author: Mr. Justice Merctjr

text:
    The Pittsburg & Connellsville Railroad Co. versus The South-west Pennsylvania Railway Co.
    1. A railroad corporation, although chartered before the Act of June 19th 1871, authorizing courts of equity to regulate grade crossings, is subject to that act.
    2. Under the Act of April 4th 1868, authorizing railroads to cross other railroads at grade, the crossing was subject to review by a court of equity.
    3. The Act of 1868 did not give a railroad corporation an arbitrary right to cross another railroad, regardless of the rights of the corporation injured and the safety of the public.
    4. Every legislative grant is made with the implied reservation that it shall not injure others."
    5. Kailroads being public highways, are not for all purposes private^ property ; possessing a public character they are subject to public supervision.
    •6. By a railroad grant the legislature does not intend to divest itself of the police power of the state ; the right to regulate railroad crossings flows from that power.
    7. The 1st sect., art. 17, of Constitution of 1874, authorizing the crossing of railroads, does not declare whether the crossing shall be at grade or not; that is left to legislative action and judicial supervision.
    8. By the Act of 1871, the rights of the crossing railroad are secondary to those of that crossed, and the crossing company must show by evidence that no unnecessary injury is inflicted on the other by crossing at grade, and that such crossing cannot be reasonably avoided.
    9. The intent of the Act of 1871 is to discourage grade crossings, involving danger to the public as well as injury to the company whose road is crossed.
    10. Crossing at grade in this case, under the evidence, disallowed.
    November 20th 1874.
    Before Agnew, O. J., Sharswood, Williams, Mercur and'Gordon, JJ.
    Appeal from the Court of Common Pleas of Fayette county: In Equity. Of October and November Term 1874, No. 255.
    This proceeding commenced by a bill filed April 25th 1874, by The South-west Pennsylvania Railroad Company against The Pittsburg and Connellsville Railroad Company. The bill set out:—
    1. The plaintiffs were incorporated by Act of March 16th 1871, to construct a railroad by such route as the directors might select, from a point on the Pennsylvania Railroad at or near Greensburg, by way of Uniontown, to the line of the state of West Virginia, and to construct branches; the company to be regulated by the Act of February 19th 1849 (General 'Railroad Law), and its “ supplements, and entitled to the advantages thereof and of all other general laws of the Commonwealth’s relative to railroad companies, with like privileges as if organized thereunder.”
    2. Plaintiffs had already constructed and had in operation, that portion of its road from Greensburg to Connellsville, Fayette county, and had surveyed, permanently located, graded and ballasted ready for the ties and rails, an additional part of their road from the present terminus at Connellsville to its intersection with the defendants’ railroad, “ near the mouth of Mount’s Creek, some distance below defendants’ depot at Connellsville, which road it is proposed to cross at grade at that point, and said road had been graded from the road of the defendant southward to the Youghiogheny river.”
    3. At the time of the location and partial construction of plaintiffs’ road to the aforesaid point, the defendants had at that place but one track; but they have since then laid one or more additional tracks.
    4. The plaintiffs proposed at once to extend their road from its present terminus at Connellsville towards Uniontown and across defendants’ road at grade, and had endeavored, without success, to agree with the defendants in relation thereto; on the contrary the defendants expressed a determination to resist such crossing and to prevent the plaintiffs from so doing; plaintiffs therefore feared interference with their work and resistance by the defendants, in attempting to make the crossing.
    5. Any other proposed place and manner of crossing the defendants’ roads, would cause plaintiffs great injury, inconvenience, delay and additional expense, and a complete alteration of much of their road already constructed, and would render the further extension of their road at present impracticable.
    The prayers were:—
    1. For a decree authorizing, &e., the plaintiffs to proceed to construct, &c., their road over and across defendants’ road at the place and in the manner aforesaid.
    2. For an injunction to restrain the defendants, their officers, &c., from interfering with, &c., the construction, &c., of the plaintiffs’ road over and across the defendants’ road as aforesaid, an:l all molesting, &e.
    3. For general relief.
    The defendants answered:—
    1. They held their charter under an Act of Assembly of Pennsylvania of April 3d 1837 and its supplements, under which their road had been built and operated for more than twenty years.
    2. Their depots, turn-table, engine-houses, &c., were located at the northern end of Connellsville, within a very short distance from where the plaintiffs proposed to cross their road.
    3-4. Under a contract with The Connellsville Mutual Building and Loan Association they had become owners of a lot of ground immediately below their depot and above and below the proposed crossing, for the purpose of erecting thereon carpenter, car, and other shops, and as a yard in which to stand and change their cars and locomotives; part of the buildings are erected and the others in process of construction ; they are to be erected as a condition of the contract before April 1st 1873, and the lot is to revert to the association if not so erected, &c.
    5, 6, 7. The proposed crossing of plaintiffs, and extension west of defendants’ road, passed through the lot, cutting it nearly in the middle over the ground where the main car-shop was located, rendering it inaccessible and utterly destroying the whole for the purpose intendedthe lot is absolutely necessary to defendants for conducting their business, securing the safety of passengers and property, &c., and the crossing proposed by plaintiffs was where defendants shifted their cars and locomotives, while they had several tracks, so that a crossing at grade with safety to either company would be impossible.
    8. The grading mentioned in the second paragraph of the bill, was a trespass and done surreptitiously.
    9, 10, 11. The Acts of Assembly authorizing a railroad to cross another at grade, did not intend to allow the crossing of depot or shop grounds ; and it was “ reasonably practicable for the plaintiff to avoid a grade crossing ” by crossing over defendants’ road a very short distance from the proposed crossing, to which defendants make no objection, &c.

      Defendants resisted the crossing at grade as destructive of its property.
    A replication was filed, and John D. Roddy, Esq., appointed examiner.
    A number of witnesses on each side were examined before him.
    The substance of the evidence by defendants’ witnesses was, that the grading had been done by the plaintiffs in the spring of 1872 through defendants’ lot, and between defendants’ road and the river; defendants owned between 6 and 7 acres between their track and the river; they had it for the purpose of erecting shops; had some shops and dwelling-houses for their hands erected less than 100 feet from plaintiffs’ road, and the location of the road crossed the foundation of additional buildings proposed to be erected; the land without improvements was worth $10,000 ; over $8000 had already been expended in the buildings plaintiffs proposed crossing, and extension would render the land useless for the purposes for which it had been purchased; it was absolutely necessary for defendants; they had on the lot six tracks necessary for the business of the road; if compelled to abandon the lot it would cost $50,000 to give them a favorable location elsewhere. Grade crossings were dangerous with all proper signals; whenever it is possible to cross above grade it should be done; it is expensive in construction and continually in want of repairs; there is a great difference in the wear of rolling stock. It was reasonably practicable for the plaintiffs to make a crossing above grade, about midway between the depot and the proposed crossing; the only difference would be a question of expense. The grade crossings proposed would be especially dangerous because the sight was short approaching it from all directions; the difficulty would be almost insurmountable, in consideration of defendants’ shops, &c. The business of defendants was increasing every month; a full freight train was about 1000 feet long; the crossing proposed by plaintiffs would be dangerous and expensive to both parties. The buildings were commenced in 1872 and finished in 1873;' about two-thirds of the lot lay between plaintiffs’ road and Mount’s Creek, and would require cutting and grading to make it useful in the upper part; the proposed buildings would cover from 5 to 7 acres; including this lot the defendants had about 29 acres of land; this lot was naturally better situated for shop purposes than the other; the crossing proposed by plaintiffs would render that portion west of the track useless for standing cars on; the tracks'west would be injured by a grade crossing, and could not. be extended without erecting a bridge at Mount’s Creek. The crossing overhead would require a longer connection with defendants’ road; it would not interfere with the business of the town of New Haven, which is opposite Connellsville; an ordinary grade near a depot is not a serious inconvenience. The cost to plaintiffs of a change to a crossing over a grade would not exceed $25,000; to cross at grade would cost $•5000 ; there would have to be a watchman night and day, and a signal station there; this crossing would be a great trouble and expense to defendants on account of the stopping of their trains, and would be especially so, so near the station and shops; the large part of the shop grounds could not be reached from below, but must be approached from above.
    The substance of the testimony of plaintiffs’ witnesses was: that the route of plaintiffs’ road crossed the river immediately below the town of New Haven, passing through that town at grade, about 400 feet from the proposed crossing; the right of way through that town had been procured; if plaintiffs’ road crossed defendants’ road above grade it would injure property in that town very much, and the damages would be large; the change could not be made without great cost and delay, and would be very detrimental to the coke trade which expected to pass over plaintiffs’ road, and would not be satisfactory to those expecting to do business over the road as it then was. To cross the defendants’ road above grade would necessitate a new bridge over Mount’s Ci'eek ; the crossing above grade Avould cost $24,500 more; the bridge then over Mount’s Greek Avas ready for the superstructure; an overhead crossing Avould require a heavy embankment at NeAV Haven and the removal of several houses; the then location crossed the river at grade; the bridge would be longer and have a less permanent foundation than the presént; the distance for an overhead crossing Avould shorten the line several hundred feet. In the judgment of the witnesses a crossing above grade Avas not reasonably practicable and would be injurious to the interests of the road and the business community. When the final location of the extension of plaintiffs’ road and crossing Avas made defendants had but one track; the present grade crossing was a good one, there was no objection to it and it Avould be no disadvantage to either road owing to the speed necessarily run from the proximity to the depot.
    This synopsis, with the opinion of the court beloAV, will sufficiently present the facts of the case.
    The case was argued on the pleadings and evidence before Sterrett, P.'J., of the Fifth district; he delivered the folloAving opinion:—
    “ When the case came on to be heard Ave Avere under the impression that it Avas before us on a motion for a preliminary injunction, but at the close, of the argument the learned counsel for the parties informed us that they had agreed to treat the hearing as final, on a bill, answer and testimony, and. desired the court to make a final decree. It Avas suggested that this mode of procedure was irregular, that before a final hearing the case should be referred to a master to find and report the facts. The counsel again stated that they had agreed and desired to submit the case, in its present shape, to the court, to determine the facts, so far as they may be deemed material, and enter a final decree. With some hesitation as to the propriety of such a course, we acquiesced in the request, and have examined the bill, answer and testimony with a view of entering a final decree.
    “The facts of the case, so far as they are deemed material, are found to be as follows, to wit:—
    “ The South-west Pennsylvania Railway Company was duly incorporated on the 16th day of March 1871, and authorized to 'construct a railroad with one or more tracks, by such route as the directors might select, from some point on the Pennsylvania Railroad at or near Greensburg, in Westmoreland county, by way of Uniontowm, in Fayette county, to the boundary line of West Virginia, and to construct branches. The charter also provides that, in all respects, other than those therein specified, the company shall be regulated by the Act of February 19th 1849, and the several supplements thereto, and shall he entitled to all the advantages thereof and of all other general laws of the Commonwealth relative to railroad companies, with like privileges as if organized thereunder.
    “ The plaintiff company was duly organized under its charter, and in pursuance of the authority contained therein constructed, and has been operating that portion of its road between the Pennsylvania Railroad at Greensburg and its present terminus at or near Connellsville in Fayette county. It has also surveyed, permanently located and proceeded to construct an additional portion of its road, extending from its present terminus at Connellsville to the intersection with the defendant company’s road, near the mouth of Mount’s Creek, a short distance below said company’s depot, in Connellsville, and thence southward towards Uniontown. The preliminary survey of the last-mentioned portion of the plaintiff company’s road, viz : from the present terminus at Connellsville, and across the defendant company’s railroad and lands to the Youghiogheny river, 'was made on the 14th day of June 1871, and the final location of the same was made on -the 28th of July following. At the time of the survey, permanent location and partial construction of its road to and at the point of the intersection and crossing of the defendant company’s road, the said company defendant had at that place but one track, but since that time it has constructed additional tracks.
    “ It has been the intention of the plaintiff company, as speedily as possible, to extend and construct its road from the present terminus thereof at Connellsville, southward, towards Uniontown, across the defendant company’s road, at grade and across its land, lying between its road and the Youghiogheny river; and in pursuance of this purpose it has already graded and ballasted, ready for the cross-ties, the portion of its road between the present terminus and the proposed crossing, and has also graded its roadway through said land of defendant company to said river.
    “ It has also permanently located and partially graded its roadway from said river, southward, for several miles towards Union-town.
    “The location of the plaintiff company’s road at, and for some distance on each side of the proposed crossing, was judiciously made with reference to the interests of said plaintiff company, and the convenience of trade and travel on its road at that point, and will involve much less expense in construction and do much less damage to private property than any other.route that could have been selected. The plaintiff company might have selected a route by which it could cross the road of the defendant company above grade, but such route is not reasonably practicable, on account of the greatly enhanced cost of construction — amounting to at least $25,000 or $30,000 — the greater damage to private property, the necessity of constructing the bridge across the Youghiogheny river at the point of crossing, with a heavy descending grade southward, the greater expense and difficulty of making a connection with the defendant company’s road, and affording convenient accommodations for the public trade and travel on its road at that point.
    “ The proposed crossing of the plaintiff company at grade, will not be as safe as an over grade crossing, but under proper regulations the crossing and connection with defendant company’s road can be effected with reasonable safety and convenience to the trade and travel of both companies, and by permitting the plaintiff company to cross at grade and connect with defendant company’s road on the location selected and adopted, a large and unnecessary outlay and expense to the company plaintiff will be avoided and public convenience promoted.
    “ The Pittsburg and Connellsville Railroad Company was incorporated by an Act of Assembly, approved the 2d day of April 1837. In pursuance of the authority conferred by this act, and the several supplements thereto, the company located and constructed its present line of railroad, and has been operating the same for many years before the plaintiff company was incorporated.
    “ The freight and passenger depot, turn-table, switches, sidings and engine-house, of the company defendant, are located at the lower or north end of the borough of Connellsville, a short distance south-east of the point where the plaintiff company has located its crossing.
    “ On the first day of June 1871, the defendant company entered into an agreement with the Connellsville- Mutual Building and Loan Association, whereby it acquired the right to occupy and use for the purposes and upon the terms and conditions in said agreement mentioned, a piece of land containing about seven acres, lying immediately below its depot in Connellsville, and extending northwardly between its track and the Youghiogheny river to Mount’s Creek. This agreement was acknoAvledged by the president of The Connellsville Mutual Building and Loan Association, on the 31st day of October 1871, and by the president of the defendant company on the 10th day of November following, and recorded on the 13th day of the same month.

      “ In pursuance of this agreement the defendant company took possession of the lot of ground therein described, and proceeded to improve and use a part thereof as contemplated by the terms of the contract.
    “ The line of the plaintiff company’s road as located crosses said lot in such a way as to cut about tAvo acres off the upper or southeasterly end thereof,'as shown on the accompanying plot. This end or portion of the lot south of the proposed crossing is mostly high ground, elevated considerably above the grade’of the railroad. It has not been used by the defendant company, and cannot be until it is graded.

      “ The other or northerly portion of said lot contains all the improvements made by the company defendant, and has been approached and entered by a switch and bridge across Mount’s Creek. This approach and the use of the larg'er or northerly end of said lot as the same has hitherto been used, will not he materially interfered with by the proposed crossing of the plaintiff company.
    “ The location of the plaintiff company’s road across said lot partly embraces ground intended by the company defendant, as a location for a round-house, which said company has contemplated erecting thereon, as shown by the plot presented by defendant company.
    “ If the southerly end of the said lot Avas graded down to the level of the railroad track, with the view of using the same in connection with the northerly portion of the lot, the proposed crossing of the plaintiff company Avould materially interfere with such use.
    “ The defendant company has acquired about 22 acres of land on the line of its road on the southerly side of Connellsville (not more than half a mile distant from the lot above referred to), for the purpose of erecting thereon machine-shops, round-house, foundry, &c., &c., for the construction and repairing of engines, &c. This land, in connection with the portion of the first-mentioned lot north of the proposed crossing, Avill be amply sufficient and convenient for all the necessary uses and operations of the company defendant; and the crossing of the first-mentioned lot by the plaintiff company’s road, as proposed, AA'ill not seriously embarrass or interfere with the company defendant in the convenient and successful operation of its railroad.
    “ The plaintiff company has been unable to come to any understanding or agreement with the defendant company in relation to the proposed crossing of its railroad and ground, and the defendant company has expressed a determination to resist and prevent such crossing.
    “ The plaintiff company tendered and presented for approval a bond to the defendant company and to the Counellsville Mutual Building and Loan Association, conditioned for the payment of such damages as may be duly ascertained, and awarded to them, which was approved by the court on the 11th day of April 1872, and filed at No. 36 of June Term 1872.
    “ The question which arises upon the foregoing facts is, whether the plaintiff company has the right and should be permitted to cross at grade the road and lands of the company defendant, on the location selected and adopted.
    “ Under our extended system of railway communication, it is absolutely necessary for railroads to cross other public highways, and sometimes to appropriate them in part at least; and it will not be contended that railroads themselves can claim exemption from being crossed by other railroads, provided they are not deprived by such crossing, of property necessary to the proper conduct of their own business.
    “ It must be admitted that the crossing of one railroad by another will cause some inconvenience and more or less injury, and is susceptible of compensation in damages, and if the property taken or occupied by such crossing is not essential to the proper conduct of the business of the road, there can be no good reason for prohibiting the crossing.
    In the case of roads rhnning in different directions and sometimes in the same general direction, crossings become a reasonable and sometimes an absolute necessity. The Act of June 19th 1871, recognising this necessity, provides that it shall be the duty of courts of equity to ascertain and define by their decree the mode of such crossing which will inflict the least practicable injury upon the rights of the company owning the road to be crossed, and if in the judgment of the court it is reasonably practicable to avoid a grade crossing, they shall by their process prevent a crossing at grade.
    “Again, the first section of article 17, of our present Constitution, goes further, and provides that ‘ Every railroad company shall have the right, with its road to intersect, connect with or cross any other railroad, and shall receive and transport each the other’s passengers, tonnage and cars, loaded or empty, without delay or discrimination.”
    “ It is not to be expected that such intersection, crossing or connection can be effected without at times doing some injury to the company whose road is intersected or crossed, but if it be an injury that does not deprive the company of the means of freely exercising its corporate rights and franchises, or seriously embarrass or interfere with its operations, and is susceptible of compensation in damages, there is no reason why a railroad should claim immunity from such injury, any more than other corporations or individuals.
    “ The public good, for the promotion of which all corporate powers are conferred, rises higher than private interests or the interests of other .corporations.
    “ It has been found that it is not reasonably practicable for the plaintiff company to cross the road of the defendant company above grade; and so far as the matter of crossing at grade is concerned, we have no difficulty in reaching the conclusion that the crossing under, under proper regulations, should be permitted. As to the location on and occupancy of defendant company’s land, between its roadway and the river, we have had some difficulty, but in view of the fact that the appropriation and use of the land in question by the plaintiff company will not deprive the company defendant of adequate facilities for the proper conduct of its business, and any injury it will sustain can be easily compensated in damages, we have been led to the conclusion that, under all the facts of the case, the plaintiff company should be permitted to proceed with the construction and operation of its road on the location selected and adopted by it. .
    “ As we have already seen, the plaintiff company tendered a bond for the payment of damages, which was presented to and approved by the court. If this bondis deemed insufficient the defendant company can apply for such additional security as may be deemed necessary.” * * *
    The decree was:—
    “ That the plaintiff company has the right and should be permitted to construct and operate its railroad across the roadway and tracks of the defendant company, at grade, and across the adjoining land of the company defendant, on the location adopted by the plaintiff company, and also to connect with the defendant company’s road at or near said crossing. Subject, however, to the payment (when duly ascertained) of such damages as the defendant company may appear to sustain by reason of the crossing of its roadway and the taking of its land aforesaid. Subject, also, to the provisions hereinafter made for construction, maintenance and government of said crossing. <
    “ And it is ordered and decreed, that the crossing of the roadway and tracks of the defendant company shall be constructed by the plaintiff company, at its own proper cost, under the direction of a competent engineer of the company defendant, in such manner as will do the least practicable damage to the defendant company, and cause the least possible interruption in the running of its trains, and that the said crossing shall be kept and maintained in perpetual good order and repair by the company plaintiff at its own proper cost.
    “ And it is further ordered and decreed, that the company plaintiff shall at all times, at its own proper cost, keep and maintain a W'atchman at said crossing, to signal and warn approaching trains or engines, and keep said crossing clear of obstructions.
    “And it is further ordered and decreed, that the said crossing shall be governed by the following regulations, to wit:—
    “ All trains or engines passing over either of said roads, shall come to a full stop, not nearer than two hundred feet, nor farther than eight hundred feet, from said crossing, and shall not cross until signaled so to do by the watchman, nor until the way is clear.
    “ When two passenger or freight trains come up at the same time, the train on the road of the company defendant shall have the precedence in crossing, provided said trains are both on main tracks, over which all passengers and freights are transported; but if only one is such main-track and the other is a side or depot track, then the train on the main track shall have the precedence, and engines with cars attached shall take precedence over engines without cars.
    “The right is reserved to either of the parties, upon notice to the other, to apply to the court for such addition to or modification of these regulations as the safety of persons and property may seem to require.
    “And it is further ordered and decreed, that the defendant company, its officers, agents and servants, shall be enjoined from preventing or interfering, with the plaintiff company, its officers or employees, in the construction of its railway at grade, across the roadway and adjacent land of the defendant company, otherwise than hereinbefore provided.
    “ And it is further ordered and decreed, that one-half of the costs in this case' be paid by each of the parties, plaintiff and defendant.”
    The defendants appealed to the Supreme Court, and in several specifications assigned the decree for error.

      Cf. Shiras, Jr., and D. Koine, for appellants,
    referred to Act of 19th June 1871, Pamph. L., 1 Br. Purd. 288, pl. 39, 40.

      K. Fwing and A. M. Fulton (with whom was Q. F. Boyle), for appellees.
    The power of the directors to locate their road by whatever route they saw proper is absolute, and beyond judicial control, unless, perhaps, they should capriciously and wantonly disregard the rights of others: Anspach et al. v. Mahony & Broad Mountain Railroad Co., 5 Phila. Rep. 491; N. Y. & E. Railroad Co. v. Young, 9 Casey 182; Cleveland & Pitts. Railroad Co. v. Speer, 6 P. F. Smith 388.
    A corporation by its delegated right of eminent domain, may take the property of another corporation upon making compensation : 1 Redfield on Railways, §§ 1-4, 10; Vermont v. Boston, C. & M. Railroad, 25 Vt. 433; Philada. & Reading Railroad Co. v. The City of Philadelphia, 11 Wright 329; Com’th v. Penna. Coal Co., 16 P. F. Smith 47; Const. of Penna., art. 1, sect. 10; art. 16, sect. 3. Railroads have the right to cross other roads at grade : Act of April 4th, 1868, sect. 10, 2 Br. Purd. Dig., p. 1213, pi. 10 ; Act of June 19th 1871, supra.

    January 4th 1875.
   Mr. Justice Merctjr

delivered the opinion of the court,

This is an appeal from a decree, in which, inter alia, it was adjudged that the appellee has the right, and shall be permitted to construct and operate its railroad across the roadway and tracks of the appellant, at grade, and across the adjoining lands of the appellant, on the location adopted by the appellee, and also to connect with the appellant’s road at or near said crossing; and that the appellant shall not interfere therewith.

The appellee was incorporated by the Act of 16th of March 1871; the appellant by the Act of 3d of April 1837. The line of the railroad of the latter had been located, constructed, and in operation many years before the appellee was incorporated. Where the road of the appellee as located crosses the appellant’s lands, it passes over the very ground on which the latter designs to build a round-house.

The question is, shall the appellee be permitted to cross at grade the road and lands of the appellant on the location designated and adopted by the appellee ?

It is claimed that this authority is given by the act of its incorporation. The third section of that act authorizes the company to construct a railroad “by such route as the directors may select,” between the termini of the road, and “ to connect with any other railroad already built or hereafter constructed.” After several other specific provisions, the 5th section declares “ in all other respects the company shall be regulated by the Act of 19th of February, A. D. 1849, and the several supplements thereto, and shall be entitled to all the advantages thereof, and of all other general laws of the Commonwealth, relative to railroad companies, with like privileges as if organized thereunder.” Neither the Act of 19th February 1849, nor any of its supplements, gives any specific authority to cross at grade. The appellee, however, invokes the aid of the 10th section of .the Act of April 4th 1868, P. L. 62, which declares “ companies formed under the provision of this act shall have the right to construct roads so as to cross at grade the track or tracks of any other railroad in this Commonwealth.” This act does not profess to be a supplement to any other act, but is entitled “ An act to authorize the formation and regulation of railroad corporations.” It is a general law under which all such proposed corporations may be organized. It therefore follows, under the 5th section of the act of its incorporation, the appellee possesses the same rights and privileges in regard to crossing the track of another railroad, as if organized, under the Act of April 4th 1868.

The 1st section of the Act of June 19th 1871, Purd. Dig. 288, pi. 39, gives authority to courts of equity to -inquire into any alleged injurious act done by a corporation, under a claim of right to the private rights of individuals, or to the rights or franchises of other corporations; and if such acts are found to have been committed without right, to restrain them. The second section of the same act declares “when such legal proceedings relate to crossings of lines of railroads by other railroads, it shall be the duty of courts of equity of this Commonwealth to ascertain and define by their decree the mode of such crossing, which will inflict the least practical injury upon the rights of the company owning the road which is intended to be crossed, and if, in the judgment of such court, it is reasonably practicable to avoid a grade crossing, they shall by their process prevent a crossing at grade.

The appellee contends that inasmuch as it was incorporated prior to the passage of this act of 19th of June, it is not affected by those restrictive provisions, which would impair its vested rights ; but if it had at any time been so restrained, the restrictions are removed by the 1st section of article 17 of the Constitution of 1874, which declares, “ every railroad company shall have the right with its road to intersect, connect with, or cross any other railroad.”

The ai’gument that the rights of the appellee are not affected by the Act of 9th of June 1871, by reason of its previous incorporation under the Act of 4th April 1868, does not strengthen its position in this case, even if it was correct in itself alone The appellant may invoke the application of the same principle, and thereby remove out of its way the foundation on which the argu- • ment rests. That foundation is the Act-of 1868. The appellant was incorporated more than thirty years before its passage, and twenty years before the adoption of the Amendment to the Constitution in 1857, authorizing the legislature “to alter, revoke or annul any charter of incorporation ” thereafter conferred. The Act of 1868 did not profess to apply its provisions to any corporation existing prior to its passagé. The constitution amendment of 1857 was expressly limited in its application to corporations “thereafter” created. The appellee was incorporated subject to this amendment. The appellant was not. With much stronger reason then, it may be claimed that the appellant is in no wise affected by the Act of 1868.

We think, however, the appellee was subjected to the operation of the Act of 19th of June 1871. Under the Act of 1868, the place where, and the manner in which, one railroad might cross another railroad at grade, were undoubtedly subjected to review by a court of equity. The fact that it might cross at grade gave it no perverse and arbitrary right to do so, regardless of the rights of the corporation injured thereby, and of the safety of the public. Every legislative grant is made with the implied reservation that it shall not injure others: Commonwealth v. Pennsylvania Coal Co., 16 P. F. Smith 42, Railroads are public highways. They cannot, therefore, -for all purposes, be considered private property only. As they possess a public character, they are subject to a public supervision.

Besides, we cannot presume the legislature ever intended to divest itself of the exercise of the police power of the state. The right to regulate railroad crossings naturally flows from that reserved power. It is by the exercise of the same power that the speed of trains is limited in populous districts. Nor is the position of the appellee strengthened by that portion of the Constitution of 1874 to which we have referred. It does not profess to declare whether the crossing shall be at grade or otherwise. It wisely leaves that to legislative action and judicial supervision to determine.

Then returning to Act of 19th of June 1871, we see it does not put the rights of the company desiring to cross the railroad of another, on a level with the rights of that other company, but manifestly declares them to be secondary. Two thoughts are clearly expressed in this statute. The one, that no unnecessary injury shall be perpetrated on the road sought to be crossed; the other that crossings at grade shall be prevented whenever they can reasonably be avoided. The appellee then starts with both these obstacles placed in its way by legislative authority. They must be removed by evidence. The parties do not stand on an equality. The rights of the first occupant of the ground, in pursuance of law, are recognised as superior to those of the new claimant. In failing to give due weight to this superior right in the appellant, we think the learned judge erred, and thereby reached a conclusion not warranted by the statute.

Moreover, the evident intendment of the statute is to discourage crossing at grade. This is a question in which the company whose road is to be crossed, is not the only party liable to injury thereby. It involves the safety and security of the public. Crossings at grade are always attended with danger. As our population becomes more dense, travel and traffic will increase, and the injuries resulting from grade crossings will be multiplied. Each succeeding year will increase the necessity for avoiding them. Their .construction should now and henceforth be discouraged.

An examination of the testimony and of the facts found by the' judge, who also acted as master, satisfies us that the location fixed by the appellee, for crossing the road of the appellant, will work great injury to the latter; it will seriously interfere with the convenient use and occupation of their shops already erected, and will prevent the erection of other buildings which they propose to erect, and which are necessary for the proper exercise of its franchises; that it is reasonably practicable for the appellee to adopt another suitable location for crossing the road of the appellant on a shorter line; that the additional expense of constructing a road on such other location is insufficient to destroy its practicability; besides, to a considerable extent, it will be compensated by reducing the damages to the appellant; the grade will be somewhat heavier, but not so great as seriously to impair the value of the road. We are, therefore, led to the conclusion, 1st. That the mode of crossing designated by the appellee is not the one which will-inflict the least practical injury on the rights of the appellant; and 2d. That it is reasonably practicable to avoid a grade crossing.

The decree must therefore be reversed.

And now, to wit, January 4th 1875; this cause having come up by appeal from the decree of the Court of Common Pleas of Fayette county, and having been argued by counsel at Pittsburg, after due consideration thereof, it is ordered, adjudged and decreed, that the said decree of the Common Pleas be reversed and set aside, and that the bill be dismissed, and that the appellee pay-the costs below and of this appeal.


source: Caselaw Access Project

author: Mr. Justice Williams

license: Public Domain

text:
    Chartiers Railway Co. versus Hodgens.
    1. In a suit by the C. railway company to recover subscriptions to their stock, the affidavit of defence averred that a railroad company had been chartered to make a road, one terminus to be Pittsburg the other Washington ; that the railroad was sold under a mortgage, and the purchasers were chartered under the Act’of April 8th 1861 as the C. railway company, and defendant subscribed to the stock of that company ; the plaintiffs had completed their road, but to neither of the terminal points designated in the charter of the railroad company, and had abandoned the construction of the road towards Pittsburg, stopping eight miles short of it, and also 2000 feet distant from Washington. Held, primfi, facie a good defence.
    2. Under the Act of April 18th 1874, providing for writs of error where judgment is refused for want of a sufficient affidavit of defence, if the decision below is sustained, the writ of error is to be dismissed without prejudice, and the case retried as if no writ of error had been taken.

      November 20th 1874.
    Before Agnew, C. J., Sharswood, Williams, Mercur and Gordon, JJ.
    Error to the Court of Common- Pleas of Washington county: No. 263 to October and November Term 1874.
    This was an action of assumpsit, issued January 28th 1874, by the Chartiers Railway Company against Robert A. Hodgens.
    The plaintiffs’ claim was for a part of the subscription by the defendant to four shares of the capital stock of the plaintiff; the subscription being at the rate of $50 per share, of which $80 had been paid; the amount claimed was $120, with interest at the rate of one per cent per month for default of payment.
    The subscription was in these words :—
    “We whose names are hereunto subscribed do promise to pay to the Chartiers Railway Company the sum of $50 for each and every share of the capital stock of said company set opposite our respective names, in such proportions and at such times not exceeding $5 per share, in any period of thirty days, as shall be determined by the president and directors of said company.”
    The defendant filed an affidavit of defence, to wit:—
    “ The plaintiff was organized under the Act of 8th April 1861, as the purchaser of the property of the Chartiers Valley Railroad Company, a corporation created by an Act of 6th February 1853.
    “The Chartiers Valley Railroad Company, by the terms of its charter, was entitled to all the privileges, and made subject to all the restrictions imposed by the general act, entitled, ‘ An Act Regulating Railroads,’ approved the 9th February 1849.
    “ By reason of its organization, and by the provisions of the law under which it was organized, the plaintiff was invested with all the rights, powers, immunities, privileges and franchises, of the Chartiers Valley Railroad Company, and was subject to all the restrictions imposed upon it by law. By the provisions of the charter of the Chartiers Valley Railroad Company, the city of Pittsburg was designated as one terminus of its railroad, and the borough of Washington, in the county of Washington, as the other terminus thereof. At the date of the act incorporating the Chartiers Valley Railroad Company, to wit, 7th February 1853, the bor.ough of Washington extended to West alley, as its western boundary, and no further.
    “The defendant, by the-terms and legal'effect of the contract upon which the suit is founded, engaged to pay the sum therein mentioned only upon condition that the plaintiff-would in good faith observe the provisions of the said several laws, and construct its road to the terminal points designated. The railroad company, while claiming to have completed its road, has not extended it to either of the terminal points aforesaid, but has terminated it on the north at the town of Mansfield, some eight miles distant from the city of Pittsburg, and has finally abandoned the construction of its road in the direction of the said city; and on the south at the Cumberland road, on the farm of Catharine Shirls, two thousand feet, or thereabouts, distant from the terminus fixed by its charter, and contemplated and required by the contract between it and this defendant, and has there erected passenger and freight depots, engine-house, and other buildings necessary for the accommodation of its business ; starts and stops all its trains, and receives and delivers all its freight at the said point, and so has continued to do since the opening of its road, and has definitively fixed and determined the same as the southern terminus of the same.”
    The plaintiff moved for judgment against the defendant for want of a sufficient affidavit of defence. The motion was refused and the plaintiff took a writ of error under the Act of April 18th 1874, Pamph. L. 64. They assigned these errors, that the court below erred
    I. , In deciding that the affidavit disclosed a good defence to the action.
    2, 3. Refusing the motion to enter judgment for want of a sufficient affidavit of defence.

      J. Dalzell (with whom were J. H. Hampton and A. M. Todd), for plaintiffs in error.
    The contract in terms is absolute. If conditional at all, it can only be so by construction of law. Does the fact that the Chartiers Railway Company was incorporated “ with power to construct a railroad from the city of Pittsburg, in the county of Allegheny, by way of Canonsburg to the borough of Washington, Washington county,” make every subscription to its capital stock capable of enforcement only upon the company’s building its road to Pittsburg at one terminus, and Washington borough at the other? The motive inducing a subscription to stock is totally different from the consideration of the contract: Irvin v. The Turnpike Company, 2 Penna. St. 466: Banet v. Alton and Sangamon Railroad Co., 13 Ill. 504. “A change in the location of a road to the prejudice of the subscriber’s expectation of the benefits he should derive from the first location, does not exonerate him from payment of his stock:” Fry v. Lexington & Big Sandy Railroad, 2 Metcalf (Ky.) 314. A deviation from the original line is no defence to an action for subscriptions. An irregularity in the location of a railroad, furnishes no defence to the stockholders in an action to recover the instalments of the stock: Danbury Railroad Co. v. Wilson, 22 Conn. 455. The neglect of a railroad company to make the whole road named in the charter, will not exonerate a subscriber from paying calk: Troy Railroad v. Kerr, 17 Barb. 581. The violation of its charter by the corporation is not a defence to a stockholder sued by them on his subscription: Little v. Obrien, 9 Mass. 423.
    An alteration of a charter, to operate as a release of a stockholder, must be such as to effect a radical change in the business of the company : Angell & Ames on Corporations, §§ 536-7; Hart v. W. H. Railroad Co., 5 Hill 367 ; Mercer County v. Coovert, 6 W. & S. 71; Everhart v. West Chester & Phila. Railroad Co., 4 Casey 339.

      Mart (with whom were Braden Miller), for defendants in error.
    The motive and consideration for the subscription having been changed the contract cannot be enforced: Commonwealth v. Pittsburg, 5 Wright 278; Plank Road Co. v. Arndt, 7 Casey 317. A contract between a corporation and a subscriber is to be governed by the same rules as apply to ordinary contracts : Custar v. Titusville Gas & Water Co., 13 P. F. Smith 381; Railroad Co. v. Byers, 8 Casey 22.
    February 1st 1875.
   Mr. Justice Williams

delivered the opinion of the court,

This case comes before us under the Act of 18th April 1874, Pamph. L. 64, the first section of which provides that in all actions now pending, or which may hereafter be brought, wherein, by Act of Assembly or rule of court, the plaintiff is entitled to ask for judgment for want of a sufficient affidavit of defence, and the court shall decide against his right to such judgment, plaintiff may except to such decision and take a writ of error to the Supreme Court.

The action was brought to recover the unpaid assessments on four shares of stock, subscribed by the defendant, together with the statutory penalty of one per centum per month on each instalment, from the time the same became due and payable under the calls made'by the president and directors of the company. The defendant filed an affidavit of defence, setting out in substance that by the provisions of the company’s charter, the city of Pittsburg was designated as one terminus of its railroad, and the borough of Washington, in the county of Washington, as the other terminus thereof; that the defendant by the terms and legal effect of the contract upon which the suit is founded, engaged to pay the sum therein mentioned, only upon condition that the plaintiff would in good faith observe the provisions of its charter, and construct its road to the terminal points designated; that the plaintiff, while claiming to have completed its road, has not extended it to either of the terminal points aforesaid, but has terminated it on the north at the town of Mansfield, some eight miles distant from the city of Pittsburg, and has finally abandoned the construction of its road in the direction of the said city; and on the south at the Cumberland road, on the farm of Catharine Shirls, two thousand feet, or thereabouts, distant from the terminus fixed by its charter, and contemplated and required by the contract between it and this defendant, and has there erected passenger and freight depots, engine house and other buildings necessary for the accommodation of its business; starts and stops all its trains, and receives and delivers all its freight at the said point, and so has continued to do since the opening of its road, and has definitely fixed and determined the same as the southern terminus thereof.

Upon the filing of the affidavit the plaintiff moved for judgment for want of a sufficient affidavit of defence, and after argument the court refused the motion, to which the plaintiff excepted; and thereupon sued out this writ of error, and assigned as error the refusal of the court to enter judgment for the plaintiff m default of a sufficient affidavit of defence.

The case has been ably argued by the counsel on both sides, and while the question as to the sufficiency of the affidavit is not free from doubt, a majority of the court are of the opinion that the facts set forth therein constitute primfi facie a good and valid defence to the action, and that the court below was right in refusing to enter judgment for the plaintiff. Under the provisions of the Act the writ of error must, therefore, be dismissed without prejudice to the plaintiff’s right to trial by jury and a second writ of error after final judgment. Where the decision of the court below in refusing to enter judgment for the plaintiff, in default of a sufficient affidavit of defence, is sustained, it is manifest that the act intends that the case shall go back and be tried precisely as it would have been if no writ of error had been taken, and therefore any discussion of the principles of law involved in the action would be out of place until the case comes here on a writ of error after verdict and judgment.

It is therefore ordered that the writ of error in this case be dismissed at the costs of the plaintiff, without prejudice, &c.

Justices Sharswood and Gordon dissented.


author: Chief Justice Agnew

text:
    Coughenour’s Adm’rs versus Stauft.
    1. Where the intent of a contract for sale of land is clearly to make a sale by the acre as the means of determining the price and the contract is in fieri, the rule is to compel payment of purchase-money, according to the quantity; and a survey to ascertain the quantity is presumed to have been intended without an express provision for it.
    2. In some cases equity will relieve where the difference in quantity is so great that it strikes the mind as evidence of gross mistake or fraud.
    3. When a contract, whether executory or executed, is with reference to an official survey, it will be construed to be a sale according to the quantity stated in it, unless there be express provision for remeasurement; ■ or fraud or such palpable mistake as is evidence of it.
    4. Where the contract is executed by deed, or by bond or other security taken for unpaid purchase-money, the rule is not to open such contract to allow a deficiency or recover for an excess; even if the sale be by the aero.
    5. The rule that a sale by the acre calls for a survey to fix the quantity, will yield always to the intent of the parties to abide by the quantity stated in the agreement or referred to in other writings.
    6. The sale being of a defined tract, the quantity named being said to bo “ more or less,” these words are of great force in determining the intent of the parties to stand upon the quantity stated.
    7. A contract was to sell a piece of land, naming adjoiners, &c., “ containing 91f acres more or less, being the same and all the land whereon (vendor) now resides,” for $10,500, payable, &e., “ the remaining unpaid balance to be paid * * * at the rate of $114.40 per acrethe $10 500 was about $4 more than 91f acres at $114.40 The land, by a subsequent survey, contained 118 acres, held, that the $10,500 was the sum fixed to be paid as the purchase-money, and the vendor could not recover for the excess above 91|- acres ; although the contract was executory.
    November 21st 1874.
    Before Agnew, C. J., Shabswood, Williams, Mercur and Gordon, JJ.
    Error to the Court of Common Pleas of Fayette county: No. 291, to October and November Term 1874.
    This was an action of ejectment, brought October 15th 1873, by B. F. Coughenour and J. S. Detweiler, administrators, &c., of Isaiah Coughenour, deceased, against J. Stauft, to enforce the payment of the purchase-money of a tract of land, contracted to be sold by the decedent to the defendants, under the articles of agreement hereafter stated.
    The case was tried, October 1st 1874, before Stowe, J., of the Fifth district.
    The plaintiffs gave in evidence the agreement, viz.:—
    “Agreement entered into this 29th day of June 1872, by and between Isaiah Coughenour, of, &c., of the one part, and J. Stauft, of, &c., of the other part. Witnesseth, That the said Isaiah Coughenour, for the consideration of the sum of $10,500, to be paid as follows, to wit: $1000 in hand, $5000 on the 1st day of April 1873, when a good and sufficient deed is to be executed and delivered, clear of all encumbrances whatsoever to the said J. Stauft, his heirs or assigns. The remaining unpaid balance to be paid in two yearly payments, at the rate of $114.40 per acre; said payments respectively due April 1st 1874 and 1875: doth grant, bargain and sell to the said J. Stauft, his heirs or assigns, all that piece, parcel or tract of land, bounded and described as follows, to wit: adjoining lands of Israel Painter, George E. Hogg and others, said lands being a part of a certain tract of land purchased from George E. Hogg, by said 1. Coughenour, situated and lying in Bullskin and Tyrone townships, &c., containing 91-f- acres more or less, it being the same and all the land whereon he now resides. * * *
    “ In consideration thereof, the said I. Coughenour, is to retain possession of house and barn and all lands cultivated, but shall give full possession of all other portions of land and the right to enter any portion thereof and construct works for mining, coking and conveying all coal and minerals away, that the party of the second part may desire, and make such use of timber, stone and lands as may be required for such or any other purpose that may be desired by the parties of the second part, and it is further agreed that entire possession shall be given by said I. Coughenour, on the 1st day of April 1873, without further notice, and that all payments unpaid and to be paid by the said J. Stauft, shall be secured to the said I. Coughenour, by mortgage upon thé land herein mentioned, he accepting the same as ample security for unpaid payments.”
    $1000 were paid at the execution of the article.
    Also, that the defendant went into possession prior to April 1st 1873, and that Isaac Coughenour having died, and on the petition of the plaintiffs as his administrators, the Orphans’ Court of Fayette county, on the 9th of September 1873, decreed specific execution by the defendant of the contract; that the deed for the land in accordance with the decree had been executed by the administrators, and notice given to the defendants’ attorney that it was ready for delivery, but that Stauft had not complied with the agreement nor received the deed.
    Under objection and exception by defendant, the plaintiffs gave evidence that the tract mentioned in the article of agreement contained 118 acres, 60 perches.
    The plaintiffs then made the following offer.
    “ The plaintiffs, claiming that there is a latent ambiguity in the article of agreement, between Coughenour and Stauft, in regard to the quantity of the land and the price, propose to prove that the defendant admitted on several occasions that he bought the land by the acre, at the price of $114.40 per acre.”
    The defendant objected: “That there is no latent ambiguity in the article of agreement; that it is not competent to construe it by the declarations of the defendant, and that the evidence offered is irrelevant.”
    The offer was rejected and a bill of exceptions sealed.
    The plaintiffs requested the court to charge the jury:—
    1st. That under the article of agreement between Coughenour and Stauft, dated June 29th 1872, the plaintiffs are entitled to recover for the amount of land contained in the tract as surveyed, to wit: for 118 acres and 60 perches, at the rate of $114.40 per acre.
    2. That even if there were no ambiguity in the article of agreement, the mistake is so great, that a chancellor would correct it, and therefore the jury should allow the plaintiffs for the difference between the quantity mentioned in the article, and the true amount now found by actual survey.
    Both points were refused.
    The court charged:—

      “ We are compelled under our view of the written agreement to instruct you that notwithstanding the evidence admitted in the case on part of plaintiffs, showing that there are more than 91f- acres in the tract of land in question; the true construction by which you and the parties are bound, is that all the plaintiffs can compel defendant to pay is the sum of $10,500, and that your verdict must be based upon that view of the agreement. Plaintiffs having shown a good title, free of encumbrance here, as we decidedly think they have, they are entitled to your verdict for 6 cents damages and costs, to be released upon the payment of the purchase-money now due, within such reasonable time as you may fix.”
    The verdict was for the plaintiffs, with six cents damages, to be released upon the payment by the defendant to them of $8157.50 within ninety days from October 2d 1874.
    The plaintiffs took a writ of error and assigned for error, the rejection of their offer of evidence, the refusal of their points and the charge of the court.

      P. Kcdne (with whom were Collins Bailey), for plaintiffs in error. —
    If the object of an agreement can be seen, the writing, whether under seal or not, is to be construed to effect that intention : Worrall’s Accounts, 5 W. & S. 113; Gibson v. Tyson, 5 Watts 37. If the instrument cannot be understood without extraneous facts, the jury must judge the whole: Hetherington v. Clark, 6 Casey 396; Hoffman v. Danner, 2 Harris 28. Parol evidence may be given of a consideration not in a deed, if not inconsistent with that expressed: Buckley’s Appeal, 12 Wright 496; Strawbridge v. Cartledge, 7 W. & S. 399; 1 Greenl. Ev. §§ 282, 286. When a contract is made under a mistake or ignorance of a material fact, it is relievable in equity : Miles v. Stevens, 3 Barr 37; Jenks v. Fritz, 7 W. & S. 201; 1 Story’s Eq., § 144.

      W. K. Playford (with whom was C. K. Boyle), for defendant in error.
    Where land has been sold for a round sum, even a vendee must pay what he agreed; much more is the vendor limited to the amount named in the article: Smith v. Evans, 6 Binn. 113; Dagne v. King, 1 Yeates 222; Philips v. Scott, 2 Watts 320; Riddle v. Foster, 8 Casey 163; Large v. Penn, 6 S. & R. 488; Haggerty v. Fagen, 2 Penna. R- 533; Cronister v. Cronister, 1 W. & S. 444; Dickinson v. Voorhees, 7 Id. 353.
    January 4th 1875.
   Chief Justice Agnew

delivered the opinion of the court,

This is a close case and difficult to determine. On the one hand the contract is still executory, and the difference in quantity unusually large, turning the equity of specific performance to the side of the plaintiff. On the other, the leading features and terms of the agreement turned strongly to the side of the defendant on the question of the actual intent of the parties. Where the intent of the parties is clearly to make a sale by the acre, as the means of determining the price, and the contract is still in fieri, the rule undoubtedly is, to compel payment of the purchase-money according to the quantity. In such a case, a survey, to ascertain the qauntity, is presumed to be intended, even without an express provision for admeasurement. This is stated by C. J. Tilghman, to be the rule in Pennsylvania: Bailey v. Snyder, 13 S. & R. 160 ; Paull v. Lewis, 4 Watts 402; Hershey v. Keembortz, 6 Barr 128. It is also said, there may be cases in which equity would relieve where the difference in quantity is so very great as to strike the mind at once as evidence of gross mistake or fraud-: Boar v. McCormick, 1 S. & R. 168; Thomas v. Pansy, Peters’ C. C. R. 49; McDowell v. Cooper, 14 S. & R. 299; Bailey v. Snyder, 13 S. & R. 160. Yet on this point it was said by Gibson, C. J., in Aschom v. Smith, 2 Penna. 218 : Our reports furnish no instance of an abatement, even where the difference was considerable, or where the principle has been sanctioned further than to admit that there may be extreme cases in which chancery would infer some great misapprehension, and on that ground relax the rules of law.” On the other hand, there are exceptions to the rule that a sale by the acre requires an ascertainment of quantity of survey. Thus, when a contract is made with reference to an official survey or draft, the contract will be construed as an agreement to sell according to the quantity stated therein, unless there be express provision for a remeasurement or fraud, or such palpable mistake as to evidence it: Philips v. Scott, 2 Watts 318. And this is the case, whether the contract be executory or executed: Id. See also Galbraith v. Galbraith, 6 Watts 117; Wier v. Dougherty, 3 Casey 182. Where the contract is executed by deed and bond, or other security taken for the unpaid purchase-money, the rule is not to open a contract so far executed to allow for a deficiency of quantity, nor can there be a recovery for an excess. The cases are numerous: Dagne v. King, 1 Yeates 322; Boar v. McCormick, supra; Glenn v. Glenn, 4 S. & R. 488; Large v. Penn, 6 Id. 488; McDowell v. Cooper, supra ; Dickinsons. Voorhees, 7 W. & S. 353 ; Hershey v. Keembortz, supra. This rule as to the closing of the contract by deed, holds even when the contract was for a sale by the acre: Smith v. Evans, 6 Binn. 102; Cronister v. Cronister, 1 W. & S. 442; Farmers’ & Mech. Bank v. Galbraith, 10 Barr 490.

From these authorities it will be seen that the rule that a sale by the acre will call for a survey to determine quantity, is by no means a rigid one, and will give way always to the intent of the parties to abide by the quantity stated in the agreement, or referred to in other writings. This brings us to the intent of these parties as gathered from the article of sale before us. The learned judge below thought the intent was to sell and purchase the tract of land referred to, and partially described in the article, at a round sum, without further ascertainment of the price. We incline to agree with him, though without thinking it a plain case. The agreement begins with the statement that Isaiah Coughenour, “ for the consideration of the sum of $10,500, to be paid as follows:” then stating the instalments, “doth grant, bargain and sell,” “ all that piece, parcel, or tract of land bounded and described as follows, to wit” : then follows a partial description by boundaries, and the place where it is situate, describing it also as “ part of a certain tract of land purchased from Gr. E. Hogg by said I. Coughenour,” “ containing 91f- acres, more or less, it being the same and all the land whereon he now resides.” There could be no possible doubt on this state of the case of the intention of the parties to sell and purchase a certain well known defined tract of land as containing 91-|- acres, for a specified and determined sum of money, were it not that in providing for the payment by instalments the agreement proceeds to say: “ The remaining unpaid balance to be paid in two yearly payments, at the rate oft $114.40 per acre, said payments, respectively due April 1st 18*74 and 1875.” Does this expression as to the rate per acre overcome the otherwise clear intention to sell a certain known tract of land for a specified round sum of money, without any language looking toward a future admeasurement ? We incline to think not. It is a small circumstance, but a calculation of 91|- acres at $114.40, gives the sum of $10,495.30, while the parties adopted as the consideration the sum of $10,500, showing an intent to adopt a round sum. Then when the rate per aeréis mentioned it wears the appearance of a recital of the mode of arriving at the sum of $10,500, rather than a provision for a mode of ascertaining the balance. Here the entire absence of a provision for a survey or measurement, bears strongly in corroboration of the interpretation that these words, as to rate, were but a recital and not a covenant. An intention to covenant for a measurement, it seems to us, would have been more plainly expressed, in view of the language indicating a sale by a round sum, and the absence of language to express a contrary intent. Then there are expressions strongly supporting the intent to sell for a specified and determined sum of money. Not only is it said that the subject of sale is a certain tract of land bounded, &c., but it is also said this tract contains 91f acres more or less, and is the same and all the land on which I. Coughenour resides. Thus the quantity is defined, and is predicated of a well known and understood piece, parcel or tract of land. Then it is averred that the quantity is stated, whether it be more or less; these words have frequently been held to be of great force in determining the intent of the parties to stand upon the stated quantity as fixed and determined between them. They imply, says C. J. Tilghman, that the boundaries are fixed, and may contain more or less: Glenn v. Glenn, 4 S. & R. 493; Thomas v. Perry, Peters’ C. C. R. 58; Galbraith v. Galbraith, 6 Watts 117. Upon the whole case it looks to us that each party was content to run the risk of the quantity in the tract being as specified, 91|- acres. This being so, it is clear that even though the contract is still executory, it must be treated as fixed in its terms, and the sum stated is to be paid as the purchase-money. Such being the interpretation of the writing, it is evident that parol proof of the after declarations of one of the parties was properly rejected as incompetent to affect its terms. There was no offer to show anything occurring at the time of the execution of the writing as evidence of fraud or plain mistake.

Finding no error in the record the judgment is affirmed.


text:
    Butterfield’s Appeal.
    1. Weyman, by parol, bought land from O’Hara, took possession, made improvements and paid part of the purchase-money. His wife borrowed the remainder of the purchase-money from Butterfield, paid it to O’Hara, who made the deed to her, and she mortgaged to Butterfield, the husband not joining. Held, that the husband owning the equitable title, could not compel a conveyance of her legal title without refunding the purchase-money she had paid.
    2. Butterfield recovered judgment against the wife on his mortgage; the land was sold by the sheriff on a municipal claim against both husband and wife. Held, that this divested the title of both, and in the distribution of the proceeds, Butterfield was entitled on his judgment to receive the amount of the wife’s interest in the fund, being the purchase-money which she had paid.
    3. If the controversy had been between the husband and wife, the fund would be divided between them in accordance with their respective rights and equities ; the wife’s being the sum paid by her with interest to the sheriff’s sale; and the husband’s the remainder of the fund.

      4. Although the mortgage by the wife were void, the judgment conclusively established its execution; the mortgage was merged in the judgment, which could not be collaterally impeached, except for fraud.
    5. Hartman v. Ogborn, 4 P. F, Smith. 120. Thompson’s Appeal, 7 Id. 175.
    October 9th 1873.
    Before Read, O. J., Agnew, Sharswood, Williams and Mercur, JJ.
    Appeal from the decree of the District Court of Allegheny county: No. 161, to October and November Term 1873. In the distribution of the proceeds of the sheriff’s sale of the real estate of Philip Weyman and Catharine'Weyman, his wife.

      The real estate of the defendants was sold by the sheriff under a municipal claim at the suit of the borough of Sharpsburg for $2100. The sheriff returned his distribution of the proceeds of sale. Exceptions to part of the distribution of the proceeds of sale were filed by Catharine Weyman, and the sheriff by order of the court paid the proceeds of sale into court. W. E. Austin, Esq., was appointed auditor to pass upon the exceptions; after-wards certain undisputed claims were paid out by agreement, leaving to be passed on by the auditor the sum of $1288.34, the sum awarded by the sheriff to the executors of Jonas Butterfield, deceased, and $104.32 awarded to Weyman and wife, the defendants in the execution. Philip Weyman was afterwards allowed to join in and prosecute the exceptions filed by his wife.
    The auditor reported the following as the facts in the case: About the year 1847, Philip Weyman, one of the defendants, by his wife Catharine, agreed to buy from James O’Hara the lot of ground sold by the sheriff in this case. The bargain was verbal, no papers drawn nor money paid at the time. The price agreed upon for the lot was $400. Before any money was paid, and some time after the bargain was made, Weyman dug a cellar and began to build upon the lot; did a part of the work himself, and employed Lewis Dengler to do the carpenter work on the house, for which Dengler obtained judgment against Weyman. Weyman and his family occupied the house, with the exception of three years, when he rented it, until his separation from his wife, four or five years ago. * * * It does not appear, however, that Mrs. Weyman had anything to do with the building of the house, Weyman’s wife paid, after the house was built, ten dollars in money to Mr. O’Hara on account of the lot, and Weyman worked for Mr. O’Hara, to the amount of thirty or forty dollars, all which were credited as payments by Mr. O’Hara. Weyman collected the rent of the house during a tenant’s occupancy, and was always treated as its owner.- * * *
    On April 15th 1867, after the separation of Weyman and his wife, O’Hara made a deed of the property to Catharine Weyman, who was accompanied by Jonas Butterfield, Sr., since deceased, and who paid the money for the property, but took no part in the transaction further than to pay the money, for which he took a receipt in the name of Catharine Weyman. It is not disputed that the money thus paid was the largest part of the sum for which Mrs. Weyman afterwards gave a mortgage to Jonas Butterfield, and which is hereafter mentioned. ■ When O’Hara delivered the deed to Mrs. Weyman, Philip Weyman was not present, nor is there any evidence to show that he had released his claim to the property.
    On January 23d 1869, Catharine Weyman was declared a feme sole trader by the Court of Common Pleas. On May 7th 1870 she executed a mortgage, as feme sole trader, to Jonas Butterfield, Sr., deceased, for $1117.50, which included the money paid hy Butterfield to O’Hara, interest, bonus, and some other indebtedness incurred by her to Butterfield. Philip Weyman having previously refused to join in a mortgage for the same debts -to Butterfield. * * *
    To December Term 1871, Butterfield issued 'a scire facias against Catharine Weyman on the mortgage thus executed by her, and on the 12th of December 1871 recovered a judgment on it for $1290.71.
    The auditor further reported, sustaining the exception to the appropriation by the sheriff of the $1288.34 to the payment of the judgment on Butterfield’s mortgage, on the grounds that the real estate was the husband’s, and the wife had no power to give a mortgage binding it, and awarded this sum, less costs of audit, together with $104.32 appropriated by the sheriff to the defendants, to Philip Weyman as owner of the real estate sold, to the exclusion of his wife and Butterfield claiming under her.
    The executors of Butterfield filed exceptions to the auditor’s report; they were overruled by the court, the report confirmed, and distribution decreed in accordance with it.
    The executors appealed to the Supreme Court, and in several specifications assigned the decree for error.

      J. jR. Butterfield and Q. O. Taylor, for appellants.

      J. Barton, for appellees.
    March 2d 1874.
   Mr. Justice Williams

delivered the opinion of the court,

The legal title to the land sold by the sheriff was in the wife, and though the equitable estate was in the husband he could not compel a conveyance of the wife’s legal title without refunding to her the purchase-money which she paid O’Hara in order to procure it. The sale on the judgment against the husband and wife divested the titles of both. How then shall the proceeds of sale be distributed ? Shall the residue, after satisfying the judgment on which the property was sold and the other liens and charges for which the husband was liable, be given to the husband as decreed by the District Court; or shall it be distributed between the husband and the representatives of the wife’s mortgagee as'claimed by the appellants ? If the controversy was between the husband and wife, manifestly the fund should be divided between them in accordance with their respective rights and equities. The evidence shows that in 1847 the husband purchased the land of O’Hara for the sum of $400; that he built a two-story brick dwelling-house and frame kitchen thereon, and paid forty or fifty dollars of the purchase-money. In 1867 the wife paid, the residue, amounting to $669.50, and obtained from O’Hara a deed for the land. The sum paid by the wife, with interest, to the sheriff’s sale, is then the measure of her interest in the land and of her share of the proceeds of sale. If so, it is clear that the husband would not be entitled as against the wife to the whole of the fund left for distribution, but only to the residue after reimbursing the wife the amount of the purchase-money paid O’Hara. But the controversy here is not between the husband and wife, but between the husband and the legal representatives of the wife’s mortgagee. Are the latter then entitled to the wife’s share of the fund ? If not, they have no standing in court, and it is immaterial what are the equities between the husband and wife. If it be conceded that the wife had no power to execute the mortgage as a feme sole trader, and that the mortgage was void because the husband did not join with her in its execution, it does not follow that the judgment obtained against the wife on the mortgage was a nullity. On the contrary, the execution of the mortgage is conclusively established by the judgment in the scire facias upon it: Edmonson v. Nichols, 10 Harris 74. The mortgage is merged in the judgment, and, even if null and void, cannot be collaterally impeached : Hartman v. Ogborn, 4 P. F. Smith 120. In this respect the judgment on a mortgage under the Act of 1705, which is a proceeding in rem, differs from a judgment in personam on the bond of a married woman which is absolutely void. Doubtless the judgment on the mortgage was voidable, and might have been set aside or reversed at the instance of the wife; but until directly avoided by her, its validity cannot be inquired into or impugned collaterally except for fraud : Lowber’s Appeal, 8 W. & S. 887 ; Billings v. Russell, 11 Harris 189; Yaple v. Titus, 5 Wright 195. The judgment on the mortgage then cannot be disregarded, but must be treated as conclusive in this proceeding : Thompson’s Appeal, 7 P. F. Smith 175 ; if so, it bound the wife’s interest in the land and is entitled to so much of the fund as was produced by the sale thereof. The decree of the District Court must therefore' be reversed, and the wife’s share of the proceeds of sale appropriated to the judgment on the mortgage and the residue to the husband. Distributing the fund in this way will do exact justice between the parties. It will give to the appellants the money which the mortgagee lent the wife to enable her to pay the purchase-money and procure a deed for the land; and it will give to the husband the proceeds realized from the sale of his equitable estate, and he can claim no more either in law or equity.

And now, March 2d 1874, it is ordered, adjudged and decreed, that the decree of the District Court distributing the residue of the proceeds of the sheriff’s sale, viz.: the sum of $1234.66, to Philip Weyman, be reversed and set aside; and it is further ordered, adjudged and decreed, that part of said sum, viz. : $669.50, with interest thereon from April 19th 1867 to December 1st 1871, amounting to $855.95, he distributed and paid to the appellants, executors of Jonas Butterfield, deceased, on judgment sur mortgage v. Catharine Weyman, No. 1008, December Term 18tl; and that the residue of said sum, viz.: $378.71, be distributed and paid to Philip Weyman, the appellee, after deducting therefrom the costs of this appeal.


author: Mr. Justice Merque,

text:
    Tindle’s Appeal.
    1. Land was sold under execution out of the District Court of Allegheny county, on a mortgage which was a first lien ; the purchaser paid to the sheriff $850 on his bid ; having failed to pay any more, the sheriff returned the land unsold. It was then sold by the same sheriff under an execution out of the Common Pleas on a subsequent judgment, and subject to the mortgage, for a sum which with the amount due on the mortgage and the $850, was no greater than the first bid. The $850 was ruled into the District Court for distribution. Held, there being no terms, &c., of the second sale different from the first, that a lien-creditor not paid by the second sale was entitled to the fund; not the purchaser at the first sale.
    2. The difference between the bids was primÉ, facie the measure of damages for the purchaser’s failure to comply with his bid, and it was not necessary that the sheriff should bring an action to recover the damages, the amount being already in his hands in the same transaction.
    3. The court being in possession of the fund under the sheriff’s sale, was bound to distribute it “ according to law and equity,” and the creditor who was the party injured by the purchaser’s failure to comply, and for whose use the sheriff would, have recovered the damages, was entitled to it in the distribution.
    October 13th 1873.
    Before Agnew, O. J., Sharswood, Williams and Mercur, JJ.
    Appeal from the District Court of Allegheny county: Of October and November Term 1874, No. 24. In the distribution of the proceeds of the sheriff’s sale of the real estate of John Campbell.
    On the 14th of May 1868 John Campbell made a mortgage to the Dollar Savings Bank to secure the payment of $3000. The mortgage was duly recorded and was the first lien on Campbell’s estate. After this were two judgments in the Court of Common Pleas of Allegheny county against Campbell in favor of John J. House ; then followed a mortgage from Campbell to Minas Tindle, recorded November 16th 1869.
    On the 23d of September 1871 the Dollar Savings Bank, in a scire facias on their mortgage, obtained a judgment in the District Court against Campbell for $3364.50. A levari facias was issued and the real estate covered by this mortgage, and all the above-mentioned liens, were sold to De Lange & Co. for $8210 ; they paid to the sheriff, on account of the purchase $850, but having failed to pay the remainder of their bid the sheriff returned the land unsold for want of buyers. On the 6th of February 1872, De Lange & Co. assigned all their assets of every kind to F, H. Eaton. A fi. fi. was issued out of the Court of Common Pleas of Allegheny county on the House judgments, and the same real estate was sold by the sheriff for $3900, subject to the mortgage of the Dollar Savings Bank, which at that time amounted to $3460, thus making the whole amount for which the property sold $7360. This sale divested the lien of Tindle’s mortgage, which then amounted to $2104.60. By the sale under the fi. fa. all the liens prior to his mortgage were paid ; on account of it he received from the proceeds of this sale $1239.20.
    Upon the application of Tindle, the $850 paid by De Lange & Co. were ruled into court, and David Reed, Esq., appointed auditor to report distribution.
    The fund was claimed by Tindle and by the assignee of De Lange & Co. . '
    The auditor awarded the fund to Tindle.
    Eaton, the assignee of De Lange & Co., filed exceptions to the report of the auditor, amongst which were the following:—
    I, 2. The auditor erred in awarding the fund to Tindle and not to expeptor, as assignee of De Lange & Co.
    3. The auditor erred in deciding- summarily that the fund was damages ; this should have been determined by an action.
    4. The auditor erred in deciding that it made no difference that the two sheriff’s sales were under process from different courts.
    The District Court overruled the report of the auditor and decreed the fund to F. H. Eaton, assignee of De Lange & Co.
    Tindle appealed to the Supreme Court and assigned the decree for- error.

      R. Robb, for appellant.
    The terms, conditions or other circumstances of the second sale not being different from the first, De Lange & Co. were liable for the difference between the bids, and the lien creditors are entitled to the fund in court: Wright’s Appeal, 1 Casey 374. The sale being under different judgments and from different courts makes no difference.'

      J. Q. Doty and J. M. Kennedy, for appellant.
    The first sale being under a first lien sold the land clear of encumbrance; the second was sold subject to the mortgage ; purchasers are always sensitive as to prior liens: the second sale was therefore under different circumstances and a very slight change will release a first bidder : Banes v. Gordon, 9 Barr 426; Paul v. Shallcross, 2 Rawle 326.

      November 22d 1873.
   Mr. Justice Merque,

delivered the opinion of the court,

The sum hid by De Lange & Co. at the first sale was sufficient to have satisfied all liens prior to the mortgage held by the appellant, and to have paid $2089.20 thereon. They, however, paid to the sheriff $850 only on their bid, and refused to pay the residue. The sheriff thereupon returned the property unsold, and' paid that money into court.

This first sale was made upon a levari facias issued on a judgment, which had been recovered upon a mortgage. The mortgage was the first lien. An alias levari facias was issued, but prior to a sale thereon the property was sold upon a fi. fa. issued upon a judgment which intervened between the first lien mortgage and the mortgage of the appellant. The sum for which the property sold at the second sale, added to the amount then due upon the prior mortgage, was $850 less than the sum bid by De Lange & Co. at the first sale. The effect of the second sale was to discharge the lien of the mortgage held by the appellant, and to pay him thereon, out of the proceeds thereof, $1239.20 only, being $850 less than he would have received in case De Lange & Co. had made their bid good.

After the money made at the second sale had been appropriated, an auditor was appointed to distribute the $850. He gave the money, less the costs of the audit, to the appellant. Upon exceptions filed the court reversed his decision, and decreed that it be paid to the assignee of De Lange & Co. From that decree this appeal was taken.

Thus, it appears, the assignees of De Lange & Co. and the appellant are the only claimants before us. None of the creditors whose lien was prior to that of the appellant is here claiming the fund. They were either paid out of the proceeds of the sale made on the fi. fa. or were otherwise satisfied.

It is very clear, if the second sale had been made upon the same judgment, and the property had brought $850 less than at the first sale, that De Lange & Co, would have been liable, m damages, to that amount.

This sum might have been recovered in the name of the sheriff for the use of the party injured: Adams v. Adams, 4 Watts 160 ; Wright’s Appeal, 1 Casey 374; Forster v. Hayman, 2 Casey 266.

Why shall not De Lange & Co. be chargeable for the like amount as if the resale had been made upon the same judgment? It was made by the same officer. It was in the same public manner. It was not clogged with any terms or conditions that were likely to lower the price. No evidence was given before the auditor of any fact calculated to reduce the price for which the property first sold. We discover nothing connected with the sale tending to produce such a result. Hence the cases of Paul v. Shallcross, 2 Rawle 326, and Banes v. Gordon, 9 Barr 426, are inapplicable.

In an action against a purchaser at sheriff’s sale for the difference between his bid and a resale, he cannot object to the error in the levy describing the lands: Cooper v. Borrall, 10 Barr 401. Nor if he was the plaintiff in the execution upon which the sale was made is he relieved from liability by the fact that the levy did not give any description of the township, county or boundaries: Spang v. Schneider, Id. 193. Nor can a purchaser take advantage of irregularities in the execution under which the sale was made: Emley v. Drum, 12 Casey 123. Nor that the purchaser at the second sale paid no portion of his bid to the sheriff, but gave a credit therefor on his mortgage lien: Forster et al. v. Hayman, supra.

In fact the refusal of De Lange & Co. to pay the amount of their bid damaged the appellant to the amount of $850. It is fair to presume that the resale primá facie showed that sum to be the legal measure of damages. No evidence was given to overcome that presumption. Their assignee has no reason to complain, inasmuch as the damages claimed do not exceed the difference between the first and second sale: Gaskill v. Morris, 7 W. & S. 32.

It is contended, however, that if De Lange & Co. are liable to that amount, yet they are liable by action only, and that the money paid into court cannot be applied to the benefit of the party injured.

It is difficult to assign any substantial reason to sustain this position. Why should the sheriff be compelled to bring suit to recover the money which has already been paid to him in the very transaction in which his right of action accrued, and upon which its foundation must rest? The court is in possession of the fund, and is charged with its distribution. It arose from a sale of real estate on execution. The statutes requires that it be distributed “according to law and equity:” Purd. Dig. 645, pl. 107. Force and effect are to be given to the equity branch of the court’s power: Kelly’s Appeal, 4 Harris 59. The appellee is invoking the aid of those equitable powers.

The court then having jurisdiction over the fund and of the parties, had the. undoubted right to decree the money to the one who “in law and equity” was' entitled thereto. We are clearly satisfied that the appellant is so entitled.

We think, therefore, the learned judge erred in not confirming the report of the auditor, and the decree must be revei’sed.

Decree.reversed, and now it is ordered that the fund in court be distributed to the mortgage of the appellant, and that the record be remitted to the court below; that a decree may be there made according to this opinion, and the costs are ordered to be paid by the appellee.