Urich's Appeal.

George W. Biddle, Josiah Funck and H. Van Reed, for appellants. 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 Ins. and Trust Co. v. Chambers, 10 Wright, 490; Anderson v. Jackson, 16 Johns. 388. 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, 437.

Amos B. Wanner and W. H. Livingood, for appellees.

AGNEW, C. J. 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. 550, 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 skillful 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 $4,300 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

Urich's Appeal.

divided equally among the five children, John, Catharine, Sarah, Polly and Harriet, excepting additional to Polly and Sarah, $909 and $1,000. It is thus evident that the charge of $4,300 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 incumber 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 life-time."

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 be 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 incumbrance. Why shall they not alien or incumber? 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

Urich's Appeal.

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 profit of the said lands and farms during their life-time." Here we have two express declarations of intent: 1. The subject of the children's devise is clearly defined - the precise interest of a lifetenant 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 life-time." 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 incumber, 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.

Sanderson v. The Pennsylvania Coal Company.

Our former decison 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.

Appeal dismissed.

SANDERSON V. THE PENNSYLVANIA COAL COMPANY.

(86 Penn. St. 401.)

Nuisance-corruption of water-course.

The plaintiff purchased a tract of land in the coal region, and erected a resi dence upon it. A leading inducement to the purchase was a pure mountain stream of water running through the land. The plaintiff constructed a pond for fish and ice upon it, and from it supplied a cistern, a ram, and a tank in the attic of his house. Subsequently defendants opened a colliery on the stream two miles above, which corrupted the water and spoiled it for plaintiff's uses, killed fish and shrubbery, corroded the pipes and compelled plaintiff's abandonment of the water. Held, that plaintiff had a right of action therefor, and that a nonsuit was error.*

RESPASS. The opinion states the facts. Plaintiff was nonsuited.

TREES

A. Ricketts, for plaintiff in error.

error.

Henry M. Hoyt and Andrew T. McClintock, for defendant in 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; Mahan v. Brown, 13 Wend. 261; B. R. & A. Water and Mining Co. v. N. Y. Mining Co., 3 Cal. 327; Broadbent v. Ramsbotham, 11 Ex. 602; Acton v. Blundell, 12 M. & W. 324; Chasemore v. Richards, 2 Hurl. & Norm. 168; Greenleaf v. Francis, 18 Pick. 117; New River Co.

* See Jacobs v. Allard (42 Vt. 308), 1 Am. Rep. 331; Richmond Mf. Co. v. Allaube De Laine Co. (10 R. I. 106), 14 Am. Rep. 658; Washburn v. Gilman (64 Me. 163), 18 Am. Rep. 246. As to nuisance by brick burning, see Huckinstine's Appeal (70 Penn. St. 102), 10 Am. Rep. 669; Campbell v. Seaman (63 N. Y. 568), 20 Am. Rep. 567, and note, 580; by jarring of machinery, McKeon v. See (51 N. Y. 300), 10 Am. Rep. 659; by cooking range, Grad »" Walsner (46 Ala. 381), 7 Am. Rep. 593.

Sanderson v. The Pennsylvania Coal Company.

v. Johnson, 2 E. & E. 435; Kauffman v. Griesemer, 2 Casey, 407; Martin v. Riddle, id. 415.

WOODWARD, J. 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. Sanderson, who traced it to its source. It appears from his testimony that the existence of the 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 afterward 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, but the drift and shaft collected it in such volume, and the mining