Argued May 10, 1927. Brush and wife, plaintiffs, are owners of a lot with buildings erected thereon, located on lowlands, approximately one hundred feet north of Water Street, in the Borough of Mount Carmel. Along the south side of the highway referred to runs Shamokin Creek, which rises some miles to the east, and ultimately enters the Susquehanna River at Sunbury. The Lehigh Valley Coal Company, defendant, owns a colliery on land adjoining the stream at a point one mile above the town, and, as a result of its operations, the water becomes permeated with coal dirt and other refuse. Prior to 1919, this waste matter was frequently washed, in time of flood, over the land to the north, of which that owned by the *Page 326 plaintiffs was a part, with resulting damage. In that year, the bed of the stream became clogged, and, to secure a more rapid flow, and thus prevent the accumulation of debris, the creek was narrowed and deepened, the banks being protected by cribbing. Notwithstanding the change made, two floods occurred in March of 1920, causing the water to cover the adjoining lots, including plaintiffs', and deposit coal dirt thereon.
This action was brought to recover for the loss sustained. At the trial, the right to damages for any injury resulting from a change in the lines of the creek was upheld, and a verdict for $2,514 was rendered. Judgment entered for the amount named is not contested by the defendant, and the right to compensation on this account is admitted. The legal question involved as to the item of claim allowed for had previously been passed upon by the Superior Court, and the right of a plaintiff, owning adjoining property and similarly situated, to recover for such loss determined: Miskel v. Lehigh Valley Coal Co., 85 Pa. Super. 357. In that case a release of damages for injury from coal deposits, as here, was offered in evidence, but held to be ineffective to relieve from responsibility insofar as the injury arose from the alteration of the banks of the stream. When the offer of a discharge from liability, given by the predecessors in title of the present claimants, was made in this proceeding, it was admitted as a defense to all claims for matters provided for therein, but not as exempting from loss from the above mentioned cause. Plaintiffs insist this paper was not binding upon them as to any part of their demand, and now appeal from the ruling of the court below in receiving it, and in charging the jury as to its effect as a partial defense to the total claim presented, and for which suit was brought.
In 1894 the Brush property was owned by one Artzema and his wife, who executed a release to defendant, and other upper riparian owners, in which was recited the fact that collieries had been and were to be erected *Page 327 along Shamokin Creek to the east, and that, as a result of these operations, "waste matters would be necessarily deposited along the stream, and were liable to be washed down by the waters," with resulting damage to the land below. To relieve from liability for the injury which would probably occur from time to time, the owners granted and conveyed to the defendant, its successors and assigns, for a valuable consideration, "the right to deposit and discharge into Shamokin Creek and its tributaries, mine water, culm, coal dirt, slate and refuse materials generally, from any collieries now or hereafter owned," and the grantees were released and discharged "from all suits, claims, demands and damages whatsoever arising out of the use heretofore of the collieries and works connected therewith aforesaid, and the future maintenance and operation of the same, and for, upon, or by reason of any such deposits or discharge of mine water, culm, dirt, slate or refuse matter generally, that is now or has been at any time heretofore, or shall hereafter be discharged and deposited in said stream, or on the said lands." This conveyance was a matter of record when the present plaintiffs purchased their land on October 3, 1904.
It is first contended that this grant is void since it is in effect a contract authorizing the performance of an act prohibited by statute, and attention is called to the Act of Congress (March 3, 1899, 10 U.S. Stat. An., section 9918) which makes it unlawful to deposit into a navigable stream, or a tributary thereof, refuse matter, "or cause, suffer, or procure to be deposited material of any kind in any place on the bank of any navigable water, or on the bank of any tributary of navigable water, where the same shall be liable to be washed into such navigable water, either by ordinary or high tides, or by storms or floods, or otherwise, where navigation shall or may be impeded or obstructed." This legislation is claimed to be applicable since the Susquehanna River has been declared to be navigable by statute, and *Page 328 the creek is tributary to it, but whether the former is navigable in fact at the point in question must nevertheless be established by proof, and is not a matter of which the courts ordinarily take judicial notice: U.S. v. Rio Grande Irrigation Co., 174 U.S. 690; Baker v. Lewis, 33 Pa. 301; Brewer-Elliott Oil Gas Co. v. U.S., 270 Fed. 100; North American Dredging Co. v. Mintzer, 245 Fed. 297; 29 Cyc. 393.
The purpose of the legislation referred to was to prevent actual interference with navigation, and the record is barren of any evidence to show this to be the result of the coal dirt which found its way from the washery of the colliery into Shamokin Creek. In construing the federal act mentioned, it has been held: "If the material is deposited on the banks of a stream, the offense is not complete until it is washed into the river and obstructs navigation": Myrtle Point Trans. Co. v. Port of Coquille River, 86 Or. 311, 168 P. 40. There was no evidence before the court in this case which would have justified a declaration that the grant was in contravention of the Act of Congress, and therefore void. All plaintiffs showed was the operation of a washery, and that, as a result, dirt reached the bed of a stream, which ultimately entered into a river. Whether the latter was navigable at the place of entrance, within the meaning of the federal legislation, was not shown, nor did it appear that navigation was obstructed.
It is further objected that the release authorizes the commission of acts creating nuisances, harmful not only to the plaintiffs, but also to the public at large, and therefore void. It is true that the unauthorized pollution of streams is wrongful and may give rise to an action in trespass by one injured, or be restrained under proper circumstances (Keppel v. Lehigh Coal Nav. Co., 200 Pa. 649), but the right to mine and prepare coal for market is not a nuisance in itself. The public at large may be injuriously affected by the operation of a colliery, in which case the State may have the right to interfere *Page 329 (P. R. R. Co. v. Sagamore Coal Co., 281 Pa. 233), as has the attorney general of the United States, where navigation is obstructed by such conduct, as provided by the Act of Congress before referred to. But the right of the individual is to secure protection or redress because of the special injury which he sustains: Hughes v. Heiser, 1 Binney 463. And there is no reason why he cannot surrender his individual claim, or grant the right to do an act which otherwise would constitute a trespass as to him, if he so desires.
The validity of a grant such as here appears was recognized in Gallagher v. Kemmerer, 144 Pa. 509, though the release then offered did not accrue to the benefit of defendant, because the grant had been made to an upper riparian owner, and the injury was inflicted in part by the former. Indeed, the power to pollute waters as against the individual may be acquired not only by purchase, as here, but by prescription: McCallum v. Germantown Water Co., 54 Pa. 40; M'Kellip v. M'Ilhenny, 4 Watts 317; Thatcher v. Baker, 109 Pa. 22. "A right to maintain a private nuisance may rest in a license from the individual affected by the licensee's offensive conduct. And, in an action seeking redress for such a nuisance, if the defendant can show an authorization from the plaintiff he thereby completely discharges himself from liability": 20 R. C. L. 503. The release of the right to make future claim for injury was a covenant to forbear to sue (3 Williston on Contracts 3141), and public policy is ordinarily not concerned with the option which a man has to bring an action for damages or forbear to do so: 13 C. J. 458.
In the present case there was not a mere revocable license to do the acts complained of, but the grant of an easement or estate in the land, which was binding on plaintiffs' grantees, though the words "heirs and assigns" do not appear in the release after the names of the grantors: Kellert v. Rochester C. I. Co., 226 Pa. 27. The covenant was not personal, but ran with the *Page 330 land (Landell v. Hamilton, 175 Pa. 327; Manderbach v. Bethany Orphans' Home, 109 Pa. 231; DeSanno v. Earle, 273 Pa. 265), and it is not material, although urged so to be by appellant, that the property of defendant was not contiguous to that of the releasor: Anania v. Serenta, 275 Pa. 474. "If the owner of property has charged it with a servitude as to the matter complained of, a subsequent grantee cannot recover damages therefor": 29 Cyc. 1260.
The owners of the land here involved agreed, for a valuable consideration, to refrain from making claim for any losses due to the washing of coal dirt from defendant's colliery by the flow of the creek. "Knowledge of the injuries which may develop in the future from an accident is not necessary to support an intention to release all liability for the result of such accident, prospective as well as present": 23 R. C. L. 400. A release will cover all matters which it can fairly be said were within the contemplation of the parties (Robeson v. Schuylkill Nav. Co., 3 Grant 186; Kempt v. P. R. R. Co., 156 Pa. 430; Updegrove v. R. R. Co., 132 Pa. 540; Hoffeditz v. Ry. Co.,129 Pa. 264), though the actual construction be made thereafter (Davis v. R. R. Co., 26 Pa. Super. 364), but will not discharge from responsibility for subsequent negligent acts which could not have been foreseen: Brown v. Ry. Co., 183 Pa. 38; McMinn v. Ry. Co., 147 Pa. 5.
It is also argued that the grant in question was an effort to limit liability for negligence, which is ineffective on the ground of public policy. In the case of common carriers of passengers or freight, this rule has been applied (Wright v. Adams Express Co., 230 Pa. 635; Eckert v. P. R. R. Co., 211 Pa. 267; Ensign v. Union Transfer Co., 88 Pa. Super. 26), but even releases from negligent acts by such defendants have been sustained, where not affecting the ordinary duties which they hold themselves out to perform. So, a discharge from liability, which may arise from the negligent setting *Page 331 on fire of buildings constructed within the right-of-way of a railroad, has been held to constitute a good defense when loss occurs (Hartford Fire Ins. Co. v. R. R. Co., 175 U.S. 91; Checkley v. Illinois Central R. R. Co., 257 Ill. 491, 100 N.E. 942; Griswold v. Illinois Central R. R. Co., 90 Iowa 265, 57 N.W. 843; 11 R. C. L. 978), in the absence of a statute to the contrary: Ætna Ins. Co. v. R. R. Co., 180 N.W. 649. We are not, however, now concerned with a common carrier, but with a grant to an upper riparian owner.
The release before us exempted the defendant coal company from suit for injury from refuse "necessarily" discharged into the stream, and there was no proof at the trial that there was any negligence in the operation of the colliery. Plaintiffs' predecessors in title were paid in advance for the special injury arising from deposits of refuse evidently in expectation when the contract was signed, and they bought with full notice of the right of the coal company, and doubtless considered the outstanding charge when they agreed upon the purchase price. The court below properly admitted the release in evidence for the limited purpose offered, and instructed the jury as to its legal effect, permitting a recovery for the elements of injury not comprehended therein. It follows the assignments of error must be overruled.
The judgment is affirmed.