Commonwealth vs. Miller.

sioner of Fisheries, or the court, that every reasonable and practicable means have been used to prevent the pollution of waters in question by the escape of deleterious substances."

I am very clear that under all the evidence in this case there can be no conviction, and therefore direct a verdict of not guilty, and the county to pay the costs.

Murray vs. Pittsburgh Coal Company.

Mining-Treble Damages-Deed-Description-Boundaries.

In a suit to recover treble damages for mining about one acre of coal, it appeared that defendant's title was through a deed which conveyed "all the coal lying and being in a certain tract," and in the description by courses and distances "thence by the crop of the coal." The coal conveyed was 46 A. 92.8 perches, while the farm contained 49.775 acres. It was contended that the coal taken was that between the edge of the merchantable coal and the actual outcrop. Held: That the outcrop of the Pittsburgh coal often appears at the surface and where concealed its location can generally be approximated. It is a natural The expressed intent was to convey all the coal and judgment n. o. v.

monument.

Trespass. No. 581 Fourth Term, 1910. C. P. Allegheny County.

John P. Patterson, for plaintiff.

Don Rose, for defendant.

MACFARLANE, J., January 23, 1915. This action was for damages for mining coal, the title to which was in dispute. The question of treble damages was left to the jury but it is apparent that their verdict was for one acre at $500 with damages of $100 for detention.

Both parties claim title to an irregularly shaped strip of coal lying between a line described with courses and distances, which plaintiff claims runs at about the edge of the merchantable coal, and the actual outcrop of the coal. The defendant's title was through deed of Thomas Mellon to W. L. Scott for "all the coal lying and being within all that certain tract * * * containing fifty acres more or less, bounded by John Howell, John Boyd, Robert Patterson, William McCune and others; the quantity of coal in said tract and hereby conveyed being forty-six acres ninety-two and eight-tenth perches (46 A. 92.8 P.) and being described as follows:" The description by courses and distances follows the line of the farm "to the line of lands of McKnight" and proceeds "thence by the crop of the coal in this tract" and "thence by the same" in each of a number of courses and distances to the line of William McClure and thence by the line of the farm itself to the place of beginning. Murray's deed is from Andrew W. Mellon, a grantee of Thomas Mellon, subsequent to the Scott deed and the description follows the lines of the farm itself and conveys 49.775 acres, "excepting and reserving from and out of the operation of this grant all the coal in and underlying said tract of land hereby conveyed which was heretofore sold and conveyed by Thomas Mellon to W. L. Scott."

Later in settlement of controversies in regard to mining rights and of claim for surface damages Murray made a deed to the defendant's predecessor reciting. "Whereas, Andrew W. Mellon granted to the first party a certain tract of land containing 49.775 acres, the title to all the coal in and underlying which *** being the property of the said grantee herein named having been acquired by it under deed from Youghiogheny River Coal Company," the deed conveying a right of way into and upon the 49.775 acres and waiving all surface damages from the removal of all of said coal.

Commonwealth vs. Miller.

The Murray farm was underlaid with coal except on the side next McKnight and McClure, where there was a ravine. The farm lines were sufficient for the boundaries of the coal in estimating its acreage and determining the purchase price, except in the part of the surface below the coal where courses and distances were necessary and from McKnight's line they were run by the crop of the coal. Each course and distance was "thence by the same," i. e., the crop of the coal. Plaintiff's plan shows this line to be inside of the crop, but this is not conclusive for the testimony of plaintiff's engineer is that the survey does not close and that some of the lines would not be certain.

The outcrop of the Pittsburgh Coal often appears at the surface and where concealed its location can generally be approximated. It is a natural monument and governs unless there is something to show a different intention.

The expressed intent was to convey all the coal. Its total acreage was manifestly less than that of the farm, 46 acres 92.8 perches of coal in the deed to Scott, while the surface was 49.775 acres in Murray's deed, and does not show any intention to limit the conveyance. The quantity of land in a description, while entitled to some consideration, is the most uncertain element in the description. As a general rule, quantity, courses and distances must give way to boundary lines determined by clearly established monuments, natural or artificial, existing on or in the ground, such as the outcroping of the conglomerate rock, Miller vs. Cramer, 190 Pa., 315. The intention is not so plainly shown as in the deed in McGowan vs. Bailey, 155 Pa., 256, but the language of the opinion of the court below, affirmed by the Supreme Court, is appropriate: "But as the clearly manifest intention was to convey all the coal in and under the entire farm, the courses and distances will yield, to cover the fraction of an acre lying outside these lines, to conform to the general description and evident intention of the parties." Here the amount of coal outside of the surveyed line, assuming it to be correct, was estimated at about an

acre.

The deeds show that all who were interested in the title assumed that the company owned all of the coal and the first time it was suspected that the line in the Scott deed did not correspond with the crop, was when Mr. Romaine made a survey. Murray's recital in his deed not only recognizes this but it was for a consideration. The company purchased mining rights which it did not have. But the deed was not given in settlement of a disputed title and the actual facts were equally well known or available to the parties and there was no estoppel, Brandmeier vs. Pond Creek Coal Co., 219 Pa., 19.

The jury was instructed that the title was in Murray, but we are of opinion that this was an error.

ORDER

January 23, 1915, motion for judgment non obstante is granted and judgment is directed to be entered in favor of the defendant and against the plaintiff non obstante veredicto.

Eo die, exception ex parte plaintiff and bill sealed.

Divorce

Redlinger vs. Redlinger.

-Cruel and Barbarous Treatment-Evidence-Master's Report.

In a master's report in a divorce proceeding, findings of fact and conclusions of law are not binding on the Court.

Libellant must make out a case for cruel and barbarous treatment during the period in which the alleged acts are said to have been committed and not as to what happened prior to a reconciliation.

In Divorce. Sur master's report and exceptions thereto. No. 1159 October Term, 1914. C. P. Allegheny County.

Samuel S. Shapira and Henry G. Meyer, for libellant.

Carney & Martin, for respondent.

SHAFER, P. J., September 18, 1915.-The libel is for cruel and barbarous treatment and indignities to the person, and the master has recommended that a divorce be granted. In a proceeding for divorce the findings of the master are not conclusive as to matters of fact, and as we understand it, it is the duty of the Court to examine the testimony and form a conclusion from it, without allowing any binding force to the findings of the master. An examination of the testimony in this case brings us to a conclusion different from that of the master. The facts, briefly stated, are: that the parties in this case and a Mr. and Mrs. Weltz were friends and neighbors and members of the same, or some of the same, societies and orders, and that the libellant was a principal officer of one of these societies, and as such was frequently called upon to be away from home, and especially to be at the home of Weltz, who instructed him in reading and writing in the German language, an accomplishment which was necessary for him in his work as an officer of some of these societies. The libellant was a cabinet maker, and also earned money sometimes as a musician. In 1901, cr before, the respondent began to be jealous of the libellant's attention to Mrs. Weltz, and outbreaks of ill-temper occurred in public for this reason in 1901, and again in 1904 and 1905. In 1912 Mr. Weltz died,, having continued up to the time of his death to be friendly with both libellant and respondent. Thereafter the respondent's jealousy increased, and slie accused her husband of frequenting the house of Mrs. Weltz, and according to her testimony he ceased to take his meals at home thereafter. There was some testimony that in an effort to recover his affections by ocult means she had placed certain untoward substances in the bread which she prepared for him, which she denies, but it does not appear that even if she did so it did him any harm. On the 8th of January, 1913, he gave her $5.00 instead of the larger amount which he had been giving her before, and when she remonstrated he said that was all she was going to get, whereupon she told him that if that was all he should get out of the house, and that if he wanted to live with the other woman he should do so, that she was tired of having him live half the time with her and half the time with the other woman, whereupon he did go and live with the other woman and remained at her house for over a year, having in the meantime brought a suit for divorce. In January, 1914, a reconciliation was effected, he withdrew the libel for divorce, and they lived together for some six months. His testimony is that during this six months his wife still accused him of intimacy with Mrs. Weltz and complained of his being out very late at night, which he explains on the ground of the necessity of his visiting various lodges. The whole of his complaint, as we understand it, for the six months after the reconciliation, is to this effect. There does not appear to have been any public demonstration of her jealousy, but simply accusations on her part in the house that he was still intimate with the woman and his denial, which he says caused him to be sick and lose weight. It

Redlinger vs. Redlinger.

seems to us that his going to live at the house of Mrs. Weltz when he and his wife quarreled in 1913, and his continuing there for over a year, is a fact highly confirmatory of his wife's suspicions and goes very far to justify her complaints to him which, while not elegantly expressed, were expressed in language similar to that which he himself used, and which was no doubt used by the people with whom they lived. It does not appear to us that anything that happened between them during the last six months could be said to amount to cruel and barbarous treatment or indignities to his person. We are therefore of opinion that the libellant has not made out a case, and that the libel should be dismissed, with the costs to be paid by the libellant.

Female Labor

In re Female Employes.

-Piece Work

-At Home- -Act of July 25, 1913, P. L. 1024.

The Act of July 25, 1913, P. L. 1024, relating to the employment of females, prohibits those who are paid by the piece, after working full time in an establishment, from taking home work to do in the evening and deliver it finished at the establishment later. The act does not prohibit household work or other work in her own home, provided it is not in connection with the establishment in which she is employed during the week.

I have your favor of the 16th inst. enclosing letter from Henry C. Thompson, Jr., Esq., of Philadelphia, requesting an opinion as to whether it is a violation of the Act of July 25, 1913, P. L. 1024, for female employes, who are paid by the piece, after working nine hours in an establishment, to take home work with them to do in the evening and deliver at the establishment the next morning.

The purpose of the Act of July 25, 1913, was to protect the public health and welfare by regulating the employment of females in certain establishments with respect to their hours of labor and the conditions of their employment. The term "establishment" is defined to mean “any place within this Commonwealth where work is done for compensation of any sort to whomever payable," providing that it shall not apply to work in private homes and farming. Section 3 of the Act provides that no female shall be employed or permitted to work in, or in connection with, any establishment for more than six days in any one week, or more than fiftyfour hours in any one week, or more than ten hours in any one day. The purpose of the law evidently was to put such safeguards around the employment of women in establishments as to prevent their being exhausted

In re Female Employes.

by their labor, and thereby injured in health, to the consequent injury of the race.

Under the provisions of the act a woman may be employed for six days in the week for nine hours each day. This is all the work she may do in, or in connection with, any establishment. In addition to the work in such establishment she may do household work or other work in her own home, provided it is not in connection with the establishment in which she is employed during the week, and provided that when she is employed or permitted to work in or in connection with more than one establishment, the aggregate number of hours during which she shall be employed or permitted to work in or in connection with such establishments shall not exceed the number of hours prescribed for any one week or any one day.

The Act not only forbids her employment in an establishment for more than six days in any one week, or more than fifty-four hours in any one week, or more than ten hours in any one day, but forbids her being permitted to work in connection with any establishment beyond the time limited above.

I am, therefore, of the opinion that it is contrary to the spirit, as well as to the letter of the Act for any establishment to give its female employes, who have worked in such establishment for the full time permitted by the Act, work to be taken home and done at night and delivered at the establishment the next morning. I advise you that such work is work done in connection with the establishment and is, therefore, unlawful.

Very truly yours,

WILLIAM H. KELLER,

First Deputy Attorney General.