Argument for Appellant.

the sum so paid, it is a matter of no concern to the defend

ant.

Judgment reversed and cause remanded, with directions to overrule the demurrer to the complaint.

[No. 4404.]

LESTER L. ROBINSON AND WILLIAM T. COLEMAN v. THE BLACK DIAMOND COAL COMPANY.

RELIEF ON INJURY TO LAND BY MINING.-If a party who is engaged in mining for coal causes water, sand and clay, in a flowing mass, to descend upon the land of another so as to destroy its value for cultivation, and such descent is the direct result of the act of such party, and not the mere result of the law of gravitation, the person whose land is thus injured may recover damages, and enjoin the future commission of said

acts.

APPEAL from the District Court, Fifteenth Judicial District, County of Contra Costa.

The complaint averred that the plaintiffs, on the 23d day of September, 1871, were and now are the owners of a tract of land known as the "Los Medanos Rancho," in Contra Costa County, and that, on the same day, the defendant was in possession of a tract of land situated about three miles in a southerly direction from the rancho, which then was and since had been used by the defendant for mining coal, and that, in the conduct of its business of mining, the defendant at said date and ever since had caused to be discharged, etc. The remainder of the allegation is found in the opinion. It was then alleged that the plaintiff had demanded of defendant to abstain from said acts, but the defendant had neglected to comply. Judgment was asked for damages and that the defendant be enjoined. The plaintiff appealed. The other facts are stated in the opinion.

Edmond L. Goold, for the Appellant, argued that the defendant had a right to carry on mining, but it was not a part of that business to cast pernicious compounds on to the plaintiffs' land, and that the complaint excluded the idea

Opinion of the Court.

that the destruction of the soil was the legitimate consequence of mining, or the result of the operations of the laws of nature, and cited Logan v. Driscoll, 19 Cal. 623; Jones v. The Festiniog Railway Co., 3 Law Rep. 2 Q. B. 736; Baird v. Williamson, C. B. N. S. 388; Smith v. Kenrick, 7 C. B. 515; Fletcher v. Rylands, 1 Law Rep. Exch. 277; 1 Domat, Cush. ed., 1861, Art. 1583.

W. H. L. Barnes, for the Respondent, argued that the complaint did not charge the defendant with any willful or malicious act, and that the flow downwards was the result of natural laws, and that it did not therefore state a cause of action, and cited Gibson v. Puchta (33 Cal. 310).

By the COURT:

The plaintiffs allege that the defendant, in working its coal-mine, caused to be discharged upon the lands of the plaintiffs, lying below, a large quantity of the refuse of the product of the mining ground-a large quantity of water, as also of the smaller and finer portions of the coal, together with sand and clay and other refuse mixed with water-the whole forming a flowing mass, which the defendant compelled and still compels to descend upon the land of plaintiffs, covering it to the depth of one foot and upwards, rendering it incapable of profitable vegetation, and wholly useless to the plaintiffs. At the trial, the plaintiffs in opening the case, having read the complaint and stated that they expected to prove the facts therein alleged, were, on motion of the defendant, nonsuited. We are of the opinion that the court below erred in nonsuiting the plaintiffs. As we understand the complaint, the invasion of the plaintiffs' premises was not the result of mere natural causes. The water charged with the refuse matter of the defendant's mine did not descend upon the land of the plaintiffs in its natural course of descent, nor as the mere result of the law of gravitation; it is distinctly alleged in the complaint, on the contrary, that the defendant compelled its descent upon the property of the plaintiffs. The damage done to the lands below is, upon the allegations in the complaint,

Points decided.

66

the direct result of the acts of the defendant. It is argued by the counsel for the respondent that, notwithstanding it is distinctly alleged in the complaint that the defendant compelled" the water to descend in the manner complained of, the allegation is without significance in view of the fact that water descends in obedience to natural laws, and, therefore, that it "savors slightly of the absurd" to allege that in this instance the descent was the result of the acts of the defendant. But we see no force in this suggestion. That water would naturally descend is entirely consistent with its descent being so compelled, controlled or directed in a particular instance by human agency as to work an injury to lands lying below, which would not otherwise have resulted.

If damage resulted to the plaintiffs as the direct consequence of this interference of the defendant under circumstances which do not authorize or justify such interference on its part, the defendant is liable.

The plaintiffs having been nonsuited upon reading their complaint, the evidence is of course not found in the record, and we cannot anticipate what the circumstances may turn out to be; but whatever they may prove to be, there is no such defect in the complaint as would support the judgment of nonsuit rendered below.

Judgment reversed, and cause remanded for a new trial.

[No. 4383.]

WILLIAM GOLDSTEIN v. MARIA L. BLACK ET AL.

TESTIMONY OF EXPERT AS TO GENUINENESS OF HANDWRITING. --In order to render one a competent witness, as an expert, to the genuineness of a signature, he must have been educated in the business about which he testifies, or he must have acquired actual skill and knowledge upon the subject. It is not enough that he has sometimes compared signatures of other persons when disagreements as to their genuineness had risen in the course of business.

APPEAL from the Probate Court, Marin County,

Argument for Appellant.

M. T. Pacheco departed this life, in Marin County, on the 25th day of December, 1873, aged twenty years. William Goldstein, on the 2d day of February, 1874, petitioned the Probate Court to admit to probate the following will:

"In case of my death, it is my will and desire that my dear friend, William Goldstein, to whom I am engaged and about to marry, shall have all the property, both real and personal, of which I shall die seized, and make such disposition of the same as he may deem proper; and I hereby nominate and appoint said William Goldstein as executor of this, my last will, without bonds.

"Witness my hand this 13th day of November, A. D.

1873.

"Witnesses:

"M. T. PACHECO.

"AARON N. LEVY, residence 225 Third street. "S. Lowe, residence 128 Kearny street."

The deceased left a mother and several brothers and sisters. Maria L. Black, the mother, and the brothers and sisters, who were the heirs at law, contested the application to admit the proposed will to probate on the ground that it was a forgery. The court found that the deceased did not sign the will, and refused to admit it to probate. The proponent appealed. The witness Crockett testified that he had been a clerk in the clerk's office in the United States District Court between three and four years, and that he had done a good deal of copying and tracing of handwriting, figures, and signatures, since 1870.

The other facts are stated in the opinion.

C. T. Botts, for the Appellant.

There has been a great difference of opinion amongst jurists, both of the civil and common law, as to the policy of permitting a jury to listen to the opinions of so-called experts, whose only knowledge of the handwriting is derived from a comparison between established signatures with the one in question. Until the 18th Victoria it was uniformly rejected in England, except in the case of very ancient

Opinion of the Court.

writings, and then only when death and lapse of time had rendered any better testimony unattainable. That it is the lowest and generally the most unsatisfactory of human testimony, to be resorted to only in the absence of any other proof, is the established doctrine of all the courts by whom it has been admitted. (See Bowman v. Plunkett, 2 McCord, 250.)

In Vermont, where evidence by comparison is admitted generally, it is never allowed to contradict the testimony of a subscribing witness. (Pearl v. Allen, 1 Tyler, 4.) So in England. (Young v. Brown, 1 Hagg. 570.)

The court erred in admitting the testimony of Robert Crockett.

Quint & Edgerton and T. J. Bowers, for the Respondent.

Section 1944 of the Code of Civil Procedure is in these words: "Evidence respecting the handwriting may also be given by a comparison, made by the witness or the jury, with writings admitted or treated as genuine by the party against whom the evidence is offered, or proved to be genuine to the satisfaction of the judge."

It was upon such a comparison with the alleged forged signature to the will, and the admitted and proved genuine signatures and writings of the deceased, that the witness Crockett was allowed to give his opinion in evidence as to the genuineness of the disputed signature.

The section does not require the witness to be an expert.

By the COURT:

On the trial of the cause the only question made was as to the genuineness of the signature of Maria Theodora Pacheco, deceased, to an instrument in writing purporting to be her last will and testament, and propounded for probate as such. Much evidence was adduced upon either side of the controversy, and among other witnesses called was Robert Crockett, who was sworn and examined for the contestants. He had no personal knowledge concerning the signing of the alleged will of decedent, nor had he ever seen