delivered the opinion of the court,
*307The material points in this case have been most fully and carefully discussed in the opinion delivered by our late lamented brother Woodward, in this same case when here before, and which may be found in 5 Norris 401. As that opinion has been faithfully followed in the court below, we are relieved of any extended examination of the case as now presented. Whether or not the injury complained of resulted from the act of the defendant in pumping deleterious mine water into the Meadow Brook, was fairly submitted to the jury, and that body found that that was the immediate cause of the injury. When, in 1868, Mrs. Sanderson purchased her property on Meadow Brook, she found the water of this stream pure and valuable for domestic purposes. Her right to have and use these waters, as she found them, is undoubted. This right, though of an incorporeal character, was as absolute as her right to the land through which they flowed. . But that right has been destroyed, or its value seriously impaired by the direct act of the defendant. As then, it has been the. cause of the injury, why should it not be held to an account therefor ? The answer is twofold: 1st. It is said, the pollution of this brook results from the necessities of coal mining, and as that is an industry important to the welfare of this Commonwealth, the right of the plaintiff must yield to it. But this argument is fallacious in this: the mining operations of the defendant do not involve the public welfare, but are conducted purely for the purposes of private gain. Incidentally, all lawful industries result in the general good; they are, however, not the less instituted and conducted for private gain, and are used and enjoyed as private rights over which the public has no control. It follows, that none of them, however important, can justly claim the right to take and use the property of the citizen without compensation.
2d. It is urged, that the customary mode of disposing of water pumped from mines, in the Lackawanna and Wyoming coal regions, has been to allow it to flow into the adjacent natural watercourses. Of this proof was offered, and that for the purpose of showing a general custom thus to use the rivers, creeks and smaller streams of this part of the state, and, it may be.added, so to destroy the rights of riparian owners. As a local custom, or prescription, this has no application to the case in hand, for the colliery of the defendants appears to be the only one within the territory drained by Meadow Brook, and the pollution of its waters has occurred since the plaintiff’s purchase. As a general custom it lacks the necessary age, for the beginning of deep coal mining, in the regions above named, is quite within the memory of men yet living. Wanting this, it fails in a particular essential to the establishment of such a custom : Jones v. Wagner, 16 P. F. Smith 429. But more fatal still, to the defendants’ pretension, is the fact that the effort is thus to justify the disturbance of private *308property for the advancement of the private interests of the defendant corporation, and that, not under the plea of an ancient customary use, arising before the plaintiffs’ acquired title, but of a general custom which would authorize the present injury or distraction of the rights of riparian owners. But a custom, such as this, would not only be unreasonable but also unlawful, and therefore worthless. It is urged that mining cannot be carried on without this out-flow of acidulous water, hence, of necessity, the neighboring streams must be polluted. This is true; and it is also true that coal mining would come to nothing without roads upon which to transport the coal after it is mined;' therefore, roads are necessary; but it does not follow that, for such purpose, the land of an adjacent owner may be taken, or his right of way encumbered, without compensation.
If, indeed, the custom set up were to prevail, then, at least so far as coal mining companies are concerned, there would be an abrogation of the 8th section, art. 14 of the Constitution, which provides that “ municipal and other corporations invested with the privilege of taking private property for public use, shall make just compensation for property taken, injured or destroyed by the construction and enlargement of their works, highways or improvements.” Not only would we thus have a custom superior to the supreme law of the land, but one reaching even beyond the possible sovereignty of the state, in that, it would empower private persons, for private purposes, to injure or destroy private property, and that without compensation. A custom, such as this, is radically bad, and cannot be sustained.
Judgment affirmed.
Paxson and Sterrett, JJ., dissented.