Rainey vs. Johnson.

Mountain Coal & Iron Company vs. Gorrell, 9 Phila., 247. But the right of an upper land owner to discharge water on the lower lands of his neighbor is in general a right of flowage only in the natural ways and in natural quantities. If he alters the natural conditions so as to change the course of the water, or concentrates it at a particular point, or by artificial means increases its volume, he becomes liable for any injury caused thereby. It is not to be lost sight of that one man's right to injure another's land is an exception, as in Pennsylvania Coal Company vs. Sanderson, 113 Pa., 126, and this exception is founded on necessity, because otherwise he would himself be deprived of the beneficial use and enjoyment of his own land; and unless that would be the substantial result of forbidding his action, he is not within the immunity of any of the cases. Pfeiffer vs. Brown, 165 Pa., 267. “While land on a lower level is under a natural servitude to that located above it, to receive the water flowing down to it naturally, and therefore injuries to the lower proprietor caused by the natural flow of the water from higher land is damnum absque injuria, when one of two adjoining mine owners conducts water into his neighbor's mine, which would not otherwise go there, or causes it to flow at different times and in greater quantities than it would naturally flow, by the breaking down or removal of a barrier, natural or otherwise, he is liable for the ensuing damages." 27 Cyc., 784. The owner of a mine has a right to mine his coal in any ordinary and reasonable way, so long as that does no injury more than that which necessarily arises by removal of the coal, and such incidents as flow directly from such use, as in the case of subterranean water percolating through the coal, or in cases of subterranean springs where the mere removal of the coal may cause the water to collect and flow toward or upon lower mines which might or would not otherwise do so. But it is otherwise where the mining is done in such a manner as to introduce foreign water from the surface or higher level, by reason of the roof falling in, and thus introducing water from the surface which would not have flowed in if the roof of the mine had remained undisturbed and compact after the coal was removed. In other words the owner of the upper mine is not liable for water which flows in from percolation or gravitation, simply by reason of the excavation or removal of the coal. But whatever water arises from the breaking in of the roof and the consequent sinking or disturbance of the surface, thus occasioning an additional flow from above which otherwise would not have run in or upon the lower owner. This is the general rule without reference to actual negligence or want of skill on the part of the higher owner. Horner vs. Watson, 79 Pa., 242. Surely, then, an upper mine owner has no legal right to drill a hole through an intervening natural barrier for the very purpose of draining the water out of his mine into the mine of a lower owner in order to get rid of it. And in this respect it can make no difference whether the one mine is vertically above the other or merely on a higher level beside or near it. We therefore reach the following conclusions of law:

1. The acts of the defendants sought to be restrained, if permitted, would constitute a continuous trespass.

2. The proposed acts of the defendants should be restrained by injunction.

And now, December 31, 1915, for the reasons stated in the opinion herewith filed, the preliminary injunction heretofore awarded is made permanent, and it is ordered that the defendants pay the costs of this proceeding; this decree to be entered nisi according to rule.

Foreign Attachment

Panarella vs. Sims et al.

-Partner-Firm Debt

-Garnishee.

A motion to quash a writ of foreign attachment may be amended prior to argument on the rule as to affidavit of place of residence.

While an attachment against one partner will not bind the garnishee, who owes the partnership a debt, the fact that garnishee refuses to pay on account of the service of the writ, is no ground for quashing the writ, as this is not the fault of the plaintiff.

Sur Rule to Show Cause Why the Writ of Foreign Attachment Should Not Be Quashed. No. 136 April Term, 1916. C. P. Allegheny County.

Charles P. Lang, for plaintiff.

Charles A. Woods, for petitioners d. b. e.

Patterson, Crawford, Miller & Arensberg, for garnishee.

SHAFER, P. J., February 1, 1916.-The praecipe in this case is for a writ of foreign attachment against Timothy Dailey, a non resident of the State of Pennsylvania, and a summons against Charles A. Sims, a resident of the City of Philadelphia. The affidavit of claim is against the two defendants for a partnership debt and alleges that the defendant Dailey resides in the State of New Jersey. It is not alleged in this affidavit that Dailey was not in the County of Allegheny at the time of issuing the writ.

The defendant now moves the Court to quash the writ of foreign attachment for two reasons: First, because the affidavit does not allege that the defendant Dailey was not in the County of Allegheny at the time of issuing the writ. Second, because a debt of the partnership cannot be attached on a writ of foreign attachment against Dailey alone.

It appears from the petition and answer that the foreign attachment against Dailey has been served on the Pennsylvania Railroad Company, which company, it is said to owe centain moneys to the firm of Sims & Dailey. It is not claimed that Dailey was in fact in the County of Allegheny at the time of the issuing of the writ.

In answer to the petition to quash and before the cause was called for argument, the plaintiff filed an affidavit in which he alleged that Dailey was not in the County of Allegheny at the time the writ issued.

The first question, therefore, is whether the omission of the plaintiff to allege the absence of Dailey from the County in his original affidavit is fatal to his writ. Under the decision of the Superior Court in the case of Hallowell vs. Tenney Canning Co., 16 Superior Court, 60, the plaintiff might have filed an amendment to his affidavit before the case was called for argument setting forth the matter omitted, and the Court would have been obliged to treat the amendment as a part of the affidavit to support the writ. While this was not done in this form, we are of opinion that the affidavit filed in answer to the rule ought to be treated as such an amendment.

As to the second reason alleged that nothing could be attached in the hands of the garnishee except debts owing to Dailey himself, and that the partnership's debts to the firm of Sims & Dailey were not bound by the attachment, there would seem to be no doubt under the opinion in the case of White vs. Schnebly, 10 Watts, 217, that a debt owing from the garnishee to the firm of Sims & Dailey is not bound by the attachment. It is no ground, however, for quashing the writ of attachment that the garnishee or garnishees, served by the sheriff, have nothing in their hands. If, as is alleged to be the fact here, the garnishee declines to pay the firm a debt owing to it, because of the service of the attachment against one of the members, of the firm, the remedy of the plaintiff is not the quashing of the attachment, which may take affect as to debts owing to Dailey personally, or may be

Panarella vs. Sims et al.

served on other garnishees. If the garnishee withholds payments to the defendants which it ought to make, that is not the fault of the plaintiff. The rule is therefore discharged.

Brownlee vs. Brownlee.

Divorce-Service-Acceptance of Residence.

A divorce will be refused where the respondent accepted service of the notice of the hearing before a master. Every step in a divorce proceeding must be adverse and the acceptance of service will be taken as evidence of collusion.

A divorce will be refused where the evidence shows that the libellant had not resided in the State of Pennsylvania for one year immediately prior to the filing of the libel in divorce, as provided by the Act of March 15, 1815, 6 Sm. L., 286.

In Divorce. No. 601 April Term, 1914. C. P. Allegheny County

William McDowell, for libellant.

EVANS, J., January 5, 1916.—There are two reasons why this divorce cannot be granted at the present time; one a defect in the proceedings, and the other a bar to divorce on the libel as filed. We have had occasion many times to call attention to the fact that every step in the proceedings in divorce must be adverse, and that the acceptance of service of either the subpoena or the Master's notice of the hearing would be taken as evidence of collusion. The respondent accepted service of the notice of the Master of his hearing in this case, and for that reason the proceedings following that were irregular. But that is not important in this case for the reason that the evidence shows that the libellant had not resided in the State of Pennsylvania for one year immediately prior to the filing of his libel in divorce. The eleventh section of the Act of March 15th, 1815, 6 Sm. Laws, 286, provides: "And be it further enacted by the authority aforesaid, That no person shall be entitled to a divorce from the bond of matrimony by virtue of this act who is not a citizen of this State, and who shall not have resided therein at least one whole year previous to the filing of his or her petition or libel."

From the evidence, this libellant had resided in the State of Minnesota for about a year and a half, but only two months in this State prior to the filing of his libel in divorce.

ORDER.

And now, January 5, 1916, the libel in the above entitled case is dismissed.

Divorce

Chantmerle vs. Chantmerle.

Indignities—Testimony-Allegations in Libel—Service of Notice

by Attorney for Libellant.

Where a divorce is asked for on the ground of indignities to the person, the necessity of the withdrawal from the house and family of the respondent is one of the incidents of this charge, and where the testimony of libellant shows that she did not leave her husband but that he left her and there is no indication in her testimony that his conduct towards her was such as she felt would justify her leaving him, a divorce will be refused.

The service of the notice of the hearing before the master by the attorney for libellant, is not the proper practice.

In Divorce. No. 327 October Term, 1915. C. P. Allegheny County

S. H. Huselton, for libellant.

EVANS, J., January 7, 1916.-The grounds for divorce as set forth in the libel are that the respondent "offered such indignities to the person of this libellant as to render her condition intolerable and life burdensome, and by such cruel and barbarous treatment endangered her life, thereby forcing her to withdraw from his home and family." The necessity of the withdrawal from the house and family of the respondent is one of the incidents of indignities to the person. We might so consider the allegation of the libel, although it is not very aptly stated. The Master is of the opinion that the testimony shows sufficient acts on the part of the respondent to justify his finding that he did offer such indignities to the person of the libellant as to justify the granting of the divorce. I sincerely doubt the finding of that fact. The statements of facts on the part of the libellant are very loose, indefinite, and usually made after very leading questions on the part of her counsel. But, however, that may be, a decree in divorce cannot be granted in this case for the reason that on the testimony of the libellant herself she did not leave her husband but he left her. There was no indication on her part at the time of the separation that she intended to leave him; there is no indication in her testimony that his conduct towards her was such as she felt would justify her leaving him; and, as I stated, her own testimony is that she came home from work, and they were living together, without any intent on her part to leave him, and that he had left the common abode and went to his mother's and never came back. There is another thing to which attention ought to be called in this case; the notice of the Master's hearing was served on the respondent by the attorney for the libellant. We have had occasions heretofore to disprove of such acts on the part of counsel for libellant. We have refused the divorce because the attorney for the libellant, acting as a notary public, had taken the affidavit to the libel. The service of the notice of the Master's hearing by attorney for libellant is not the proper practice, but our refusal to grant this divorce is for another

reason.

ORDER.

And now, January 7th, 1916, decree in divorce in the above entitled case is refused.

Menzamer vs. Glukoff.

Broker Commission- -Procuring Cause—Appeal From County to Common Pleas Court-Questions of Fact.

Plaintiff in a suit to recover commissions for leasing real estate will not be permitted to recover where the testimony shows that he was not the procuring cause of the signing of the lease.

In all cases of appeal where a question of fact is involved, an appeal should not be allowed unless the court is satisfied that the conclusion reached by the trial judge in the County Court is against the weight of the evidence.

In re Rule Ex Parte Plaintiff to Show Cause Why an Appeal Should Not Be Allowed From the Judgment of the County Court. No. 1840 January Term, 1916. C. P. Allegheny County.

Leitch & Adelman, for plaintiff.

H. V. Blaxter, for defendant.

DAVIS, J., January 14, 1916.-The question of fact involved in this case was whether or not the plaintiff had been employed as an agent and was the procuring cause of the leasing of certain premises between the defendant and the Enterprise Amusement Company. The determination of this question of fact depends entirely upon the undisputed testimony of Michael Glukoff, the defendant.

An examination of the testimony in the case shows that in January, 1913, the plaintiff and the defendant and a Mr. Harris had met and had in consideration the renting of certain premises to the Enterprise Amusement Company; that at that time the defendant was not the owner of the premises; and that no agreement was entered into for the reason that no terms could be arranged satisfactorily between the parties.

It appears from the testimony of the defendant that subsequently the owner of the premises reduced the price and the purchase was made by the defendant; that he then proceeded to erect a building on the premises and rented it to another company; that the other company finally gave up the premises, the defendant returning $1,500 that had been paid on account of the lease; and that in November, 1913, through a Mr. McKnight of the Western Bank, the Enterprise Amusement Company and the defendant were brought together and the lease entered into between the defendant and the said Enterprise Amusement Company for five years.

It is evident from this testimony that the matter of the purchase of the property and the leasing of the same in January, 1913, was entirely ended and that the plaintiff was not the procuring cause of the lease entered into in November, 1913, between the defendant and the Enterprise Amusement Company. This conclusion was evidently reached by the Trial Judge in the County Court.

In all cases of appeal where a question of fact is involved, we are of the opinion that an appeal should not be allowed unless we are satisfied that the conclusion reached by the Trial Judge is against the weight of the evidence.

This case depends entirely upon the credibility given to the uncontradicted testimony of the defendant, and the Trial Judge should not be reversed unless we are satisfied that on submission of the question of fact to a jury a different conclusion will be reached. In this case we are not convinced that a jury will probably arrive at a different conclusion in relation to the question of fact involved.

ORDER.

And now, January 14, 1916, upon due consideration, the rule for appeal in this case is discharged.