and in the declaration filed, this is the negligence charged. The nearest approach to making good this averment was an offer of evidence, to which we will in a moment refer. There was no evidence in the case that any part of the coupling apparatus was out of repair; none that there were defects in any part of it that reasonable care and inspection would have discovered, and none that the coupling was any different from that in ordinary use. Yet its insufficiency was proposed to be shown by numerous offers when a witness was on the stand who had testified that he was acquainted cuss the theory advanced by the defendant that it was the jar and not the breaking of the bolts that threw the plaintiff between the cars and occasioned his injury. For the reasons given, we think the non-suit was properly entered, and no error was committed in refusing to remove it. The judgment is affirmed. Common Pleas--Law, with the construction of couplers of dif- Appeal of Francis W. Brinton from Order ferent kinds and makes, but who also stated that he had never seen this particular coupler, did not understand it, did not know the extent of its use, that there was a great variety of cars all of different designs, that about the only standard equipment in cars is the standard gauge, and that he would not be able to pass upon the adequacy of a car for the purpose for which it was used without seeing it. Having thus failed to show by this or any other witness that the coupler here employed was not in general use, and the doctrine res ipsa loquitur not applying, it was incompetent to show by this witness that a coupler constructed as this was would be inadequate and uncertain. That would be resting the case on theoretical opinion before any ground had been laid for it by evidence based on knowledge derived from experience and observation. The several offers when this witness was on the stand were all alike objectionable for the reason we have stated, and were properly refused. As the case then stood, no intervening negligence on the part of the defendant was shown, and except as this was shown, the plaintiff's injuries were necessarily referable to the jar occasioned by the application of increased power to the motor as the proximate cause, which, whether negligent or not under the circumstances, was the act of the motorman, a co-employee with the plaintiff, for which no liability would attach to the defendant company. In the view we take of the case, it is unnecessary to dis of Health Commissioner. Pollution of streams — Drainage from barnyard Order of Health Commissioner-Act of April 22, 1905. An order by the Commissioner of Health, under the Act of April 22, 1905, P. L. 260, on the owner of a farm located on the edge of a mill-race through which the water of a creek flows, to discontinue permitting drainage from the barnyard to flow into the mill-race, should be sustained by the court. Under the Act of April 22, 1905, the drainage of sewage into a surface stream is a public nuisance, independent of its injury to riparian owners, and the mere fact that the sewage enters the stream is sufficient to justify this is dangerous to public health. such order of the Health Commissioner, as Trust Book No. 23, page 18. C. P. of Lancaster Co. Petition for appeal from order of Commissioner of Health of Pennsylvania. E. M. Gilbert and Thomas Whitson, for appeal. Coyle & Keller, for Department of Health. July 11, 1914. Opinion by HASSLER, J. This is an appeal from an order of the Commissioner of Health directing the ap pellant to discontinue the discharge of sewage from his barnyard into Valley Creek. The order was issued and the appeal taken under the provisions of the Act of April 22, 1905, P. L. 260. This Act is declared, in its title, to have for its purpose the preservation of the purity of the waters of the State for the protection of the public health. It we have referred, the matter takes on an entirely different aspect when it is sewage, that is discharged into a running stream. Because sewage is the most efficient medium for the dissemination of infecting germs which do their deadly work in such an infinite variety of insidious ways, not at all dependent upon declares that the "waters of the State," | Justice Stewart in Com. v. Kennedy, as used in the Act, "shall include all 240 Pa., 214, in which he says: "But, streams and springs, and all bodies of in view of the recent legislation to which surface and of ground water, whether natural or artificial, within the boundaries of the State "; and that "sewage shall be defined as any substance that contains any of the waste products, or excrementitious or other discharges from the bodies of human beings or animals." Section 8 provides that "all individ-free access of the public to the stream uals, private corporations and companies that, at the time of the passage of this Act, are discharging sewage into any of the waters of the State may continue to discharge such sewage, unless, in the opinion of the Commissioner of Health, the discharge of such sewage may become injurious to the public health. If at any time the Commissioner of Health considers that the discharge of such sewage into any of the waters of the State may become injurious to the public health, he may order the discharge of such sewage discontinued." which the germs pollute, it cannot be said that the riparian owners alone have an interest in the stream.' When this deleterious substance pollutes any running stream the public health is endangered thereby. The infection from which the riparian owner himself may peradventure escape may nevertheless in a hundred ways, through his innocent acts, spread through a community, for he no more than any other lives to himself alone. It was this consideration, as indicated by the title, that led to the passage of the Act of April 22, 1905, P. L. 260, which declares it to be a misdemeanor, punishable by fine or imprisonment, for any individual, private corpor Section II allows an appeal to the Court of Common Pleas from such order of the Commissioner of Health, and empowers the Court, after hearing, to affirmation or company to discharge sewage or or set aside the said order or decision, or to modify the same, etc. On the hearing of this appeal considerable testimony was taken. From it we find that the barnyard of the defendant is located along the edge of the millrace through which the water of Valley Creek, a water of the Commonwealth as defined by the Act, runs, and that sewage, as defined by the Act, flows from that barnyard into the race, and that this sewage is injurious to public health. This condition of affairs existed prior to the passage of the Act of 1905. It is not necessary to find that the public health may be injured only through the pumping station on the Octoraro Creek, of which Valley Creek is a tributary, and which is located many miles below the barnyard of the appellant, to justify the order of the Commissioner of Health, but the mere fact that the sewage enters the stream is sufficient to do so, as this may endanger the public health. This is the view expressed by permit the same to flow into the waters of the State.' The Act defines waters of the State' to mean, all streams and springs, and all bodies of surface and ground water, whether natural or artificial, within the boundaries of the State.' This does not make all such streams public streams, but it does subject them to police control, because, while not public streams, they are susceptible of being turned into public nuisances. The offense here denounced is against the State, and it is committed whenever sewage is permitted to drain into any surface stream within the Commonwealth." We are of the opinion that the Commissioner of Health was fully justified. in issuing the order appealed from. As we believe the appeal was taken in good faith, we modify the order so as to provide that the appellant shall discontinue the discharge of sewage into the stream, or cause it to be discontinued, within ten days from the filing of this opinion. With this modification, we | H. Haughman conveyed the rest of his affirm the order appealed from. The land on Cedar Street to Maria E. Bickcosts of this application to be paid by ing, which he described as containing the petitioner. Andrews v. Kissinger. -- Ejectment Monuments Courses and distances. While a boundary line as fixed by a monument prevails over a line fixed by courses and distances in a deed, where such monument is a pump which is shown not to have always been in the same place and there is no testimony to show where it was when the deed was made, the courses and distances will prevail. The fact that a subsequent owner described the line as passing through a well not mentioned in the defendant's deed could not enlarge the defendant's holding. November Term, 1913, No. 14. C. P. of Lancaster County. Ejectment. Rule for a new trial. twenty-five feet on Cedar Street and extending of that width east to Blackberry Alley. The line between the two properties in question is described "thence eastward and by a line through the center of a pump two hundred feet, &c." This lot is now owned by the plaintiff. The two lots, it will be observed, as conveyed contain only 64 feet front on Cedar Street, whereas George W. Haughman owned 66 feet according to his deed, and 65 feet 81⁄2 inches by actual measurement. The remaining two feet were subsequently conveyed by the widow and heirs of George W. Haughman to the plaintiff. A measurement of defendant's lot, as he has it fenced, shows that it contained a front on Cedar Street of 40.85 feet, or 1.85 feet more than his deed calls for. It is this narrow strip which the plaintiff Warren S. Buch and B. F. Davis, for claims, and which is in dispute. rule. H. Frank Eshleman and M. G. Schaeffer, contra. July 11, 1914. Opinion by HASSLER, J. According to the courses and distances mentioned in the deed the defendant has no title to this strip of land. At the trial he claimed title to it, first, because the line between his land and that of the plaintiff is fixed by a monument, viz.: a pump, on the ground, and the line so fixed placed this disputed strip of land on his side of the line, and that a line so fixed must prevail over the line described in the deed by courses and distances; and, second, that he has obtained title to it by prescription. The first ten reasons for a new trial are as to the correctness of our instructions to the jury as to the alleged monument on the ground. In this action of ejectment the trial resulted in a verdict for the plaintiff. The defendant now asks for a new trial. The land in dispute is a narrow strip of less than two feet in width, located on Cedar Street in the borough of Lititz. The testimony at the trial showed that prior to March 20, 1879, George W. Haughman owned a lot of ground containing 66 feet front on Cedar Street in the borough of Lititz, and on that date he conveyed to Ida C. Hall a portion of There is no difference of opinion as to this land, which is described in the deed the correctness of the defendant's conas containing 39 feet front on Cedar tention that a line fixed by monuments Street, and extending of that width to on the ground prevails over a line fixed Blackberry Alley. A description of the in the deed by courses and distances. line between the land so granted and the The difference between us is that, acpart retained by Haughman is as fol-cording to our view, the testimony does lows: "Thence by land through the center of a pump seventy-four and threequarter degrees west two hundred feet to a point in Blackberry Alley." This lot is now owned by the defendant. On January 2, 1885, the said George not show a monument on the ground fixing the line, and according to the defendant's view it did. The line as described in the deed from Haughman for defendant's property described the line as follows: "Thence by burg. Negligence Streets in borough — Soft spot-Injury to horse-Notice. In re an action against a borough to cover damages for injury to a horse which stepped into a soft spot on an apparently good street in the spring of the year, a non-suit is properly entered in the absence of proof of of the existence of the defect. actual or constructive notice to the borough May Term, 1913, No. 20. C. P. of Lancaster County. Rule to strike off non-suit. a line through the center of a pump, &c." | prescription, and we see no reason why This is the only description of the line we should interfere with their finding. with which we are concerned. It de- We do not think that any error was scribes what Haughman conveyed and committed on the trial, and therefore the defendant is the owner of. The fact discharge the rule for a new trial. that a subsequent owner of defendant's lot described the line as passing through a pump and well does not enlarge the Christian A. Eby v. The Borough of Strasdefendant's holding, as they could only convey what had been conveyed to them. The fact that in the different deeds a well is referred to as being in the line, and that defendant and plaintiff should have a right to use it in common, does not enlarge or diminish what Haughman conveyed as described in the deed. The only monument mentioned, therefore, is the pump. The testimony showed that the pump was not stationary. Sometimes it was at one side of the well and sometimes at the other. A line passing through it would not be fixed, but would vary a few feet according to just which side of the well it happened to be on at any particular time. The defendant made. no attempt to prove where it was located when the deed was made. Of the three witnesses who attempted to fix its location, none knew of its location for some years after the date of the deed. If the defendant had proved its location when the deed was made to the satisfaction of the jury, a line passing through it as it then stood would have prevailed over the line fixed by the courses and distances mentioned in the deed if the two lines did not agree: Lodge v. Barnett, 46 Pa., 477; Burkholder . Markley, 98 Pa.. 37; Hughes . Smith, 4 Penny, 210. There being no proof of any line fixed by a monument on the ground, the Court could not permit the jury to consider any line except the one described in the deed, and as that left the disputed strip of land outside of the defendant's line, we were bound to say that the defendant had no paper title to it. The testimony submitted as to the defendant's right or title by prescription was not disputed, but we do not think it was satisfactory. It was, however, a matter for the jury, and we submitted it to them with instructions, the correctness of which are not questioned. The jury found against the defendant's title by Charles W. Eaby, for plaintiff and rule. The act of negligence complained of as the cause of the accident, through which the plaintiff suffered an injury, is stated in his statement, as follows: "The said defendant, the Borough of Strasburg, on or about the 12th of March, 1913, carelessly, negligently and unlawfully failed, or neglected to keep said road or street in a reasonably safe and passable condition; to properly repair or keep in repair said road or street; . . . that the said defendant, the Borough of Strasburg, knew, or should have known, that said hole, rut or depression was in existence, and had been in existence some time prior to the 12th day of March, 1913. The testimony submitted at the trial showed that on March 12, 1913, the plaintiff was riding a horse west on Main Street in defendant borough, and when at a point opposite the residence of Dr. Clark, three or four feet from the curb, the horse stepped into a rut or wagon track three or four inches deep, the bottom of which was soft and spongy. The horse's hoof sank into the soft and spongy ground about six inches and he broke his leg, which necessitated his being killed. The 1istence of such conditions at the place plaintiff says the street appeared level. As no The street at this point is about thirtyeight feet wide. A street-car track about five feet wide runs through the middle of it. On January 28, 1913, there was a leak in the water-pipe, connecting the main water-pipe, which is on the north side of the track, with the residence of Dr. Clark on the south side of the street. This leak was two feet south of the track and ten feet north of the place where the horse broke his leg. The borough authorities were notified of the leak, and dug down to the main water-pipe on the north side of the car track, turned the water off from the connecting pipe, and filled up the hole thus made, as well as the hole caused by the leak, with stone, which were stamped down, and the street was thus made solid and safe. It was also proven that on the day of the accident the street was level and apparently all right. From this it is evident that neither the leak nor the excavation made to turn the water off, of both of which the borough had notice, had anything to do with the accident. It was not proven that the borough had actual notice of any defect in the street that might have caused the accident, nor was it proven that any such defect existed for any such length of time as to have charged it with constructive notice. The plaintiff concedes that to charge the borough with negligence it must have had notice of the defect in the street which caused the accident, and argues that notice of the leak was notice of the unsafe condition of the street. The difficulty is that the testimony shows that the leak did not cause the trouble, and the plaintiff further proved that the street was apparently in good condition on March 12, 1913, except for the rut, which it is not contended caused the accident. Even though it is conceded that it was the duty of the borough to guard against soft spots in its streets in the spring of the year when the frost is coming out of the ground, which would be imposing quite a heavy burden on it, the plaintiff cannot recover in the absence of proof of notice to the borough, either actual or constructive, of the ex where the accident occurred. Legal Miscellany. Legal Confusion. A Cleveland lawyer tells how, during a trial, one of the jurors suddenly rose from his seat and fled from the courtroom. He was, however, arrested in his flight before he had left the building, and brought back. "I should like to know what you mean by such an action as this," said the judge. in a lenient tone, however, as he knew the man, an elderly German, to be a simple, straight forward person. "Vell, your honor, I will explain," said the juror. "Ven Mr. Jones finished mit his talking, my mind vas clear all through; but ven Mr. Smith begins his talking. I becomes all confused again already, and I says to myself, I better leave at vonce, und stay away until he is done,' because, your honor, to tell the truth, I didn't like de vay der argument vas going."-Cleveland Leader. A Forgotten Age. A blond young woman walked into the bank in a most business-like fashion and presented a check payable to Annette H. Bennett to the cashier, who was a most polite young German. Upon examining the endorsement he noticed that it read Annette Bennett, and he handed it back to her very courteously, saying: "You haf forgotten the 'H." A single glance would tell an observer that she was unaccustomed to doing any banking business. She blushed furiously. and in a confused way took the pen. murmuring. “Oh, pardon me,' wrote below the endorsement, "Age 24." and |