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thority for the judgment of the Courts below in the present case, since it did not affirmatively appear there, as it does here, that the injury resulted from the careful pursuit by the defendant of the only known mode in which it was practicable to develop the mineral resources of its lands. . . .

The view which counsel for the plaintiff in error urges upon our attention is that he has an undoubted right to develop the resources of his land by bringing the underlying petroleum to the surface and preparing it for market; that throughout the Ohio field it is commingled with salt water, from which it must be separated by pumping it into tanks and by drawing the salt water from beneath the petroleum after it rises; that the salt water cannot be indefinitely confined; and that drainage effective to prevent its uniting with the fresh water of flowing streams cannot stop short of the sea. The conclusion is that, since he is carefully exercising a right in the only known practicable mode, he incurs no liability for the consequences which result. This view has won the approval of Courts in a few of the cases contained in the reporter's abstract of the briefs. Of these the leading case is Pennsylvania Coal Company v. Sanderson, 113 Pa. St. 126, which is not distinguishable from the present case by any fact of legal significance. . . . The controversy of the parties appeared in the Supreme Court of that State upon three occasions in addition to the one already noted. In every instance the Supreme Court adhered to the right of the plaintiff to recover under the conditions stated, except the last, which is reported in 113 Pa. St. 126. In that case, four of the seven judges concurring, the doctrine previously announced was rejected, and the Court denied the right to recover. The condensed proposition expressing the later view of the Court is as follows: Damages resulting to another from the natural and lawful use of his land by the owner thereof are, in the absence of malice and negligence, damnum absque injuria. One operating a coal mine in the ordinary and usual manner may upon his own lands drain or pump the water which percolates into the mine into a stream which forms the natural drainage of the basin in which the mine is situate, although the quantity of the water may thereby be increased and its quality so affected as to render it totally unfit for domestic purposes by the lower riparian owners. The use and enjoyment of a stream of pure water for domestic purposes by the lower riparian owners, who purchased their land, built their houses, and laid out their grounds before the opening of the coal mine, the acidulated waters from which rendered the stream entirely useless for domestic purposes, must ex necessitate give way to the interests of the community, in order to permit the development of the natural resources of the country and to make possible the prosecution of the lawful business of mining coal. The final conclusion was reached by a nearly equally divided Court, and the change of view apparently resulted from changes in the composition of the Court.

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... The Sanderson case was a manifest departure from the rule of law often stated, and generally regarded as well settled, that, although there is a servitude upon the lower proprietor to receive the natural flow of water from higher grounds, it is his right to receive it in its natural state and without deleterious change effected by artificial means. . . . It is familiar that one who merely exercises a right is not liable for the consequences which result to another, even though he is prompted by malice, and that the motive which prompts one to a wrongful act may determine whether he is liable for exemplary or only actual damages. But was it ever before considerately held that one who invades the rights of another is not liable for such actual damages as ensue merely because the act was not done maliciously? An erroneous conclusion would naturally issue from such confusion of legal and theological considerations. Nor did the Court limit the opportunities for the intervention of error when it turned its attention from the legal principles which it, with other Courts of this country and England, had often declared, and permitted itself to become concerned regarding the interests of the community and the extent to which public interests might be impaired if, in cases of this character, it should continue in the familiar course of adjudication. However numerous may be the persons who engage in mining for coal and petroleum, however laudable may be their undertakings, these are but private enterprises instituted and conducted for private gain, which may be acquired only with due regard to the rights of lower proprietors, whose numbers must always at least equal theirs, and in accordance with the principles upon which all titles are held.

Without further exposition of this familiar subject, notwithstanding a few cases to the contrary, we adhere to the established rule upon the subject which is expressed in the syllabus. This case, considered in connection with The Salem Iron Company v. Hyland et al., places us in the position of holding that in cases of this character, where the invasion of the rights of the lower proprietor does not amount to an appropriation of his property, but merely constitutes a nuisance, an injunction will not be allowed to prevent the development of the resources of the lands of the upper owner, but that an action will lie for the recovery of such substantial damages as the lower proprietor may sustain by reason of such operations. With that position we are content, since it seems to regard all the principles which the rights of the parties require us to recognize. The judgment in the present case appears to have been carefully restricted to the actual injuries sustained by the original plaintiff, and it will be affirmed.

Judgment affirmed. CREW, C. J., SUMMERS, SPEAR, DAVIS, and PRICE, JJ., concur.

812. OHIO OIL COMPANY v. INDIANA OIL COMPANY

SUPREME COURT OF THE UNITED STATES. 1900

177 U.S. 190, 20 Sup. 576

[Printed ante, as No. 250, Vol. I.]

813. CUMBERLAND TELEGRAPH & TELEPHONE COMPANY v. UNITED ELECTRIC RAILWAY COMPANY

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APPEAL from Kalamazoo. MILLS, J. Argued October 6, 1887. Decided April 20, 1888. Bill filed to abate an illegal nuisance, etc. Decree below, granting relief prayed for, affirmed by an equal division of the Court. The facts are stated in the opinion.

George M. Buck, for complainant. Hampden Kelsey, for defendant. MORSE, J. The parties to this suit own adjoining lots in the city of Kalamazoo. The complainant built two dwelling-houses on his lot for the purposes of rental. One house fronts on Park Street, the other upon Osborn Street. These houses came within about two feet of the line between him and the defendant. When these houses were built, Smith had a house on his lot, fronting on Park Street, with room for a driveway between his house and complainant's premises. About the time complainant erected his houses, Smith built a house on his lot fronting on Osborn Street. Complainant's houses were about fourteen feet front, with a single tier of rooms running back from the street. These parties got into a quarrel, and, as the result of petty annoyances on both sides, the defendant finally put a screen or fence in front of the lower side windows of the complainant, as it is claimed, covering, obscuring, and darkening the same, and shutting out the light and air therefrom. The evidence shows these screens to be two in number, and about eleven feet high, coming up to the top of the lower window of complainant's houses. They were built by setting posts in the ground, and nailing boards against them. They were open at the bottom below the windows. . . . The Court below granted the prayer

of the complainant's bill. These screens are erected entirely upon the lot of the defendant, and he appeals to this Court, claiming that he has a perfect right to erect and maintain them, and that the question of his motives has nothing to do with the legal aspects of the case, though he disclaims any malice against complainant.

It must be taken for granted, in disposing of this case, that these screens were not erected for the purposes of a fence, or for any other necessary, useful, or ornamental purpose. The pretence that they were built to keep prying eyes from observing what was going on in the houses or yard of the defendant is not supported by the proofs. The evidence is clear to my mind that malice alone entered into the reason and motive of their erection. The proofs are conclusive upon this subject. It is admitted by the counsel for the complainant that he would have no redress, had the defendant erected houses or useful buildings or structures as near to complainant's line as these screens are, even though the consequent damage of such erection would have been as great or greater than it has been and now is from the effect of these screens upon the dwellings of complainant in every respect here complained of. But his contention is that these screens, being a damage to the houses of complainant and being erected for no good or useful purpose, but with the malicious motive of doing injury, become and are such a nuisance to the property of complainant, that equity will cause their removal, and enjoin their future erection or continuance. He invokes the legal maxim,-"Every man in the use of his own property must avoid injury to his neighbor's property as much as possible,”—and argues that, while it is true that when one pursues a strictly legal right his motives are immaterial, yet no man has a right to build and maintain an entirely useless structure for the sole purpose of injuring his neighbor.

The argument has force, and appears irresistible, in the light of the moral law that ought to govern all human action. And the civil law, coming close to the moral law, declares, “He who, in making a new work upon his estate, uses his right without trespassing either against any law, custom, title, or possession which may subject him to any service towards his neighbors, is not answerable for the damages. which they may chance to sustain thereby, unless it be that he made that change merely with a view to hurt others without advantage to himself." Thus the civil law recognizes the moral law. . . .

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It is true that he can use his own property, if for his own benefit or advantage, in many cases to the injury of his neighbor, and such neighbor has no redress, because the owner of the property is exercising a legal right which infringes on no legal right of the other. Therefore, and under this principle, the defendant might have erected a building for useful or ornamental purposes, and shut out the light and air from complainant's windows. But when he erected these "screens," or "obscurers," for no useful or ornamental purpose, but out of pure

malice against his nieghbor, it seems to me a different principle must prevail. I do not think the common law permits a man to be deprived of water, air, or light for the mere gratification of malice. No one has an exclusive property in any of these elements except as the same may exist or be confined entirely on his own premises. . . . The decree of the Court below is affirmed, with costs of both Courts. SHERWOOD, C. J. concurred with MORSE, J.

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CAMPBELL, J. This case, assuming all that is claimed for complainant, is one where he opened windows on the side of his house near the defendant's line, and defendant built a screen entirely on his own land high enough to keep his own house, so far as its lower story and side porch and entrances are concerned, from being open to the view from complainant's windows. No authority has been found, and I am satisfied there is no authority, at least in any region from which we have borrowed our law, which controverts defendant's right to secure his privacy in that way. If we should grant the complainant relief, we should not only be going beyond the judicial province in making the law, but we should also make a rule in conflict with the universal weight of authority. . . . In support of this doctrine, reliance was had on Mahan v. Brown, 13 Wend. 261, where the case was like the present one in its circumstances, but much more serious. There a fence was put up, as the screen was here, for the express purpose of preventing the view from fifteen windows over defendant's ground. The Court held that, where there was no right to the prospect, there was no wrong in fencing it out, and that the defendant's motive was of no consequence, as he was in the exercise of his own right. . . . The doctrine of Mahan v. Brown has been repeatedly enforced in Illinois in very strong language, the Court holding that a fence or screen of any height was lawful to shut off the view from a neighboring window. Honsel v. Conant, 12 Bradw. 259; Guest v. Reynolds, 68 Ill. 478. . . . I think complainant has no right whatever to complain of defendant's screen, and that his bill should be dismissed, with costs of both Courts.

CHAMPLIN, J. I concur with my Brother CAMPBELL that the decree should be reversed. . . .

815. LETTS v. KESSLER

SUPREME Court of Ohio. 1896

54 Oh. St. 73, 42 N. E. 765

[Printed ante, as No. 243, Vol. I.]

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