* * *

judgments and matters that were paid for him? A. Yes, sir; that is my recollection. I think there was one check, one or more checks, paid right to him. Q. Do you know what use he made of that money? A. No; I don't. I can't tell you that. Yes; I think I can. I think he deposited it in bank, but what he did with it after that I can't tell you." This branch of the case is dismissed with the following from the court's instructions to the jury: "There is a well-settled rule of law which forbids executors from converting property of an estate they represent to their own use. They cannot, therefore, pledge or sell it for their individual indebtedness. When they do so to one who has knowledge that such use of the estate property is being made, such transfer may be voided by the persons to whom the property really belongs; that is, by the heirs or devisees. In such case the executors and the persons acquiring the property are equally culpable. If land is the subject of such a transaction, the one to whom it is thus conveyed, having knowledge of the illegal transaction, does not take a good title as against the persons thereby wronged. The applicability of this rule of law to the case on trial we will now make known to you. The undivided one-third interest in this 102-acre tract of land belonged to George D. Jackson. The legal title thereto passed by his will to his executors in trust, as we have already explained. The executors held that title for the purpose expressed in the will. They were the trustees of the devisees, and the beneficial interest in this land belonged to such devisees. When the executors assumed their duties as such, they were bound to act in good faith towards those devisees. If the executors conveyed this interest in this land to Mr. Thomson in payment of, or as security for, their individual indebtedness to him or others, they committed a breach of trust. If he took the conveyance with that understanding and agreement, he was equally engaged in wrongdoing. Under such circumstances the transaction would be in violation of the rights of such persons having an interest in the land, as did not join in the conveyance; and it is immaterial whether it was part of that bargain that the deed to Mr. Thomson was also to secure an indebtedness of George D. Jackson's estate. In this respect the transaction was indivisible, and, if fraudulent in part, it is, as to the parties defrauded, wholly invalid. The taint of fraud in converting the trust property to the individual use of the executors, so far as innocent devisees are concerned, would attach to the instrument as a whole and destroy its efficacy as a transfer of their beneficial interest in the land. If this deed was taken by Mr. Thomson as security for, or in payment of, the individual debts of the executors, he is, as

to the parties thereby wronged, a trustee ex maleficio. On this point there is no conflict of testimony. Mr. Thomson has testified, and therefore admits, that in the consideration passing from him to the executors for the deed for the 102-acre tract, and the other conveyances then obtained by him, there was included some individual indebtedness of George C. Jackson, to which reference has been made."

As to the interests devised to the two sons, George C. and W. W. Jackson, and by them conveyed to their mother, a different situation is presented. Whatever interest in the land was held by George C. Jackson or his mother on July 9, 1897, either could have sold and conveyed to Thomson. They were sui juris, and could have done as they pleased with their own. If other persons had been named as executors, they could have agreed that such executors should convey their interests to another, and, when they themselves as executors made the conveyance, they must be regarded as having intended to convey whatever interests they owned. Thereafter neither of them could impeach the validity of the conveyance as to any interest owned at that time or subsequently acquired by them or either of them. They had testamentary · authority to sell, and neither of them as individuals could subsequently question their own exercise of it. Their conveyance, so far as it affected their interests, contravened no public policy. It was totally void in the hands of their grantee only as to the threefifteenths of the land owned by the daughters, and the fraud attempted upon them has not been consummated, for the deed is still in Thomson's hands.

As to the remaining two-fifths, neither Bernice W. Jackson nor George C. Jackson, if living, would be heard in alleging fraud as a ground for avoiding their deed. As they executed it, they were bound by it, and where they placed themselves the law left them (Bredin's Appeal, 92 Pa. 241, 37 Am. Rep. 677); and those now representing them are in no better situation. In such a case the maxim, "Nemo allegans suam turpitudinem audiendus est," is in full force, and Thomson is permitted to say, "In pari delicto melior est conditio possidentis."

All of the assignments of error are overruled, both appeals are dismissed, and the judgment is affirmed.

may not through negligence do unnecessary damage to the land of adjoining owners, nor obstruct a natural channel, nor one that has acquired the character of an easement, nor discharge surface water in a body on adjoining land.

[Ed. Note.-For other cases, see Waters and Water Courses, Cent. Dig. §§ 127-134; Dec. Dig. § 116.*]

2. WATERS AND WATER COURSES (§ 116*)— SURFACE WATERS RIGHTS OF ADJOINING OWNERS.

Plaintiff and defendant owned adjoining lots on a paved street. The land was on a hillside, and the surface water from rains ran over both lots from the rear to the front. Defendant raised the grade of his lot, but did not change the character of the flow of the surface water, except that the water which had previously spread over the surface of both lots now ran over plaintiff's lot. There was no evidence of negligence, or that defendant had closed up any channel. Held, that he was not liable to plaintiff for damages caused by the increased flow of water.

[Ed. Note.-For other cases, see Waters and Water Courses, Cent. Dig. § 127; Dec. Dig. § 116.*]

Appeal from Court of Common Pleas, Luzerne County.

Bill by Cornelius M. Rielly against Joseph Stephenson and Helen Stephenson. Decree for plaintiff, and defendants appeal. Reversed.

The court entered a final decree as follows: "Now, February 8, 1908, this cause came on to be further heard at this term and was argued by counsel, and thereupon, upon consideration thereof, it is ordered, adjudged, and decreed as follows, viz.: That the said defendants be forthwith required to make provision by adequate and sufficient means for the flow and passage of surface water which naturally passed into and over the same before they improved their said lot in such a way as not to cause damage or injury to the property of plaintiff."

Argued before MITCHELL, C. J., and FELL, MESTREZAT, POTTER, and STEWART, JJ.

M. J. Mulhall and W. L. Raeder, for appellants. John McGahren, for appellee.

MITCHELL, C. J. The parties own adjoining lots on an opened and paved street in the city of Wilkes-Barre. The land was on a sloping hillside so that the surface drainage from rain, etc., ran over both lots from the rear to the front. The defendant improved his lot first, and in so doing raised the grade in parts. He did not change the character or direction of the flow nor add to the volume of it, except that in consequence of the raised grade the water which had previously spread over the surface of both lots now ran over plaintiff's. It was a natural and inevitable result of the defendant's improvement of his lot, and it is not charged that it was negligently done. It was averred in the bill that defendant's lot

had a dip or hollow which made a natural channel through which the water from plaintiff's lot was accustomed to flow, and that this had been filled up. But the court below expressly refused to find that there had been a channel, and the evidence would not have sustained a finding of such fact. The land in its natural state was uneven with occasional depressions, in which the water would collect temporarily and then gradually drain off. There was nothing that could properly be called a channel.

The learned judge below found all the facts in favor of the defendants, including the following:

"(3) The land, of which both lots are a portion, was originally undulating land used for farm purposes, and it has been laid out in building lots and streets for many years.

"(4) The opening and grading of streets, the construction of sewers, and the erection of buildings in the natural expansion of the city, adjacent to the plaintiff's and defendants' lots, have changed the surface of the land as it existed in a state of nature.

"(7) The opening of Jones street and Essex Lane, and the erection of buildings thereon, changed and increased the natural flow of the surface water on the land adjacent to the plaintiff's and defendants' properties."

He also found as matter of law "that the defendants had the right to grade their lot in the manner described without regard to the natural drainage of the locality." But he added the qualification that "in doing so, however, the owner of a lot must take care of the drainage of the surface water by means of artificial appliances so as not to injure or damage the other or adjacent landholders." The correctness or error of this rule is the question in the case.

The ruling of the learned judge below was made in deference to the language and supposed decision of Kennedy, J., in Bentz v. Armstrong, 8 Watts & S. 40, 42 Am. Dec. 265, and the cases of Davidson v. Sanders, 1 Pa. Super. Ct. 432, and McMahon v. Thornton, 5 Pa. Super. Ct. 495, which were based upon it. But the decision in Bentz v. Armstrong was upon a much narrower point, and the language of Justice Kennedy has been extended to apply to a state of fact to which it was never applicable. The plaintiff in that case claimed the right to turn the rain water which fell upon his lot, and also the water of a spring on his lot, on to the lot of defendant. The latter placed an obstruction on his own lot which turned the water back on the plaintiff's lot. The trial judge charged the jury that the plaintiff had established his right to an easement. On this point the case was reversed; Kennedy, J., saying: "It does not appear to us that any facts have been testified to going in the slightest degree to establish the plaintiff's right to an easement such as he claims in this case." That

is the whole extent of the actual case decided. But Justice Kennedy then proceeds to discuss a feature of the case that had evidently been argued, and his language is certainly as favorable to the defendants in the present case as to the plaintiff: "In the purchase of lots of ground laid out and sold for the purpose of building up towns or cities thereon, it has ever been understood, and such has been the practice and usage, too, that the natural formation of the surface will, and indeed must, necessarily, undergo a change in the construction of buildings and other improvements that are designed and intended to be made. In doing this it would seem to be right that the common benefit and convenience of the respective owners of adjoining lots should be consulted and attended to, but certainly no one ought to be restrained from improving his lot in such a manner as to make it answer the purpose for which it was laid out, sold, and purchased, if practicable, without overreaching upon his neighbor's lot. He ought to be permitted to form and regulate the surface of it as he pleases, either by excavating or filling up, as may be requisite to the convenience and enjoyment of it, taking care, however, not to produce any detriment or injury to his neighbor in the occupation or enjoyment of his adjoining lot." So far this is sound law and in accordance with all the decisions, But when the learned justice adds: "It is of great importance that the water from each lot arising from rain or other cause should be conducted by the owner or occupier thereof, if he wishes to have it removed, directly from it to a sewer or other place appropriate for the receipt and discharge of the same, and not be turned or let on to an adjoining lot, and it appears to me to be the duty of the owner of each lot if he improves it to do it in such way, if practicable, as to lead and conduct the water that happens to fall upon it, off in the way mentioned." This is mere dictum not authorized by sound general principles and not consistent with the rules previously established in the same opinion.

*

The owners of lots in cities and towns buy and own with the manifest condition that the natural or existing surface is liable to be changed by the progress of municipal development. All such owners have equal rights neither lessened nor increased by priority of improvement, and the primary right of each owner is to protect himself and bis lot from loss or inconvenience from the flow of surface water. The owner at the foot of

the slope is under no obligation to allow his lot to continue as a reservoir for the surplus water of the neighborhood. He may shut it out by grading or otherwise, and the fact that thereby he may incidentally increase the flow on the adjoining lot neither makes him answerable in damages nor affects the adjoining owner's right in his turn to shut out the original, plus the increased flow on his lot. The owner cannot be coerced as to time or manner of improvement by risk of having put upon him the burden of providing for the flow upon others. Some things, of course, he may not do. He may not proceed negligently so as to do unnecessary damage to others. But, so far as he acts upon his right to protect his enjoyment of his own property, any incidental loss to his neighbor is damnum absque injuria. It is clearly settled, however, first, that he may not obstruct a natural channel for the flow of the water, or a channel that has acquired the character of an easement; and, secondly, he may not gather surface water into a body and discharge it on the adjoining land. His right is to shut out the invading water, as a common enemy, for the protection of his own land. Notwithstanding the dictum in Bentz v. Armstrong, and the questionable application of it in a few later cases, these principles are fundamental, and have never been successfully questioned. The latest case on the subject is Strauss v. Allentown, 215 Pa. 96, 63 Atl. 1073, in which it was sought to charge a municipality with damages for loss of value of land by increased flow of water from the change of surface conditions. It was practically conceded throughout the case that an individual owner would not be answerable, and it was held that the municipality was equally exempt from liability from increased flow of water incidental to surface changes in the course of municipal development. The qualification applied in this case that the right of the owner to shut out the surface flow from his lot is accompanied by an obligation to prevent it from flowing over the adjacent land and to lead it by artificial or other means to a sewer or other avenue of escape is totally irreconcilable with the conceded right of protection of his lot already discussed, and is not sustained by authority or on general principles. The cases in New Jersey, Connecticut, and Massachusetts which have considered this exact question are uniformly against any such obligation.

Decree reversed and bill directed to be dismissed, with costs.

(74 N. J. E. 451)

ALBERT v. HAEBERLY. (Court of Errors and Appeals of New Jersey. June 15, 1908.) Appeal from Court of Chancery. Action by Amelia Albert against Emily B. R. Haeberly. Decree for complainant, and defendant appeals. Affirmed. Garrison & Voorhees, for appellant. Bourgeois & Sooy, for respondent.

PER CURIAM. This cause was heard before the late Vice Chancellor Grey, who expressed the view that the case was governed by the same legal principles that this court applied in a former litigation between the same parties. Albert v. Haeberly, 68 N. J. Eq. 664, 61 Atl. 380, 111 Am. St. Rep. 652. We concur in that view, and the decree under review should therefore be affirmed, with costs.

(74 N. J. E. 455)

ATLANTIC CITY GAS & WATER CO. v. CONSUMERS' GAS & FUEL CO. et al. (Court of Errors and Appeals of New Jersey. June 15, 1908.) Appeal from Court of Chancery. Bill by the Atlantic City Gas & Water Company against the Consumers' Gas & Fuel Company and others for an injunction. A preliminary injunction was denied (70 N. J. Eq. 536, 61 Atl. 750), and on final hearing the dismissal of the bill was advised (65 Atl. 1119), and complainant appeals. Affirmed. Thompson & Cole, for appellant. Charles L. Corbin, for respondents.

PER CURIAM. This was an injunction bill. An application for a preliminary injunction was heard by Vice Chancellor Bergen, who denied it for reasons expressed by him in an opinion reported in 70 N. J. Eq. 536, 61 Atl. 750. The cause was afterwards submitted on final hearing to Vice Chancellor Leaming upon the same testimony. He concurred in the views of Vice Chancellor Bergen, and advised the dismissal of the bill of complaint. We likewise concur, and the decree of dismissal should be affirmed, with costs.

(74 N. J. L. 597)

BELLEVILLE LAND & IMPROVEMENT CO. v. ATLAS MFG. CO. (Court of Errors and Appeals of New Jersey. Jan. 2, 1907.) Error to Supreme Court. James E. Howell, for plaintiff in error. Chauncey G. Parker, for defendant in error.

PER CURIAM. The judgment brought up by this writ of error is affirmed, on the grounds stated in the opinion of Mr. Justice Garrison, in the Supreme Court (no opinion on file).

(74 N. J. E. 452)

BERGEN V. ROGERS. (Court of Errors and Appeals of New Jersey. June 15. 1908.) Appeal from Court of Chancery. Bill by George J. Bergen, receiver, against John I. Rogers. From a decree of the Court of Chancery, dismissing the bill, advised by Vice Chancellor Garrison (67_Atl. 290), complainant appeals.

Affirmed. Wilson, Carr & Stackhouse, for appellant. John I. Rogers, pro se.

PER CURIAM. The decree under review herein should be affirmed, for the reasons set forth in the opinion delivered by Vice Chancellor Garrison in the court below. 67 Atl. 290.

(74 N. J. L. 685)

BURNS et al. v. ECKERT. (Court of Errors and Appeals of New Jersey. Feb. 2, 1907.) Error to the Supreme Court. Thomas F. Noon

BURNS v. LEHIGH VALLEY R. CO. (Court of Errors and Appeals of New Jersey. March 9, 1908.) Error to Supreme Court. Action by Edward Burns against the Lehigh Valley Railroad Company. From a judgment of the Supreme Court (65 Atl. 186), affirming a judgment for plaintiff, defendant brings error. Affirmed. Geo. S. Hobart, for plaintiff in error. PER CURIAM. The judgment under review will be affirmed, for the reasons stated by Pitney, J., in the opinion filed in the court below. (73 N. J. E. 741)

BURRELL v. MIDDLETON et ux. (Court of Errors and Appeals of New Jersey. March 2, 1908.) Appeal from Court of Chancery. Action by William B. M. Burrell against Melbourne F. Middleton and wife. From an order (65 Atl. 978) denying a preliminary injunction, plaintiff appeals. Affirmed. E. A. Armstrong, for appellant. John W. Wescott, for respond

ents.

PER CURIAM. The order under review herein should be affirmed, with costs, for the reasons set forth in the opinion of Vice Chancellor Leaming.

(74 N. J. L. 593, 594)

CLARK V. ATLANTIC CITY R. CO. (Court of Errors and Appeals of New Jersey. Feb. 2, 1907.) Error to Supreme Court. J. Willard Morgan and Clarence L. Cole, for plaintiff in error. John W. Wescott and Ralph W. E. Donges, for defendant in error.

PER CURIAM. The judgment in this cause is affirmed, for the reasons given in the opiniqu of Mr. Justice Dixon in the Supreme Court (no opinion on file).

(75 N. J. L. 939)

DURRELL v. MAYOR, ETC., OF CITY OF WOODBURY. (Court of Errors and Appeals of New Jersey. March 9, 1908.) Error to Supreme Court. Certiorari by Edward H. Durrell to the mayor and council of the city of Woodbury to review an order confirming an assessment. Judgment in the Supreme Court (65 Atl. 198) confirming the assessment, and plaintiff brings error. Affirmed. Lewis Starr, for plaintiff in error. A. H. Swackhamer, for defendant in error.

PER CURIAM. The judgment under review will be affirmed, for the reasons stated by Trenchard, J., in the opinion filed in the court below.

(74 N. J. L. 599)

FARNSWORTH v. MILLER et al. (Court of Errors and Appeals of New Jersey. Jan. 2, 1907.) Error to Supreme Court. John J. Crandall, for plaintiff in error. John C. Reed, for defendants in error.

PER CURIAM. The judgment of the Supreme Court is affirmed, for the reasons given in the memorandum opinion of Mr. Justice Fort in that court. 60 Atl. 1100.

FEINBERG v. FEINBERG. (Court of Errors and Appeals of New Jersey. June 15,

1908.) Appeal from Court of Chancery. Suit by Hazer Feinberg, against Annie Feinberg. From an order of the Court of Chancery, advised by Vice Chancellor Leaming (66 Atl. 610), petitioner appeals. Affirmed. A. J. King, for appellant. Matthew Jefferson and John W. Wescott, for respondent.

PER CURIAM. By decree of the Court of Chancery the parties herein were divorced. The custody of their child, Sylvia, was awarded to the respondent until the further order of the court, and the petitioner was decreed to pay to the respondent $3 per week for the support of the child from the date of the decree until the further order of the court. The order now under review was made about two years later, upon petitioner's application, and modifies the decree, so as to relieve him from the payment of money for the support of the child from the date of this order until further order of the court. Because it does not go further, and relieve him from the payment from the date of the decree until the making of the modifying order, petitioner appeals to this court. We concur with the view expressed by Vice Chancellor Leaming upon this point, and the order under review will therefore be affirmed, with costs.

(75 N. J. L. 939)

HAGEMAN v. NORTH JERSEY ST. RY. CO. (Court of Errors and Appeals of New Jersey. March 2, 1908.) Error to Supreme Court. Action by John V. Hageman against the North Jersey Street Railway Company. From a judgment (65 Atl. 834), reversing a judgment for plaintiff, plaintiff brings error. Affirmed. Albert C. Pedrick, for plaintiff in error. Hobart Tuttle, for defendant in error.

PER CURIAM. The judgment under review herein will be affirmed, for the reasons set forth in the opinion of Mr. Justice Garretson in the Supreme Court.

(74 N. J. E. 447)

In re JONES' ESTATE. (Court of Errors and Appeals of New Jersey. June 15, 1908.) Appeal from Prerogative Court. Application for assessment of collateral inheritance tax against certain legatees under the will of John J. Jones, deceased. From a decree granting an exemption to certain religious association legatees (67 Atl. 1035), the comptroller appeals. Affirmed. Robert H. McCarter, Atty. Gen., and William R. Barricklo, for appellant. Collins & Corbin, for respondents.

PER CURIAM. The decree under review herein should be affirmed, for the reasous expressed in the opinion of Vice Ordinary Bergen. 67 Atl. 1035.

(75 N. J. L. 942)

OCEAN CITY LAND CO. v. OCEAN CITY et al. (Court of Errors and Appeals of New Jersey. March 2, 1908.) Error to Supreme Court. Certiorari by the Ocean City Land Company against Ocean City and the Ocean City Association to review an attempt to modify a dedication of streets to public use. From a judgment (63 Atl. 1112) setting aside the ordinance, defendants bring error. Affirmed. Bleakly & Stockwell, for plaintiffs in error. Bourgeois & Sooy, for defendant in error.

PER CURIAM. The judgment in this case will be affirmed, for the reasons set forth in the opinion of Mr. Justice Garretson in the Supreme Court.

(74 N. J. E. 450)

PIERCE et al. v. OLD DOMINION COPPER MINING & SMELTING CO. et al. (Court of Errors and Appeals of New Jersey. June 15, 1908.) Appeal from Court of Chancery. Suit by John H. Pierce and others

against the Old Dominion Copper Mining & Smelting Company and others. From a decree for defendants, advised by Vice Chancellor Stevenson, whose opinion is reported in 65 Atl. 1005, complainants appeal. Affirmed. Edward M. Colie and Bennet Van Syckel, for appellants. Collins & Corbin, for respondents.

PER CURIAM. Upon the filing of the bill of complaint herein application was made for an injunction and for the appointment of a receiver. Both applications were denied, for reasons set forth in an opinion delivered by Vice Chancellor Stevenson, reported in 67 N. J. Eq. 399, 58 Atl. 319. Answers having been filed, the cause proceeded to final hearing, whereupon a decree was made dismissing the bill, without prejuduce to the rights of the complainant herein to file a bill to restrain the Old Dominion Copper Mining & Smelting Company and its directors from diverting, misapplying, or mismanaging the so-called "segregated assets," described in the bill of complaint, and from carrying out any contracts which the complainants may have a right to declare void. See second opinion of Vice Chancellor Stevenson, reported in 65 Atl. 1005. We concur in the views expressed by the learned Vice Chancellor, so far as they are pertinent to the questions raised by the present appeal, and the decree under review should therefore be affirmed, with costs.

(73 N. J. E. 742)

RAMSEY V. PERTH AMBOY SHIPBUILDING & ENGINEERING CO. VOORHEES v. UNITED STATES. (Court of Errors and Appeals of New Jersey. March 2, 1908.) Appeal from Court of Chancery. Suit by Allen L. Ramsey against the Perth Amboy Shipbuilding & Engineering Company. From a decree (65 Atl. 461) by the Vice Chaucellor, reversing the disallowance of claim of the United States by Willard F. Voorhees, receiver of the shipbuilding company, the receiver appeals. Affirmed. Adrian Lyon and Frank P. McDermott, for appellant. John B. Vreeland, U. S. Atty., and Harrison P. Lindabury, for respondent.

PER CURIAM. The decree under review will be affirmed, for the reasons set forth in the opinion delivered in the Court of Chancery by Vice Chancellor Stevens.

(73 N. J. E. 738) KEELER et al.

SCHLICHER et al. v. (Court of Errors and Appeals of New Jersey. March 2, 1908.) Appeal from Court of Chancery. Chancery suit by Mary E. Schlicher and another against Charles H. Keeler and others. From a decree advised by Vice Chancellor Bergen (62 Atl. 4), complainants appeal. Affirmed. Alan H. Strong, for appellants. Charles C. Hommann, for respondents George Keeler and wife. John V. B. Wicoff, for respondent Charles Keeler.

PER CURIAM. The decree under review herein will be affirmed, for the reasous expressed in the opinion delivered by Vice Chancellor Bergen in the Court of Chancery.

(76 N. J. L. 584)

SMITH v. WEAVER. (Court of Errors and Appeals of New Jersey. June 15, 1908.) Error to Supreme Court. Certiorari by Josephine T. Weaver against Ella Etta Smith. From an order discharging a rule to show cause why a judgment on bond and warrant of attorney should not be set aside (66 Atl. 941), prosecutor brings error. Affirmed. John J. Crandall, for plaintiff in error.

PER CURIAM. The judgment under review should be affirmed, for the reasons expressed in the opinion delivered by Mr. Justice Garrison in the Supreme Court. 66 Atl. 941.