premature and without force. The two acts are not inconsistent and can stand together: Jefferson County v. Reitz, 6 P. F. Smith 44; Howard Association’s Appeal, 20 Id. 346. The Act of 1874 was intended to carry out the 17th sect, of article 8 of the constitution of 1873, and its purpose was to vest the jurisdiction in all cases of contested elections in the courts of law.
    The courts theretofore had no power to adjudicate upon election contests, except in the cases of county and township officers. Now they are to hear and decide all contests, from that of presidential electors down to the most unimportant township office. The Act of 1874 was a necessary adjunct to this constitutional change of system. It aimed at a classification of the several classes of contested elections, and a distribution of jurisdiction among the courts of the Commonwealth. In regard to cases of the fourth class, which includes the office of prothonotary, the old law is amended in two essential particulars only. These are, first, in giving 'the jurisdiction to the Quarter Sessions instead of the Common Pleas, and second, in enlarging the time for inaugurating the contest from ten days to thirty days after the election. In other respects this act is entirely in harmony with that of 1839. Both can stand. Indeed, both must stand to make a round and complete plan of operation.
    The Act of 1874 is silent upon many provisions of importance in the Act of 1839, and it certainly cannot be contended that where they are not altered or supplied by inconsistent provisions these are not still in force. It seems clear that the intent of the legislature, as expressed in this act, was to secure a speedy determination of all contested elctions, and meanwhile to, withhold from the contestants the final evidence of title to office. The thing complained of being an undue election or return, the question becomes a judicial one. Until the courts have exercised their authority, and rendered their judgment, the executive hand is stayed. To hold otherwise, is to confuse the functions of the different departments of the government, and clothe the executive officer with judicial power. We contend, therefore, that the 5th sect, of the Act of 2d July 1839, is still in force, and that no commission could legally issue to the defendant while this contest was pending in court.

      Henry W. Palmer, H. 8. Osborne and A. T. McOlintoelc, for defendant in error.
    — There is no requirement in the constitution of 1873 for the issuing of a commission to any county officer. The officer holds an indefeasible title by virtue of the election, the returns and the certificates, under the seal of the court, provided for in section 13 of the Act of 1874. This certificate is prima facie evidence of the title to his office, and under it he is entitled to the exercise of such office until ousted by a judicial decree. Under a contest provided for by the Act of 1874, no mere legislative enactment could suspend his right, whether passed before or after the date of the constitution of 1878. His title is complete under the constitution. No commission is required, and the attempt of the legislature to suspend or abridge his vested right would be unconstitutional. The Act of 1874 repeals and abrogates the Act of 1839, because, 1st. It is an affirmative statute plainly inconsistent with the former statute, introducing a new rule on the same subject. Because, 2d. It is in pursuance of the new constitution, introducing a general and uniform system of contesting elections, complete in itself, capable of general application in the terms of the statute, and which of necessity takes the place of and supplies all other methods: Johnston’s Est., 9 Casey 511; Gwinner v. L. & D. G. Railroad Co., 5 P. F. Smith 126. The act of 1874 is the sole rule in contested elections; what it requires must be done. It does not prescribe that notice shall be served to the governor of the result of an election nor that the issue of the commission shall be suspended. Nor does it require the issue of any commission. In the face of this act this contest proceeded under the provisions of the Act of 1839. The fact that in certain cases, by the terms of that act, in the case of elector and judge, no commission is to issue until the contest is decided, is entirely persuasive that in all other cases no such delay was contemplated. An elector discharges but a single act in the exercise of his office, an act of great weight and significance, and immediately becomes functus officio. In the case of a judge there are many reasons growing out of considerations of the administration of public justice, which should prevent a judge without title, and under the results of an “ undue election” from publicly assuming the momentous functions the law puts upon him. That an officer of this grade should act without a perfected legal warrant might justly be deprecated. The two exceptions to the Act of 1874 are thus completely vindicated, and the special reasons which justify the exceptions,' lead to the conclusion, that in the non-excepted eases the officer was to assume and continue the exercise of his duties without a commission. Contests over elective officers have never been favored by the courts, and, therefore, no premium in the form of fees and perquisites to him who holds over, should be offered to stimulate contention. Eull power and authority is now vested in the judges, acting as returning boards, to detect fraud, and rectify mistakes in the elections. The wrong man is much less likely to be returned than ever before. The right man ought to take the place and hold it, under the title furnished by the certificate of the judges, and be forced to vacate only when adjudged unworthy by a competent tribunal.
    March 25th 1878.
   Mr. Justice Woodward

delivered the opinion of the court,

Proceedings to contest the election of Barber as prothonotary of the Court of Common Pleas of the county of Luzerne, were begun on the 6th of December 1876, twenty-nine days after the date of the election. On the 7th of December notice of those proceedings was given to the governor, who issued a commission to Barber the same day. . The question of the effect of the commission is presented by this record. S. W. Trimmer, in pursuance of a previous election, had been commissioned as prothonotary until the first Monday of January 1877, and until his successor should be duly qualified. In a case stated in the nature of a quo warranto, beT tween Barber as plaintiff and Trimmer as defendant, the Common Pleas decided that Barber was entitled to hold and exercise the office pending the contest, and entered judgment of ouster against Trimmer.

In the determination of this question the construction of the provisions relating to contested elections of the Act of the 2d of July 1889, of the constitution of 1873, and of the Act of the 19th of May 1874, is necessarily and directly involved. ' The 3d section of the Act of 1839 prescribed the manner in which returns of the election of county officers should be made out, filed in the prothonotary’s office, transmitted to the secretary of the Commonwealth, and delivered to the successful candidate. Thereupon, commissions by the governor were required to be issued. The proviso to the section contained this explicit direction: “ No commission shall issue within the lapse of thirty days after the election, and shall commence and take effect from the 1st day of December next after such election, unless when the same is suspended by reason of a contest under the .oth section of this act, in which case the commission shall take effect from the time of the legal qualification of the officer under the same, and expire on the 1st day of December, as in other cases.” This direction "was repeated in the concluding .clause of the 5th section of the act, which regulated the mode in which election contests should be heard and determined! The language was: “ In such case no commission shall be issued until the court shall have determined and adjudged on such complaint as aforesaid.”

By the 3d section of the sixth article of the constitution of 1838, it was made the duty of the governor to commission the prothonotaries and clerks of the courts elected in the several counties and districts of the Commonwealth. No such provision is contained in the constitution of 1873. Whether the omission was casual or designed, direct authority is given to issue commissions to no officers except justices of the peace and aldermen, by the 11th section of the 5th article ; judges of the Supreme Court, when two or more shall be elected at the same time, by the 17th section of the same article; the president judge of the court of criminal jurisdiction for.the counties of Schuylkill, Lebanon and Dauphin, as a judge of the Court of Common Pleas of Schuylkill county, by the 15th section of the schedule ; and associate judges not learned in the law, by the 16th section of the schedule. The duty to commission judges of the Supreme Court would seem to he implied, however, from the provision of the 2d section of the 5th article, that “each judge whose commission shall first expire, shall in turn be chief justice.” The directions contained in the 16th, 18th and 19th sections of the schedule, that of the law judges of the several Courts of Common Pleas of Philadelphia and Allegheny, and throughout the state, the oldest in commission shall be president judge, also indicate an intention on the part of the convention to make no change in the mode by which the title of these officers had immemorially been authenticated. The constitution made no provisions whatever for commissions to the judges of the separate Orphans’ Courts, the police magistrates of Philadelphia, or county officers of any grade. The omission in the case of the judges, however, has been supplied by the Act of the 19th of May 1874, relating to the organization and jurisdiction of Orphans’ Courts; and commissions to the Philadelphia magistrates have been authorized by the 6th section of the Magistrates’ Courts Act of the 5th of February 1875. The 2d section of the schedule maintains in force all laws not inconsistent with the constitution. For granting commissions to prothonotaries and other county officers there is sufficient warrant to the governor in the Act of 1839, which, for this purpose, the constitution and the legislation under it have left entirely unimpaired.

Upon this subject the Act of the 19th of May 1874 is equally silent with the constitution. It transfers the jurisdiction to hear and determine contested elections from the Common Pleas to the Quarter Sessions; it authorizes a petition by twenty-five qualified electors instead of the thirty required by the Act of 1839; it requires the verification of the petition by the oaths of five instead of two qualified electors; it extends the time allowed for filing the petition to thirty days instead of ten; it omits the direction to transmit a certified copy to the governor; and it makes no provision that, pending the contest, the commission shall be withheld. It was insisted at the argument on behalf of Barber that this statute supplied and replaced the fifth section and the proviso to the third section of the Act of 1839 ; that the commission to him was regularly and providently issued; and that it gave him the right to be installed in the office of prothonotary.

The Act of the 19th of May 1874 was limited to a single subject-matter. It was enacted to carry into effect the requirements of'the 17th section of the eighth article of the constitution, that “the trial and determination of contested elections of electors of president and vice-president, members of the General Assembly, and of all public officers, whether state, judicial, municipal or local, shall be by the courts of law, or by one or more of the Jaw judges thereof.” The object in view was to replace a mass of incongruous and uncertain legislation by a speedy, symmetrical and uniform plan for the settlement of peculiarly difficult, exciting and angry controversies. The title of the act described it as “ designating the several classes of contested elections in this Commonwealth, and providing for the trial thereof.” It did not profess to regulate elections, or to define the duties of public officers, or to impose any duty or confer any power on the governor to interpose between the candidate shown by the face of the returns to be elected, and the candidate shown by the face of the returns to be defeated. A right so to interpose could only be derived from a legislative intention somewhere Or in some way expressed. It has been settled that a proceeding instituted to contest an election cannot be frustrated by a commission issued afterwards: Ewing v. Filley, 7 Wright 384. The legal provisions made necessary by the general requirements of the eighth article of the constitution, were embodied in an act entitled “ A further supplement to the act regulating elections in this Commonwealth,” passed on the 30th of January 1874. By the 13th section of that supplement, the duty ivas imposed on the judges of the Courts of Common Pleas, of opening and computing the returns made by the election officers. But nothing in that section, or in the residue of the act, demanded any action of the court that could affect the rights of the parties in such a contest as this. Indeed, those rights were expressly preserved. The 13th section directed that, “ if palpable mistake or fraud shall be discovered, it shall, upon such hearing as may be deemed necessary to enlighten the court, be corrected by the court, and so certified; but all allegations of palpable fraud or mistake shall be decided by the said court within three days after the day the returns are brought into court for computation; and the said inquiry shall be directed only to palpable fraud or mistake, and shall not be deemed a judicial adjudication to conclude any contest now or hereafter to be provided by law.” No provision was made for transmitting to the governor, or the secretary of the Commonwealth, the result of the computation of votes, under the Act of the 30th of January, and none for certifying the judgment of the court in a contest in a case of the fourth class, under the Act of the 19th of May 1874. All steps ulterior to the specification prescribed by the two statutes were left to be governed by the provisions of existing laws, with which the legislature of 1874 decided wisely not to interfere.

It was by force of the Act of 1839, that Barber was entitled to his commission. The terms which «authorized its issue were not more direct and clear than the terms of the proviso to the third section, which forbade it to go out Avhile a contest Avas undetermined. If, under the constitution of 1873, and the Act of the 19th of May 1874, -the proviso should be held to be repealed, it is not readily seen hoAV that part of the enactment AA'hich authorized the commission could be held to survive. Both clauses stand on the same ground. Both fall, if the Act of 1874 Avas designed to establish a complete system in place of the system established by the Act of 1839. Both are unimpaired, if the Act of 1874 was passed simply to regulate the mode of trying and deciding election contests. Without repealing or negativing words in the new law, without a reference to the subject-matter of the proviso to the third section, and without any provision to stand in its place, there is nothing on which an implication of an intention to repeal it can be based.

The proviso, and the several sections of the Act of 1874 relating to contested elections of the fourth class, may well stand together. To adopt the theory of a repeal by implication, would be to.disregard the broad equities of the question under review, as well as authoritatively-settled rules of law. “Every affirmative statute is a repeal of a precedent affirmative statute, where its matter necessarily implies a negative; but only so far as it is clearly and indisputably contradictory and contrary to the former act in the very matter (Poster’s Case, 11 Rep. 63), and the repugnancy such that the t-wo cannot be reconciled Regina v. Inhabitants of St. Edmunds, 2 Q. B. Rep. 84. To repeal a statute by implication, there must be a repugnancy between the provisions of the new law and the old so positive as to be irreconcilable: Potter’s Dwarris on Statutes 154, n. 4, and the cases there collected. Where a late statute is absolutely repugnant to a former one only in part, it repeals the former one only so far as the repugnancy extends, and leaves all the remainder in force: Van Rensselaer v. Snyder, 9 Barb. 308. In many material respects, the Act of 1839 has undoubtedly been modified by the new constitution and the Acts of 1874. Even the proviso to the third section has been affected by the provisions that have fixed the first Monday of January, in lieu of the first day of December succeeding an election, as the date from which commissions shall respectively have force. ' So far as it has remained unchanged, however, the Act of 1839 has all the controlling efficacy it would have if the constitution of 1873 had not been adopted, and the Acts of 1874 had not been passed.

This cause was decided at the opening of the May term in 1877, mainly on grounds that have been stated in this opinion. Under the order made shortly after the judgment was entered, it has been re-argued at the present term. The appeal from the decree of the Quarter Sessions in favor of Barber, the candidate returned as elected, involving the merits of the contest, has been heard also, and the decree has been this day affirmed. Without looking forward to any eventual effect which that decision may or may not have on the rights of these parties that are involved in this litigation, the present duty of the court simply consists in affirming the judgment they regarded it their duty to enter a year ago.

The judgment of ouster is reversed, and it is ordered and adjudged that judgment be entered in favor of S. W. Trimmer, the defendant in the case stated, with costs.


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    Sanderson versus The Pennsylvania Coal Company.
    1. The invasion of an established right will in general per se constitute an injury for which damages are recoverable, for in all civil acts the intent of the actor is less regarded than the consequences to the party suffering. However laudable industry may be, its managers are still subject to the rule that their property cannot be so used as to inflict injury on the property of others.
    2. To render a particular case an exception to the general principles controlling the exercise of dominion over property by its proprietor, it must be ascertained to be exceptional in its surroundings or its facts. Except where it is qualified by the existence of peculiar conditions, the duty of the owner of property is defined by the maxim “ Sin utere tuo ut alienum, non loedas.”

    3. S. purchased a tract of land in the coal regions, upon which he erected a handsome residence. One of the principal inducements to the purchase was that' a stream of pure mountain water ran through the tract, and a number of valuable improvements were made in order that the residence and grounds might be supplied with water for culinary, bathing and other purposes. Shortly after thése improvements were completed a mine was opened by defendant on the stx-eam about two miles above the land of S., the water from which when pumped or flowing naturally therefrom ran into the stream and so polluted it as to render the water unfit for any of the uses to which S. had adapted it. Upon the above facts the court below entered a nonsuit, on the ground that in the absence of negligence or malice this was damnum absque injuria. Held,, that S. had a x'ight of action and the case should have been submitted to a jury.
    4. The exigencies, however-, of the great industrial interests must be kept standing in view; the properties of large and useful interests- should not be hampered or hindered for fx-ivolous or tx-ifling causes. For slight inconveniences or occasional annoyances, they ought not to be held responsible, and in dealing with such complaints, juries should be held with a steady hand.
    March 11th 1878.
    Before Agnew, C. J., Siiarswood, Mercur, Gordon, Paxson, Woodward and Trunkey, JJ.
    Error to the Court of Common Pleas of I/uzerne county: Of January Term 1878, No. 258.

    Trespass on the case by J. Gardner Sanderson and wife, in right of the wife, against the Pennsylvania Coal Company, for damages for the alleged corruption of a stream by reason of the working of the colliery of defendants.
    In 1868 the plaintiffs purchased a tract of land which is within the limits of the city of Scranton, on which they erected a handsome residence and other valuable improvements. A stream of water, called “Meadow Brook,” runs through this tract, and before its purchase Mr. Sanderson traced it to its source, and it appeared that the existence of this stream was one of the principal inducements to the purchase of the land. This stream was about an average width from its source to the house of plaintiffs. When traced by Mr. Sanderson the water was perfectly pure. Dams were built across the stream for the purpose of fish and ice ponds and to supply a cistern, and the water was carried in pipes from the cistern to a ram and thence forced to a tank in the attic of the house. After these improvements had been made the defendants opened a coal mine on the side of a hill about three miles above the house of plaintiffs. A drift was first made into this mine, and a shaft after-wards sunk. The water which collected in this drift, as well as that pumped by engines from the shaft, ran into the creek. The water from the drift, following the law of gravitation, naturally flowed into the stream. It was shown that the effect of this was that the water of the stream was so corrupted that the fish in the' pond were destroyed; that the willows along the bank died; that the pipes carrying the water were corroded and eaten out; that the water was unfit for domestic use, and that finally its use had to bo abandoned for every purpose. No analysis was furnished of the water, but it was conceded that it was acid and unfit for use, although unchanged in appearance. It appeared that mine-water is usually impregnated with acid. Upon the above facts, the court, Stanton, J., entered a compulsory nonsuit, on the ground that there appearing to he no negligence or malice, and the discharge of the mine-water being necessary in mining, was damnum absque injuria.

    This action was assigned for error by plaintiffs, who took this writ.

      A. Ricketts, for plaintiff in error.
    — The plaintiffs did not claim an easement' in defendant’s land, but damages simply for the destruction of a surface stream of which they were the riparian owners, and in which they had a clear right of private property. That they had the right to have the water of the stream come to their land uncorrupted is the undoubted law of this state : Howell et al. v. McCoy, 3 Rawle 256; McCollum v. The Germantown Water Co., 4 P. F. Smith 40. And their right is not subject to the convenience or necessity of defendants: Wheatley v. Chrisman, 12 Casey 278. In England such pollution of a stream is distinctly declared to be both injury and damage: Pennington v. Brinsop Hall Coal Co., 5 Ch. Div. 769, where an injunction was granted. It is novel doctrine that because it is necessary in mining coal to get rid of mine water the party mining may pump it out as he pleases, without responsibility for injury to neighboring property. Such doctrine would be destructive of a large portion of private property in the mining regions.

      Senry M. Soyt and Andrew T. McQlintoc/e, for defendants in error.
    — There are in the anthracite region alone more than a thousand collieries, in which the mining of coal must and can only be carried on by pumping the water that percolates into the mine. Wherever coal is mined, whether by tunnel, slope or shaft, water accumulates, and must flow from the mine or be pumped therefrom to the surface; and when brought to the surface must find its way by natural flow to the streams on the surface.
    The question then arises whether the lawful use of property by the owner, in opening mines on his own property, renders him liable to a riparian owner, whose property is some two or three miles below on the river, for any injurious effect of mine water from a drift upon the stream into which such water naturally flows, and although the owner of the mine does nothing to affect the water flowing, therefrom, and it comes as in a state of nature from the mine.
    The numerous eases relating to the right of a riparian owner to a reasonable use of water flowing through his land do not meet our case; nor are the cases applicable that relate to the fouling of water by the introduction into a stream of deleterious substances, arising from offensive ingredients used in manufactories or other operations. Mining coal has been carried on in our state for over fifty years, and mine-water has been flowing from coal mines into the Schuylkill, the Lackawanna, the Susquehanna, the Lehighrivers, and into their numerous large and small tributaries,'for all those years. And yet no case, except that of the New Boston Coal Co. v. Pottsville Water Co., 4 P. F. Smith 164, has arisen involving the-question now under consideration; and in that case the point now at issue was not decided. Cases, however, in which strong analogies are found have been considered and decided in England, and in many of the United States: Washburne on Easements 369, 370; Angell on Watercourses 183; Frazer v. Brown, 12 Ohio St. 294-312; Routh v. Driscoll, 20 Conn. 533; Smith v. Kenrick, 7 C. B. 515.
    The rightful use of one’s land may cause ■ damage to another without any legal wrong: Haldeman v. Bruckhart, 9 Wright 514; Wheatley v. Baugh, 1 Casey 528; Wilson v. Waddell, L. R. 2 App. Cas. 95; Snow v. Persons, 28 Vt. 459; Chatfield v. Wilson, Id. 49; South Royalton Bank v. Suffolk Bank, 27 Id. 505; Mahon v. Brown, 13 Wendell 261; B. R. & A. Water and Mining Co. v. N. Y. Mining Co., 8 Cal. 327; Broadbent v. Ramsbothem, 11 Ex. 602; Acton v. Bloudell, 12 M. & W. 324; Chasemore v. Richards, 5 Hurl. & Norm. 982; Greenleaf v. Francis, 18 Pick. 117; New River Co. v. Johnson, 2 E. & E. 435; Kauffman v. Griesmer, 2 Casey 407; Martin v. Riddle, Ibid. 415. The case of Howell v. McCoy, and McCollum v. Germantown Water Co., cited by plaintiffs’ counsel, are, like numerous other similar cases, where some extraneous ingredient is incorporated into the flow of water into the stream, by which the water is fouled.
    The English case of Pennington v. Coal Company, was decided by a single judge, and was not a well-considered case. It is not possible that in a state producing over twenty million tons of coal yearly, every 'ton- of which must come from mines that discharge water and from which water must be discharged if the indispensable mineral is produced, it can seriously be said that this industry is liable to be crippled and endangered by injunction if the mine-water affects to any extent a stream into which it may naturally flow when brought to the surface. The law must be adjusted to our great industrial interests; the right to mine coal is not a nuisance; the exercise of that right is lawful; and if in the exercise of such lawful rights streams of water, the natural courses for drainage, are affected by bringing to the surface the water that percolates into the mines, the riparian owner must submit to the incident; if he cannot claim damage for the spring or the well that is totally destroyed by mining adjoining lands, surely he is equally without redress for the effect of mine-water flowing into such stream and allowed to flow into the natural drain channel in the natural state in which it comes from the mines.
    May 6th 1878.
   Mr. Justice Woodward

delivered the opinion of the court,

In the year 1868 the plaintiffs purchased a tract of land in the city of Scranton, and began the erection of a house upon it, which was finished in the year 1870. Before the purchase a stream of water, which ran through the land, was examined - by Mr. Sander-son, who traced it to its source. It appears from his testimony that the existence of this stream was a leading inducement to the plaintiffs to buy and build. It was called by some of the witnesses Meadow Brook, and was of an average width of perhaps seven feet throughout the distance from the house of the plaintiffs to the springs from which it flowed. Mr. Sanderson testified that when he traced it in 1868, the water was perfectly pure. Dams were built across it for the purposes of a fish and ice pond, and to supply a cistern. Water was carried in pipes from the cistern to a ram, and thence to a tank in the attic of the house.

After the improvements were completed the defendants established a colliery on lands belonging to them along the stream, and about two miles above the land of the plaintiff. A drift was first made into their mine, and a shaft was afterwards sunk. The water which collected in the drift, as well as that pumped by powerful engines from the shaft, ran into Meadow Brook, and was carried to its outlet in the Lackawanna river. It was alleged on the trial that the effect of the mine-water was to corrupt the water of the stream, and to render it worse than worthless for any domestic or household use. There was evidence that the fish in the brook were destroyed ; that the willows along the banks died ; that the pipes connecting it with the cistern, the ram and the house, were corroded and eaten out; that the water became unfit for domestic uses as early as 1873 ; and that its use for all purposes was abandoned in 1875. After the evidence of the plaintiffs had been given, it was held by the court to be inadequate to warrant or support a verdict, and a nonsuit was directed.

• In the summary disposition that was made of the cause, sight appears to have been lost of some distinctions which the law has settled, and a mistake seems to have been made in choosing the class of precedents that were followed. The water in the mine of the defendants was in the ground before the colliery existed, hut the drift and shaft collected it in such volume, and the mining operations made its ejection necessary in such a direction as to render what was harmless in its natural state a source of material discomfort, mischief and disaster. Undoubtedly the defendants were engaged in a perfectly lawful business, in which large expenditures had been made, and with which wide-spread interests were connected. But however laudable an industry may be, its managers are still subject to the rule that their property cannot be so used as to inflict injury on the property of their neighbors. Every man,” Lord Truro observed, in Egerton v. Earl Brownlow, 4 H. L. C. 195, “ is restricted against using his property to the prejudice of others.” The invasion of an established right will, in general, per se, constitute an injury for which damages are recoverable, for in all civil acts, the intent of the actor is less regarded than the consequences to the party suffering. Thus, if a man lop a tree, and the boughs, ipso invito, fall upon another, or he shoot at a butt, and hit another unawares, an action lies. So, one is liable who has land through which a river runs to turn his neighbor’s mill, and lops the trees growing on the river side, and the loppings impede the progress of the stream, which hinders the mill from working : Broom’s Leg. Max. 366, 367. To render a particular case an exception to' the general principles controlling the exercise of dominion over property by its proprietor, it must be ascertained to be exceptional in its surroundings or its facts. From necessity the principles are sometimes relaxed. They do not apply where it is impossible to gather safe facts to become bases for safe rules. With respect to water flowing in a subterraneous course, it has been held that the owner of land through which it flows has no right or interest which will enable him to maintain an action against an owner who, in carrying on mining operations in his own land, in the usual manner, drains away the water from the other’s land, and lays his well' dry: Acton v. Blundell, 12 M. & W. 324. Haldeman v. Bruckhart, 9 Wright 514, and Wheatley v. Baugh, 1 Casey 528, were ruled in the same way. So, rights and liabilities in respect of artificial streams, when first flowing on the surface, are in some particulars distinct from those respecting natural streams so flowing. They are distinct at least to the extent that the user of the easement of sending on the water of an artificial stream to the land of a' neighbor, is no evidence that the land from which the water is sent has become subject to the servitude of being bound to send it on : Gaved v. Martin, 19 C. B. N. S. 758. Perhaps Smith v. Kenrick, 7 C. B. 715, may be classed as an exceptional case also in its circumstances, although as a precedent it will probably prove of doubtful value. It was held there that each of two owners of adjoining mines has a natural right to work his own mine in the manner most convenient and beneficial to himself, although the natural consequence may be that some prejudice will accrue to the owner of the adjoining mine.

But 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 ul alienwn non Icedas. Can it be said, as a conclusion of law, that the duty of these defendants is qualified by such conditions ? They created.an artificial watercourse from their mine to Meadow Brook. The plaintiffs insisted that the act resulted in grave injury to them. Why ought not the jury to have been left to determine the truth or falsity of their allegation? It was declared in Graved v. Martin, supra, that if the water in an artificial stream, when brought to the surface, is made to flow on the land of a neighbor without his consent, it is a wrong for which the party causing it so to flow is liable. 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, 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 North Western Railroad Co., 3 H. & 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. Cas. 642), is damnified 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 he 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 Ex. 280. In an elaborate and carefully considered opinion in Mason v. Hill, 5 B. & A. 1, Denman, C. J., held that the possessor of land through which a natural stream runs, has the right to the advantage of that stream flowing in its natural course, not inconsistent with a similar right in the proprietors of the land above and below; and that neither can any proprietor above diminish the quantity or injure the quality of the water, nor can any proprietor below throw back the water without his license or grant. It was one of the features of that case that the water which the defendant had the right to use, subject to the duty of returning it, was heated when it was returned to the stream, and the jury had assessed damages for that. The Chief Justice said in entering judgment: “ As to the right to recover for the injury sustained by the water being returned in a heated state, there can be no question.” In Wood v. Sutliffe, 16 Jur. 75, and 8 Eng. L. & Eq. R. 217, an injunction was granted to restrain the defendant, against whom a recovery had been had at law, from pouring dye-wares, dye-liquors, madder, indigo or potash into a channel that connected his»dye-works with a stream called the “Bowling Beck,” on which, below the works, the cotton-mill of the plaintiffs was situated, and in the use of the water of which they claimed prescriptive rights. “I am satisfied from the evidence,” the Vice-Chancellor remarked, in the course of his opinion, “that to some considerable extent, the pollution of this stream is inevitable, and that no court of law, or court of equity, nor all the courts in the world, except there were a power of removing all that mass of human beings which now congregate about its banks, ever could restore it to the state in which it once was. But still it does not follow, because there be a certain degree of pollution, which cannot be very accurately measured, and which is inevitable, that therefore everybody has a right to pollute the stream by pouring in immense quantities of filth and pollution from his own works, to make it ten thousand times worse.” Pennington v. Brinksop Hall Coal Company, 5 Ch. Div. 769, was a case where an injunction was granted to restrain the defendants from pumping water from their colliery into Borsdane Brook, by which the water in use for the cotton-mill of the plaintiffs had been corrupted. While their claim included the assertion of a prescriptive right it was discussed mainly in view of thfe position of plaintiffs as sub-riparian owners, by the justice who granted the injunction. In answer to the suggestion that in lieu of the remedy sought, damages should be awarded, it was said that “ the rights of the plaintiffs as riparian owners, are not limited to their present modes of enjoyment. It was impossible to foresee what modes they, or their successors in title, may resort to, or the extent of damages which would be compensation for the injury which the continued pollution might cause to such new modes of enjoyment.” While a right by prescription was the main element of the title of the plaintiffs to a decree in Wood v. Sutliffe, and a partial element in the title of the plaintiffs in Pennington v. Brinksop Hall Coal Company, it did not enter at all into the consideration of Mason v. Hill. There, indeed, it was expressly put aside. “We do not wish,” the Chief Justice declared, “to rest a judgment for the plaintiff on this narrow ground.” Pennington v. The Coal Company was decided so lately as last May, and it would seem that in England this branch of the law has been definitely and firmly settled.

And the question is by no means a fresh one in Pennsylvania. In Barclay v. The Commonwealth, 1 Casey 503, the defendant had been convicted of a nuisance in the Quarter Sessions of Bedford, in permitting the wash and waste from his barnyard to escape into the springs dedicated by the Penns to the use and benefit of the inhabitants of the town of Bedford. In this court, the judgment was reversed for an irregularity in the sentence, but the conviction was approved. The Little Schuylkill Navigation Company, 7 P. F. Smith 142, was an action to recover damages for injury to the plaintiff’s forge-dam in the Little Schuylkill river, caused by the throwing of coal dirt, slate and loose earths into the channel of the stream by the servants and employees of the defendants. The refuse matter was carried down the river by the action of the water, and deposited in the dam. Other persons were shown to have cast the refuse of their mines into the water, and the court below had charged in substance that the defendants were liable for the combined results of all the deposits. This instruction raised the main question on the writ of error. It was held here that the liability of the defendants began with their act on their own land, and was wholly separate and independent of concert with others; and that their tort, having been several when committed, did not become joint because its consequences united with the consequences of the acts of others. But it was not suggested that under any theory or doctrine of public policy, the defendants had the right to use the river-bed as a dumping-ground for the rubbish of their mines. Th/e corruption of the water was not alleged, it is true, but it is not readily apparent how a principle could be sound that would justify the destruction of the water of a running stream for one purpose, and not justify the destruction of its uses by the same or a similar agency for all purposes whatever.

In the argument here, the ground was distinctly taken that immense public and private interests demand that the right, which the defendants exercised in ejecting the water from their mine, should have recognition and be established. It was said that in more than a thousand colleries in the anthracite regions of the state, the mining of coal can only be carried on by pumping out the percolating water which accumulates in every tunnel, slope and shaft, and which, when brought to the surface, must find its way by a natural flow to some surface stream. It was urged that the law should be adjusted to the exigencies of the great industrial interests of the Commonwealth, and that the production of an indispensable mineral, reaching to the annual extent of tAventy millions of tons, should not be crippled and endangered by adopting a rule that would make colliers answerable in damages for corrupting a stream into which mine-Avater Avould naturally run. These are considerations that are entitled to be well weighed. In the trial of questions like this before a- jury, they ought to be kept steadily in view. The proprietors of large and useful interests should not be hampered or hindered for frivolous or trifling causes. For slight inconveniences or occasional annoyances they ought not to be held responsible, and in dealing Avith such complaints juries should be held with a steady hand. Only when some material and appreciable injury has been sustained, should a recovery of damages against them be allowed. But there must be one rule of law maintained for all men, and by that rule all men’s rights must be tried and tested. The view so earnestly and ably presented by the counsel here, was pressed upon Mr. Justice Mellor, in the trial of St. Helen’s Smelting Co. v. Tipping, 11 H. L. Cases 642—a precedent in every way of interest and value. After the verdict, a motion for a new trial was heard and refused by the Court of Queen’s Bench, and on review in the Exchequer Chamber, and afterwards in the House of Lords,'the judgment was affirmed. In charging the jury, the judge used this language: “ The defendants say, If you do not mind, you will stop the progress of works of this kind. ’ I agree that that is so, because, no doubt, in the county of Lancaster, above all other counties, where great works have been created and carried on — works which are the means of developing the national wealth — you must not stand on extreme rights, and allow a person to say, ‘I will bring an action against you for this, that, and so on.’ Business could not go on if that were so. Everything must be looked at from a reasonable point of view; therefore the law does not regard trifling and small inconveniences, but only regards essential inconveniences; injuries which sensibly diminish the comfort, enjoyment or value of the property which is affected.” In another part of the same lucid charge, the jury were' instructed that “if a man by any act, either by the erection of a lime-kiln, or copper-works, or any work of that description, sends over his neighbor’s land that which is noxious and hurtful, to an extent which sensibly diminishes the comfort and value of the property, and the comfort of existence on that property, that is an actionable injury.” The consequences that would flow from the adoption of the doctrine contended for, could be readily foretold. Relaxation of legal liabilities and remission of legal duties to meet the current needs of great business organizations, in one direction, would logically be followed by the same relaxation and remission, on the same grounds, in all other directions. One invasion of individual right would follow another, and it might be only a question of time when, under the operations of even a single colliery, a whole country side would be depopulated.

Judgment reversed, and procedendo awarded.

Mr. Justice Paxson filed a dissenting opinion.


text:
    Webster and Goldsmith’s Appeal.
    ___ . . . While subrogation is founded on principles of equity and benevolence, and may be decreed where no contract exists, yet it will not be decreed in favor of a mere volunteer, who without any duty, moral or otherwise, pays the debt of another. It will not arise in favor of a stranger, but only in favor of a party who, on some sort of compulsion, discharges a demand against a common debtor.

      March 12th 1878.
    Before Agnew, C. J., Sharswood, Mercur, Gordon, Paxson, Woodward and Trunkey, JJ.
    Appeal from the Court of Common Pleas of Luzerne county: Of January Term 1878, No. 232.
    Appeal from the decree of the court, Harding, P. J., confirming the report of the auditor appointed to distribute the fund arising ftom a sheriff’s sale of the real estate of Jacob Adams. The facts are sufficiently stated in the opinion of this court.

      S. J. Strauss and McLean Sp Jackson, for appellants.
    — Bauer’s claim must be by subrogation. When the note was paid to which the judgment was collateral, the judgment was dead and could not be revived by the assignment: Erb’s Appeal, 2 P. & W. 296. His equity, if it exists at all, was subsequent in point of time to appellants’ judgments. Baur is a volunteer and must claim subrogation in pursuance of a direct contract. It will not arise in favor of a stranger, but only in favor of a party who, on some sort of compulsion, discharges the debt against a common debtor. These principles do not apply in favor of volunteers. They can obtain the right of substitution only by contract: Mosier’s Appeal, 6 P. F. Smith 76; Hoover v. Epler, 2 Id. 522; Wallace’s Estate, 9 Id. 406; Talmage v. Burlingame, 9 Barr 21. Baur was under no compulsion, moral or legal, to discharge Banker’s liability upon the note.
    It has never been permitted to a subsequent surety to change the liability of a former one without his knowledge or consent, and then to demand subrogation as against him, and consequently not against those who are previously interested to prevent such subrogation : Talmage v. Burlingame, supra; Schnitzel’s Appeal, 13 Wright 23.
    There was no privity between Baur and the parties to the original contract, nor could the assignment as against intervening creditors, operate as a ratification of any act done by Adams on behalf of Banker: Childs & Co. v. Digby, 12 Harris 23.

      Gfustav Hahn, for appellee.
    — The appellants show not a single equity in their favor, but invoke the aid of technicalities only to give them a preference over the appellee: Delaware & Hudson Canal Co.’s Appeal, 2 Wright 517; Ramsey’s Appeal, 2 Watts 232; Dunn v. (Olney, 2 Harris 223; Kyner v. Kyner, 6 Watts 221; Hugh Burns et al. v. Huntingdon Bank, 1 Barr 397; Erb’s Appeal, supra; Cottrel’s Appeal, 11 Harris 294; Foster v. Fox, 4 W. & S. 94; Mosier’s Appeal, supra.

    May 6th 1878.
   Mr. Justice Woodward

delivered the opinion of the court,

On the 30th of October 1874, Philip Banker obtained a judgment in the Common Pleas of Luzerne against Jacob Adams for $700. He was the endorser of a note of Adams for the same amount, which had been discounted by the Wyoming National Bank, on the 7th of October, and the judgment was .confessed in order to indemnify him against liability for its payment. The note matured on the 9th of December 1874, and on that day, in the absence of Banker, at the solicitation of Adams, and upon his assurance that Banker’s judgment should be assigned to him for his protection, Robert Baur endorsed a new note of Adams’ for $700, which was received by the bank in lieu of that which Banker had endorsed. This new note was renewed from time to time, and was finally paid by Baur. Banker assigned his judgment to Baur on the 4th of February 1875. In the meantime, on the 7th of December 1874, judgments against Adams were obtained by Webster & Goldsmith Brothers, the appellants. In the distribution the auditor applied the balance of the fund, after payment of earlier liens, pro rata to the judgment of Banker, and to one which had been confessed to Baur, both having been entered the same day. The court confirmed the auditor’s report.

Banker had no part in the arrangement between Baur and Adams. His judgment had been obtained for a single purpose. It was to protect himself as the endorser of the note that was running in the bank. If that had been paid at maturity, all the uses of the judgment would have been served. So far as Banker was concerned, why was the note not paid when it was cancelled by the renewal ? The judgment was a personal indemnity to him. It was not a collateral or cumulative security to the bank. It had no connection with the debt Adams owed, except that it had grown out of it as an independent contract. When the note of the 9th of December was accepted, the discharge of Banker from all obligation as an endorser was absolute, and with that discharge why were not his rights under the judgment at the same time extinguished ? It has been urged that the debt survived. It is true that Adams remained the bank’s debtor for $700, but he was bound by a new contract in a new form, with which Banker had no concern. And with the hazard that he might be called upon for payment of the note removed, the vitality of his judgment was destroyed. His assignment could not galvanize it into fresh life, for on the 4th of February 187.5, he had no interest to assign. If the rights of Adams and Baur were alone involved, there would be no objection to their agreement that it should retain or regain its original efficacy. But nothing which they could do, even in conjunction with Banker, could affect the rights of intervening creditors, which became vested when, by the discharge of Banker, as endorser, the conditions ceased to exist, which gave to the judgment all the validity it possessed.'

Down to the moment when Baur endorsed the new note, he had not been in any way connected with the debt. He was under no obligation to Ranker, to Adams or to the bank. While his éndorsement worked the release of Banker, yet it created no duty towards himself, for as in Talmage v. Burlingame, 9 Barr 21, the act was without Banker’s knowledge or request, and was done as a “ mere volunteer, and under no circumstances of compulsion, moral or legal.” And' Adams was not competent to clothe Baur with Banker’s rights, for that would have been the making a new consideration for and the writing of new conditions into the judgment. It was too late on the 9th of December to create a lien to have priority against other creditors from the 30th of October.

In no instance has the equitable doctrine of subrogation been carried to an extent that would support this decree. Ramsey’s Appeal, 2 Watts 228; Dunn v. Olney, 2 Harris 219, and The Delaware and Hudson Canal Company’s Appeal, 2 Wright 512, which were relied on in the opinion of the president of the Common Pleas, were illustrations of Chief Justice Gibson’s familiar rule, that “he who may at law control the application of two or more funds, shall not be suffered to use his legal advantages in a way to exclude the demands of a fellow creditor whose legal recourse is restricted to but one of them.” Cottrell’s Appeal, 11 Harris 294, was just the case this would be if the judgment against Adams had been held not by Banker, but by the Wyoming National Bank. An endorser paying Adams’s note would become entitled to subrogation to the rights of the bank under the judgment as a cumulative security for a single debt. In Cottrell’s Appeal, the endorser of th'e note of a defendant for the amount of a judgment paid it to the creditor, and took an assignment of the judgment. It was very justly ruled that he was entitled to payment in preference to a subsequent judgment entered before the pote was given. “ When an application is made for substitution,” Judge Rogers said, in-Erb’s Appeal 2 Penna. R. 296, “the court will take care that the subrogation of the surety shall work no injustice to the rights of others.” While subrogation is founded on principles of equity and benevolence, and may be decreed where no’ contract exists, yet it will not be decreed in favor of a mere volunteer, -who, without any duty, moral or otherwise, pays the debt of another: Hoover v. Epler, 2 P. F. Smith 522. It will not arise in favor of a stranger, but only in favor of a party who, on some sort of compulsion, discharges a demand against a common debtor: Mosier’s Appeal, 6 P. F. Smith 76. Chief Justice Thompson-in that case said: “I regard the doctrine as applicable in all cases where a payment has been made under a legitimate and fair effort to protect the ascertained interests of the party paying, and when intervening rights are not legally jeopardized or defeated.” Taxes assessed against an owner of land were paid over during several years by the collector, without payment by the owner to him. Subsequently the owner confessed a judgment to the collector as a collateral security. In the distribution of the proceeds of the sale of the owner’s estate it was held that the lien of the taxes was discharged by the payment over by the collector; that he was not to be regarded as a surety; that subrogation could not be allowed except in a clear case, and where it would work no injustice to others; and that the collector had no priority over liens which preceded his judgment: Wallace’s Estate, 9 P. F. Smith 401. There was no privity of interest and no contract relation between Baur and Banker. Baur could create no duty to himself by a volunteered intervention for Banker’s relief. Pie became Adams’s endorser without being under any legal or moral compulsion, and he had no existing interest, ascertained or contingent, to protect. He has no equity to entitle him to subrogation. At the moment when the new note was taken by the bank, and the liability of Banker on the former one was discharged, the only reason for the efficient existence of the indemnifying judgment was swept away, and the judgments of the appellants took the place it had held in the order of priority of'liens.

The decree of the Court of Common Pleas is reversed at the costs of the appellee, and it is now ordered and adjudged that the residue of the fund in court, after the payment in full of the judgment of Robert Baur, No. 217, November Term 1874, be distributed, pro rata, to the judgments Nos. 240 and 359, November Term 1874, in favor of P. R. Webster and Goldsmith Brothers, the appellants.


author: Mr. Justice Trunker

text:
    Sturges’s Appeal.
    1. The lien of a fieri facias without levy expires with the return thereof.
    2. Where the court grants a rule to show cause why a fi. fa. shall not be stayed, proceedings in the meantime to stay and no levy has been made, it should direct a levy, and if it does not and the return-day intervenes before the rule is disposed of, the lien is lost and cannot be revived by a discharge of the rule, and should a sale have taken place in the interim on a junior j udgment, the latter is. entitled to the proceeds.
    March 13th 1878.
    Before Agnew, C. J., Sharswood, Merour, Gordon, Paxson, Woodward and Trunkey, JJ.
    Appeal from the Court of Common Pleas of Luzerne county: Of January Term 1878, No. 29.
    Appeal by E. B. Sturges from the decree of the court confirming the report of the auditor appointed to distribute the proceeds of the sheriff’s sale of the personal property of E. R. Mills. From the evidence before the auditor it appeared; That on the 12th of May 1876, J. P. W. Riley sued out a fieri facias, returnable June 5th, on a judgment for $1000, held by him against E. R. Mills. Before an actual levy was made on May 15th, the court granted a rule to show cause why this fieri facias should not be stayed, the rule being made returnable in September, the proceedings on said writ of fieri facias meantime to be staid and the “ sheriff to be secured in his levy, if made.” The sheriff’s return to the fieri facias, was “ stayed by order of court.” In September the rule to show cause was discharged. On the 81st of May, A. C. Nettleton sued out a fieri facias, on a judgment for $776.53, held by him against Mills and one Stone, and under this writ the personal property of Mills was sold on the 11th of July for $761.88. At this sale notice was given that the proceeds would be claimed under the Riley writ, and it was agreed that the money should remain in the hands of the sheriff and await the order of the court. The auditor appointed to distribute the fund awarded the same to Nettleton, holding that the Riley writ had expired before the sale, on its being returned without a levy. Riley filed excéptions to this report, which the court, Handley, J., dismissed, and confirmed the report, when this appeal was taken by Sturges, to whom the Riley judgment had been assigned, and who alleged that the court erred in confirming the report.

      Alfred Sand and S. B. Sturges, for appellant.
    — The action of the court itself prevented the levy under the Riley writ. It should have made a special order directing a levy, and the appellant should not be made to suffer by its oversight: Irons v. McQuewan, 3 Casey 196; Batdorff v. Focht, 8 Wright 195; Bain v. Lyle, 18 P. F. Smith 60; 1 T. & H. Pract. 903, note.

      G. JR. Bedford and W. N. Gearhart, for appellee.
    — The lien of the fieri facias expired when it was returned without a levy: Commonwealth v. Magee, 8 Barr 248; Finn v. Commonwealth, 6 Id. 462; Lantz v. Worthington, 4 Id. 155.
    April 1st 1878.
   Mr. Justice Trunker

delivered the opinion of the court,

The power of the court to stay the writ has not been questioned. In the execution of such power the duty of the court to direct levy to be made and preserve the lien, during pendency of the rule, is well settled. Without special order, that the lien of the writ will continue till the return day may be conceded. The lien of a letfy will continue, pending the rule, though no order be made: Batdorff v. Focht, 8 Wright 195. In the absence of a levy, that the lien of a fieri facias continues after the return day is .unheard of in the jurisprudence of this state.

Among principles not gainsaid are these : A levy may be made by virtue of a writ of fieri facias at any time before and on its return day, but not afterwards. By levy on personalty the officer acquires a special property in the goods seized, which he may sell before or after the return day in satisfaction of his writ. Except for the purpose of detention and sale of property previously levied upon, an execution after its return day is dead. An officer making levy and sale after his writ has expired is a trespasser,'and the purchaser acquires no title: Freeman on Exrs., §106. ,The research of counsel has discovered no case where the lien of a fieri facias, without levy, did not end with the writ. How it could be otherwise is difficult to imagine. The officer can do nothing with a defunct writ but return it. No process has been devised whereby goods, which had once been subject to the lien of an execution, expired and returned, may be seized and sold in satisfaction of the lost lien. The effect of an order of court, staying an execution until after the return day, was well stated by Bell, J., in Commonwealth v. Magee, 8 Barr 240: “Its functions were thus suspended until, by lapse of time, its vitality was extinguished. Beyond the return day, its operation and vigor could only have been preserved by an actual levy; * * *■ but a levy being wanting it had no hold on the goods after the return day. Consequently, the second execution was the only effective one in the hands of the sheriff at the time of the sale of the goods.. The proceeds were therefore properly applied in satisfaction of it.” If this be a dictum and unnecessary to the decision of that case, it is an accurate expression of. the law applicable here.

The plaintiff had a right to execution of his judgment. For apparent cause, before execution issued, the court could have granted a rule and stayed execution. Pending the rule the defendant’s goods might have been seized by another creditor and the plaintiff’s judgment become worthless. In such ease no power, legal or equitable, exists to give him the proceeds of the goods. He issued execution and, for apparent cause shown to the court, rule was granted and proceedings on the writ stayed. The writ was returned, unexecuted. Afterwards the defendant’s goods were sold on another execution. The plaintiff has no better title to the proceeds than if he had been prevented from issuing execution. Such consequences should induce judges to observe the oft-repeated admonition, on staying executions, to direct levy to be made, when not done, and preserve liens.

The serious result of the mistake in staying the writ and suffering it to die, without a levy, has led the injured party to demand the money, on the ground that the court will redress the wrong done by their own act. This is urged the more because the court, when distributing a fund in their possession, will always overlook technicalities and do equity. A hardship must be distinguished from a right. If the appellant has no right to the fund no equity power can give it to him. The lien on the property, which expired Before the sheriff’s sale, gave no right to its proceeds. That the court, in the exercise of their judicial functions, struck down the’ lien, is a hardship on him; and now, to give the money to the sufferer, who thereby lost his right, would be another wrong. A court of equity may not take the money of A. to redress their own wrong done to B. With no lien upon the property at the time of sale, the appellant has no right to the fund, and, without right, has no footing in equity.

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


text:
    Commonwealth versus Morrisey.
    A school treasurer is an officer of a municipality of specific statutory creation, and is indictable under the 65th section of the Act of March 31st 1860, which provides that if any state, county, township or municipal officer charged with the collection, safe-keeping, transfer or disbursement of public moneys, should convert to his own use, or use by way of investment any such moneys, or prove a defaulter * * * every such act should be deemed an embezzlement to be punished as a misdemeanor.
    March 14th 1878.
    Before Agnew, C. J., Sharswood, Mercur, Gordon, Paxson, Woodward-and Trunkey, JJ.
    Certiorari to the Court of Quarter Sessions of Luzerne county: Of January Term 1878, No. 225.
    Indictment of Dennis Morrisey, for embezzling school funds, as treasurer and director of the school district of Lackawanna. The facts are sufficiently set forth in the opinion of this court.

      Charles P. Rice, District-Attorney, S. W. Palmer and W. PC. Grearhart, for the Commonwealth.

      Alexander Parnham, contra.
    May 6th 1878.
   Mr. Justice Woodward

delivered the opinion of the court,

At the Luzerne sessions, in September 1877, Dennis Morrisey, the defendant below, was indicted for the embezzlement of $850 of the moneys of the school district of the township of Lackawanna, of which he was treasurer. The indictment was framed under the 65th section of the Crimes Act of the 31st of March 1860, which declared that if any state, county, township or municipal officer of the Commonwealth, charged with the collection, safe-keeping, transfers or disbursement of public moneys, should convert to his own use, or use by way of investment any such moneys, or prove a defaulter, or fail to pay over the same on legal requisition by the state, county or township treasurer, or other proper officer or person authorized to demand and receive the same, every such act should be deemed an embezzlement to be punished as a misdemeanor. At the same sessions, on motion of the defendant’s counsel, and on the ground that the treasurer of a school district was not within the stautory description of a “township or municipal officer,” the indictment was quashed.

This question is well worth examination, A general rule of construction of the criminal code so narrow as that which was here applied, would strip it of half its vitality. If the action of the Quarter Sessions was warranted, the clear legislative purpose will have been thwarted by a neglect to express it adequately. In 1860, school directors and the agents they appointed, were popularly regarded as township officers, as fully as constables and supervisors were so regarded. Such officers, it is true, they were not in a strict technical sense, because they did not possess the powers conferred by law on the agents of townships as corporate bodies. But they exercised corporate powers of their own — including a taxing power which many of the citizens of the Commonwealth had learned to appreciate — over a territory co-éxtensive with the boundaries of each township. And by express enactment, school districts had been placed in precisely the same rank of municipal corporations as townships themselves. By that enactment, when the Act of 1860 was passed, officers of school districts had been made municipal officers, as literally and technically as those of any city or county in the state.

By the 1st section of the Act of the 8th of May. 1854, every township, borough and city of the Commonwealth was constituted a school district. By the 5th and 6th sections, the mode of electing directors was prescribed. By the 12th section, the school board were required to choose a president, secretary and treasurer annually. The 16th section provided that the treasurer of each district should give bond, receive all funds of the district, pay all orders of the board, settle his accounts annually, pay over the balance in his hands without delay “to his successor in office,” and generally to do and perform all acts and duties “lawfully pertaining to his office.” The 18th section declared that “the several school districts within the Commonwealth shall have capacity as bodies corporate,” to sue and be sued, and to purchase, hold, sell and convey real and personal property. The language used was identical with that of the 3d section of the Act of the 15th of April 1834, which fixed the character of counties and townships as municipal corporations. Officers of cities were not expressly included in the terms of the 65th section of the code, yet it was held in The Commonwealth v. Marcer, 29 Leg. Int. 52, that their money was protected by the statute. No doubt is entertained that a school treasurer is indictable under that section as the officer of a municipality of specific statutory creation. The cause must go back, and the defendant must take the chances of a trial.

The order quashing the indictment is reversed, and the record is remitted for further proceedings in conformity to law.