difference between hidden veins of water under the ground and water courses flowing on the surface." And again, the opinion in Wheatley v. Baugh admitted that "a subterranean stream which supplies a spring with water cannot be diverted by the proprietor above for the inere purpose of appropriating the water for his own use."

In The New Boston Coal and Mining Company ". Pottsville Water Company,' the Court refused to issue an injunction against a coal company which drained its mine into a creek, but the decision went on other grounds and the Court expressed no opinion on the merits.

Kauffinan 7. Griesemer,' and Martin v. Riddle,' recognize the principle that the volume of water in a stream may be increased by the superior riparian owner in the improvement of his land. But an act of the legislature was considered necessary to enable the owner of swampy ground to extend his drain over the land of others "in order to effect the agricultural improvement and development of his land" and this was not permitted without compensation to the person injured.'

'54 Pa. St., 164.

1 26 Pa. St., 407 (1856).

26 P. St., 415 (1848).

'The Act of Assembly reads as follows: "When the owner or owners of wet or spouty land, in this commonwealth, shall desire to improve the same for agricultural purposes, by surface or under drains, or both, and when, from any cause, it becomes necessary to extend said drains upon or over the land of other owners, in order to render them effectual, the person or persons so desiring to drain, may present a petition to the court of quarter sessions of the county wherein such land may be, setting forth the situation thereof, and the necessity for an extension of the proposed drain or drains upon or over the land of such other owners, specifying the probable extent thereof, and thereupon the said court shall appoint three judicious persons to view the proposed drain or drains; and said viewers shall view the same, and if they, or a majority of them, shall agree that there is occasion for such extension of such drain or drains, in order to effect the agricultural improvement and development of said land, they, or a majority of them, shall proceed to lay out the same, having respect to the shortest distance and the best ground for the location thereof, and in such manner as shall do the least injury to private property, and also be, as far as practicable, agreeable to the desire of the petitioners, and make report to the next term of said court of their

This "drainage act" was subsequently extended to several counties so as "to authorize the drainage and ventilating of coal and other mines, or banks, stone quarries, etc., in over or under the lands of other owners by drains, shafts, drifts or otherwise," and the anthracite coal mine act of June 30, 1885, P. L., 218, Art. IV, the bituminous coal mine acts of March 3, 1870, P. L., 3, § 4, June 30, 1885, P. L., 205, § 7, and May 15, 1893, P. L., 52, Art. IV, provide that a mine owner may make openings or outlets under, through or upon adjoining lands to meet the requirements of the statutes in regard to the ingress and egress of the employes, and the drainage and ventilation of the mine. The last-named act provides also for "a right of way not exceeding fifteen feet in width from any such opening to any public road to enable persons to gain entrance to the mine through such opening or to provide therefrom upon the surface a water-course of suitable dimensions to a natural water stream to enable the operator to discharge the water from said mine." While damages are to be assessed and paid for such right of way the act is silent upon the question of the pollution of streams, settled by Sanderson's case. The third section of the same article (IX) of this act deserves attention, which provides that where water has been allowed to accumulate in dangerous quantities and "can be tapped and set free and flow by its own gravity to any point of drainage" it shall be lawful with the approval of the inspector of the district to remove the danger by driving a drift across property lines if needful; and it is declared to be unlawful for any person to obstruct the flow of water from said mine or any part of its passage to the point of drainage.

proceedings; and said viewers, or a majority of them, shall assess·the damages on behalf of the person entitled thereto, if any, in their opinion, will ensue from such extension, and report the same, together with a plot or draft of the drain or drains by them laid out, specifying also whether the same shall be surface or under-drains.”• Act of April 4, 1863. P. L., 293. It may be that this act is unconstitutional. See Rutherford's Case, 73 Pa. St., 82, on the similar Act of May 9, 1871, P. L...., 263.

E. g., Act February 18, 1870, P. L., 197; March 10, 1871, P. Lạ, 318; May 19, 1871, P. L., 987; March 9, 1872, P. L., 303.

No damages are directed to be assessed by this section. Let us turn now to the English cases upon the subject decided prior to Sanderson's case.

Hodgkinson v. Ennor' was decided by COCKBURN, C. J., BLACKBURN and MELlor, JJ. The plaintiff was a paper manufacturer on the banks of a stream which had its source in a cavern at the foot of a hill. The owner of the land on the summit of the hill, and, therefore, above the cavern, erected certain works for the manufacture of lead which he obtained from his land. The water, fouled in the process of manufacture, passed from the pits in which it was used through drains into what were known as “swallets”—i. e., fissures or rents immemorially existing in the limestone rock of which the hill was composed. Through these fissures the water found its way into the cavern, and so polluted the stream to the detriment of the plaintiff, who was held entitled to judgment. Indeed, the Court did not hesitate to compare the case to Tenant v. Goldwin (an action for damages caused by the non-repair of a privy well), and to quote the remark there made, “he whose dirt it is must keep it that it may not trespass." In Hodgkinson v. Ennor it appears singularly enough that the lead existed in the defendant's land in the shape of minute particles and bits of ore which had "before the time of living memory" been brought there from distant parts to be smelted—the soil practically representing the debris of an ancient manufactory. So that it might be queried whether the lead was "naturally" in the soil and its mining a natural use in the phraseology adopted in Sanderson's

case.

Bainbridge on Mines says of this case, Hodgkinson v. Ennor, in the third edition of the work, page 88: "If this judgment be correct and be strictly applied, it would follow that a mine owner in the proper exercise of his right might, in some cases, withdraw the whole of the water arising

14 Best & Smith, 229 (1863).

1 Salk., 360.

from springs, but that he could not disturb it by pollution." But this passage seems to be omitted in the fourth edition.'

In Magor v. Chadwick' the suit was by a brewer against a miner for fouling the stream the water of which was used in the brewery. It appeared that the stream had its source in an abandoned level made for the purpose of mining at some remote period. The water issuing therefrom was pure and passed by a distinct.water-course over the plaintiff's land, and the plaintiff had had continued and uninterrupted enjoyment of the water in its pure state for thirty-six years. The defendant reopened the ancient mine and the water was drained therefrom into the old level and fouled the water of the stream. The trial judge left the question to the jury whether the evidence proved the existence of an alleged custom in Cornwall authorizing a mine owner to resume such use of an "adit" or level after an. abandonment of twenty years, and ruled that in the absence of such custom a riparian owner using the artificial stream for twenty years acquired the same right as in a natural stream. A rule for a new trial was discharged, DENMAN, C. J., delivering the opinion of the court.

In Pennington v. Brinsop Hall Coal Co.,3 the plaintiff had for upward of forty years used the water of a brook to supply their engines and for general use in their mill. They claimed a right as riparian owners and also by prescription so to use the water. The defendants were the owners of a colliery adjoining the brook about two and a half miles. above the plaintiff's mill, and they habitually pumped the water from the mine into the brook. This water contained sulphuric acid and other impurities which corroded and destroyed the plaintiff's boilers and machinery, causing considerable damage. The claim made by defendants as riparian owners and as entitled by prescription to enjoy the water of the stream in its natural purity was not denied by the defendants, who alleged that as matter of fact the

'L. R., 5, Ch. Div., 769; S. C., 37, L. T. N. S., 149.

injury was not caused by their operations but by other causes, and further that at most damages should be awarded but not an injunction, the effect of which would be to close their colliery. The report states that the defendants claimed a right to continue to pump the mine-water into the brook, and that even if their mines were closed in obedience to an injunction, the water would ultimately find its way by natural channels into the brook and pollute it as much as ever. They further alleged that the colliery employed 500 men, who would be thrown out of work if the colliery were closed, and that the entire capital stock of the coal company, amounting to £190,000, would be lost, whereas the damage to the plaintiff's boilers did not amount to 100 a year. The court awarded an injunction.

While this case was relied upon by Justice WOODWARD in the first opinion rendered in Sanderson v. The Coal Company, it was strongly urged in 113 Pa. St. that, as the plaintiff's prescriptive rights were admitted, and the question debated was whether an injunction or damages should be awarded, the case decided nothing on the question raised in Sanderson's case, and was not authority. This view was adopted by the Supreme Court, Justice CLARK holding that the right of a riparian owner was neither discussed nor decided. Careful consideration of this case and the other English authorities constrains the writer, contrary to his first impression, to believe that this case did not discuss or decide the question merely for the reason that the question was not considered doubtful.'

(The Rivers Pollution Prevention Act of 39 and 40 Vict., C. 75. 5; 1876) provided in reference to mining pollutions that every person who causes to flow into a stream any poisonous, noxious, or polluting solid or liquid matter proceeding from any mine other than water in the same condition as that in which it has been drained or raised from such mine shall be deemed to have committed an offence against said act, unless in the case of poisonous, noxious or polluting matter, he shows to the satisfaction of the court having cognizance of the case that he is using the best prac ticable and reasonable available means to render harmless the poisonous, noxious and polluting matter so falling, or flowing, or carried into the stream.

The act provides for summary remedies by injunction and penalties for default, and further, that nothing in said act shall legalize any act or