guardian ad litem of Ferdinand J. H. Fleck, Evelyn A. L. Fleck and Carl L. Fleck, his children.

Service was duly made on the following: George W. Fleck, guardian of William F. Deibert and guardian ad litem of Miriam M. Fleck and Lewis A. F. Fleck, and Charles F. Fleck, guardian ad litem of Ferdinand J. H. Fleck, Evelyn A. L. Fleck and Carl L. Fleck. •

The inquest made return that the real estate could not be divided, and that purpart Number 1 was worth $2,500.00; Number 2, $1,000.00; and Number 3, $500.00. On December 15, 1898, it was agreed by George W. Fleck as guardian of William F. Deibert and guardian ad litem of Ferdinand J. H. Fleck, Evelyn A. L. Fleck and Carl L. Fleck, and George W. Fleck, guardian ad litem of Miriam M. Fleck and Lewis A. L. Fleck, that the usual rule on heirs to come in and take or refuse, etc., should be dispensed with, and they petitioned the court to direct a sale of the real estate at public sale, that Charles F. Fleck, executor of Louisa Fleck, be made trustee to make sale, and that the said trustee give bond in the amount of $8,000.00. The court complied with this request, and made an order accordingly on December 19, 1898. The sureties on the bond were George W. Fleck, Joseph Well and Seligman Livingstone.

On January 23, 1899, the court order permitted C. F. Fleck to bid at the sale. On February 6, 1899, the trustee's return to the order of sale was presented, setting forth that after proper advertisement the real estate was put up for sale on the 27th day of January, 1899, and that purpart Number 1 was sold to G. W. Fleck and C. F. Fleck for $2,600.00, purpart Number 2, to the same persons for $1,000.00, and purpart Number 3, to the same persons for $500.00. The return was confirmed nisi on the same day and confirmed absolutely on February 17, 1899. By deed dated February 28, 1899, C. F. Fleck, trustee, granted and conveyed the real estate to C. F. Fleck and G. W. Fleck, the purchasers, in accordance with the order of court.

The purchasers thereupon encumbered the property; and at the time of the filing of the petition to set aside the partition proceedings hereafter to be mentioned, there was outstanding a first mortgage of $3,000.00 held by Sarah J. Brode, and a number of judgments held by

the Citizens National Bank of Lansford and the Merchants National Bank of Pottsville.

On September 22, 1913, Evelyn A. L. Fleck, a daughter of C. F. Fleck, presented a petition setting forth the record facts above stated, that the purchase price of the various properties was not paid, that the trustee never filed an account, that no accounts have ever been filed by the guardians, that the petition for partition did not allege in accordance with the law and Rules of the Orphans' Court of Schuylkill County: (1) the interest of the parties, (2) the quantity of interest, (3) the residence, (4) whether or not Louisa Fleck was married at the time of her death, (5) the improvements and liens, (6) that the real estate was all the real estate of the decedent, (7) how Louisa Fleck obtained title, (8) that any partition had heretofore been made. The prayer of the petition was that the proceedings in partition be set aside.

G. W. Fleck filed an answer on October 3, 1913, in which he denied that he had not paid his share of the purchase price, but alleged, on information received, that the purchase price was used to pay off lien debts; that he settled with William F. Deibert, his ward, upon the latter's coming of age; that since receiving the real estate he had placed liens thereon, and that the property was later sold by him.

-J C. F. Fleck filed his answer on December 17, 1913, and admitted every allegation in the petition.

On December 22, 1913, Sarah J. Brode, the holder of the first mortgage of $3,000.00, presented her petition to intervene in the proceeding, the prayer of which was thereupon granted by the court. On March 23, 1914, the Citizens National Bank of Lansford presented its petition to intervene, setting forth that it held certain judgments against the real estate, that the Merchants Naional Bank of Pottsville issued a fieri facias on a judgment and sold, the real estate at public sale on the 28th of February, 1914, and that the property was bought subject to the first mortgage held by Sarah J. Brode by the Citizens National Bank of Lansford. On the same day the prayer of the petition was granted.

blo Judge Wilhelm decided on the petition and answers that there was no ground upon which the proceedings in

partition could be set aside; but later, on account of the intervention of the Pottsville bank in which he is interested, he set aside his decision and requested the writer of the present opinion to rehear the matter and file an independent opinion.

On behalf of the petitioner a number of objections to the validity of the partition proceedings are urged:

1. That the facts set forth in the petition constitute a legal fraud on the petitioner. This objection may be dismissed without further comment.

2. That in view of the status of the parties interested in the real estate at the time of the presentation of the petition for partition the law did not authorize the partition proceedings in the Orphans' Court, and that consequently the court never obtained jurisdiction. In order to pass on this objection it is necessary to have clearly in mind the status of the parties at that time. William F. Deibert, the petitioner, was a minor entitled to one-third of the real estate in fee: C. F. Fleck and G. W. Fleck were life-tenants with contingent remainders to their children, if any, and if none, to their widows and then over. It is well settled in Pennsylvania that one of the essential incidents of the ownership of real estate in fee is the right to partition in some court: McIntosh Estate, (1888) 4 C. C. 593; and the Act of April 13, 1840, Section 4, P. L. 320, gives the Orphans' Court jurisdiction in partition proceedings wherever a minor is involved; Gardiner's Estate, (1846) 4 Pa. 502. There was, therefore, nothing in the status of the interested parties to prevent the attaching of jurisdiction in the Orphans' Court.

3. That the petition in partition did not contain certain necessary allegations to bring it within the jurisdiction of the Orphans' Court. The only requirement of the Act of April 14, 1835, Section 2, P. L. 275, is that parties in interest be named in the petition and that if the name or residence of any of them is unknown to the petitioner, that fact should be stated so that notice of the proceedings can be given in some other way. It seems clear from a reading of the Act that the residence of a party only becomes material in case it is unknown, and so far as the act is concerned it is sufficient to state in the petition the name of a party where his residence is

known. The petition, therefore, contains all that is required by legislative enactment.

4. That the petition for partition did not comply with certain rules of court. With reference to this objection it may be stated that the interests of all parties are clearly defined in the will made a part of the petition; that no harm seems to have come from the failure to state whether Louisa Fleck was married at the time of her death, because the petition to set aside admits that she was a widow; that no injury appears to have been inflicted on any one by the failure to state the liens and improvements on the properties, for the reason that the properties at the sale brought more than the appraised value; that the alleged defects already noted together with the others mentioned in the petition are after all merely a non-compliance with the Rules of Court, which did not prevent its jurisdiction from attaching. They, therefore, at this time cannot constitute a basis for overthrowing the proceeding.

5. That C. F. Fleck was guardian ad litem of his child, Evelyn A. L. Fleck, in the partition proceeding, and was later appointed to act as trustee to sell the real estate. It is contended that this state of affairs is contrary to the Act of March 29, 1832, Section 6, P. L. 191, prohibiting the court from appointing an executor or administrator a guardian in the same estate. Even if this act applies, it does not make an appointment void but merely voidable; Kraemer vs. Mugele (1893) 153 Pa., 493; and after the lapse of so much time, with the property in the hands of other persons, there can be no remedy without destroying the stability of public records.

It should also be observed that although it is against the settled practice to appoint a father guardian of his children, still there is nothing illegal in such an appointment.

Whatever rights any party may have who should have been but was not joined in the original partition proceedings need not here be determined. The petitioner in the present instance was represented in the proceeding by a guardian duly appointed, and she cannot take advantage of any defects that may inure to the benefits of others: Reid vs. Clendenning (1899) 193 Pa., 406.

In view of what has been said it is unnecessary to pass upon the standing of the petitioner or the jurisdiction of the court to make orders enforceable against other persons.

And now, February 23, 1915, the prayer of the within petition is refused.

PANTHER VALLEY WATER CO. vs. RAILWAY CO. Diverting a Stream-Riparian Owners.

A riparian owner cannot divert water from its natural course as a stream for any other purpose than that incident to the proper enjoyment of his land.

Demurrer to Bill. No. 1, January Term, 1915.

J. F. Whalen, for Demurrer.
G. M. Roads, Contra.

Bechtel, P. J., April 19, 1915. This case comes before us on a bill in equity and demurrer filed thereto. There are a number of grounds set forth in support of the demurrer, but as they have not been consecutively numbered we will consider them together.

The Panther Valley Water Company is a corporation organized under the provisions of the Act of Assembly of 1874, P. L. 73, and its supplements, for the purpose of perpetually supplying water for domestic and other purposes to the public in the Borough of Lansford, County of Carbon, and to such persons, partnerships and corporations residing or doing business therein and adjacent thereto as may desire the same. In addition to the rights granted to the complainant under the Act of 1874 and its supplements, the complainant, by purchase of all the rights, franchises and property of the Nesquehoning Water Supply Company, the Mauch Chunk Township Water Supply Company and the Rahn Township Water Company, by virtue of the Act of the General Assembly approved April, 1876, P. L. 30, the charters of which companies being duly recorded, became vested with and possessed of all the rights, powers and privi