deeds are consistent with the claim that the alley was a public alley.

3. Act April 5, 1849, declaring it unlawful to open a public street or alley through a cemetery, does not prevent one who has laid out a cemetery from dedicating a strip along the edge of it, which he still owns, for a public alley; it not having the effect of abridging or interfering with the rights of parties to whom lots had already been sold.

4. Nor does that act give to a cemetery company, acquiring land separated from the cemetery by a public alley, the right to close it.

Appeal from court of common pleas, Clearfield county; David L. Krebs, Judge.

Suit by the Dubois Cemetery Company against G. L. Griffin, burgess, and J. F. Brady and others, members of the town council of Dubois borough, to enjoin the opening of an alley. Decree for defendants, and plaintiff appeals. Reversed.

Thomas H. Murray, for appellant. Allison O. Smith and Geo. A. Lukehart, for appellees.

MCCOLLUM, J. If John Rumbarger, in the exercise of his lawful right, laid out and opened on the strip of land in dispute a street or alley for public use, and the municipality accepted and maintained it for the use to which he dedicated it, no one will contend that he could thereafter exclude the public from it, and appropriate it to a use destructive of or inconsistent with the dedication. What he could not do in this respect the appellant cannot do, because it has no greater right in the alley than he had after the dedication and acceptance. Its rights in the subject of this litigation are such as its grantors acquired by the deed of April 26, 1890, from Rumbarger's executor, and the deed of May 15, 1890, from Henry Prothero. These rights, These rights, by virtue of their deed of August 7, 1890, passed to the appellant; but, as the grantors owned 48/50 of the capital stock of the corporation, there is no room for a contention that the grantee has rights in the disputed territory which they did not have under the above-mentioned deeds to them. The boundaries called for by the deed of April 26th and the deed of May 15th are in exact accord with the appellees' contention. The former calls for an alley on the northern side of the cemetery plot between Main street and State street, over the land in dispute; and the latter adopts the description in the deed of May 25, 1880, from Rumbarger to W. N. Prothero, who conveyed to Henry Prothero on the 28th of March, 1881. This description does not include any portion of the cemetery lot, but it makes a line of that lot a boundary of the Prothero lot. This boundary is where the rail fence was when the deed was made to W. N. Prothero, and is 25 feet from the picket fence afterwards built by Rumbarger. The strip of land between this boundary and the picket fence is not included in Rumbarger's deed to Prothero, or in his executor's deed to the appellant's grantors. These deeds, however, are consistent with the claim that it is a public street or alley. It seems to us, there

fore, that the controlling questions are whether there was a dedication of it to public use by Rumbarger, and, if so, whether there was an acceptance of such dedication by the municipality. The learned court below, in an opinion manifestly founded upon a careful consideration of the testimony and the law applicable to it, answered these questions affirmatively. In the findings and conclusions in reference to the dedication and acceptance of the alley the court disagreed with the master, and it is urged that the findings of the latter should prevail, on the ground that he bad better opportunity to judge of the credibility of the witnesses and the weight of the testimony than was allowed to the former. The disagreement between the court and the master on the fundamental question in the case was this: The master thought that the acts and declarations of Rumbarger, as related by the defendants' witnesses, were not sufficient to establish a dedication, while the court thought they were sufficient for that purpose, and called for a finding that a dedication was made as claimed. It will thus be seen that the disagreement related to the ef fect of the acts and declarations, and did not involve the question whether the acts were performed and the declarations were made is alleged. We think it will be conceded that the court was quite as competent to pass upon their effect as the master was. The next disagreement we note between the court and master, on an important question in the case, relates to the alleged acceptance of the alley by the municipality. The master thought "the weight of the evidence" showed that there was no acceptance, while the court thought the acceptance of it was established "by the preponderance of the testimony in the case before the master." We have carefully examined and considered all the evidence affecting these disagreements, and are convinced that the findings of the court in reference to the dedication of the alley by Rumbarger and the acceptance of it by the municipality are warranted and sustained by the decided preponderance of it. We do not deem it necessary to embody the evidence or any part of it in this opinion. It consists of the declarations of Rumbarger showing his purpose to establish on the land now in dispute a street or alley for public use, of his acts in execution of his purpose, and of the acts of the municipal authorities evincing their acceptance of the alley for the use to which he dedicated it. That Rumbarger opened an alley upon the land in dispute, at least seven years before his executor conveyed the cemetery property to the appellant, appears to be conceded; and the principal contention of the latter in reference to it is that he opened it for his own convenience, or for the convenience of the persons to whom he might sell lots adjoining it, and not for public use. But this contention is sufficiently answered, we think, by his declarations from time to time showing his purpose iu es

tablishing it, and by his applications to the borough authorities to put and keep it in order. It is manifest, from what he said and did, that after it was opened he considered he had no further control of it, and that the duty of maintaining it was on the borough. The work upon it from that time until it was closed by the appellant was done by the borough, and this is sufficient evidence of an acceptance of it by the latter as a public alley or street. For the reasons stated by the learned judge of the court below we concur in his conclusion that Rumbarger's dedication of the alley to public use was not an abridgment of or interference with the rights of the parties to whom he had sold lots in the ceme tery, nor in violation of Act April 5, 1849, which declares that "it shall not be lawful to open any street, lane, alley, or public road through any burial ground or cemetery within this commonwealth." In accordance with the views we have expressed, we overrule the specifications of error, and hold that the appellant cannot close the alley, dedicated and accepted as aforesaid, against the appellees or the public. Decree affirmed, and appeal dismissed, at the cost of the appellant.

BARTLEY et al. v. PHILLIPS. (Supreme Court of Pennsylvania. Jan. 7, 1895.) EJECTMENT-COMPULSORY NONSUIT EVIDENCE.

1. In ejectment by grantees in an unexpired oil lease, where plaintiffs deny intention to abandon it, and prove the lease to them and entry under it, and the putting down of a well, and defendant admits title in the lessor, the fact that plaintiffs also give evidence of abandonment of their possession will not support a compulsory nonsuit.

2. In ejectment by grantees in an oil lease, which provides that the lessees shall begin work within 30 days, and that the work, when com-. menced, shall be prosecuted with due diligence until completion or abandonment, but which does not define due diligence, parol evidence of the agreement of the parties as to due diligence and abandonment is admissible.

3. In ejectment by grantees in an oil lease against a mere squatter, where plaintiffs establish a prima facie case, defendant cannot avail himself of plaintiffs' want of due diligence in prosecuting work, as required by the lease, and abandonment.

Appeal from court of common pleas, Butler county; John M. Greer, Judge.

Action of ejectment by W. E. Bartley and others against Thomas W. Phillips and W. V. Hardman to recover possession of premises leased to plaintiffs by J. A. Hartzell for oil purposes. Defendant Hardman filed a disclaimer. From a judgment of compulsory nonsuit, plaintiffs appeal. Reversed.

The lease held by the plaintiffs was for the term of 10 years, from September 8, 1888. By the terms of the contract, the plaintiffs were to commence operations for mining purposes within 30 days from the execution of the lease, and, when work was commenced, it was to be prosecuted with due diligence until

completion or abandonment. The plaintiffs commenced operations upon the land within 15 days after the execution of the lease, and drilled a well, finishing it the latter part of October, 1888, at an expense of from $2,500 to $3,000. The well was a failure. The plaintiffs then, in January or February, 1889, took their materials off the property.

Lev. McQuistion, W. A. Forquer, and T. C. and Thompson & Son, for appellee. Campbell, for appellants. Clarence Walker

MITCHELL, J. Plaintiffs offered in evidence their abstract, whereupon defendants admitted title in Hartzell. Plaintiffs then proved the lease by Hartzell to them, their entry under it, and the putting down of one well. They thus made out a complete prima facie case, which called on defendants to show a better title. But it is said, and the court below appears to have adopted this view, that plaintiffs went further, and gave evidence of an abandonment of their possession. This, however, will not support a compulsory nonsuit. Abandonment is a mixed question of acts and intention, and therefore is ordinarily for the jury, and there is nothing in tlfis case to take it out of the rule, for the abandonment was denied in plaintiffs' ab stract, and was therefore incumbent on defendants to prove before they could avail themselves of it. Whether the evidence on the part of plaintiffs showed an abandonment by them did not depend exclusively on the length of time that operations had ceased, but also on the intention, and that again was largely dependent on the agreement and understanding of the parties. The plaintiffs denied the intention, and the court, therefore, could not declare the abandonment as a matter of law, but should have left it as a fact to the jury.

The plaintiffs further offered evidence by Burton and Hartzell to show the agreement of the parties as to due diligence and abandonment. This should have been admitted. It was not in any sense an attempt to modify or alter a written contract. The lease provided that the work, when commenced, should "be prosecuted with due diligence until completion or abandonment"; but what should constitute due diligence was a question of fact, on which the parties might agree, either at the time or afterwards, and, if they did, then neither court nor jury had any right to adopt a different standard. If due diligence had been defined in the writing, no pre tense of such right could have been set up. But parol proof of the understanding and agreement of both parties was just as effective as a writing, for it went not to a construction of the paper, but to the definition of a fact referred to. Whether any such understanding not expressed in the paper would affect others, subsequently acquiring rights from one of the parties, without notice, we need not consider, for there is no evidence

that any such others are before us. The case was not allowed to get that far.

But the nonsuit was erroneous for another reason. Even if there had been a want of due diligence and an abandonment by plaintiffs, no one could take advantage of it but the lessor or one succeeding to his rights, and there was no such party yet in the case. far as the evidence showed, defendants had neither Hartzell's title nor any other beyond that of mere squatters. As against them, plaintiffs, as already shown, had made out a prima facie case. The error of the appellees, and apparently of the court below, was in regarding the estate of plaintiffs under the lease as terminated ipso facto by the failure in diligence or the abandonment. But it required the act of the lessor. Repeated decisions of this court, from Wills v. Gas Co., 130 Pa. St. 222, 18 Atl. 721, to Cochran v. Pew, 159 Pa. St. 184, 28 Atl. 219, have established that the clause of forfeiture or termination of the estate is for his benefit, and no act of the lessee can produce that result without his concurrence. Still less can any action of a stranger enforce it. As against any but the grantor, an abandonment is not complete until the statutory period of limitation, or the end of the term granted, and possession may be resumed by the grantee at any time previous. There is nothing in the cases citedMunroe v. Armstrong, 96 Pa. St. 307, and Oil Co. v. Fretts, 152 Pa. St. 451, 25 Atl. 732-in | conflict with these views. In the former the lessor had expressly declared the forfeiture, and made a new lease to the plaintiff; and in the latter he had asserted it by implication by a new lease to parties who defended under his title.

But it is said that appellees here defend under Hartzell's title, and that their ab stract shows the fact. The abstract, however, was not in evidence, as it should have been if relied on for affirmative proof. The practice in the analogous case of statements and affidavits of defense which, under rule of court, are to be taken as admissions of all material facts not denied therein, is shown in Neely v. Bair, 144 Pa. St. 250, 22 Atl. 673. The respective abstracts of title in ejectment filed by the parties under the rule of court in the present case stand upon the same basis, having the same object, as stated by the present chief justice in Neely v. Bair,-to narrow the trial down to material matters which are really disputed. The defendants may be in possession under Hartzell's title, and the case therefore analogous to Oil Co. v. Fretts, but it has not yet been shown to be so. The issue was determined prematurely. Judgment reversed, and procedendo awarded.

CAMERON v. COY. (Supreme Court of Pennsylvania. Jan. 7, 1895.) ESTOPPEL-ACCEPTANCE OF BENEFITS.

The owner of land, who had a son and three daughters, devised it to the son in fee,

and directed that if either the son or M., a the daughter, should die, "leaving no issue, three survivors of the four should share equally. M. released to the son her interest, after which he died without issue. The orphans' court sold the land as a fee simple, and the sisters accepted part of the purchase money. Held, that the sisters were estopped to question the purchaser's title.

Appeal from court of common pleas, Indiana county.

Amicable action in assumpsit by John G. Cameron against George A. Coy on a contract for the sale of certain real estate by plaintiff to defendant. From a judgment for plaintiff, defendant appeals. Affirmed.

The land in question was previously owned by James Simpson, who devised it to his son, Hugh, and other land to his daughter Martha. He died leaving Hugh, Martha, and two other married daughters surviving him. On the death of Hugh without issue, the land was sold to plaintiff by the orphans' court to make assets. Defendant claimed that plaintiff did not have, and could not convey, a feesimple title.

J N. Banks, for appellant. J. N. Langham, for appellee.

MITCHELL,J. The rule which was adopted by our earlier cases from the English authorities, and perhaps may still be called the general rule, is that the words, "die without leaving issue," presumably refer to an indefinite failure of issue, but this presumption will yield to a contrary intent apparent from the whole will. Middleswarth's Adm'r v. Blackmore, 74 Pa. St. 414. And this court has frequently said, with great emphasis, that it is the testator's actual intent that must govern, and where that is clear all technical rules of construction must give way to it. Reck's Appeal, 78 Pa. St. 435; Woelpper's Appeal, 126 Pa. St. 562, 17 Atl. 870. The testator here devised to his son, Hugh, describing no estate, and therefore, under the statute, giving him a fee. But in a later part of the will he declared that "if either Hugh or Martha should die, leaving no issue, then their estates shall descend, equal shares alike, to the two married sisters and Hugh or Martha, or survivors; that is, the three survivors of the four shall have equal shares, alike, of said estate or estates." If it were open to question here, there would not be much difficulty in reaching the conclusion that the testator had in mind a definite failure of issue, to wit, at the time of Hugh's or Martha's death, and that upon the happening of such contingency, by the death of Hugh, his estate was defeated by the coming into existence of the devise over to the three surviving sisters. But there is no one entitled to raise that question. During the lifetime of Hugh, Martha released to him all her interest in the land. The devise, as to her third, therefore, united with his estate, whatever that may have been. The devise, as to the other two-thirds, remained in the other sisters; but when Hugh

died, and the orphans' court proceeded to sell his land as a fee simple, the two sisters ratlfied that assertion of Hugh's title by accepting their share of the purchase money. The plaintiff, Cameron, became the purchaser, and he bought a title in fee, presumably at its full value, as the orphans' court confirmed the sale. The sisters, as is agreed in the case stated, accepted part of the purchase money, and would thereby be equitably estopped from contesting plaintiff's title in ejectment or otherwise; and under the will of James Simpson, the common ancestor, there is no one else who can do so. Plaintiff, therefore, has shown a good title in fee, and judgment was properly entered in his favor. Judgment affirmed.

BURFORD v. FERGUS.

(Supreme Court of Pennsylvania. Jan. 7, 1895.) ACTION BY ASSIGNEE-SET-OFF-NOTICE-BURDEN OF PROOF.

In an action by an assignee of a note under seal against the maker, defendant having proved the purchase before suit brought of an overdue note of the payee of the note sued on, to defeat the rights of set-off, the burden of proving notice to defendant, at the time he bought the note, that the note sued on had been assigned to plaintiff, is on plaintiff.

Appeal from court of common pleas, Washington county.

Action by R. Burford, to use, etc., against S. P. Fergus. Judgment for defendant. Plaintiff appeals. Affirmed.

Barnett & Linn and R. W. Irwin, for appellant. A. M. Todd, for appellee.

FELL, J. The case presents but one question, and that relates to the burden of proof. The action was on a note under seal made by the defendant to the order of R. Burford, the legal plaintiff, and by him assigned to the equitable plaintiffs. The defendant before suit brought purchased the overdue note of the legal plaintiff, to the order of Town Bros., and at the trial offered it in evidence under the plea of set-off. The execution and consideration were admitted as to both notes, but it was claimed by the equitable plaintiffs that the defendant had notice of the assignment to them of the note of Burford before he purchased the note of Burford to Town Bros., which he sought to use as a set-off. In the answers to the points, and in the portion of the charge excepted to, the jury was instructed that the burden of proof was on the defendant to show that he was a bona fide holder of the Town note before suit was brought, but that the burden rested on the plaintiffs to show notice to the defendant of the assignment of his note to them before he acquired the set-off. The single question related to the burden of proof of the notice of assignment. This was a theoretical, rather than a practical, question, as the testimony was presented in a regular and orderly manner at the trial, and the jury was instructed

in a clear and well-considered charge, which covered the points of the case in the order in which they had arisen, and particular directions were given as to the preponderance of evidence which should influence their finding. The burden of establishing a fact by proof rests upon the party asserting it. It may be shifted by the pleadings, or changed in the course of the trial by the order in which the testimony is presented. When the plaintiffs put the note in evidence, with the assignment to them, they established prima facie a right of recovery against the defendant. When the defendant offered the Town note, with proof of his ownership before suit brought, he established a valid set-off. He could have rested there, as he was not bound to show more. He had answered the plaintiffs' case fully. The fact of the assignment to them did not affect the right of setoff. Proof of notice of it to the defendant before he acquired the claim used as a setoff would have done so. Proof of no notice was not required to establish the right of setoff, but proof of notice was necessary to defeat the right. The recovery sought was in the right of the legal plaintiff, and it would have been defeated in the first instance by any defense that was good as between the original parties. If the use plaintiffs had a right superior to that of the legal plaintiff, which prevented the use of the note as a set-off, it was founded upon the fact of the assignment to them, which they had proved, and upon the fact of notice to the defendant, which they had not proved. superior equity in them could arise only upon proof of the two facts necessary to establish it, the assignment and notice,-and the onus In probandi as to both rested with them. the case of Pennell v. Grubb, 13 Pa. St. 552, relied on by the appellant, the question of the burden of proof of the time of the acquisition of a cross demand by the garnishee against the defendant arose between the plaintiff in the attachment execution and the garnishee, and was held to be with the latter. The case is authority for nothing else. The service of the attachment was notice to the garnishee of the interest and equity of the plaintiff, and fixed the rights of the parties as of that date, as the service of the summons did here, and the garnishee could defend on no cause of action at that time incomplete. incomplete. The burden of showing that he had at impetration of the writ an independent cause of action rested upon the garnishee in that case, as it did upon the defendant in this. The judgment is affirmed.

A

PFEIFFER v. BROWN et al. (Supreme Court of Pennsylvania. Jan. 7, 1895.) WATER AND WATER COURSES WATER FROM OIL WELL-LIABILITY OF UPPER TO LOWER LANDOWNER.

1. Where an upper landowner, by drilling a well and pumping, increases the aggregate

quantity of water discharged, and changes its character from fresh to salt, whereby it becomes more injurious to the lower land, he is liable to the owner of the latter for such injuries, unless he could not prevent the injury by reasonable care and expenditure, though such water is discharged in the lawful use of his land.

2. Where the expense of preventing the damage is small in proportion to the gain to the upper landowner by his act, it is reasonable in regard to the lower owner's rights, however, large it may be in actual amount, and he should pay it, or respond in damages.

Appeal from court of common pleas, Butler county; John M. Greer, Judge.

Action of trespass by Catharine Pfeiffer against John L. Brown and others, to recover damages caused by turning salt water from defendants' oil well on plaintiff's adjoining land. From a judgment for defendants, plaintiff appeals. Reversed.

W. H. Lusk, for appellant. W. D. Brandon, for appellees.

MITCHELL, J. The right of the upper landowner to discharge water on the lower lands of his neighbor is, in general, a right of flowage only, in the natural ways and natural quantities. If he alters the natural conditions so as to change the course of the water, or concentrate it at a particular point, or by artificial means to increase its volume, he becomes liable for any injury caused thereby. Add. Torts (Ed. 1891) § 283. In the present case the defendants, by drilling a well and pumping, increased the aggregate quantity of water discharged, concentrated it at an artificial point of flow, and changed its character from fresh to salt, whereby it became more injurious to plaintiff's land. Prima facie, therefore, they were liable in this action, and the burden of proof was on them to show some reason why the general rule should not apply. This they endeavored to do by the claim that the water was discharged in the lawful and proper use of their own land. The exception is well established, and is thus expressed in the strongest authority in its favor (Coal Co. v. Sanderson, 113 Pa. St. 126, 6 Atl. 453): "Every man has the right to the natural use and enjoyment of his own property, and if, while lawfully in such use and enjoyment without negligence, an unavoidable loss occurs to his neighbor, it is damnum absque injuria." But this, as was shown in Collins v. Chartiers Val. Gas Co., 131 Pa. St. 143, 18 Atl. 1012, does not go beyond proper use and unavoidable damage. It was accordingly said in the latter case that "the use which inflicts the damage must be natural, proper, and free from negligence, and the damage unavoidable. *

Hence the practical inquiry is-First, whether the damage was necessary and unavoidable; secondly, if not, was it sufficiently obvious to have been foreseen, and also preventable by reasonable care and expenditure." This brings us to the consideration of what is meant by "reasonable care and expenditure." In the Chartiers

Case it was said in the charge that the jury might have found that if the defendants had exercised any reasonable judgment, or investigated or paid attention to it, they would have known that the injury to the plaintiff would follow, and with the outlay of a small amount of money might have prevented it. These remarks appear to apply equally to the present case. On the facts shown, it could hardly be contended that the injury was unavoidable. The very simple device resorted to by the plaintiff obviated it, and there was evidence from which the jury not only might, but should, have found that defendants should have foreseen the result of their operations, and provided against it. In regard to what is a reasonable expense in this connection, neither in the Chartiers nor any of the other cases has it been necessary to define it strictly, but it is clear from all of them that the word "reasonable" is not to be taken in a narrow sense. It is not to be lost sight of that the defendant's right to injure another's land at all, to any extent, is an exception, and the burden is always upon him to bring himself within it; and his exception is founded on necessity, and because otherwise he would himself be deprived of the beneficial use and enjoyment of his own land. Unless that would be the substantial result of forbidding his action, he is not within the immunity of any of the cases. And the expense which will absolve him from the duty of preventing the injury must come substantially up to the same standard. If the expense of preventing the damage from his act is such as practically to counterbalance the expected profit or benefit, then it is clearly unreasonable, and beyond what he could justly be called upon to assume. If, on the other hand, however large in actual amount, it is small in proportion to the gain to himself, it is reasonable in regard to his neighbor's rights, and he should pay it to prevent the damage, or should make compensation for the injury done. Between these two extremes lies a debatable region, where the cases must stand upon their own facts, under the only general rule that can be laid down in advance, that the expense required would so detract from the purpose and benefit of the contemplated act as to be a substantial deprivation of the right to the use of one's own property. damage could have been prevented short of this, it is injuria which will sustain an action. In regard to the somewhat analogous right of eminent domain over a public franchise previously existing,-a right resting on the same basis of necessity,-it was said in Pittsburgh Junction R. Co.'s Appeal, 122 Pa. St. 511, 531, 6 Atl. 564: "The location claimed for defendant is a matter of economy, not of necessity. It can construct its road and reach its terminus by another route. It is true it would be expensive, but it is a mere question of money and engineering skill. It is not entitled to run through plaintiff's yard,

If