(80 N. H. 215) TOWN OF RAYMOND v. GOODRICH. SAME v. RANDALL. (No. 1734.) (Supreme Court of New Hampshire. ham. Dec. 6, 1921.) 1. Courts ferred from the superior court on reserved questions. Suit against Susie J. Goodrich discharged, and judgment rendered for defendant in suit against Isaac Randall. Two writs of entry. The suit against Susie Rocking- J. Goodrich is to recover possession of three farms situated in Nottingham. In the action against Randall the plaintiff seeks to recover the possession of the standing growth on one or the farms, known as the Chase farm. 202(4)-Probate court has power to modify judgment for good cause shown. Courts have authority to vacate, modify, or amend judgments for sufficient cause, and this power is possessed by the probate courts as well as by courts of general jurisdiction. 2. Dower 62- Homestead 145-Wills 796-Probate courts can permit widow, for good cause, to withdraw her waiver of provisions of will and release of dower and homestead. The probate court has authority to permit a widow, for good cause shown, to withdraw her waiver of the provisions of her husband's will in her favor and release of her dower and homestead rights, after it has made an order entering the release and waiver and directing that they be recorded. 3. Dower 62- Homestead 145- Wills 796-Whether widow has good cause to withdraw waiver is question of fact. Whether a widow has shown good cause to withdraw her waiver of the provisions of her husband's will for her benefit and to a release of dower and homestead rights is question of fact and not of law. 4. Dower62- Homestead 145-Wills 796-Question of power to order canceling record of widow's waiver immaterial as to one having notice of order permitting with drawal. Where the probate court, on good cause shown, granted the petition of a widow to withdraw her waiver of the provisions of her husband's will and her release of dower and homestead which had been filed in the registry of deeds, the question of the court's authority to further order the record to be cancelled is immaterial as to one having notice of the withdrawal; the object of the record required by Pub. St. 1901, c. 195, § 14, being merely to give notice. 5. Wills 727-Administratrix who was life tenant of all the estate held entitled to proceeds of note for timber. The plaintiff claims to be entitled to the possession of these farms, as trustee under the wills of Nathan G. T. Goodrich and his son, George W. Goodrich. The standing growth on the Chase farm was deeded to Randall by George W. Goodrich, executor of the will of Nathan G. T. Goodrich, and Randall gave his note for the purchase price, and there is still a substantial amount due on the note. The interpretation and construction of the Goodrich wills, the effect of George's deed to Randall, and the proper disposition of the proceeds of the latter's note, if and when paid, and the effect of the waiver hereinafter referred to, were reserved as important questions of law, in advance of further proceedings in the court, and were transferred from the January term, 1920, of the superior court, by Sawyer, J. The defendant Susie J. Goodrich, who was the wife of George W. Goodrich and was a legatee in his will, filed in the probate court for the county of Rockingham, some nine months after the probate of her husband's will, upon the 9th day of April, 1917, a waiver of the provisions of his will in her favor and a release of her dower and homestead rights in real estate owned or occupied by her husband at the time of his decease. And by order of the probate court the waiver and release was filed in the probate court, and it was recorded in the registry of deeds. On the 18th day of January, 1921, she filed in the probate court a petition that she might be permitted to withdraw the waiver and release, and the probate court, after due notice, granted the petition, and ordered that the record of it in the registry of deeds be canceled. The plaintiff took an appeal from this decision to the superior court upon the grounds that the probate court had no authority to permit the withdrawal of the waiver and release, nor to decree that it be set aside and rendered of no effect, nor to order that the record of it in the registry of deeds be canceled; that the defendant, acting under advice of counsel, having elected to waive the provisions of the will and released her dower and homestead rights, is bound by her election; and that justice does not require that she be Two writs of entry by the Town of Ray- allowed to withdraw, cancel, or amend it. mond, as trustee, against Susie J. Goodrich This matter relating to the waiver and and against Isaac Randall. Cause trans-release was accepted by the court as an Where a will gave the wife of testator the possession and income of his property, and she was made administratrix with the will annexed, she is entitled to the proceeds of a note given for the purchase price of the standing growth on one of the farms belonging to testa tor. Transferred from Superior Court, Rockingham County; Sawyer and Branch, Judges. (116 A.) and the questions, questions that could have come before the above reasons for court in making this order were whether the waiver and release was in proper form and seasonably filed. These facts are not questioned, and permitting the order to be withdrawn does not controvert either. amendment to the case, of law raised by all the appeal, except the last, were reserved and transferred without a ruling from the May term, 1921, of superior court, by Branch, J. Scammon & Gardner and Frank A. Batchelder, all of Exeter, for plaintiff. Sleeper & Brown, of Exeter, Chester T. Woodbury, of Salem, and Wm. H. Sleeper, of Exeter, for defendant Goodrich. H. A. & R. E. Shute and Arthur O. Fuller, all of Exeter, for defendant Randall. PLUMMER, J. There is no doubt, and the plaintiff concedes, that under the will of George W. Goodrich his wife, Susie J. Goodrich, would be entitled to the possession of the real estate described in the plaintiff's writ of entry against her, if she had not waived the provisions of his will in her favor. The question, therefore, for consideration is whether the action of the probate court, allowing her to withdraw the waiver and release and ordering it canceled, can be sustained. If it can, the defendant is entitled to the possession of the real estate in controversy, and the plaintiff's suit fails. [1] The authority of courts to vacate, modify, or amend their judgments for sufficient cause has been upheld many times in this state. "As a general proposition, courts have power to set aside, vacate, modify, or amend their judgments for good cause shown." Adams v. Adams, 51 N. H. 388, 396, 12 Am. Rep. 134; Judge of Probate v. Webster, 46 N. H. 518; Clough v. Moore, 63 N. H. 111; Moore v. Carpenter, 63 N. H. 65. [2, 3] This power is possessed by the probate courts as well as by courts of general jurisdiction. Knight v. Hollings, 73 N. H. 495, 502, 63 Atl. 38; Hood v. Montgomery, 73 N. H. 405, 62 Atl. 651; Reed v. Prescott, 70 N. H. 88, 46 Atl. 457; McDermott v. Hayes, 60 N. H. 9; Ayer v. Messer, 59 N. H. 279. In the absence of prejudice to the rights of third parties, the probate court, for good cause shown, had authority to allow the defendant to withdraw her waiver and release and to order it canceled. Whether sufficient cause was shown for the action of the court is a question of fact. Melvin v. Melvin, 73 N. H. 602, 58 Atl. 835; Fulton Pulley Co. v. Machine Co., 71 N. H. 384, 52 Atl. 457; Warner Bank v. Clement, 58 N. H. 533. The decisions give the judge of probate greater power than he was called upon to exercise in this case, for his act to the annulment of which objection is made was not a judgment nor decree, but was simply an order that the waiver and release be filed in the probate office of the county. The only The plaintiff's reason for appeal that the defendant having made her election is bound by it presents no question of law. She is not bound by her election, if the court's decision relieving her from it is based upon a good And this, as already and sufficient reason. pointed out, is a question of fact. Relative to the plaintiff's suit against Randall, it is admitted by the plaintiff that the defendant, under a deed from George W. Goodrich, has a good title to the standing growth on the Chase farm. [5] The question of the proper disposition of the proceeds of Randall's note, if and when paid, is not really raised by these suits. But as some question relating thereto may arise, it is, perhaps, advisable to consider it briefly. The note should be paid to Susie J. Goodrich, the administratrix with will annexed of George W. Goodrich. The provision in his will for his wife is as follows: "My wife, Susie J. Goodrich, is to have possession and right to use all income and profit aster or inability from sickness to use up the [referring to his property] and if from any diswhole to her own help and comfort as need be." Consequently, upon the settlement of her account as administratrix, the proceeds of the note as well as any other funds or property then in her hands or belonging to the estate of her husband, except some items of personal property specifically bequeathed or provided for in his will, will go to her. She will be entitled to use the income therefrom for her own purposes during her life, and she can sell any or all of the property and use any or all the proceeds therefrom, if by reason of sickness or other misfortune she needs it for her comfort and support. As the conclusions reached relative to the withdrawal of the waiver and release and the admission of the plaintiff that the defendant Randall has title to the standing growth dispose of these suits, a further construction of the wills is not required. The order in the first suit is case discharged, and in the second judgment for the defendant. (272 Pa. 78) Argued before MOSCHZISKER, C. J., and HOUSEHOLDER v. QUEMAHONING COAL FRAZER, WALLING, SIMPSON, KEPHART, SADLER, and SCHAFFER, JJ. CO. Francis J. Kooser, Ernest O. Kooser, and Norman T. Boose, all of Somerset, for appellant. Charles F. Uhl, Jr., Chas. H. Ealy, and Clarence L. Shaver, all of Somerset, for appellee. Where mineral rights and surface rights have been severed, the owner of the mineral KEPHART, J. Plaintiff owned seven rights owes the duty to support the overlying estate, but the owner of the entire estate in acres of surface, the coal under it being conveying may relieve him of the duty and lia-owned by defendant. The titles were subbility for damage from removing the minerals. ject to the following covenants: 3. Waters and water courses 105-Owner of minerals owed duty to owner of well not to negligently injure it. Where a well was bored and cased 30 feet below the lowest seam of coal mined, by the owner of the coal according to a contract with the surface owner to replace a well destroyed by mining, the owner of the coal owed the duty to refrain from any negligent act which would interfere with the proper exercise of the surface owner's rights, or would through lack of reasonable care injuriously affect his well. 4. Waters and water courses107(3)-Instruction in action for damage to well held erroneous. * for damages for injury to the coal seam mined." Defendants interfered with the water in mining the solid coal, and then drilled a well to a point 30 feet below the lower seam. Later, however, in moving the pillars left standing for the well's support, the casings were broken or destroyed, and it was impossible to.secure water. These are substantially the averments in the statement and the undisputed facts. [1, 2] Where there has been a severance of the mineral rights from surface rights, the In action for damage to a well which an owner of the mineral estate in the absence owner of a mine had constructed according to of a contract to the contrary owes a duty to the terms of the lease after destroying the support the overlying surface. This naturalwater supply of the surface owner, an instruc- ly follows from the location of the two estion that defendant was required to refrain tates. But it is equally true the owner of from all acts or things which would interfere the entire estate may, in conveying, relieve with, injure, or destroy the well and casing or the owner of the mineral estate from the render the water in the well inaccessible to plaintiff was erroneous as rendering the sub-duty to support the surface and from liaservient owner liable as an insurer instead of bility for any injury or damage by mining for failure to exercise due care in removing coal and removing the coal. In each case the around the well. 5. Mines and minerals relative rights of the owners have been settled by many of the decisions of this court. 125-Presumption is Miles v. Pa. Coal Co., 217 Pa. 449, 451, 66 Atl. that coal is removed from beneath land by its 764, 10 Ann. Cas. 871; Stilley v. Pittsburghowner, though done by employees. Buffalo Co., 234 Pa. 492, 496, 83 Atl. 478, 41 Where coal is being mined solely by one per-L. R. A. (N. S.) 236; Graff F. Co. v. Scranton son from land owned by him, the presumption Coal Co., 244 Pa. 592, 596, 91 Atl. 508; Weakis, when the coal is removed, the owner removes land v. Cymbria Coal Co., 262 Pa. 403, 405, it, though done by his employees. 105 Atl. 558; Atherton v. Clearview Coal Co., Appeal from Court of Common Pleas, Som-267 Pa. 425, 432, 110 Atl. 298. These cases Appeal from Court of Common Pleas, Som- hold that, where the grantee simply removes erset County; John A. Berkey, President the coal, it is not improper mining. Even if Judge. such removal is negligently done, there can be no recovery. Atherton v. Clearview Coa! Co., supra. Action by Harry M. Householder against the Quemahoning Coal Company. From judgment for plaintiff, defendant appeals. Reversed, with a venire facias de novo. [3] The release covered any damage from the loss of water; and, if nothing further ap (116 A.) peared, plaintiff could not recover. The sub- defendant's electric motor or other mine masequent clause as quoted had the effect of chine. What would be the rule as to plainexcepting the water at the buildings from tiff's conduct? We find it expressed in the the release. If it was "destroyed," a well following cases and the converse must apply was to be bored and cased to a depth of 30 to defendant: Briegel v. Phila., 135 Pa. 451, feet below the lowest seam. It was clearly 19 Atl. 1038, 20 Am. St. Rep. 885; Kibele v. the intention of the parties to preserve a Phila., 105 Pa. 41; Koelsch v. Phila. Co., 152 supply of water at the plaintiff's buildings, Pa. 355, 25 Atl. 522, 18 L. R. A. 759, 34 Am. or the means to procure it if it was below | St. Rep. 653; Rumsey v. Phila, 171 Pa. 63, 32 the lower seam. The release in question did Atl. 1133; Heh v. Consolidated Gas Co., 201 not cover an injury to the well after it was Pa. 443, 50 Atl. 994, 88 Am. St. Rep. 819; constructed, for it would be a useless thing Hartman v. Citizens' Natural Gas Co., 210 to effect such an arrangement if the owner Pa. 19, 21, 59 Atl. 315; Zimmer v. Phila, 57 of the coal had the right through negligent Pa. Super. Ct. 20, 21. There may be authormining to immediately thereafter destroy it ities apparently to the contrary, but, when without any liability. The owner of the examined carefully, we find them to be cases coal owed the surface owner the same duty of nuisances. The principle has recently with regard to the pipe and the way covered been stated by this court in Jackman v. by it as though it were, by contract, laid on Rosenbaum Co., 263 Pa. 158, 170, 106 Atl. surface land owned by defendant; that is, 238, 242: to refrain from any negligent act which would interfere with the proper exercise of the surface owner's right, or that would, through lack of reasonable care, injuriously affect his pipe line. "No cause of action arises from the doing of done or exercised in a lawful and proper mana lawful act or the exercise of a legal right, if ner; the resulting damage, if any, being damnum absque injuria. A liability may, however, arise from the doing of a lawful act, or the exercise of a legal right in a negligent or improper manner; but in such cases the liability is based, not upon the act done, but upon While there is an the manner of doing it. ancient maxim to the effect that one must so use his own property as not to injure another, the maxim, in its legal sense, has reference, not to the mere infliction of damage, but to the violation of a right, and means only that one must so use his own as not to violate a legal right of another. Every one has a right to the natural use and enjoyment of his own property, and, for lawful acts done by one person upon his own property in a lawful and proper manner there is no cause of action, although damage to another may incidentally result therefrom." [4, 5] The court below charged the jury "that after the well was drilled, cased, and tubing put in to use by the plaintiff, under the law the defendant was required to refrain from all acts or things which would interfere with, injure, or destroy the well and casing or render the water in the well inaccessible to the plaintiff," and declined to charge the jury that, "if they found from the evidence that the defendant did not interfere with or destroy the pillar of coal through which said well was drilled by some careless or negligent act, then defendant cannot be held liable in damages." In the opinion refusing the motion for judgment and new trial the court reiterated its position by holding "that, if the defendants for any reason whatever made such use of his property as to materially interfere with the privilege to which the owner of the reservation easement was entitled, such use of its property was un-abundant evidence of negligence. It was not lawful." This has the effect of making the subservient owner, or even an innocent person, situated as defendant was, liable as an insurer, and fixes an arbitrary and absolute rule of responsibility. In principle, this bears a very close resemblance to that in Rylands v. Fletcher, L. R. 3 H. L. 330; but this doctrine does not prevail in Pennsylvania. The Sanderson Case cannot be carried to this extent. Defendant, as owner of the coal, had the right to remove it, but, as the mining near the pipe was attended with the risk of damaging a neighbor's property, appellant is answerable for such conduct, as its diligence is proportioned to the apparent risk; so, if defendant failed to exercise due care in removing the coal and damage results, the failure would be actionable negligence. Suppose the pipe line had leaked permitting an accummulation of water sufficient to destroy There may be cases where the evidence of negligence may be slight as the care of the subject-matter necessitates; but here there is necessary for the charge to go beyond it. Where coal is being mined solely by one person from land owned by him, the presumption is, when the coal is removed, the owner removes it, though done by his employees. This would fix the person responsible for moving the coal under plaintiff's land. The other evidence, the breaking, subsidence, and other conditions, indicate coal was being removed. The connection between defendant and the acts complained of was clearly shown. Reference has been made to the case of Pa. Cent. Brewing Co. v. Lehigh Valley Coal Co., 250 Pa. 300, 304, 95 Atl. 471. This case was predicated on neglect by defendant, and, while the court does say the company "had no right to interfere in any way with the well or with the pipe in which the water was conveyed to the surface," it ultimately finds negligence in the manner in which the coal was removed from around the pipe as the basis of recovery. The court was in error in charging the jury as to defendant's responsibility. Judgment reversed, with a venire facias de novo. (271 Pa. 579) BITTNER v. QUEMAHONING COAL CO. (Supreme Court of Pennsylvania. Jan. 3, 1922.) 1. Estoppel 93 (8)-Plaintiff held not estopped from asserting title to a seam of coal reserved in a lease. Where plaintiff, who was inexperienced in mining, granted mining rights reserving a seam of coal then being worked, and promptly ordered defendant, who had the advice of a mining engineer, to stop mining from the reserved seam as soon as he knew it was being worked, though plaintiff helped haul materials and construct the opening of defendant's mine, since defendant had equal or greater means of knowledge than plaintiff, he was not estopped from objecting as soon as he discovered that coal was being removed from the reserved seam. 2. Estoppel 54-To create estoppel, party acting must have knowledge of true state of affairs or be in position to have become aware of them. To create an equitable estoppel, the party acting must have information of the true state of affairs, or be in a position to have become aware of them so that to deny what he previously asserted would render him guilty of a fraud or of such gross negligence in ascertaining the truth in the matter amounting to constructive fraud, since acts since acts or declarations founded upon ignorance of one's own rights are not capable of creating an estoppel. 3. Estoppel 78 (1) In creating estoppel, acts of parties to a contract placing mutual construction on its provisions are without effect. coal from the seam reserved, it was liable in damages for the coal taken and for the loss of a spring resulting from such action. Appeal from Court of Common Pleas, Somerset County; John A. Berkey, President Judge. Action by Madison Bittner against the Quemahoning Coal Company. From judgment for plaintiff, defendant appeals. Affirmed. Argued before MOSCHZISKER, C. J., and FRAZER, WALLING, SIMPSON, KEPHART, SADLER, and SCHAFFER, JJ. Francis J. Kooser and Ernest O. Kooser, both of Somerset, for appellant. Clarence L. Shaver and Uhl & Ealy, all of Somerset, for appellee. FRAZER, J. [1, 2] Plaintiff conveyed to defendant's predecessor in title, who in turn conveyed to defendant, all the coal under a tract of land in Black township, Somerset county, containing 128 acres and 81 perches, with the provision that— "In case there is in or under this tract of land next to the surface a vein of coal of about 27 inches in thickness overlying another vein of about 3 feet in thickness, then so much of said 27-inch surface vein as is in and underlying this said described land is reserved and excepted, from this conveyance, this being the vein now opened and being worked." Following the sale plaintiff continued to take coal from the vein excepted from the grant, and defendant later opened a mine to remove the coal included in the conveyance from plaintiff. Subsequent to the opening of its mine by defendant and the expenditure of a considerable sum of money in completing improvements necessary for mining operations, plaintiff discovered coal was being taken by defendant from the reserved 27-inch vein, and he at once notified defendant to cease further operations in that seam and later began suit to recover the value of the coal removed and also for damage sustained by the destruction and taking away of the water of a spring on the land, the result of defendant's mining operations. The jury returned a special verdict in which 4. Mines and minerals 55 (8)-Submitting to they found the coal removed by defendant jury question whether lessee was operating was, in fact, taken from the seam reserved a coal seam belonging to lessor held proper. by plaintiff and awarded damages for its The question whether a lessee was operat-value and also for the loss of the spring. ing a coal vein conveyed to it or a seam reserved by the lessor was one of fact, and was properly submitted to the jury. The acts of parties to a contract placing a mutual construction on its provisions are without effect in creating an estoppel unless they act with knowledge of their rights and of existing facts and their contemporaneous acts in construing a contract will be considered as creating an estoppel only where the contract is ambiguous. From judgment entered on the verdict defendant appealed. Defendant's principal contention is that plaintiff, having permitted defendant to expend money in the development of the mine, without giving notice of his claim of ownership of the coal, is estopped from asserting title to the seam in question. The record, however, fails to show facts constituting an |