text:
    Horner et al. versus Watson et al.

    1. Hays sold the coal under a tract of land to Horner, with certain privileges through his adjoining lands; he subsequently sold the coal under part of' those lands to Watson. Held, that any privilege, &e.,_ directly conferred by the deed of sale to Horner, or by necessary construction or implication arising from it, dominated any conflicting right in the conveyance to Watson.
    2. The owner of a mine has a right to mine his coal in the ordinary way, whilst he does no injury to an adjoining mine, except that which arises necessarily from the removal of the coal. Per Stowe, J.
    3. Such owner would not be liable for the collection and flow by such mining of subterranean water upon lower mines._ Id.

    4. The upper owner would be liable for such mining, whether in the ordinary way or not, as would introduce foreign water from the surface by reason of the roof falling in, which water would not have flowed in if the roof had remained undisturbed and compact after coal was removed. Id.

    5. Horner, in excavating his coal, removed the ‘‘ribs" — composed of coal _which supported the roof of the mine, causing the surface to sink and crack, so that water from the surface flowed into his mine, and thence into the mine of Watson. Held, that he was liable to Watson for any injury done by such flow of water, although resulting from the approved, established and customary practice of mining in that region and without negligence.
    6. In this state a custom that in mining the owner may remove the “ ribs” and allow the surface to sink, is not reasonable nor of sufficient continuance to be good.
    7. A claim destructive of the subject of the grant cannot be set up by any usage.
    8. Jones v. Wagner, 16 P. P. Smith 429, followed.
    October 7th 1875.
    Before Agnew, C. J., Siiarswood, Williams, Mercur, Gordon, Paxson, and Woodward, JJ.
    Error to the Court of Common Pleas of Allegheny county: Of October and November Term 1874, No. 231.
    These were two actions on the case brought by Robert Watson and James Watson against Simpson Horner and John A. Wood. One was to June Term 1867 and the other to December Term 1870 of the court below. The parties were adjoining owners of coal mines in Baldwin township, Allegheny county. The cause of action in each, was the flooding the plaintiffs’ mine with water, which, by the negligence of the defendants, was permitted to flow from their mine. The two actions were consolidated and tried as one.
    James H. Hays was the owner of the surface land under which both mines were, and also of adjacent coal land.
    On the 12th of August 1853, Hays entered into an agreement with Simpson Horner and J. D. Hyatt (whose title the defendants have), by which Hays agreed to sell to them all the mineral coal comprising an area of 120 acres lying in and under a piece of land in Baldwin township, adjoining lands of Linhart’s heirs on the south, and other lands of Hays on the east, north and west, with the right and privilege to Horner and Hyatt to enter “ forthwith on the lands of Hays overlying and adjacent thereto, for the purposes of mining, excavating and removing said coal, and also a sufficient right of way * * * over and through the lands of said Hays on the lower side of Beck’s run from the pit’s mouth to the Monongahela river for the transportation of said coal,” with privilege of a landing for twenty years, * * * also, the further privilege of driving and excavating such entries through the adjoining lands of the said Hays as may be required by them for ventilation and drainage of their pits and mines, without charge for the coal necessarily removed by them in the operation; the said Hays, however, reserving the like privileges of driving and excavating entries through the coal hereinbefore described of. the said (Horner and Hyatt) for the like purposes for the use of his own mines upon the adjoining lands now owned by said Hays, and also the right of retaining such of the entries of (Horner and Hyatt) as he may desire to preserve, making however a rateable abatement for the amount of coal left for their support, and the amount removed by himself in the exercise of the privilege- of driving the entries aforesaid through the coal of (Horner and Hyatt) from the purchase-money hereinafter stipulated to he paid at the rate of $500 per acre for the amount thus retained.” * * *
    The defendants opened their mines in August or September 1858.
    On the 10th of September 1856 Hays sold to the plaintiffs a piece of coal land adjoining that of the defendants’ on the westerly side.
    The plaintiffs commenced to mine, in'March 1857.
    The case was tried, February 26th 1874, before Stowe, J.
    The plaintiffs’ evidence was that they continued to work at the mine until early in 1861, when in consequence of the great depression of the coal trade they ceased mining until the spring of 1863. The defendants also stopped mining, but began three or four months before the plaintiffs. There was no trouble to the plaintiffs’ mine about water until the year 1864, when the water came in from defendants’ mine so as to interfere with plaintiffs’ work in their mines, and continued increasing; plaintiffs procured a steam pump, which for some time relieved them ; they agreed with defendants that the latter should pump the water, using plaintiffs’ pumps; they neglected to pump and the water increased very much; when remonstrated with by plaintiffs, defendants refused to pump any more, saying that the coming in of the water was the act of God; plaintiffs afterwards made a drain at great expense to Beck’s run. There was evidence further that the defendants had been taking down the “ribs ” or pillars composed of coal; that in consequence the superincumbent surface sank and cracked; that the rain, melted snow, &c., ran through the breaks in the surface into the defendants’ mine, and thence in great quantities into the plaintiffs’ mines, which were lower than the defendants’. The plaintiffs gave evidence also of the expense to which they were put in freeing their mines from the water.
    The defendants gave evidence that quantities of water would collect in all coalmines from the working of them, especially where there were veins of clay through the coal, as frequently was the case. They gave evidence also, for the purpose of showing that the water which flowed from their mines into the plaintiffs’ was the result of the ordinary and proper working of their mines, and not the result of negligence or want of care. They gave evidence also that their mines were as well opened as any mines on the river; that it was proper mining, and the approved, established and customary manner of mining bituminous coal to take out the ribs or pillars without reference to its effect as to the sinking of the surface.
    There was a great mass of testimony on each side. ,
    The foregoing statements sufficiently present the case as considered and decided by the Supreme Court.

      The defendants’ second point, which was refused, was: — •
    Even if the jury should find that surface water found its way into defendants’ mines, and thence into plaintiffs’, the defendants would not be liable for damages therefor if the jury also find that the same was not occasioned by any wanton or wilful acts of the defendants, but was a natural consequence of their mining, and that they conducted their mining operations according to the approved, established and customary course and practice of mining in this region, and without any negligence in the operation of mining.
    The court charged:—
    “ The owner of a mine has a right to mine his coal in any ordinary and reasonable way, so long as that does no injury more than that which necessarily arises by removing the coal, and such incidents as directly flow from such use. Thus, in the case of subterranean water percolating through the coal, or in cases of subterranean springs where the mere removal of the coal may cause the water to collect and flow toward or upon lower mines which might or would not otherwise do so, the owner of the higher mine is not responsible to the owner of the lower mine for the injury to him thus occasioned. But otherwise where the mining is done in such a manner (whether the ordinary way or not) as to introduce foreign water from the surface or higher level, by reason of the roof falling in, and thus introducing water from the surface which would not have flowed in if the roof of the mines had remained undisturbed and compact after the coal was removed. In other words, whatever water (if any), flows in from percolation or gravitation, simply by reason of the excavation or removal of the coal, the owner of the higher mine is not liable therefor. [But whatever water arose from the breaking in of the roof and the consequen; sinking or disturbance of the surface, thus occasioning an addi tional flow from above which would otherwise not have run in or upon the lower owner, the owner of the higher mine is responsible for whatever loss or expense the former fairly is put to to secure or protect his own property from injury from such water. This is the general rule without reference to actual negligence or want of skill on the part of the higher owner.] * * *
    “ 1. Was there any negligent or unskilful working of the mines of defendants ? To determine this question, you are to examine the evidence indicating whether or not they were worked in the ordinary and approved method of working mines similarly situated in the neighborhood of this mine, or in this general mining locality. If these mines were worked in the usual and approved method as above stated, there was no negligence which can avail the plaintiffs in this case as against the defendants. But if otherwise, then there was negligence; and if you so find, then you are to inquire whether such negligent or improper mining of defendants’ coal increased the flow of water upon. plaintiffs, thereby throwing upon them water that otherwise would not have flowed upon them. If it did not, plaintiffs have no right to recover damages upon this ground. But if it did, then whatever additional water was thus thrown upon plaintiffs, defendants are liable in damages for the proper cost of removal by plaintiffs.
    “ 2. But there is another question involved in this case which is of great importance, and does not involve the question of actual negligence or want of ordinary care, nor the usual method of mining coal in this part of the country. That is, assuming that the coal was properly mined in accordance with the usual and approved manner, are the defendants liable for such water as flowed upon plaintiffs’ from defendants’ mine?
    “ Upon this question it is alleged by defendants that water arising from the proper and ordinary working of the mines, such as naturally and directly resulted from removing the coal, flowed upon plaintiffs by reason of percolations, subterranean springs or natural flow by gravitation through the surface ground, without any disturbance of the roof or surface ground. For such water the defendants are not liable, for the law is in such case as this that it is the right of each of the owners of adjoining mines to work his own mines in the manner which he deems most convenient or beneficial to himself, although the natural consequence may be that some prejudice will accrue to the owners of the adjoining mines, so long as such prejudice does not arise from the negligent or malicious conduct of his neighbor.
    “ [But this is not all of plaintiffs’ case. It is alleged, and evidence adduced which certainly tends to show, that water was introduced into defendants’ mines from the surface, by reason of the drawing of ribs which are left to support the roof, or other acts of defendants letting down the roof or so disturbing the surface earth as that water flowed in that would not have otherwise done so. This is denied by defendants, and evidence adduced tending to show that no such water ever came into plaintiffs’ mines which flowed from defendants’. This is a question of fact solely for you under the evidence. If you should find for defendants upon this point, then your verdict should be for them, if you find as before stated that the operations of defendants in their mining was carried on in the usual and approved manner. But if you should think that the evidence shows that such surface or other foreign water was thus (as alleged by plaintiffs) caused or allowed to flow into defendants’ mines, and thence flow upon plaintiffs’ mines, for such water the defendants are liable for whatever reasonable cost or expense plaintiffs were put to in removing the same from their mines, including the cost of ordinary or proper draining or machinery for that purpose.”] * * *
    The verdict was for the plaintiffs for $7100.

      . The defendants took a writ of error and assigned for error: the answer to their second point and the part of the charge in brackets.

      M. W. Acheson, for plaintiffs in error.
    The plaintiffs should have left a sufficient rib of coal on the line between them and defendants which would have been effectual to prevent the water from coming in: Bainbridge on Mines 455. An owner of a coal mine may work it as is most advantageous to himself, although the natural consequence may be some prejudice to the adjoining owner : Smith v. Kenrick, 7 M., G. & S. 515; Bainbridge on Mines 460 ; Acton v. Blundell, 12 M. & W. 324; Kauffman v. Griesemer, 2 Casey 407.

      A. M. Watson, for defendants in error,
    cited Smith v. Kenrick, Acton v. Blundell, supra; Baird v. Williamson, 109 Eng. Com. L. Rep. 388 ; Jones v. Wagner, 16 P. F. Smith 429.
   Mr. Justice Gordon

delivered the opinion of the court, January 6 th 1876.

The rights of both the plaintiffs and defendants, who hold adjacent coal fields, are derived from a common grantor, James H. Hays. The title of the defendants ante-dates that of the plaintiffs, hence, it is not controverted but that any right or privilege, directly conferred, by the deed or articles of Hays to the vendors of the former, or which, by necessary construction or implication, arises therefrom, must dominate any conflicting right or privilege found in the conveyance to the plaintiffs. They must take subject to the precedent grant. If, then, the defendants, Horner, Wood & Co., had the right under their contract to withdraw all the coal found within their grant, without leaving any ribs, pillars or other supports to sustain the surface, it is clear that the subsequent vendees of the adjoining tract took subject to such right, and of the consequent falling in of the superincumbent land, and the intrusion of surface water into their works, they cannot complain. The whole question, which we are required to consider, is raised from that part of the charge of the learned judge of the court below, wherein, after stating that the owner of a mine has a right to mine his coal in an ordinary way so long as that does no injury more than what necessarily arises from the removal of the coal, and that he would not be liable for the collection and flow, by reason of such mining, of subterranean water upon lower mines, he adds : “ But otherwise where mining is done in such a manner (whether the ordinary way or not) as to introduce foreign water from the surface or higher land, by reason of the roof falling in and thus introducing water from the surface which would not have flowed in if the roof of the mines had remained undisturbed and compact after the coal was removed.” This was responsive to the defendants’ second point, which was negatived, which required the court to charge that the defendants were not liable for the introduction of such surface water, if not occasioned by the wilful and wanton acts of the defendants, but was a necessary consequence of their mining according to the “ approved, established and customary course and practice of mining in this region, and without any negligence in the operation of mining.” The defendants thus endeavored to put themselves upon an alleged custom of the country which permitted the withdrawing of all the supporting ribs and pillars of a coal mine and the consequent subsidence of the soil. Now, though in our opinion, the contract cannot in itself be so construed as to warrant a withdrawal of all surface support, yet if the custom contended for be established, it follows, that, in the absence of any provision to the contrary, it must govern and interpret the agreement of the parties, as it would be presumed they acted with reference to such custom in framing their compact. But the learned judge, who tried this case in the Common Pleas, refused to recognise any such custom; in this we think he was right. This identical point was raised in the case of Jones v. Wagner, 16 P. F. Smith 429, where it was held, that of common right the mining right was servient to the surface to the extent of sufficient supports to sustain it, and that there could be no custom to the contrary. The reason given for this conclusion was that the business of mining in the western part of the state was of a date too recent to give such a custom the age necessary for its validity. We are willing however to go-one step further and say, that the alleged usage lacks another essential feature of a good custom, and that is reasonableness. It is not reasonable that that which the law grants as of common right should, not merely be modified, but abi’ogated by custom or usage. When A. grants to B. a tract of land reserving the minerals under it, the legal presumption is that B. shall have and enjoy the exclusive and uninterrupted use of the surface, but if A. may, notwithstanding, under the plea of some general custom, dig out the foundations of the land and let down the surface, or render it so dangerous that it cannot be used, it is clear that he may thus destroy his own grant and invalidate the rights with which the law clothes his own vendee.

This court, in Jones v. Wagner, adopted the English decisions upon this subject, and as these decisions embody an experience in the business of mining much greater than our own, they are entitled to the greatest respect. So when we consider the super-eminent importance of this industry to the British Isles, we may be sure that the judiciary thereof would not wittingly deprive it of any of its just rights or privileges. Turning then to these decisions, we everywhere find that the plea of a custom which would warrant the withdrawal of a proper support to surface land, is treated as unreasonable and invalid. And first, with reference to the construction of a contract such as that now under consideration, we have in the case of Harris v. Ryding, 5 M. & W. 60, a judicial exposition in point. In that case there was a grant of the surface with a reservation in the strongest possible terms of all and every part of the mines and minerals in the land. It was held, however, that the grantor could not withdraw all the coals without leaving a proper support for the surface ; Baron Parke observing that by reasonable intendment, under the reservation, the grantor could only be entitled to so much of the mines below as would be consistent with the proper enjoyment of the surface. On the question of the validity of a custom tending to affect such intendment, we have first the case of Hilton v. Lord Granville, 5 Ad. & El. (N. S.) 701. The declaration was in ease, charging that the defendant dug his mines so near the plaintiff’s premises as to crack the ground, &c. The defendant pleaded a prescription to take the coals under any messuages, buildings or lands in the manor, and without liability for damages that might occur in consequence of the taking thereof. Held, that such a prescription was void because unreasonable, and that a custom similarly pleaded was void for the same reason ; the objection being equally fatal to both. For a precedent for holding such custom bad, reference was had to the opinion of Willes, O. J., in Broadbent v. Wilks, Willes 360, in which it is said that the true objection to the custom pleaded was that it was uncertain and unreasonable — as it might deprive the tenant of the whole benefit of his land. Lord Den-man, C. J., adds, that, a claim destructive of the subject-matter of the supposed grant cannot be set up by any usage, “and that the prescription or custom here pleaded has this destructive effect and is so repugnant and void, appears to us too clear from the single statement to admit of illustration by argument.” Not less destructive to the grantor’s reserved rights would be the custom set up in the case in hand, for not only would it defeat any use which he might otherwise have of the reserved surface, but by introducing surface water, would be destructive of his adjacent mines. The next case to which we make reference is that of Humphries v. Brogden, 12 Ad. & El. (N. S.) 739. The plaintiff charged in his narr. that the defendant carelessly, &c., and without leaving any pillars or supports, and contrary to the custom of the country, in that behalf, so worked his mines as to crack open and to cause to subside the soil, &c. The plea was not guilty. The jury found the defendant had worked carefully and according to the custom of the country, but without leaving sufficient pillars or supports. A verdict was entered for the plaintiff for llOi. damages, with leave to move to enter a verdict for the defendant if the court should be of the opinion that, under these circumstances, the action was not maintainable. Held, the plaintiff was, on this finding, entitled to judgment; for that of common right, the owner of the surface is entitled to support from the subjacent strata. In delivering the opinion of the court, Lord Campbell, C. J., says: that if the owner of two adjacent closes should alien one of them, his alienee, without a grant to that effect, is entitled to lateral support eo instante the deed is executed as much as after twenty years or any longer period, and that pari rations, where there are separate freeholds of the surface land and the mineral, the former is entitled to support from the subjacent strata. For if this be not as, the surface cannot be securely enjoyed as property, and that circumstances are conceivable, as the great thickness of the minerals and their proximity to the surface, under which it would be rendered wholly worthless. He then comes to the conclusion that the rule, giving the right of support to the surface upon the minerals, in the absence of any express grant, reservation or covenant must be laid down generally without reference to the nature of the strata or the difficulty of propping up the surface or the comparative value of surface and mineral. The learned justice further adds : that he is not aware of any principle upon which qualifications could be added to the rule, and that an attempt to introduce them would lead to uncertainty and litigation. The case of Hilton v. Lord Granville was cited and approved as sustaining the doctrine that the custom therein contended for was void because unreasonable. The last case we have upon this subject is that of Blackett v. Bradley, 1 B. & S. 940.

In answer to the charge that they had wrongfully and without reaving proper supports, so worked their mines under the plaintiff’s land as to cause it to fall in, the defendants pleaded title to the mines, under the said land, by virtue of the enclosure act, and, further, that from time immemorial up to the framing of said act, the lord of the manor and his assigns had been used and accustomed, as cf right, to search for, win and work the mines under the commons without leaving any support for the lands under which the said were situate, &c., and that from the time of the passing of the act the mines had been so worked without leaving any support, and that the defendants worked the mines under a lease thereof from the lord. On demurrer, it was held that the plea was bad; such a prescription having been held invalid in Hilton v. The Earl of Granville, 5 Q. B. 701. Wightman, J., said, during the argument of the demurrer to the fourth plea, which was framed under the Act of 2 & 8 W. 4, eh. 71, shortening the period of prescription: “ If the custom is bad it cannot be made better under Lord Tenterden’s Act.” The whole case was finally disposed of on the authority of the case last above cited; Cockburn, O. J., remarking, that though some of the reasoning in that case had been overruled in the House of Lords in Rowbotham v. Wilson, yet the decision itself remained unaffected.

These authorities, then, teach us that in whatever shape the plea for destruction of the surface right may come, whether as a prescription or custom, it is bad as tending to defeat the original grant. A distinction has been attempted between a grant of the surface by the owner of the whole fee, and a reservation thereof in his own favor as implied from the conveyance of the minerals alone. But this distinction is not sound. The right of support is ex jure naturae, hence, as no doubt can arise as to its character, it cannot come within the category of those ambiguities which must be construed most favorably for the grantee and most strongly against the grantor. So the very point is met in Jones v. Wagner, by a citation from Rogers on Mining, p. 455, where it is said: “If an owner of lands grant a lease of the minerals beneath the surface with a power to work and get them in the most general terms, still the lessee must leave a reasonable support for the surface.”

In conclusion we may say that we have carefully examined the article of agreement between James H. Hays and Horner and Hyatt, and find nothing therein contained which would take them out of the rule above stated, and that on the whole case we consider the rulings in the court below unexceptionable. '

The judgment is afiirmed.

Williams and Mercur, JJ., dissent.


source: Caselaw Access Project

author: Per Curiam:

license: Public Domain

text:
    Stockdale, Trustee, versus Keyes Brothers.
    1. Keyes, an oil-dealing firm, made an attorney in fact to make and endorse notes in conducting its business. Dilworth, who was factor for the firm, drew a note for his own accommodation to the other of the firm, which, without the knowledge of either of the firm, was endorsed in the firm name by the attorney, and discounted by an unincorporated banking association, in which Dilworth was a stockholder, and which had discounted business paper of the firm for him. Held, that Dilworth, being a partner in the bank, it was not a bonS, fide holder of the note, protected against Dilworth’s improper use of it.
    2. Keyes had given Dilworth two notes in payment of indebtedness to him, which were discounted by the same bank and matured about the time the accommodation npte was given. The money was paid to Dilworth to take up these notes; he did not so use the money, but appropriated the accommodation note to their renewal. Held, that the bank was visited with his knowledge and with his fraudulent use of the last note.
    3. McClurkan v. Byers, 24 P. F. Smith 405, followed.
    October 8th 1875.
    Before Agnew, C. J., Sharswood, Williams, Mercur, Gordon, Paxson and Woodward, JJ.
    Error to the Court of Common Pleas, No. 2, of Allegheny county: Of October and November Term 1875, No. 82.
    This was an action of assumpsit commenced March 16th 1872, by Jackman T. Stockdale, trustee of Pittsburg Savings Bank, against William Keyes and Joseph Keyes, trading as Keyes Brothers.

      The cause of action was the following note: — •
    “$7500.00. Pittsburg, September 25th 1871.
    Four months after date I promise to pay to the order of Messrs. Keyes Brothers seven thousand five hundred j$¡ dollars, payable at Pittsburg Savings Bank, without defalcation, value received. F. A. Dilworth,
    Per Loomis, Att’y.”
    Endorsed:—
    “ Keyes Brothers, per E. C. Keyes, Att’y.
    F. A. Dilworth, per Loomis, Att’y.”
    The following, is the material part of the power of attorney, dated February 23d 1871, under which E. C. Keyes endorsed the note:—
    “ Know all men by these presents, that we, William Keyes and Joseph Keyes, partners as Keyes Brothers, have made, constituted' and appointed, and by these presents do make, constitute and appoint E. O. Keyes, our true and lawful attorney for us, and in our names, place and stead, to buy and sell crude and refined petroleum; to make contracts in writing, for that purpose; to sign,'execute and deliver contracts, notes and other writings for the purposes aforesaid, and generally to act for us and in our firm name, and to transact business for us either in his name or in our names, according to his judgment and discretion, hereby giving and granting unto him, said attorney, our full and whole power and authority, in and about the premises,” &c.
    The Pittsburg Savings Bank, the beneficial plaintiff, was an unincorporated association, of which at the date of the note Dilworth was, and for a long time before had been, a stockholder and director.
    About 1868, Joseph Keyes, William Keyes and Ezra C. Keyes formed a partnership, under the name of Keyes Brothers, for the purpose of engaging in the oil business. This firm dissolved in October 1870. In February 1871, Joseph and William Keyes formed another partnership under the same firm name. During the existence of these firms Dilworth was their commission merchant. He had offices in Pittsburg and other places; the firm of Keyes Brothers occupied part of his office in Pittsburg; and the business of the original and subsequent firm was conducted by Ezra O. Keyes.
    In 1870 Keyes Brothers were largely indebted to Dilworth, and in payment gave him notes drawn by themselves to his order. These notes were discounted for Dilworth by the plaintiff, and were subsequently reduced and renewed by other notes similarly drawn. On the 22d of May 1871, the plaintiffs held two of these renewals; one due on that day for $4500, and the other due June 5th for $5000. On the 22d of May, a note for $8000, precisely the same, except amount, as that in suit, was given to Dilworth, discounted by the plaintiff and the proceeds passed to his credit; at the maturity of this note, September 25th, $500 were paid upon it, and the note m suit given in renewal of the other. Dilworth failed November 6th 1871. The last firm of Keyes Brothers dissolved about the same time. The defendants alleged that they had paid the notes of $5000 and $4500 when they matured, having given the money for that purpose to Dilworth’s clerk, who transacted all his business under a power of attorney, and that the other notes were given by Ezra Keyes without their knowledge or authority, for the accommodation of Dilworth; that besides the fact that the face of the note and its endorsements showed that it was such accommodation note, the fact of Dilworth being a member and director of the association affected the plaintiffs with knowledge of the character of the transaction.
    The case was tried January 27th 1875, before Kirkpatrick, J.
    The plaintiff having given the note and power of attorney in evidence rested.
    William Keyes, one of the defendants, testified: that he never authorized any one to endorse the note with the name of his firm; that neither he nor the firm received any benefit from it; that E. O. Keyes had no power to act for the firm outside of the power of attorney; witness never received notice of dishonor; about the time the note was maturing E. C. Keyes told the firm of this note; they had not known of it before. He and his brother mortgaged their farms, and gave E. O. Keyes money for the purpose of taking up the $5000 and $4500 notes of Keyes Brothers; Ezra had told them either that the note was due or would soon come due.
    Joseph Keyes, the other partner, testified in substantially the same manner.
    S. Loomis, who transacted Dilworth’s business under a power of attorney, testified that the $8000 note was for the accommodation of Dilworth; that the note in suit was a renewal of that note; the proceeds of the $8000 note passed to Dilworth’s credit in the plaintiff’s bank; the defendants provided the money to take up the other two notes; it was given to witness to pay the notes, and “they were paid;” witness saw the notes handed over to Ezra Keyes; the notes matured at the Pittsburg Savings Bank ; Dilworth had them cashed for his own benefit there; the money to take up the two notes was handed to witness by Ezra Keyes, by two checks ; one for $4500 on the day the note of that amount was due ; the other for $5000 on the day the other note was due. The $4500 was deposited in plaintiff’s bank to the credit of Dilworth, and the proceeds of it were “lifted” that day; the $5000 was not deposited, but paid the note of that amount; the $4500 note was paid the same day the $8000 was discounted by plaintiff’s bank.
    F. A. Dilworth testified that he knew that about the time the two notes were maturing the defendants had raised money by mortgage to take them up. The $8000 note was made for his accommodation, and hé got its proceeds ; when it fell due, he paid $500- on it, and the $7500 note was for the balance. The defendants then gave evidence from the books of the bank, that both the $8000 note and the $7500 note were discounted for the benefit of Dilworth; also, that on the 22d of May 1871, Dilworth was credited with $4500, and with $7744, the proceeds of the note, and was charged with $4600, leaving to his credit, at the close of the day, $7797.90.
    Ezra C. Keyes testified that at the times the $4500 and $5000 notes became due he gave to Loomis, the business man of Dilworth, checks for the respective amounts of the notes ; Loomis delivered the notes to witness. Witness did not himself go to the bank to take up the notes, they were taken up and handed to him; this was satisfactory to witness that they had been-paid. Witness did not inform defendants that he had endorsed accommodation paper for Dilworth until after Dilworth’s failure.
    The plaintiff in rebuttal called John Birmingham, the cashier of his bank, who testified that there were sixty or seventy stockholders of the bank ; he testified also as to the transactions of the bank in connection with the notes before spoken of. The following offers of evidence were then made:—
    That the note of May 22d 1871, for $8000, was discounted by the bank that day for the purpose of renewing in part the two notes of Keyes Brothers, then held by the bank. That the note was offered and discounted for that purpose.
    That on May 22d 1871 the plaintiff’s bank held and owned two notes of defendants, one for $4500, due May 22d 1871, and one for $5000, due June 5th 1871, being the notes mentioned by witnesses for defendants, for which notes defendants were legally bound; that on each of these notes F. A. Dilworth was endorser; that on May 22d 1871 a note for $8000 was offered plaintiff’s bank, made by F. A. Dilworth to order of Keyes Brothers, endorsed by Keyes Brothers, per E. C. Keyes, attorney, to renew the note of $4500, and in part renewal of the note for $5000 ; that the note was so taken by the bank, and the proceeds thereof went to lift said notes of $4500 and $5000; that when said $8000 note matured it was renewed in part by the note in suit.
    To ask the witness now on the stand whether the note of $4500, due May 22d 1871, was lifted with the proceeds of the $8000 note spoken of by defendants’ witnesses.
    The minutes of the bank of May 22d 1871, identified by the witness on the stand as the minutes of the plaintiff company, which are as follows, to wit: “ Monday, May 22d 1871, the board met at 11J-o’clock, A. m., present, Stockdale, Hill, Goehring. F. A. Dilworth’s note, four months, for $8000, endorsed Keyes Brothers, to renew note of $4500, due to-day, and $5000 note of Keyes Brothers, due June 2d and 5th, were all passed for discount.”

      The offers were all objected to by the defendants, rejected by the court, and several bills of exceptions sealed.
    The following are points of plaintiff with their answers:—
    1. If the jury should find from the evidence that in November, A. D. 1871, the defendants were informed by E. C. Keyes that he had endorsed in their names the note in suit, and it was then known to defendants that said note was held by the plaintiff’s bank, it became the duty of defendants to disavow the act of their agent and notify the bank of the same.
    2. If the defendants received in the early part of November, A. D. 1871, notice that the note in suit was then held by plaintiff’s bank with their name endorsed thereon, per E. C. Keyes, acting for them, and having such knowledge, failed to disavow and disclaim the act of their agent until February, A. D. 1872, it was an acquiescence which prevents them from now claiming that the endorsement was unauthorized.
    3. The defendants when they received notice that E. O. Keyes, their attorney, had in their name endorsed the note in suit, and that it was owned and held by the plaintiff’s bank, were bound within a reasonable time to disavow the act of their agent and notify the bank of the same; and if the jury believe they failed to do so, the plaintiff is entitled to recover. .
    These points were .refused without qualification.
    4. If the jury believe that Keyes Brothers and F. A. Dilworth had business transactions with each other, and mutually accommodated and endorsed for each other, and this fact was known to the defendants and plaintiff, then even should the jury find that the endorsement of the note in suit was merely for the accommodation of F. A. Dilworth, the plaintiff may recover.
    Answer. ‘ ‘ Afiirmed. ’ ’
    5. The notice, if any, to Dilworth as to the nature of the endorsement on the note in suit, was not notice to the plaintiff’s bank.
    Answer. “Refused. On the contrary, we instruct you that notice to or knowledge of Dilworth touching the nature of the endorsement, was notice to the plaintiff’s bank. It being evident from the unquestioned testimony in the cause, that the plaintiff’s bank was an unincorporated partnership, and hence Dilworth could not put his partnership in a better position than he himself held, and could not transfer to his partners for the benefit of the whole firm a right he himself had not to recover upon the note, and then unite with them in maintaining this suit.”
    6. Under the circumstances of the case, the fact of Dilworth being the last endorser and Loomis presenting the note in suit to the plaintiff’s bank, was not notice that the endorsement was for the mere accommodation of Dilworth.
    Answer. “ Refused; subject, however, to the answer in affirmative of the plaintiff’s fourth point. If they find the facts as suggested in that point, then the plaintiff would be entitled to a verdict, no matter whether the endorsement was an accommodation endorsement or was not.”
    The following is defendants’ fourth point with the answer :—
    If the jury find from the evidence that the note for $8000, dated May 22d 1871, and the note in suit for $7500, were respectively maje and signed by E. A. Dilworth, per Loomis, attorney, “ payable to the order of Keyes Bros., and were endorsed Keyes Bros., per E. C. Keyes, attorney,” for the accommodation of Dilworth, and were then endorsed “E- A. Dilworth, per Loomis, attorney,” and the paper in that form was presented by Dilworth, the second and last endorser, or by Loomis, his agent, to the plaintiff’s bank for discount, the bank was visited with notice that the endorsement of the firm name of Keyes Bros, was for Dilworth’s accommodation, and the verdict should be for the defendants.
    “ Affirmed; subject to the qualification of the answer affirming plaintiff’s fourth point, being that if you find that the parties were in the habit of mutually accommodating each other by endorsements, which fact was known to defendants and plaintiffs as well, then plaintiffs were entitled to a recovery, whether the endorsement in this instance was an accommodation endorsement or was not.”
    'I he verdict was for the defendants.
    The plaintiff took a writ of error and assigned for error :—
    1-4. Rejecting plaintiff’s offers of evidence.
    6-10. Refusing plaintiff’s points.
    11. Affirming defendants’ points.

      D. T. Watson, for plaintiff in error.
    As to the bank being responsible for the knowledge and acts of Dilworth, his power was by the mode in which the firm did business : Parsons on Partnerrhip 95, 99, 100,101, note a 172,175; Woodward v. Winship, 12 Pick. 430; Livingston v. Roosevelt, 4 Johns. 278. Knowledge of the mode of transacting partnership business may be inferred from circumstances that would put a prudent man upon inquiry: Collyer on Partnership, sect. 387, note 1. It was the duty of the defendants to notify the bank that their agent’s act was unauthorized: Story on Agency, sect. 255; Bredin v. Dubarry, 14 S. & R. 30.

      M. W. Acheson, for defendant in error.
    Authority to draw and endorse does not justify an agent to make accommodation paper for other parties: 1 Parsons on Bills 107 ; Wallace v. Branch Bank, 1 Ala. 565. Knowledge of one partner will affect all the others: Parsons on Partnership 195, 196; Collyer on Partnership, sect. 441; McClurkan v. Byers, 24 P. F. Smith 405.
   Judgment was entered in the Supreme Court, October 14th 1875,

Per Curiam:

We think there was error in the rejection of the evidence contained in the first four. assignments of error. But these errors were not substantial, having become immaterial in the actual state of tbe case; for, supposing tbe evidence to be before the jury, the court would have been compelled to instruct them, that the relation of F. A. Dilworth as a partner in this private banking concern, and necessarily an interested plaintiff, would prevent the bank from being a bond, fide holder, protected against the improper use of the $8000 note made by Dilworth. Whether Dilworth was empowered to receive payment of the notes of $4500 and $5000 is not very material, for he knew that the defendants had paid the money to take up these notes, and that their former agent, E. C. Keyes, had no right to give the $8000 note, and suffer him to use the money paid to take up the two notes of $4500 and $5000.’ He knew that the $8000 note was not rightfully used to renew the two notes, which the defendants themselves did not intend to renew, and had furnished him the money to pay off. Being a partner with the plaintiff, they were visited with his knowledge, and consequently with his fraudulent use of the $8000 note. The case is governed by that of McClurkan v. Byers, 24 P. F. Smith 405.

Judgment affirmed.


author: Mr. Justice Woodward

text:
    Edgewood Railroad Company’s Appeal.
    1. The Acts of April 4th 1868 and April 28th 1871 (formation of railroad corporations), do not authorize the construction of a railroad such as is contemplated by the lateral railroad laws.
    2. The object of the Act of 1868 is to vest in voluntary associations the powers which had previously been given only by special acts of incorporation, and applies to railroad companies in the sense in which that term had been commonly used.
    3. Nothing in the Act of 1868 affected the legislation as to lateral railroads.
    4. The supplement of April 1871 is applicable to settled communities, where the population requires more than the primitive means of conveyance and transportation, but not to promote private fortunes or develop private pi'operty.
    5. The power of eminent domain is conferred on citizens only when some existing public need is to be supplied or some present public advantage to be gained, but not with a view to contingent results, dependent upon the success of a projected speculation.
    6. The railroad in this case was not for public use within the meaning of the Acts of 1868 and 1871.
    7. Under the Act of June 19th 1871, a court of equity has jurisdiction to inquire whether a railroad chartered under the Act of 1868 possesses the franchises it claims, and if not, injunction is the appropriate remedy for the wrong.
    October 11th 1875.
    Before A&new, O. J., Sharswood, Williams, Mercur, Gordon, Paxson and Woodward, JJ.
    Appeal from the Court of Common Pleas, No. 2, of Allegheny county. In equity. No. 74: Of October and November Term 1875.
    The bill in this ease was filed June 14th 1878, by The Western Pennsylvania Institution for the Instruction of the Deaf and Dumb against the Edgewood Railroad Company.

      The bill set out: 1, 2, 3. That the plaintiffs, an incorporated company, owned ten acres of ground in Wilkins township, Allegheny county, near Edgewood station of the Pennsylvania railroad; that the property was acquired for the erection of suitable buildings for the institution for the deaf and dumb. 4. That Thomas C. Dickson, Charles H. Armstrong, William H. Shoenberger “ and others,” owning a large body of coal in the vicinity of Edgewood station, not being willing to procure means of transporting their coal to the Pennsylvania railroad under the lateral railroad laws, under cover of constructing a railroad for public use, and the general transportation of persons and property over the same, had associated themselves as a corporation, by the name of The Edgewood Railroad Company, under the Act of April 4th 1868. 5. The plaintiffs charged that it was not the intention of defendants to use their railroad for any other purpose than to transport their coal; that the road extended only to the property of the plaintiffs, and of James Kelly, a distance of not more than half a mile from its beginning at the Pennsylvania railroad, ending in hills inaccessible for railroad purposes, at a point uninhabited, running its entire length in close proximity to the Pennsylvania railroad, without any public demand or necessity for it, and was only a contrivance to secure for their private use the advantages granted by the Commonwealth for public purposes.
    6. That defendants, without plaintiffs’ consent, had taken possession of part of their ground, extending from the Pennsylvania railroad, and curving through plaintiffs’ property, having a width of one hundred and fifty feet on the Pennsylvania railroad; and are grading the ground for a railroad, although there are other routes by which they could construct their road without going through plaintiffs’ ground; that the route taken was amongst the most eligible for the erection of the plaintiffs’ buildings; was the site designated for them, and if the defendants’ railroad should be constructed it would greatly impair, if not destroy, the property for the uses to which it had been dedicated.
    The prayer was for an injunction to restrain defendants from constructing their railroad, &c.
    The defendants by their answer denied that the plaintiffs owned the ground through which defendants were constructing the road; they denied that they had acted from the motives charged in the fourth paragraph of the bill. 5. They denied all the allegations in the fifth paragraph of the bill. 6. They averred that the route selected by them for their road was the most eligible and calculated to do the least injury to private property. They averred that they were a corporation under the Act of April 4th 1868, and its supplement of April 28th 1871, to build a railroad “ from a point near to and west of Edgewood station on the Pennsylvania railroad to the Hampton Coal Mines, near the eastern terminus of the village of Wilkinsburg; that prior to the final location of their road, they made an examination as to the ownership of the land and ascertained that the record title was in James Kelly; that they tried to agree with him for the damages without success, and on the 21st of June 1873, they tendered to him a bond for the damages, which he refused to accept; the bond was then presented to the Court of Common Pleas and approved, and it was filed of record in that court.
    The Act of April 4th 1868, Pamph. L. 62, 2 Br. Purd. 1211, enacts: Sect. 1. That any number of citizens of Pennsylvania, not less than nine, may form a company for constructing and operating “ a railroad for public use in the conveyance of persons and property,” and for that purpose may enter into articles of association. Sect. 2 further designates the form, &c., of the articles; it directs that they shall be filed in the ofiice of the secretary of the Commonwealth, &e., “ and thereupon the said articles of association shall become and be a charter for the said company,” &c., and the persons subscribing the articles, and others becoming stockholders, shall be a corporation, &e.
    Sect. 3. That a copy of the articles of association filed, &c., in pursuance of the act, certified by the secretary of the Commonwealth, “ shall be evidence of the incorporation of such company and of the facts therein stated.”
    Sect. 5. Upon complying with the provisions of the act, the company have authority to carry into eifect the objects named in it, as if they had been incorporated by a special act of the legislature, and may exercise all the privileges, &c., and be subject to all the restrictions of the General Railroad Law of February 19th 1849 and its several supplements.
    Sect. 9. Authorizes the corporation to construct branches.
    Sect. 12. Prohibits the corporation from making street passenger railways by virtue of this act.
    The Act of April 28th 1871, Pamph. L. 246, 2 Br. Purd. 1213, enacts: Sect. 1. That three persons may become a company as provided by the Act of 1868, to construct, &e., a railroad for public use, &c., which shall not be longer than five miles.
    The Act of June 19th 1871, Pamph. L. 1361, 1 Br. Purd. 288, pi. 39, enacts : Sect. 1. That in proceedings in courts of law and equity, in which it is alleged that the private rights of individuals or of corporations are injured or invaded by any corporation claiming a right or franchise to do the act from which such injury results, the court may “ inquire and ascertain whether such corporation does in fact possess the right or franchise to do the act, * * * and if such rights or franchises have not been conferred on such corporation, such courts if exercising equitable powers shall, by injunction * * * restrain such injurious acts.” * * *
    On the 5th of January 1871, James Kelly executed a writing, reciting that a number of citizens of Allegheny county interested i.n the welfare of the deaf and dumb near Pittsburg, were desirous that an institution in that vicinity for their education should be incorporated, and Kelly, being desirous of promoting the object, proposed to give ten acres of land near Edgewood station, in Wilkins township; and in consideration of the premises, Kelly agreed to convey the land to James P. Sterrett and others in fee, in trust for the purposes above mentioned, to be conveyed to the corporation when a charter should be obtained, the conveyance not to be executed until $20,000 should be subscribed for the erection of suitable buildings.
    The plaintiffs were incorporated April 12th 1871, and prior to April 1872, the sum of $20,000 was subscribed as stipulated in Kelly’s agreement; on the 15th of December 1878, Kelly conveyed the land to plaintiffs.
    Under the Act of 1868 and its supplement of 1871, W. H. Shoenberger, Charles H. Armstrong, John Z. Spier, Thomas C. Dickson, J. McC. Creighton, Francis Ardary, Charles L. Fitzhugh, G. A. Steiner, Thomas Blair and Robert Dickson, upon complying with the requirements of the acts, were on the 24th of May 1873, constituted a corporation by the name of the Edgewood Railroad Company, to continue for ninety-nine years, for the purposes set out in the bill and answer, the length of this railroad to be about one mile.
    On the 31st of March 1873, George R. Johnson leased to John Dickson, Robert Dickson, Thomas C. Dickson, John S. Stewart and Joseph C. Dickson, trading as Dickson, Stewart & Co., a piece of land in Wilkins township, “ to be used as or for a right of way for their coal railroad and for no other purpose whatever except as herein provided,” &c., “ beginning at a point on land of James Kelly,” and the northermost line of the right of way of said railroad and by various courses and distances “ to the line of Kelly’s land aforesaid,” containing 9^¶ acres, to hold, &c., as long as the lessees shall use it as a right of way in accordance with the terms of the lease, paying an annual rent of $1000, &c.; it was further stipulated “ that the piece or tract of land hereby leased for said right of way shall not be used for any other than right of way, purposes and such purposes as are necessary for the ordinary working of coal works and coal railroad, but it is expressly agreed and understood that no buildings shall be erected upon the same except such as may be necessary for the purposes of coal railroad and works.”
    A replication was filed to the answer, aüd D. D. Bruce, Esq., was appointed examiner and master.
    The master found that at the time of filing the bill the plaintiffs were the owners of the locus in quo.

    He also found that the body of coal land mentioned in the fourth paragraph of the bill was purchased in April 1872 by Dickson, Stewart & Co., who held the title for the “ Hampton Coal Company,” a private association, composed of Shoenberger & Co., Charles H. Armstrong and Dickson, Stewart & Co., each owning one-third. W. H. Shoenberger, C. H. Armstrong, J. Z. Spier, C. L. Fitzhugh and T. S. Blair of the firm of Shoenberger & Co., were stockholders of the defendants, Thomas C. Dickson, Robert Dickson of the firm of Dickson, Stewart & Co. were stockholders of defendants; Gr. A. Steiner and C. H. Armstrong were also members of both companies; J. McC. Creighton and Francis Ardary, who were stockholders of defendants, had no interest in -the Hampton Coal Company but could purchase an interest any time. The master thereupon found, that the persons named in the fourth paragraph of the bill as owners of the coal, and others composed the corporation of Edgewood Railroad Company. In his report the master says:—
    The main questions involved in the case are:—
    1. Whether the defendants’ road is a railroad for public use such as is contemplated under the Act of April 4th 1868 and its supplement of April 28th 1871 ?
    2. Had the defendants complied with their charter in building their railroad ?
    In considering these questions, the master found:—
    “The Edgewood railroad is situated on the Pennsylvania railroad, about seven miles east of the Union depot, in the city of Pittsburg; its terminus a quo is on the east side of the Pennsylvania railroad, about midway between Wilkinsburg and Edge-wood stations; and its terminus ad quem at the Hampton coal mines, near to the eastern terminus.of the unincorporated village of Wilkinsburg. It is sixty feet in width, and forty-seven hundred feet in length between its termini. Its grade is from one foot to one foot and a half in the hundred feet, ascending from the Pennsylvania railroad to its eastern terminus at the coal mines. Its eastern terminus is in a ravine, known as Johnston’s ravine, and the bed of the road at this terminus is about one hundred feet below the level of the stratum of coal of the Hampton Coal Company. The ravine is surrounded by the hills at both sides, and at its eastern end.” * * *
    A portion of the ground covered by the Johnston lease “extends from Kelly’s line east to the township road, a distance of 780 feet, is only 33J feet wide, and is the exact ground on which the Edgew'ood railroad is now built. East of the said township road, and on the line of the road, the leased ground widens out to about 125 feet, and as it extends up the ravine it widens still more, its greatest width being from 250 to 275 feet, including within its limits the line of the Edgewood railroad, and also the incline railway of the Hampton Coal Company, and also .extending on to the coal openings of that company. * * * The lease from Johnston, of the right of way, now belongs to the Hampton Coal Company.

      “ Immediately after the incorporation of the Edgewood Railroad Company, we find it adopting as the site of its road * * * the exact ground from Kelly’s line into Johnston’s ravine, as the same is described as the coal road in the lease of Johnston to Dickson, Stew'art & Co., which then belonged to the Hampton Coal Company. Looking at these facts connected with the coal of the Hampton Coal Company, it is very evident that the Edgewood Railroad Company was projected and originated by that coal company, and that the primary object and design in constructing the Edgewood railroad, was for the purpose of connecting the Hampton coal mines with the Pennsylvania railroad, so that the coals from those mines could reach a market. * * * If the facts in this case demonstrate that there is no public demand or necessity for the railroad of the defendant, and that it is not the intention to maintain and operate the same for public use in the conveyance of persons and property, then the road is a nuisance, and should be abated from plaintiff’s property. * * *
    “For what public use in the conveyance of persons and property will the defendants’ railroad be maintained and operated?
    “ This railroad connects with the Pennsylvania railroad about midway between the Wilkinsburg and Edgewood stations, then extending eastwardly it passes over the locus of -this controversy a distance of about 700 feet, then over land of James Kelly, until it comes to the line of the lease of right of way of the Hampton Coal Company, a further distance of about 200 feet; then over the right of way and crossing the township road, a distance of about 2000 feet to the eastern terminus, having an entire length of 4700 feet. From the Pennsylvania railroad to that township road it passes through an unimproved rural country having in the vicinity of its line but one or two farm tenements and the 1 Sheltering Arms and Old Woman’s Home,’ near to the Pennsylvania railroad. As to the present improvements along the line of this road, the road can be of no public utility. * * * The road of the length specified in its charter, as now made, could not be a conveyance for residents along its line to reach the Pennsylvania railroad. It would land them midway between stations. It could not afford to run trains frequently, and their proximity to the Pennsylvania railroad would render this road entirely unnecessary for their use. The adjacent ground is too costly for manufacturing sites, and better adapted for residences in the extension of the village of Wilkinsburg. There are many much cheaper sites for manufactories, within short distances, along the main line of the Pennsylvania railroad, where fuel could be obtained with equal cheapness, of as good quality as could be furnished by this road of defendant’s, and where water, which this locality does not supply, could be had.
    “ The contingency for the use of this ground for manufactories is so remote, and the advantage this road would be to them, so slight, that the master does not consider that the road of defendant would acquire therefrom any characteristic of being for public use.
    “ The defendant’s company claim * * * that under their charter they have a right to extend the same by additional branches. That at and beyond the eastern terminus of their road there is a large coal field of some 1500 or 2000 acres, owned by different parties, and that it cannot be mined and utilized for want of proper artificial access to, or means of reaching and mining the same, and the conveyance thereof to market. * * * That a branch of their road could be taken by a short tunnel through the hill at its eastern terminus, to a fertile valley, called Crab valley; that by extending this branch north, up the valley, other coal fields could be reached,, which in being mined would bring a population to that locality, enhance the value of the lands, and afford a means of transportation therefrom to the Pennsylvania railroad and the city of Pitts-burg, for persons and property. * * *
    “The coal field extends north and eastwardly, from the eastern terminus of the Edgewood railroad to Thompson’s run, at Turtle Creek station, on the Pennsylvania railroad, about thirteen miles east of Pittsburg Union depot.”
    The master describes the character and size of the coal field, and the advantages which exist for mining it, &c.
    He then proceeds:—
    “ It also appears when the topography of the land is considered, with reference to the taking out of the coal, and its transportation to the city of Pittsburg and western markets, that the location of the road is as good, and probably better, than any other that could be selected. * * *
    “ The Edgewood railroad can be of no public use to persons residing, or property located between its termini, and it may never have any branches or further extension. It is not likely to have any except into the coal. * * * There is not any coal shown by the defendants adjacent to Crab Valley, which a branch of their road would reach, that would come out by their road, except the Kelly coal, and they have shown conclusively that the better way to mine and take out that coal is by the Hampton Coal Openings. There would be no industry connected with coal mining in Crab Valley, no inducement for increased population there on that account. No population there now, and no inducement either now or in the future to build a branch road into a locality so convenient to the main line of railroad, that the branch would connect with if made, to wit: The Pennsylvania railroad.
    “ The master is therefore of the opinion, and so finds, that under the facts of this case, the only extension or branch of the defendants’ road that is feasible, to the interest of its main line as described in its charter, would be a branch or branches through the coal field, through the stratum of coal, and for the sole use and purpose of transporting the coal when mined, and the carrying of persons and property connected with that business. Pie also finds that the only object and purpose of the construction of the Edge-wood railroad, was for the transporting of the coal from the Hampton coal mines, and such other coal in the adjacent coal field, as might be brought to it, or might be reached by it, by a branch or branches, into the coal of the field, to the Pennsylvania railroad. * * *

      “ The view taken by the master of the meaning of the term public use indicates to him the propriety of passing on this question as an open one. * * *
    “ The capacity of the Edgewood railroad, when in complete working order, will according to the testimony be 50,000 bushels per day. About 200,000 bushels of coal is contained in, and can be taken out of an acre of the coal field in question. And the Hampton Coal Company owning about 360 acres, their coal would be exhausted in about four years. * * *
    “ If the Hampton Coal Company should acquire no additional coal lands hereafter, then when that which they now own would be exhausted, it would he the policy of, and a necessity for the Edgewood railroad to extend its road into the coal field, in order to realize a return of the outlay so made. So that it appears to the master, to he immaterial whether the Hampton Coal Company purchases more coal, or the railroad company extends its road; in either event, the value of the coal in the whole field is greatly enhanced, the value of the different tracts in the field equalized, and hundreds of acres of coal made accessible for use, that without the Edgewood railroad would have been locked up and inaccessible for the market.
    “ This then is wherein the Edgewood railroad is of utility. The mining of 50,000 bushels of coal per day would give employment to hundreds of persons. They must have homes near the mines and food to live on. Their wages would be spent in the neighborhood for rents and subsistence. The value of property would be enhanced thereby. All the owners of coal would be benefited by its increased value, and the public at large would be benefited by this coal field being brought into market, in the like manner that they are benefited by other developments of the mineral wealth of the state.
    “Under the lateral railroad laws, the party proposing to build a road, has a right to designate the line of the route of his road, and if he cannot agree with another party through whose land the road is to pass, an application must be made to the court to appoint a jury of three persons to decide the questions between the parties; and it is made the dpty of these jurymen to decide upon the necessity for the road. This decision of the jury may be appealed from, and the litigation in connection with this proceeding may be lengthened out for years, hy stubborn litigants and ingenious counsel. * * * The Acts of Assembly of 1868, and more particularly that of 1871, remedies this difficulty and evil. Under their provisions' the power of eminent domain of the Commonwealth is vested in three or more persons to decide upon the necessity for, and to build a railroad, the construction' of which must of necessity result in the beneficial effects and public good above indicated, with perhaps many other good results that have not suggested themselves to the master.” * * *
    The master reported as “a summary of his findings —
    1. The plaintiff had such title to the locus in quo as enables it to enter and prosecute this proceeding.
    ■ 2. That the building of defendant’s railroad through this property of plaintiff, destroys its value for the purpose intended by the plaintiff, viz.: as an institution for the instruction of the deaf and dumb.
    8. That the railroad of defendants is constructed from a point near to and west of Edgewood station, on the Pennsylvania railroad, as required by the charter of defendants’ company.
    4. That defendants’ railroad is for public use in connecting the coal fields, within described, with the Pennsylvania railroad; being for the development of the coal mineral wealth of that neighborhood, in the transportation of coal from the Hampton coal mines, and such other coal as may be brought to it, or may be reached by its branches.
    5. That while the eastern terminus of defendants’ road is on the right of way of the Hampton Coal Company, that fact does not prevent the defendants from extending branches over or across the same.
    6. That individual members of all the firms which own the Hampton coal mines, are stockholders in the Edgewood Railroad Company, and own together 240 shares of the stock of that company, which gives the said owners of stock the controlling interest therein.
    7. That the defendants’ railroad is located upon the best and most advantageous route to connect the said coal field with the Pennsylvania railroad, and that it is so located in conformity with the requirements of the charter of defendants’ company and of the law.
    Exceptions were filed to the report by both parties; those of the defendants were overruled and those of plaintiffs sustained.
    The court (Kirkpatrick, J.) “ decreed that said defendants be, and are hereby perpetually enjoined from constructing, maintaining and operating their railroad over, through, and upon the premises of said plaintiff as described in said bill; that defendants restore said premises to the condition they were in when the said defendants committed the acts and grievances charged in said bill; and that said defendants pay all the costs in the case.” * * *
    The defendants appealed to the Supreme Court. They assigned the decree for error.

      J. Halzell and M. W. Aoheson (with whom was J. H. Hampton), for appellants.
    The question whether a public necessity exists, to justify the exercise of the power of eminent domain and to decide to whom to delegate the authority of carrying it out belong to the legislature: Cooley on Const. Lim. 538; Smedley v. Erwin, 1 P. F. Smith 445. This power may be granted by general law: Buffalo & N. Y. C. Railroad Co. v. Brainard, 9 N. Y. 100. If the public interest can be promoted by taking private property, whether the benefit be sufficient to exercise the right of eminent domain rests with the legislature: 2 Kent’s Com. 340; Cooley on Const. Lim. 532. A public use is where government is supplying its own need or furnishing facilities for its citizens as to matters of public necessity, convenience or welfare, which from their peculiar character and the difficulty of providing for them otherwise, it is useful for the government to provide: Cooley 533; Whiting v. Sheboygan Railroad Co., 25 Wisconsin 195 ; People v. Salem, 20 Mich. 482. The state retaining the right to control or resume the franchises shows that the road is for public use : Hays v. Risher, 8 Casey 169.

      S. Schoy&r and Gr. JP. Hamilton, for appellees.
   Mr. Justice Woodward

delivered the opinion of the court, January 4th 1876.

No doubt is entertained that at the time of the organization of the Edgewood Railroad Company, the plaintiffs had such title to the land which the defendants have appropriated, as to enable them to maintain this bill. The authorities referred to on the argument fully vindicate the finding of the master on the facts reported.

Yoluminous as this record is, it presents but one significant question for discussion and decision. Can such a railroad as that which the facts found by the master prove the defendants to have built, be maintained under the provisions of the act “to authorize the formation and regulation of railroad corporations,” passed on the 4th of April 1868, and the supplement to it passed on the 28th of April 1871 ? It is alleged by the plaintiffs that these acts have been wrested from their intended purpose to secure a public benefit, in order to promote a purely private enterprise, and that the construction of their road by the defendants under the charter which they hold, has been a fraudulent evasion of the provisions of the statutes relating to lateral railroads.

The first section of the Act of 1868 authorizes any number of citizens, not less than nine,.to form a company for constructing a railroad for public use in the conveyance of persons and property. The supplement permits any number of persons, not less than three, to form a company to construct, maintain and operate a railroad not exceeding five miles in length, for public use as provided for in the original act. In pursuance of this legislation, the defendants obtained their charter, the due legal form of which (except in an alleged inadequate description of the terminus a quo, not now material), is not contested. They have built and are operating a road forty-seven hundred feet in length connecting with the Pennsylvania railroad at a point midway between the Edgewood and "VYilkinsburg stations of that railroad, being fourteen hundred and fifty feet from each, and extending to a point on land leased by Dickson, Stewart & Co. for the defendants, from George R. Johnston, on the 31st of March 1873. The eastwardly portion of the road for the distance of seven hundred and eighty feet, as well as the eastern terminus, is on these leased premises, which include also the ground covered by the incline railway of the Hampton Coal Company, and extend to that company’s coal openings. The grant to the lessees was “for a right of way for their coal railroad, and for no other purpose whatever, except such other purposes as are necessary for the ordinary working of coal works, and with the privilege of erecting thereon a blacksmith’s shop, carpenter’s shop, and an engine-house, but no other buildings whatever.” The eastern terminus is in a ravine, which is simply a cave in the hills, surrounded by hills on both sides and at its eastern end, and the bed of the road at this point is one hundred feet below the level of the stratum of coal belonging to the Hampton Coal Company. All of the stockholders of the Edgewood Railroad Company are stockholders of the Hampton Coal Company, except J. McC. Creighton and Francis Ardary, and they can have an interest whenever they choose to pay for it. The railroad was projected and constructed with the primary object and design of connecting the Hampton mines with the Pennsylvania railroad, in order that the coal from those mines should reach a market. Indeed, the master has found that this was the only object of the enterprise. In view of any present improvements along the line, it is of no utility. It is wholly unnecessary for the conveyance of passengers both at present and in the future, and the ground adjacent to it can never be used for manufacturing purposes. It was urged before the master that under the authority conferred by the Act of 1868 to build branches, the road can be so extended as to develop a large and valuable coal field, containing some fifteen hundred or two thousand acres. This the master reports to be true. He finds that the Hampton Company’s coal will be exhausted in less than five years ; that by a subterranean route the road can be so extended as to open availably to market the coal upon the lands lying between the.present eastern terminus and Johnson’s run; that it would be to the interest, both of the coal company and the railroad company, that some connection should be made with the unmined coal in the field as rapidly as the vein is taken out of the field and exhausted; and that “if the Hampton Coal Company should acquire no additional coal lands hereafter, then when that which they own would be exhausted, it would be the policy of and necessity for the Edgewood company to extend its road into the field, in order to realize a return of the outlay made.” The report then continues in these words : “ It appears to be immaterial whether the Hampton Coal Company purchase more coal, or the railroad-company extends its road; in either event, the value of the coal in the whole field is greatly enhanced, the value of the different tracts in the field equalized, and hundreds of acres made accessible for use that without the Edgewood railroad would have been locked up and inaccessible for the market. This then is where the railroad is of utility. The mining of 50,000 bushels of coal per day would give employment to hundreds of persons. They must have homes near the mines and food to live on. Their wages would be spent in the neighborhood for rents and subsistence. The value of the property would be enhanced thereby. All the owners of coal would be benefited by its increased value, and the public at large would be benefited by this coal field being brought into market, in.the like manner that they are benefited by other developments of the mineral wealth of the state.” Upon grounds thus stated, the master found that the road was constructed for public use, and that its maintenance and operation are authorized by law. Exceptions filed to the report by the plaintiffs were sustained by the court below, and a decree was made enjoining the defendants from constructing, maintaining and operating their road, upon the premises of the plaintiffs, and directing a restoration of the premises to the condition they were in when the grievances charged in the bill were committed. The case is here on appeal from this decree.

The legislation under which the rights of the defendants are asserted, confers large powers upon associations of individual citizens, the exercise of which may be capable of producing varied forms of mischief. The passage of the Act of the 19th of June 1871, therefore, was a wise and salutary measure of precaution. The first section of that act makes it the duty of the court in which any proceeding is pending where an injury is alleged to have been caused by a corporation claiming a right or franchise to do the act by which the injury is produced, to inquire and ascertain whether the right or franchise claimed by the corporation is actually possessed. When this suit was commenced, the defendants were engaged in constructing their railroad upon the land of the plaintiffs, and the complaint was that they were doing this.in violation of law. It was alleged that a lateral railroad was being built for private purposes without compliance with the statutes authorizing such a road, and under cover of a charter obtained under the Acts of 1868 and 1871. If the facts warrant the charges in the bill, the jurisdiction of the Common Pleas was unquestionable, and was discreetly exercised. Such a jurisdiction is in contravention of no rule which preserves legislative authority from judicial invasion. That the control of the right of eminent domain rests with the legislature (Cooley on Const. Limitations 538), and that the degree of the public necessity for the exercise of that right is exclusively for their ascertainment (Smedley v. Irwin, 1 P. F. Smith 445), is undoubted. But there does not appear to be anything in this ease to require the application of any such principle. It is not necessary even to approach the question of legislative power to create this corporation, and to vest it with all the rights it claims. The inquiry is solely as to what has been the action of the corporation, and as to the extent to which the franchises it is exercising have been conferred.

The object for which the Act of 1868 was passed is unmistakable. It was to vest in voluntary associations of individuals, under definite, uniform and general rules, powers which had previously been given only by special acts of incorporation. It applied to railroad companies in the sense in which the term had always been commonly employed. Passenger railways were expressly excluded from its operation. The companies to be chartered under it were made subject to the provisions of the General Railroad Law of 1849, and not one word was contained in it by which the legislation in regard to lateral railroads could be affected. The Act of the 28th of April 1871, was a supplement to the Act of 1868, simply reducing the number of the corporators to three in the case of a' road not exceeding five miles in length. These corporators, however, were still to constitute a railroad company, subject to the terms of the oi'iginal act and to those of the Act of 1849. Provision for so short a road could only have been made in order to secure some general public good. The supplement was manifestly intended to apply to settled communities, with a population at least so moderately dense as to require more than primitive means of conveyance, and with industries so varied and diversified as to require more than primitive facilities for the transportation of the products of machinery, labor and land. It was passed to provide for the convenience and necessities of masses of men, and not to promote private fortunes or develop private property. The Commonwealth transfers to her citizens her power of eminent domain only when some existing public need is to be supplied, or some present public advantage is to be gained. She does not confer it with a view to contingent results which may or may not he produced, and may or may not justify the grant, as a projected speculation may prove successful or disastrous. Provision of the most ample kind has been made to meet individual requirements. The lateral railroad statutes afford every necessary facility for developing private property and transporting its products. And there are substantial reasons why the field within which those statutes operate should not be invaded. Owners of lands are protected by safeguards in their provisions which do not shield them when public ends are to he promoted. They have the right to demand the interposition of those safeguards when private property is appropriated for strictly private use.

The facts found by .the master prove in the distinctest way that this railroad is a mere appertenance to the mines of the Hampton Coal Company. The reasons for his decision that it has been constructed for public use are speculative, strained and vague. They have in view remote and contingent conditions, of the realization of which nothing even of probability is shown by the report. The road is completed between the termini specified in its charter. The capital of the corporation has been nearly if not entirely expended. It cannot of course he said that it is impossible that new capital shall be subscribed, the hill that bounds the eastern terminus tunnelled, the coal lands beneath which the extension may be constructed developed, and industries created that, would make the enterprise of public importance and public use. But all these possibilities are too remote to be ground for anything beyond conjecture. To rest the legal’rights of parties on such chances would be simply to obliterate those rights. In its existing condition, not one element of public advantage has resulted from this road that would not be gained by the construction of any lateral railroad extending from a great highway like the Pennsylvania railroad to coal mines of the kind and capacity of those of the Hampton company. For the. distance of seven hundred and eighty feet, including the eastern terminus, the defendants are precluded from affording facilities for any business but their own by the very terms of the grant of the right of way they obtained from Johnston. They are confined to the use of the land for such purposes as are connected with the ordinary working of coal property. “ The conveyance of persons and property,” in the sense in which those words are used in the Act of 1868, would be out of the question. The connection with the Pennsylvania railroad is at a point fourteen hundred and fifty feet from any station, nearly one-third of the entire length of the Edgewood road, and the statement of the fact is alone sufficient to make any idea of using it for the conveyance of passengers preposterous. There is the coal of the Hampton company to be carried, and there is nothing else. ’

Hardly as the rule may bear on these defendants, it is the plain duty of the courts to prevent the perversion of enactments passed for one purpose in order to subserve other and inconsistent objects. To every legal intent this road is a lateral railroad. The right and franchise which the defendants claim to construct, maintain and operate it, was not conferred by the Acts of 1868 and 1871, and the charter in pursuance of them which they have obtained. In reality it has been throughout the property of the Hampton Coal Company as exclusively as the incline railway, schutes and fixtures at their mines. It is no more within the general railroad legislation of the state than was the road which was enjoined by this court under the powers granted by the Act of the 19th of June 1871, in McCandless’s Appeal, 20 P. F. Smith 210. It has been built in sheer defiance of legal provisions, the due observance of which could alone have justified its existence, and its maintenance would be a fraud upon the law.

To prevent the chance of misconception, the statement is repeated that the question of the legislative power to grant the right of eminent domain to associations of individuals for corporate purposes, has not been considered. It may be added that nothing which has been said has been designed to affect, limit, or disturb the corporate organization or the general corporate power of the Edgewood Railroad Company. The points decided are briefly recapitutated:

I. When the bill was presented to the Common Pleas, the plaintiffs had title to the land the defendants had appropriated.

II. On this land the defendants have laid and are operating a lateral railroad for private use, without the observance of any of the forms prescribed by the lateral railroad statutes.

III. The Acts of 1868 and 1871 were passed to provide for the organization and regulation of railroad corporations authorized to construct railroads, subject to the provisions of the General Railroad Law of 1849, for public use.

IV. The charter of the defendants did not warrant the appropriation they have made of the land of the plaintiffs for the purpose to which they have applied it. They are trespassers, as they would be if, under cover of their charter, they had entered on the land to build a turnpike or open a mine.

V. It follows that the defendants do not possess the right or franchise to do the acts which have resulted in the injury of which the plaintiffs complain. And in the circumstances of this ease, under the Act of the 19th of June 1871, a bill for an injunction is the appropriate remedy for the wrong.

Decree affirmed, and appeal dismissed, at the costs of the appellants.