author: Mr. J nstico Green

text:
    Watsontown Car Manufacturing Company versus Elmsport Lumber Company.
    1. Where one person enters into a contract under seal to furnish goods of a certain kind and quality therein specified to another, parol evidence is inadmissible to show that the vendee has, a short time before the execution cf the contract, inspected particular goods in the vendor’s possession, and that these goods are the particular ones referred to in the contract.
    2. Where a general verdict is rendered subject to a point reserved, the question thus reserved must be distinctly stated, and the facts on which it arises must either be admitted on the record or found by the jury.
    February 14th 1882.
    Before Shabswood, C. J., Mercur, Gordon, Paxson, Trunkey, Sterrett and Green, JJ.
    Error to the Court of Common Pleas of Lycoming comity : Of January Term 1882, No. 128.
    Covenant, by William McLees .et ah, doing business as the Elmsport Lumber Company, against John H. Goodman and others, doing business as the Watsontown Car Manufacturing Company. The narr. declared on an agreement under seal dated April 22d 1873, whereby the plaintiffs covenanted to furnish to the defendants “ oak lumber of the size and quantity ordered by said Watsontown Car Company from time to time, and fitted for the use of said car company, the quality to be such that it will pass inspection by the foreman of said car company, the said parties of the first part [the plaintiffs] to furnish said lumber as fast as will be required by said car company, according to bills furnished at either Watsontown or Allen-wood, as aforesaid directed by the said car company, the said parties agree to have their mill running and ready to cut by the 15th of June 1873, and the said car company agrees and shall furnish bills to keep the mill running from said June 15th until said parties of the first part have cut their timber, amounting to about 800,000 feet.” And the said ear company agreed to pay for said lumber as therein specified. The narr. averred a breach of said covenant on the part of the defendants, in that they refused to furnish bills- for and receive said lumber from the plaintiffs, with the exception of about 149,000 feet out of the 800,000 feet contracted for."
    Pleas, covenants performed absque hoc, former recovery, and set off. 1
    On the trial, before Cummin, P. J., the plaintiffs, having put in evidence the contract, called Elias Neyhart, one of the plaintiffs, and asked him this question: Q. State the interview that you had between Abram Goodman and J. M. Linn, two of the defendants, in Elmsport, in the spring of 1873, preparatory to making this contract % This for the purpose of showing that these defendants saw this particular and specific lot of logs, inspected them, and that they were the logs stipulated to be bought in the contract; and to be followed by proof that within a few days after, and in pursuance thereof, the contract now in evidence was drawn.
    Objected to, because (1) the evidence, if admitted, would add to the terms of the written contract between the parties, without showing as a foundation for this change any fraud or mistake in the execution of the contract; (2) it would contradict the contract, and set up a distinct contract between the parties; (3) it would destroy the provision of the contract that plaintiffs should furnish lumber of the size and quality ordered by the car company and fit for their use, the quality to be such as will pass inspection by their foreman ; (4) because the narr. declares upon the written covenant alone; (5) because the evidence is irrelevant. .
    By the court. — I think-this is admissible to show that these parties saw this particular lot of logs — the fact that they knew what they were contracting about. Wherever it comes to any point where it tends to contradict the contract, we think it is not at present admissible. Objections overruled, and evidence admitted with the reservation as stated; exception.
    This witness, and others of ,the plaintiffs (under similar objection and exception), testified that they had a large lot of oak timber cut and lying on a piece of land near the public road at Elmsport; that two of the defendants came to plaintiffs and asked if that timber was sold'; the reply was: “No, but we have an offer- for it.” A few days later they proposed to buy that specific lot of logs at a certain price, which was accepted, and the contract was drawn. The logs were cut in lengths at the time of the sale, and the lumber therefore could not be cut longer than the logs, the longest of which were twenty-four feet.

      The evidence on the part of defendants showed that they demanded and received lumber under the contract until some time in July 1874, and they then rescinded the contract because the plaintiffs failed to deliver “ long timbers,” as called for by defendants; and because one of the plaintiffs stated that they could not furnish the long stuff and never intended to. It appeared that defendants had demanded some timbers as long as thirty-one, thirty-two and thirty-four feet.
    The defendants offered in evidence, under their plea of former recovery, the record of a, suit between these same plaintiffs and defendants, in the Common Pleas of Union county, wherein the plaintiffs recovered judgment for the amount of timber actually furnished by them, and accepted by the defendants, which judgment was paid and satisfied before this suit was brought.
    Objected to, because the canse of action in that suit, viz., for lumber sold and delivered, is different from the cause of action in this suit, viz., breach of covenant to accept other lumber.
    By the Court. — We will try the case on its merits, and reserve the point. — Objections overruled, and evidence admitted, the court reserving the right to decide upon the effect of the same hereafter. Exception.
    The defendants submitted, inter alia, the following points:
    6. If the jury believe that the plaintiffs refused to deliver the long timber, or any other lengths or sizes, for car purposes, as called for in bills furnished by the defendants in pursuance of the contract, in consequence of which, the defendants refused to furnish any more bills and to receive any more timber, and the plaintiffs then brought suit in the Court of Common Pleas of Union county, and recovered for what they had previously delivered under the contract; then the plaintiffs are estopped by such recovery, and, therefore, cannot sustain this action against the defendants for not recovering the balance of the 800,000 feet, as they were bound to declare, and could have recovered for all tlioir various claims and damages growing out of,any violation of the contract on the part of defendants.

      Answer. The sixth point relates to a matter which we consider as a matter of law, and will be reserved by the court for further consideration, and your verdict will be rendered subject to the opinion of the court on this point, as we may hereafter view it.
    8. That under all the evidence in the case, the record of the suit between the same parties, from the Court of Common Pleas of Union county, is a bar to the recovery of the plaintiffs in this suit.

      Answer. The eighth point is a question of law, which will be reserved by the court for further consideration, and your verdict will be rendered subject to the opinion of the court, which may be hereafter delivered on that point. It is purely a question of law.
    Yerdiet for plaintiffs for $3,059.19, subject to the points reserved. The defendants moved in arrest of judgment, and for a new trial. The court denied the motion, and entered judgment for the plaintiffs upon the verdict and points reserved. The defendants thereupon took this writ of error, assigning for error, (1) the overruling of their objections to the parol evidence of the plaintiffs, as to the specific logs alleged to have been contracted for; (2 and 3) the answers of the court to their sixth and eighth points, as above; and the entry of judgment for plaintiffs on the reserved points.

      R. P. Allen and Osear Foust, for the plaintiffs in error.—
    In the absence of allegations of fraud or mistake in the execution of a sealed and written contract, parol evidence is not admissible to add to, vary or contradict it. The parties to a written contract may often have different impressions regarding its effect, but the thoughts of one cannot be proved to bind the other: Spencer v. Colt, 7 W. N. C. 333; Irwin v. Shoemaker, 8 W. & S. 75; Lancaster Bank v. Smith, 12 P. E. S. 47; Martin V. Berens, 17 P. E. S. 459 ; Callen v. Lukens, 7 W. N. C. 28; Caley v. Iloopes, 6 W. N. O. 326. The narr. being on the sealed instrument, parol evidence of a different contract could not be introduced without an amendment: Brown v. Gilmore, 11 Norris 40.
    It is error to reserve a point of law on the trial without a finding of facts by the jury, or a statement agreed upon, so that they may appear of record: Yerrier v. Guillou, 1 Out. 63; Commonwealth v. McDowell, 6 W. N. O. 73; Miller v. Bed-ford, 6 W. N. C. 144.

      John J. Metzger and H. O. McCormick, for the defendants in error. —
    The parol evidence objected to was not admitted to vary or contradict the written instrument, but for the limited purpose of showing the independent fact that the parties knew what they were contracting about. In overruling the objection the court expressly said: “ Whenever it comes to any point where it tends to contradict the contract, we think it inadmissible.” The effect of the evidence was merely to identify the 800,000 feet of timber which the defendants had covenanted to purchase. This contravenes no rule of evidence. The sixth and eighth points of the defendants involved the effect of the record of the suit in Union county, as a bar to this action, and as this was a question of law for the court, the points were properly reserved. The record of the Union county suit furnished the facts upon which the reservation was made, and no exception having been taken to the form of the reservation, it is too late now to raise the objection that the defendant’s sixth and eighth points were reserved and not answered.
   Mr. J nstico Green

delivered the opinion of the court, March 13th 1882.

The contract between these parties was in writing and under seal. By its terms, the lumber company agreed to saw and deliver to the car company “ oak lumber of the size and quantity ordered by the said car company from time to time, and fitted for the use of said ear company, the quality to be such that it will pass inspection by the foreman of said car company, the said parties of the first part to furnish said lumber as .fast as will be required by said car company, according to bills furnished at either "Watsontown or Allenwood, as aforesaid directed by the said car company.”

This agreement is perfectly plain and simple in its terms, and requires no help from extrinsic testimony to understand its meaning. The lumber company was not; to take any particular lumber, but only oak lumber generally, which, however, was to be of the size and quantity ordered by it. It -was to be fitted for the use of the car company, and was to be furnished according to bills sent by the car cpmpany. On the trial, the plaintiffs offered to prove, by one of their number, a conversation between him and two of the defendants some time before the execution of the written contract, at Elmsport, where there was a lot of logs belonging to the plaintiffs. The purpose of the offer was to show that the defendants saw this particular ‘■'lot of logs, inspected them, and that they were the logs stipulated to he bought in the contract.” This offer was objected to on the ground that it would add to the terms of the contract, that it would contradict the contract, and that it would destroy one of the provisions of the contract. The court admitted the evidence for the purpose of showing that the defendants saw this particular lot of logs, and that they knew what they were contracting about. We think this was error. It was unnecessary to show that the defendants had seen any particular lot of logs before the written contract was made, simply because the contract was not made for that or any other particular lot. Such evidence could only tend to create a false issue, and thereby mislead the jury. The counsel for the car company allege now that it was argued to the jury that the contract was made for this very lot of logs, and because the car company did not take them, the lumber company claimed and recovered heavy damages. As we find the same argument now made in the paper book of counsel for the lumber company, it may well be that the complaint is not made without cause. However that maybe, as we can see no proper purpose that could be served by the admission of this testimony, we think it should have been rejected. It is true, the testimony, when admitted, did not develop any new terms of the agreement, but it did go to the .point of identification, which -yas the purpose for which the court admitted it. As there wasj nothing to be identified under the language of the contract in suit, the testimony offered and given might be quite harmful to the case of the defendants, in causing the jury to believe that they had agreed to purchase this particular lot of logs. This becomes more apparent when it is discovered that the defendants alleged, in defence, that they could not get such lumber as they required for the use of cars, and as ordered by their bills. rJjhey claimed that they required and ordered lengths which could not be found amongst these logs, and that this was one of their reasons for not taking them.

We think also, that the sixth point of the defendants should have been definitely answered. Of course the court was bound by the facts stated hypothetically in the point, and on these facts the conclusion stated was apparently sound. The question raised by the point was as to the effect of the former action on the present right of recovery, on the supposition that when the action was brought, the plaintiffs had refused to deliver the long timber or other lengths called for by the bills, and the defendants had refused tp furnish any more-bills and to receive any m<j>re timber. These facts being true, the plaintiffs’ right of action was thereupon complete before the first action was brought, and we do not think it was competent for them to split up their cause of action into several parts and bring separate actions for each.

Of course, we do not assume to decide the question whether the former recovery was a bar- to the present action or not. We are dealing only with the point as presented and the action of the court below in relation td it. In reality, the point was not answered at all. The court'replied to it, by saying, that it related to a matter which they considered as a matter of law, and which would be reserved. But no designated legal question was reserved, and no finding of ¡fact by the jury was submitted, as the basis for any reserved question. The same remarks are true of the answer to the eighth point of the defendants. In Ferguson v. Wright, 11 P. F. S. on p. 262, we said: “Every reservation of a question should! place distinctly upon the record what the point is which is reserved, and the state of facts out of which it arises. This is necessary to enable the party to except to it and to have it reviewed.” And in Wilson v. Steamboat, 1 Cas. on p. 319 : '“In every case where a general verdict is given subject to a point reserved, the question of law thus reserved must be stated, and the facts on wbicb it arises must be cither admitted on the record or found by the jury.” The remarks of Black, J., in the latter case are quite applicable to the present. Tested by this rule, it is apparent there was no proper reservation of any question for the subsequent action of the court, and the point remained unanswered.

For these reasons, we are of opinion, that the case must be reversed on the first, second and third assignments of error.

Judgment reversed and venire facias de novo awarded.


source: Caselaw Access Project

author: Mr. Justice Trunkey

license: Public Domain

text:
    Pollman versus Morgester.
    - 1. A. leased a hotel building to B. for the term of one year, at an annual rental of $500. A. covenanted that B. should have the option to extend the term for five years by giving notice to the lessor sixty days before the expiration of the term. B. covenanted partly to erect a certain addition to the hotel, but was not bound to complete said addition except at his option. In consideration of erecting this addition, lie was to he allowed a credit on the first year of $100. B. did not erect the addition and gave no notice of a desire to extend the lease. He was allowed to hold over, however, after the expiration of his term. In an action by the lessor against said lessee for rent and for breach of the covenant to erect the addition, — Meld, that it was clearly the intention of the parties that the addition should be erected within the first year, that the holding over did not extend the time for such erection, and that therefore the plaintiff was entitled to recover.
    February 14th 1882.
    Before Siiarswood, C. J., Mercub, Gordon, Paxson, Trunkey, Sterrett and Green, JJ.
    Error to the Court of Common Fleas of Elk oovmby: Of January Term 1882, No. 202.
    This action was originally brought in covenant, by Frank Pollman against Morgester & Jackson, to recover damages for breach of a covenant in a lease to build, and for a balance of rent due. After issue joined, the plaintiff, by leave of the court, amended tlie form of the action to assumpsit, and the defendants pleaded non assumpsit, payment with leave, and set off.
    On the trial, before Brown, P. J., tlie following facts appeared : — On November 1st 1877, the plaintiff, being the owner of a certain liotel property and tract of land, by an agreement under seal leased the same to the defendants for the term of one year at the yearly rental of $500, payable quarterly. Tlie lease contained, inter alia, the following provisions :
    ‘‘ It is understood and agreed, that the said parties of the second part shall have the option to extend the said term to five years from the date hereof, by giving sixty days’ notice of such intention to the party of the first part before the first day of November, 1878.”
    “ It is further understood and agreed, that the said party of the second part shall erect in the excavation heretofore made to the east of the hotel building, an addition to said hotel forty-eight feet in front by thirty-six feet deep, if said excavation is large enough: said addition to be two stories in height above the basement, the basement to have stone walls on the north and east sides to the height of the basement of the present building, and well laid in lime mortar, and of sufficient thickness to sustain the superstructure: said addition to be enclosed and the floors laid by said-party of the second part at their own expense; but they shall not be bound to furnish the same any further than as above- stated, except at their own option; and, in consideration of such erection, the said party shall be allowed a credit upon the first year of one hundred dollars.”
    By an additional agreement indorsed on said lease, not under seal, it was provided that said additional building should be forty feet front by thirty-two feet deep, instead of forty-eight by thirty-six feet.
    The defendants entered into possession, and, at the expiration of the year, held over, without giving notice of their election to extend the term as provided for in said lease. They failed to comply during the first year with their agreement relating to the erection of the additional building.
    On May 29th 1879, the premises were sold at sheriff’s sale under a mortgage executed by Pollman, and were purchased by J. S. & ~W. H. Hyde, to whom the defendants attorned.
    Pollman claimed to recover in this action a balance of rent due at the date of said attornment, and also, to recover damages for the failure of defendants to erect said additional building, claiming that as they liad not given notice, as provided in the lease, of their election to extend the term to five years, the lease must be treated, so far as concerned the agreement to build, as for the term of one year only. The Court declined to affirm plaintiff’s points to that effect, and charged the jury, inter alia, as follows:
    “Had Morgester & Jackson failed to give notice of their intention to continue the lease, and abandoned the premises on the first of November, 1878, it may be that the plaintiff would have been entitled to recover damages for the failure to build the addition. But they did not abandon the premises. They continued to occupy, with the consent, or at least with the passive acquiescence and sufferance, of Pollman, for about seven months from November 1st 1878, and down to the time the premises were sold by tbe sheriff upon the mortgage against Pollman. and surrendered to Messrs. Hydes.
    We do not rule, as claimed by defendants’ counsel, that such holding over is to be treated as equivalent to a notice given in due season of the intention to continue the lease for the full period of five years from its date. Whether it would or would not have that effect, we do not say. [We do say, however, that such holding over is, so far as the question here is concerned, equivalent to a renewal of the lease for the period of one year from the first of November 1878, to the first of November 1879, carrying along with such renewal the terms of the original lease, and that Morgester & Jackson had until the last mentioned date to complete the erection of the addition; and, as they surrendered its possession several months before November 1st 1879, to the Messrs. Iiydes, whose right to the same, under their purchase on the mortgage against Pollman, was indisputable, the plaintiff is not entitled to recover anything for the failure of Morgester & Jackson to erect the addition to the hotel property, as stipulated, in the agreement of lease.]
    Verdict for plaintiff, for §125.16, being the balance of rent due, and judgment thereon. The plaintiff thereupon took this writ of error, assigning for error the refusal of his points, and the portion of the charge included in brackets.

      G. II. McCauley (John G. Hall with him), for the plaintiff in error.' —
    The defendants having failed to give notice of their election to extend the term to five years, when they hold over at the expiration of the first year, they became tenants from year to year, under such of the provisions of the lease as remained applicable. Put the lease provided for erection of the building in the first year, for which the defendants were to receive a credit of §100, on the first year’s rent. This was not a condition of yearly application, and the plaintiff’s right of action for breach was complete at the end of the first year, and was not waived by his permitting defendants to hold over: Dawson v. M'Gill, 4 Wharton 238.

      George A. HatKbun, for defendants in error. —
    The plaintiff by bis acquiescence in the holding over led defendants to believe that lie waived the notice provided for in the lease; he claimed and received rent thereafter, and could have held the defendants to the entire term of five years; and they, by mutuality, bad the full term in which to comply with their agreement to build : Palethorp v. Pergner, 2 P. F. S. 149.
   Mr. Justice Trunkey

delivered tbe opinion of tbe court, April 17th 1882.

The lease was for the term of one year, and contained a covenant that the lessees should have the option to extend the term to five years by giving notice to the lessor sixty days before November 1st 18781 Notice was not given and the term was not extended. The lessees agreed to pay an annual rent of $500. They further agreed to erect an addition to the hotel building, enclose and lay the floors, but were not bound to finish the same any further, except at their option; and were to “ be allowed a credit upon the first year of one hundred dollars.”

The lessees were suffered to hold over. This could not extend the time for performance of the covenants which were to have been performed within the term. Had they extended the term, then the contract was to build within the first year of the term and receive therefor a credit of part of the rent which was payable in money. Taking the agreement as a whole, it is clear that the parties stipulated for the building of the addition within the year, or term, which ended November 1st 1878. Such building would advantage the lessor by enhancing the value of his property. Its erection would have been equivalent to payment of a large portion of the rent in advance, if the term were five years. The covenant was inducement to lease. This is not a mere covenant to make improvements within the period to which the term might be extended : the lease is only for the term of one year, and the lessees covenanted to pay $500 and erect the building within that term. The manifest intention was that the improvement should be made within a year from the beginning of the term, whether extended or not.

The lessor’s right of action was complete for the breach of the covenant to build. There is no evidence of waiver or release of the right. Holding over by the lessees with tacit assent of the lessor, may have renewed the lease for such covenants as were applicable to a tenancy from year to year. The covenant to build was not applicable; it was already broken.

We are of opinion that the court erred as to the effect of such holding over upon the broken covenant to erect an addition to the hotel building, and the assignments of error must-be sustained.

Judgment reversed, and venire facias de novo awarded.


author: Mr. Justice Gordon

text:
    Lycoming (now Citizens’) Gas and Water Company versus Moyer.
    1. Although prior to the adoption of the present constitution of this commonwealth corporations vested with the right of eminent domain were not usually liable for consequential damages, yet the legislature, in its grant of this right to a corporation, might so limit the exercise thereof, as to make it, subject to the payment of such damages.
    2. A water company was incorporated in 1805, with power to take the waters of any stream, “making compensation for the same.” Its charter further provided, that “if, in the location of ... . the works, an injury should be done to private property, and the parties could not agree upon the amount of compensation to be made to the owner,” either party might apply to the court to appoint viewers. The company in constructing its works used the waters of a certain stream, diminishing materially the flow of water therefrom, through a certain mili race, about a mile and a half further down. The owner of the null-race had purchased the right to use the water for his mill, from the owners of the land bordering on the stream at the point where the mill-race was built. Held, that the owner of said mill-race had a property, though of an incorporeal nature, in the waters of the stream, and that, unde^ the terms of the charter of the water company, he was entitled to recover compensation for tlie injury lie had sustained by the diminution in the flow of the water.
    8. Pending an appeal by said owner, from a report of viewers assessing damages done him, the rights, franchises, and property of the water company, were sold at sheriff’s sale under a mortgage. Held, that said owner's claim for damages was a continuing lien upon the corporate property, and that lie could assert said claim by continuing the proceedings already commenced, as against the sheriff's vendee.
    4. On the trial of an issue framed in the said proceedings to determine the damages to which the owner of the mill-race was entitled, the water company proposed to prove that, after its taking of part of the waters of the stream as aforesaid, a railroad company had constructed its road by the side of the mill, and across the mill-race in question, destroying the same, and that a recovery liad been had for injuries sustained by the construction of the road as aforesaid, to the full value ol the mill and mill-race. Held, that the evidence was properly excluded, because (1) the railroad company must be held to have made compensation having reference to the deterioration in value already caused by the water company, and (2) the railroad company took no water, but only caused an obstruction, so that the claim against it for damages was wholly unlike that against the water company.
    5. Where property taken by a corporation in the exercise of the power of eminent domain, has already been deteriorated in value by the exercise of the same power by another corporation, the damages must be estimated with reference to the existing deterioration.
    February 15tb 1882.
    Before Sharswood, O. J., Mebcub, Gordon, Paxson, Trunks y, Sterrett and Green, JJ.

      Error to the Court of Common Pleas of Lycoming cotmty: Of January Term 1882, No. 154.
    Upon the petition of Solomon Moyer, vieivers were appointed, who hied a report appraising at $3,500 his damages caused by the Lycoming Gas and Water Company taking water from Mosquito run, thereby decreasing the flow of water in his millrace. Moyer appealed from this award. Pending this appeal, the rights, franchises and property of the Lycoming Gas and Water Company became vested, by sheriff’s sale under a mortgage, in the Citizens’ Gas and 'Water Company, “subject to all the restrictions” imposed on the Lycoming Company; and the said Citizens’ Gas and Water Company was, on December 3rd 1880, by order of court, substituted as defendant. A writ of error to this order was quashed by the Supreme Court, as prematurely taken, and the record was remitted.
    The court below then directed an issue to be framed in the nature of an action of trespass quare clausum fregit, between Solomon Moyer, plaintiff, and the Citizens’ Gas and Water Company, defendant. Plea, Not guilty, and a special plea.
    On tlje trial, before Cummin, P. J., the following facts appeared : — The Lycoming Gas and Water Company was incorporated by Act of March 24th 1865 (P. L. 767), with power to take land and “ so much of the waters of any stream, within three miles of the mouth of Lycoming creek .... which shall be necessary to them in the prosecution of their work .... making'compensation for the same as hereinafter provided.” Section 8 of the charter provided : “ that if, in the location of the said works, an injury shall be done to private property, and the parties cannot agree upon the amount of compensation to be made to the owner,” either party may apply to the Court of Common Pleas for the appointment of viewers, &c.
    Mosquito run empties into the West Branch of the Susquehanna river immediately opposite the mouth of the Lycoming creek.
    In 1857, Solomon Moyer, being the owner of a tract of land and saw-mill, had purchased from the owners of land situate on both sides of Mosquito run the right to take water from said run, through a mill-race on their land, for supplying his mill.
    ' In 1869 the Lycoming Gas and Water Company, by virtue of the franchise vested in them by their charter, connected pipes with the water of Mosquito run, about a mile and a half above where Moyer’s race was connected with the run. Moyer alleged that the flow of water in his mill-race was thereby decreased to an extent which prevented his use of his mill in the. manner he had theretofore enjoyed it.
    Defendant’s counsel offered to prove (under the special plea) that in 1871 the Philadelphia and Erie Railroad constructed a branch road along the side of the saw-mill of Solomon Moyer, and across the race which carried the water to said mill as a motive power, whereby the said saw-mill and water-power was destroyed; and that in proceedings had by said Moyer in the Common Pleas of Lycoming county, to No. 103 April term, 1S72, the plaintiff in this case recovered $12,247, which defendants propose to show was the full value of said water-power and saw-mill prior to 1869. This offer for the purpose of showing that before this trial the same damages sought to be recovered for in this suit had been recovered upon in the suit against the said railroad company, and the same had been paid to said Moyer.
    Objected to, because the injury, if any, which had been done by the Lycoming Gras and'Water Company to the waterpower of the plaintiff, occurred before the building of the railroad, and the railroad company were not legally liable for any injury which was done prior to the time that they entered upon the property.
    Tide Court. — If the injury complained of, and for which an award of damages was given, occurred before the taking by the defendants in this case, thereby affecting the value of the mill property, the evidence offered might possibly be admitted ; but it appears in this case, that the injury for which that award was given occurred after the taking of the water, therefore we think it is not evidence.
    Objection sustained ; offer overruled ; exception.
    Defendants’ counsel presented, inter alia, the following points: — ■
    3. That the right to take and use the water from Mosquito run being lawful under its charter, such franchise was covered by the mortgage executed by the Lycoming Gas and Water Company, and upon which mortgage the property and franchises were sold at sheriff’s sale, and purchased by John W. Moffley, purchaser for himself and others. Answer. That point we affirm. Those franchises passed by that mortgage'to the purchaser.
    4. That the Citizens’ Water and Gas Company of Williams-port, having taken title from John W. Moffley, the owner by sheriff’s sale, of the property and franchises of the Lycoming Gas and Water Company, now own said property and franchises, discharged from all debts and claims against the original company for the consequential damages claimed by Solomon Moyer, and he cannot recover from the Citizens’ Water and Gas Company. Answer. We decline to charge you as requested, in that point. So far as this issue is made up, they are parties to the record, and will be so considered by you. Whether there is anything in that, it may possibly arise at another time. At the present, we refuse that point.
    Yerdict and judgment for the plaintiff for $9,602.76. The defendant took this writ of error, assigning for error, inter alia, the order of the court substituting the Citizens’ Gas and Water Company as defendant; the rejection of defendant’s offer of evidence above stated, and the answer of the court to its fourth point.

      P. P. Allen and Addison Omidor (G. La Pue Munson with them), for the plaintiff in error. —
    -The alleged damage, caused by the Lycoming Gas and Water Company tapping Mosquito run a mile and a half above the plaintiff’s' mill-race, was purely consequential, and as such was not recoverable, prior to the Constitution of 1874: Koch v. Williamsport Water Co., 15 P. E. S. 288; Phila. & Trenton R. R. Co.’s Case, 6 Whart. 46. The charter of the Lycoming Gas and Water Company provides for compensation for an injury done to private property in the location of its works; this refers to land taken and occupied by the reservoir, gas manufactory, &c., not to the mere diversion of water. If that had been intended, an express provision to that effect would have been inserted in the charter, as was.done in the Act incorporating the Williams-port Water Company, which provides for compensation to persons injured “ by the diversion of the waters that may be used by the said companyAct of April 18th 1853, P. L. 721.
    But if Moyer had any right of recovery against the Lycoming Company, he should have pursued it against that company. Having allowed nine years to elapse without prosecuting his claim, either against that company, or in the distribution of the proceeds of its franchises and property, he cannot now claim against the Citizens’ Water and Gas Company, who paid full value at the sheriff’s sale, without notice of his dormant claim. The “restrictions” subject to which the Citizens’ Company purchased, are those mentioned in the charter of the Lycoming Company, viz., that the company shall not exercise banking privileges, and shall not extend their pipes beyond a certain territory, &c. The court erred in substituting the Citizens’ Company as defendant, and holding that they were liable to the plaintiff: Western Penna. R. R. Co. v. Johnston, 9 P. F. S. 290.

      H. W. Watson and Samuel' Linn, for the defendant in error.
   Mr. Justice Gordon

delivered the opinion of the court, March 13th 1882.

It is not open to debate that, prior to the Constitution of 1874, neither the Commonwealth nor its locum tenens was liable for consequential damages resulting from the exercise of the right of eminent domain. It is, however, just as well settled, that the legislature, in its grant of this right to a corporation, might so limit the exercise of that right as to make it subject to the payment of such damages.

The grant to the company defendant is made subject to the condition, “ that if, in the location of said works, an injury shall be done to private property, and the parties cannot agree upon the amount of compensation to be made to the owner,” viewers are to be appointed for the purpose of ascertaining and assessing the damages. The words here used ax-e of the most genex’al charactex'. “ Private pi’operty ” necessaxily includes everything that can be held or owned by pi’ivate pex-sons, and “injury” any, aixd every, damage to which it can or may be subjected. Now, that Moyer had property in the watex’s of Mosquito creek, though of an incorporeal nature, is certain: City of Reading v. Althouse, 12 Nor. 400.

This action was, therefore, well brought against the Lycoming Gas and Water Company, which had disturbed the plaintiff’s right. But caix the shexiff’s vexxdee, which sxxcceeded to the propex’ty rights and fraxxchises of the corporation just named, be held for the' damages resulting fx’om the oi’iginal taking of this water? We answei’, yes ; for Moyer’s xight could not be extinguished until it was paid fox’, or security given for payment, neither of which was done by the former company; hence, the plaintiff’s claim was a continuing lien upon the corpoi’ate property, like the lien for purchase money ixx articles of agreement for the sale of laud, dower, or a covenant ruxxning with land; aixd that this right is pax-amount to all othex’s is expx-essly ruled in the case of Western Railroad Co. v. Johnston, 9 P. F. Smith 290. In this case it was held, that the sale of a railroad under a moi’tgage, befox’e the damages to a land-owner are paid, or secux-ed to be paid, will not divest sxxch owner’s right to recover compensation from the purchaser.

It would, indeed, be utterly unreasonable and unjust, as well as unconstitutional, that any one shoxild be thus deprived of his property without compensation. What is the Citizens’ Water and Gas Company but the sxxccessor of the Lycoming Gas and Water Compaxxy? And if Moyer was to pux’sue the proceedings already commenced, which he had an undoubted right to do, what other coui’se could he adopt than to substitute the latter company for the former ? When the Lycoming Conxpaixy was dead and gone, who claimed to hold Moyer’s property, and to whom was lie to look for payment, if not to the Citizens’ Company ? Certainly if Moyer had obtained judgment against the former, the latter could have been charged by a scire facias, as in the ease above cited, but as the case was still pending, and as the Lycoming Company had passed out of existence, nothing else could be done than to substitute its successor.

The remaining exceptions require but little discussion.

The only one of them that has been seriously urged upon our attention, .is that involving the offer to show, by the records in the case, the recovery by Moyer of damages against the Philadelphia and Erie Railroad Company, for injury done to his mill and water-power in the construction of its road. We think this offer was properly rejected. The railroad company was liable for whatever damage it caused to the plaintiff’s property, and for that alone. The Lycoming Gas and Water Company had, before this, tapped Mosquito creek with its sixteen-inch pipe, and had to this extent, injured the power of the plaintiff’s mill, but for this the railroad company could not be held, and for this it certainly did not pay. It could be held only for the deterioration which it caused to a property already damaged by the act of the defendant.

Suppose the railroad company had wholly destroyed the plaintiff’s mill; what would have been the damages to which he would have been entitled ? The whole value thereof, with its original water-power ? By no means: but its value with the power as diminished by the act of the Gas and Water Company. In other words, the inquiry must be limited to the value of the property after the time of the alleged damage as contrasted, with its value immediately before that time.

It does, therefore, seem to us out of all character to insist that the defendant is to be excused for its spoliation of the plaintiff’s property, because the railroad company was obliged to pay him for an injury to that which remained after the defendant’s abstraction of a material part of its value. Again, as we understand the matter, the railroad company appropriated none of the water; it but daused an obstruction; hence, the claims for damages in the two cases are entirely dissimilar. In the one case they result from a taking of the property of the plaintiff, and in the other, from an obstruction preventing its proper and convenient use.

There is, therefore, no likeness between this case and that of Converse v. Colton, 13 Wr. 346. But if we put the supposition that the railroad had taken all the water that had been left to Moyer by the defendant, it would not alter the case, for, nevertheless, the railroad company must have been held only for what it got, and not for what was previously taken by some other person, and Converse v. Colton is an authority for the principle thus stated.

It follows, that the action of the court below in refusing the proposed evidence, must be sustained, for, however viewed, it could in no particular affect the matter in controversy.

The judgment is affirmed.


text:
    Hays versus Lycoming Fire Insurance Company, defendant, and Logan, garnishee.
    1. A creditor of a mutual fire insurance company reduced his claim to judgment, and issued an attachment execution thereon, wherein a mutual member of the company was summoned as garnishee. Said garnishee was indebted to the company on his premium note for his proportion of losses sustained. The amount of said indebtedness was not, however, at the time, fixed by assessment. Subsequently, the company was dissolved by decree of the court, and a receiver appointed who proceeded to levy an assessment on all the premium notes to meet outstanding liabilities at the time of the dissolution. Held, that the attaching creditor by virtue of his attachment was entitled to the amount thus assessed by the receiver on the garnishee.
    2. The dissolution of the corporation in the above case did not abate the attachment proceedings, nor did the appointment of the receiver prevent the attaching creditor from prosecuting said proceedings. The action of said receiver in levying an assessment simply fixed the measure or amount of the debt which had been levied on by the attachment.
    February 16th 1882.
    Before Siiarswood, C. J., Mercur, Gordon, Panson, Trttnkey, Sterrett and Green, JJ.
    Error to the Court of Common Pleas of Lycoming county : Of January Term 1882, No. 315.
    Attachment execution, by William II. Hays, plaintiff, against tlie Lycoming Fire Insurance Company, defendant, and W. F. Logan et al., garnishees.
    On October 20th 1880, William II. Hays recovered a judgment against Tlie Lycoming Fire Insurance Company, and in December 1880, an attachment execution was issued on said judgment and served on W. F. Logan, garnishee, who was a mutual member of said company on whose premium notes certain assessments had been levied and remained due and unpaid.
    The court held that such unpaid assessments were not liable to attachment execution. On writ of error this judgment was reversed, and a procedendo awarded. (See Hays v. Lycoming Fire Ins. Co., 2 Out. 181.)
    On October 8th 1881, The Lycoming Fire Insurance Company was dissolved by a decree of tlie Court of Common Pleas of Lycoming county and a receiver was appointed. On November 4th the receiver made report to the court showing total assets (consisting almost wholly of premium notes and unpaid assessments), $1,060,690.54; and liabilities (almost entirely for losses by fire which had occurred prior to his appointment), $362,042.81. The court thereupon directed the receiver to levy an additional assessment on premium notes, to meet these liabilities, which was accordingly levied by him, November 12th 1881.
    The plaintiff, Hays, subsequently filed supplemental interrogatories, to which the garnishee, Logan, answered that the receiver’s assessment on his premium notes was $96, which he was willing to pay to whomsoever is entitled thereto.
    The receiver thereupon obtained leave of the court to intervene as a party defendant, and filed a plea “that the plaintiff cannot maintain his suit execution attachment, and is not entitled to judgment against W. F. Logan, garnishee, for the amount of said assessment so levied by him.” The garnishee joined in said plea.
    The case was, by agreement, tried before Oummin, P. L, without a jury.
    The plaintiff submitted, inter alia, the following point:
    3. That said garnishee became liable upon his premium notes when losses by fire occurred, and this attachment covers the assessments levied by the receiver against the premium notes of the garnishee for his proportion of such losses. Refused.
    The court found the facts to be as above set forth and held, as matter of law, inter alia, as follows:
    “ By virtue of his appointment the receiver is possessed of all the assets of the dissolved corporation. The possession of the receiver is the possession of the court appointing him. All the assets are in the custody of the law for the benefit of whomsoever may be ultimately determined to be entitled to them. The parties entitled to the assets of a dissolved corporation must be ascertained by the court having custody of the same, or at least by its consent, and in the meantime the assets cannot be seized or distributed by process from any other court. The appointment of a receiver does not operate to derange the priority or affect the validity of legal or equitable lieus or rights lawfully acquired and in existence at the time of his appointment. As the receiver of a corporation succeeds to the estate of and derives his title through the court from the corporation, he is bound by all its lawful and authorized acts done before the receivership, and he will not be allowed to disaffirm or set them aside. So where receivers are appointed over an insolvent .corporation, they are not liable to garnishee process, since the property, whicli they hold is entrusted to them, not by the Act of the party, but by' operation of law. The court of equity being the actual custodian of the property or fund in litigation, it will not yield its jurisdiction to a court, of law and permit the right of property to be there tried. In other words, since the receiver’s possession is that of the court, it will not permit itself to become a suitor in another forum concerning the property in question. And an additional reason for holding the receiver not subject to garnishment is, that such liability would tend to a conflict of jurisdiction, and would also defeat the very ends for which he was appointed.
    “ I am of opinion that under our statutes all actions pending at the date of the dissolution of an insurance company must abate. That when a master or auditor is appointed to make distribution in the court having custody of the assets and of the receiver, it will be the duty of all parties claiming any portion or interest therein to present their claims, and they will then be entitled to distribution as of the date of the dissolution of the corporation. The rights of creditors and claimants must be adjudicated in the court having possession of the funds for distribution, and in the same proceeding whereby the court acquired such possession. If in such distribution questions of fact arise whicli should be determined by a jury, they can readily be sent to court for such trial. Whoever had a right of action against the corporation on the day and before it was dissolved will have precisely the same rights on distribution before the master or auditor.
    “And now February 21st 1882, it is ordered that judgment be entered in favor of the garnishee.”
    Exceptions filed by the plaintiff to the refusal of the court to affirm his third point, and to the rulings of the court as set forth in the above opinion, were dismissed by the court, whereupon the plaintiff took this writ of error, assigning for error the dismissal of his exceptions, and the judgment in favor of the garnishee.

      G. La JR.ua Munson {Addison Oandor with him), for the plaintiff in error. —
    The attachment was served before the dissolution of the company, and it bound the debt then duo by the garnishee. This debt consisted of his proportionate liability on his premium note for losses by fire which had theretofore occurred. It was immaterial that such proportion of indebtedness had not at that time been ascertained and assessments levied therefor. The debt was due in presentí, though payable in futuro. Such a debt is subject to attachment: Walker v. Gibbs, 2 Dallas, 211; Fulweiler v. Hughes, 5 Harris 440; Nieifer v. Elder, 6 Harris 388; Franklin Fire Ins. Co. v. West, 8 W. & S. 850; Girard Fire Ins. Co. v. Field, 9 "Wright 129. It is immaterial whether such assessments be made by the directors, before the dissolution of the company, or by the receiver afterwards. The attachment had fastened itself on the debt, and neither the company nor the receiver could by a mere process of liquidation affect the plaintiff’s lien. There was no question of the assets being in custody of the law, for the premium notes of the garnishee came into the receiver’s custody subject to the attachment and -were assets of the company only after payment of that lien: Merchant’s Bank v. Petersburg E. E. Co., 4 W. N. O. 264; In re North Amer. Gutta Percha Co., 17 Iiow. Pr. 549 ; Eieh v. Loutrel,- 18 Id. 121; High on Eeceivers, § 138; Hubbard v. Hamilton Bank, 7 Met. 340.

      II. W. Watson (with him, J.'J. Metzger and II. G. McCormick), for the receiver and the garnishee. —
    The premium note of a member of a mutual insurance company is not an absolute liability immediately on the happening of a fire, but is a mere security for the payment of a pro rata share of such loss when ascertained by assessment: Wilson v. Trumbull Mutual Fire Insurance Company, 7 Harris 372. Hntil assessment there is no debt, and no action could be maintained on the note : hence, until assessment, it is not the subject of attachment: Savage v. Medbury, 19 N. Y. 32; Hays v. Lycoming Fire Insurance Company, 2 Out. 184. The principle that an attachment will bind money of defendant coming into the garnishee’s possession after the service of the attachment, does not apply, because, at the time the receiver’s assessment was levied, whereby the garnishee became indebted, the assets of the company were in the custody of the law, and therefore not subject to the attachment. The rights of creditors were fixed at the time of the dissolution, and the receiver’s duty was to collect and distribute the assets: Dean & Son’s Appeal, 2.Out. 101. Otherwise an attachment of all the premium notes of the company by a single judgment creditor of the company would compel the receiver to stand by powerless, until the issues raised by the several garnishees were determined in other courts : Devisser v. Blackstone, 6 Blatchford 235.
   Mr. Justice Trunkey

delivered the opinion of the court, May 22d 1882.

It has already been determined that the plaintiff’s judgment is not upon the claim of a member of the company; that, as to persons insured for cash premiums, the premium-notes of its members, held by the company, are its capital stock; and that the plaintiff is entitled to an execution attachment against unpaid assessments, levied on the premium notes of its members, in order to collect his judgment: Hays v. Lycoming Fire Insurance Company, 2 Out. 184. The question now presented is, whether assessments on the premium notes of the garnishee, made during the pendency of the attachment suit by the receiver of the company, are bound by the attachment. It can hardly bo denied, that if so bound, the plaintiff is entitled to recover and collect the money from the garnishee. If by virtue of the writ of attachment, he is entitled to the debt attached, neither the company defendant, if still in being, nor the receiver, if the company has been dissolved, can collect the money for him against his will. A receiver has no right to property of the defendant which was taken in execution before his appointment. This proceeding was pending at the time and before the civil death of the company. It is by no means the case of an execution, or an attachment, issued and levied after the appointment of the receiver.

The garnishee gave his notes to the defendant, to be paid in such portions and at such times as the directors may, agreeably to the act of incorporation, require. The losses by fire occurred, and this judgment for one of said losses was obtained prior to the proceedings for dissolution of the company. Before its dissolution, the garnishee became indebted on his premium notes for the proportionate sum necessary for payment of said losses, and nothing remained to be done, except to ascertain the proper amount of his indebtedness, prior to his liability to an action to enforce payment. The writ of attachment was issued and served before the dissolution of the company, and the debt owing to the defendant by the garnishee became bound by it. After the receiver was appointed by order of the court, he ascertained the measure or amount of the debt which had been levied upon by the attachment of the 'plaintiff.

A garnishee is liable for money belonging to the defendant in the attachment which is received by him after service of the writ: Sheetz v. Hobensack, 20 Pa. St. 412. When the defendant is a corporation, and has been dissolved, and a receiver appointed, the case would be different with respect to money so received after the dissolution. But if a debt was attached before the dissolution and appointment, though not due, it will be held as if due, the garnishee having the right to withhold payment till it becomes due ; and if the debt was subject to a condition, he may hold the money until the performance of the condition. In such cases, an existing debt is attached, though not presently due, or some action is necessary to ascertain its amount.

The liability of a member of a mutual insurance company on his premium note is not absolute for payment of its whole amount, but is conditional, and depends upon the contingency of the happening of losses and expenses, to which he shall be liable to contribute, which have been duly ascertained by the directors, and which make necessary a resort to ' an assessment thereon. It is a credit given for a part of the consideration of the contract. The promise of the insured is to pay upon such conditions, and the existence of the conditions must be established officially before a call for the payment of the note or any part thereof can be enforced : May on Ins. § 557. The assessments, in pursuance of the contract, fix the amount the insured shall pay on his note. He may be liable for the whole of it. How much, depends upon the losses and expenses for which he is bound to contribute, to be ascertained by the directors of the company, or, if it has been dissolved, by the receiver. The debt owing by the garnishee was attached, its amount has been ascertained by the assessments, and the plaintiff’s third point should have been affirmed, namely, the garnishee became liable upon his premium notes when losses by fire occurred, and this attachment covers assessments levied by the receiver on said notes for his proportion of the losses.

In some respects an execution attachment differs from a foreign attachment. Primarily, the latter is to compel an appearance, to obtain judgment against the defendant, and should judgment be obtained by default, the defendant afterwards may appear and disprove the debt. But an execution attachment is for collection of a judgment already obtained. By this writ, debts owing to the defendant “ may be attached and levied in satisfaction of the judgment, in the manner allowed in the case of a foreign attachment.” It is none the less an execution, because the manner of proceeding is prescribed, in which the garnishee may have an issue and trial for adjudication of the question of his indebtedness. The defendant may, if he can, show that the judgment has been paid, or that the thing attached is not liable to be taken in execution, but he cannot disprove the debt or impeach the judgment. That stands till satisfied. If the judgment be against a natural person, and he die, or against a corporation, and it be dissolved, it remains, and property which had been seized in execution before the death or dissolution, may be held against the administrator or receiver. Judgment cannot be rendered against the dead. The civil death-of a corporation béfore judgment in a foreign attachment against it, dissolves the attachment, and the garnishee may take advantage of this by pleading it, notwithstanding judgment had been entered of record after such death for default of appearance : Farmers’ & Mechanics’ Bank v. Little, 8 W. & S. 207. But where judgment was obtained against a living corporation, an attachment execution issued thereon and served before dissolution of the corporation will not be set aside. The action against the garnishee does not abate, and "the receiver may show just what the corporation could show', if not dissolved, for the purpose of defeating the attachment.

Judgment reversed, and judgment is now rendered for the plaintiff, for ninety-six dollars, due to the defendant by the garnishee, and attached in his hands ; arid if the garnishee neglect or refuse to pay the same on demand by tlie sheriff, then the same, with costs upon his writ, to be levied of the goods and lands of the garnishee, as in case of a judgment for his proper dent, and that the garnishee be thereupon discharged as against the defendant, as to the sum so attached and levied.


author: Mr. Justice Mkrcur

text:
    Taggart’s Appeal.
    A. died seised of certain real estate, leaving a will wherein he devised to his wife such portion of his estate as she would have taken under the intestate laws, had lie died intestate, and empowering his executor to sell his real estate upon the written application of liis wife and either of his children, or of any two of his children, providing that the dower of his wife should remain in such real estate when sold, unless she chose to release the same, in which case the amount thereof should be paid to a trustee for her use. The widow elected t,o take against the will, and subsequently, on the request of two of the children, a certain part of the real estate was exposed to sale, the terms being that one-third of the purchase money was to remain charged upon the land whereof the interest was to be paid annually to the widow. The widow knew of and was present at the sale, and made no objection to the manner in which her interest was preserved. She was also present at the time of the payment of the earnest money. More than six months after the delivery of the deed to the purchaser, site presented her petition to the Orphans’ Court for partition of the real estate. An inquest was awarded and a return made that it could not be divided, whereupon the purchaser at the executor’s sale obtained leave to be made a party to the proceedings and filed exceptions, lleld, that the widow was estopped from maintaining partition, and that, therefore, the proceedings instituted by her were properly sot aside.
    February 16th 1882.
    Before Sharswood, C. J., Mercur, Gordon, Paxson, Turnkey, Sterrett and Green, JJ.
    Appeal from a decree of the Orphans’ Court of Lycoming County : Of January Term 1882, No. 182.
    This was an appeal by Bebecca Taggart, widow of James Taggart, deceased, from a decree of the said court setting aside certain proceedings instituted by said appellant for the partition of certain real estate of her said husband.

      The facts of the case were as follows-: James Taggart died August 13th 1878, leaving him surviving his widow Rebecca Taggart and several children, and seised, inter alia, of certain real estate in Lycoming county. By this will he gave to his widow the same interest in his estate real and personal that she would have taken had he died intestate. He also ordered that his executor should sell at public sale the whole or any part of his real estate on the written request of his widow and one child, or on the like request of any two of his children, provided that the dower or thirds of his wife should remain in such real estate when sold, unless she chose to release the same, in which case the amount thereof should be paid by his executor to the Fidelity Insurance Company of Philadelphia, in trust for her during her lifetime. The will was admitted to probate on August 19th 1878, and on March léth 1879, Rebecca Taggart, the widow, filed her election not to take under the will. On December 8th 1880, two of the testator’s children duly requested the executor to expose to sale the real estate in Lycoming county, which was accordingly done. The sale was advertised to take place on the premises on February 6th 1880. By the terms of the sale ten per cent, of the purchase money was to be paid.down and one-third was to remain in the premises during the life of Rebecca Taggart, the interest thereon to be paid to her annually, from the first day of the following April. Mrs. Taggart knew of the sale some six or eight days before it took place, and was actually present at the time. She heard the terms of sale read and made no objection thereto. In a conversation with the executor immediately before the sale, she said : “ I want to give you notice that if you sacrifice this mill as you did the timber land, I will hold you personally responsible for it.”
    The property was knocked down at $8,600. The hand money was paid to the executor in the widow’s presence, and on April 1st the balance of the purchase money was paid — the widow’s dower being secured by a condition in the deed that day delivered by the executor to Marcella Taggart, who still retains the same.
    On January 17th 1881, Rebecca Taggart presented her petition to the Orphans’ Court, setting forth the will of the testator, her refusal to take thereunder, and, claiming that she was entitled to one-third part hereof, prayed for a partition. Thereupon an inquest was awarded and return made that the premises could not be divided, and that the value of the said premises was $12,000.
    Before the return was approved by the court, the vendee of the executor on her petition for that purpose, obtained leave of court to be made a party to the proceedings in partition, and to object to the same. She thereupon filed sundry exceptions to the proceedings in partition, claiming that Rebecca Taggart was estopped by reason of her acquiescence in the sale to Marcella Taggart.
    The court, in an opinion by Cummin, P. J., sustained the exceptions and set aside the proceedings in partition, whereupon Rebecca Taggart took this appeal, assigning for error the action of the court in setting aside the proceedings in partition.

      Charlas Hower (with him, A. D. TIower), for the appellant.
    IF. II. Armstrong and John G. Metzger, for the appellee.
   Mr. Justice Mkrcur

delivered the opinion of the court, October 2d 1882.

The appellant, as widow of James Taggart, seeks to enforce partition of a portion of the real estate of which he died seised. He gave to her the same interest in Ms estate that she would taken had he died intestate. He further authorized Ms executor, on the written application of Ms wife and one of his children, or on the like application of two of bis children, to sell at public sale, any part or all of Ms real estate, and to execute and deliver deeds therefor. The will proceeds : “ Provided that the dower or thirds of my wife Rebecca shall remain in such real estate when sold, unless she chooses to release the same, she may at her option release her dower or thirds in any of my real estate sold, in which case the amount thereof shall be paid ” over to the Fidelity Insurance Trust and Safe Deposit Company in trust to pay the interest thereon to his wife during her life, and on her death, to pay the principal to certain of his grandchildren.

The widow elected not to take under the will: yet from time to time, as the executor, in pursuance of the will, sold lands situate in Schuylkill county, two-thirds of the purchase money was paid, and one-third secured as the widow’s dower.

On the written request of two children of the decedent, the executor sold at public sale and conveyed to the appellees the land of which partition is now claimed. The main question is whether the appellant is estopped from enforcing partition thereof ?

The express terms of the will gave to the appellant the right to retain her dower in the real estate, after a sale of the land, or, at her option, to release the land, and look to the proceeds of the sale. In declining to accept under the will, slie still retained the right to consent to a sale of the whole title, and look to the proceeds alone, as a substitute for her dower in the land. This right was incident to her title : but being a feme sole she was subject to tbe application of all tbe principles of equitable estoppel.

The terms of sale were distinctly stated, both in the newspapers and in the handbills. One of the conditions was, that ten per cent, of the purchase money should be paid down immediately after the property was struck off. Another condition, inter alia, was that one-third of the purchase money is to remain in the premises during the lifetime of Rebecca Taggart, the widow of the deceased, the interest thereon to be paid to her annually, from the first day of April next; the principal, after her death, is to be paid as directed in the last will and testament of the deceased. The balance of the purchase money is to be paid to the executor in cash on the first day of April next, at which time the deed and the possession of the premises will be delivered to the purchaser.” Another condition declared, if the executor for any reason whatever ” should be unable to deliver a good title to the purchaser, at the time mentioned, he should forthwith return to the purchaser the down money paid.

It cannot admit of any doubt that the intention of the executor, clearly expressed in the public notices of sale, was to sell and convey the whole title, subject only to the payment of the unpaid portion of the purchase money'.

The uncontradicted, evidence is, that the executor read all these conditions in the hearing of the bystanders, when he exposed the property to sale. The appellant testifies that she was present and heard them read, and that she knew of the intended sale some six or eight days before it took place; that she saw it in the newspapers. Mr. Huling, a member of the bar, testifies that he was present at the sale as her attorney; that she twice asked him to bid, but he declined so to do, by reason of her inability to pay down the ten per cent, of the purchase money. Neither he nor the executor, nor any other person, heard her express any objection to the sale, or to the terms and conditions thereof. She does not testify that she made any. Thus, with full knowledge that the whole title was being sold, and with a clear understanding that a purchaser would expect to acquire such a title, she interposed no objection, or qualification, to its terms.

Although the appellant denies having requested any person to bid for her, yet, by her expressive silence at the sale, she gave aid and encouragement to bidders, that she assented to and approved of all its terms. She, however, did not stop with this encouragement to a purchaser. She followed it further. Thus, immediately after the sale, she accompanied the executor and purchaser into the office, where the conditions of the sale were to be complied with, and was present when the down payment was made. The executor testifies that site never, at any time, expressed dissatisfaction to him in regard to the sale.

On the first of April following, the appellee paid two-tliirds of the purchase money, accepted a deed properly securing the interest payable to the widow, and took possession in pursuance of his purchase. The money thus paid was distributed to those entitled thereto, and the purchaser has made valuable improvements on the premises. Several months after possession thus taken, when the purchaser cannot be restored to her former condition, and after the land appears to have advanced in value, the appellant seeks to repudiate her action, to the manifest injury of the purchaser. To permit her to succeed in this would enable her to perpetrate a fraud on the purchaser.

It is claimed in her behalf that inasmuch as just before the sale, she said to the executor that if he sacrificed this property, as he had the timber laud previously, she would hold him responsible, therefore it was such notice as affects the title which passed by the sale. No such effect can be given to this notice. On the contrary, it is calculated to confirm the full title sold. If she did not understand and intend that the whole title would be sold, she liad no interest in the price for which it sold. J f her dower wras to remain undisturbed by the sale, she would not be affected by a sale of the interest of the heirs only. They asked for the sale as it was made, and she assented thereto.

Under all the facts of the case the learned judge was clearly right in holding the appellant to be estopped from maintaining partition. This conclusion is fully sustained by authority : Carr v. Wallace, 7 Watts 394; Simpson’s Appeal, 8 Barr 199; Troxell v. Lehigh Crane Iron Co., 6 Wright 513; Ayres v. Wattson, 7 P. F. Smith 360.

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


author: Mr. Justice Sterrett

text:
    Finn versus Providence Gas and Water Company.
    1. Where under the provisions of the Act of April 14th 1834, §§ 124, 156 and 159, P. L. 363-8, a jury is struck, and a special venire is issued to the sheriff commanding him to cause the said jurors, or six of the first twelve of them, to view the place in controversy; and the sheriff makes return that he has caused the said six jurors to make said view, and on the trial of the cause, said six jurors are empanelled, the residue of the petit jury must be called from the names attached to the special venire. Those names cannot be called which have been previously stricken off by the parties from the general list.
    2. Where in such case, a juror whoso name has been stricken off, is called and permitted to serve, the Supreme Court will not reverse, unless the record discloses that one of the parties has in consequence been deprived of one of his peremptory challenges.
    3. A party, having appealed from an award of viewers assessing damages to him for the taking of part of his lands with the springs thereon, by a water company, for the construction of a reservoir, brought evidence on the trial to show that there were no other springs on his land outside the line of the tract appropriated by the company. The company adduced evidence to show that there were two such springs in specific places. Plaintiff then offered evidence in rebuttal to prove that there were no such springs. Held, that the offer was properly a part of the plaintiff’s case in chief, and while in the discretion of the court it might have been received, its rejection was not ground for reversal.

      4. In the above case, the plaintiff was entitled to recover consequential, as well as direct damages ; compensation not only for the land actually taken, but also for the injury, if any, resulting therefrom to the residue of his land.
    5. In the above case, it appeared that the plaintiff’s dwelling-house was erected upon part of the land taken. The court instructed the jury that the damage done to the house was what it was fairly worth to remove the house, including the cost of putting it in as good order as before. Reid, that this was error. The house on the land taken was part of the realty, and could not be considered except in connection therewith. The plaintiff was not required nor had he a right to remove any of the buildings or improvements on the land appropriated by the company, and lienee an inquiry as to the cost of such removal was entirely foreign to the question before the jury.
    6. In the above case, the court instructed the jury that although the company might protect their rights by fencing the reservoir, nevertheless the plaintiff as owner of the fee and riparian proprietor might approach and use the water. Reid, that this was error. The company had the right to enclose the reservoir and prohibit access to it and the use of the water therein, by the plaintiff, as well as every one else. The plaintiff was, in no proper sense of the term, a riparian owner.
    7. In the above case, the court instructed the jury that the damages should be computed without reference to the person of the plaintiff or the actual state of his business. Reid, that this was not error.
    8. In the above case, the court instructed the jury that the six jurors who had viewed the land, might take into consideration and inform the other jurors of the result of their, observations. He further instructed them, however, that if upon any vital point the six who had seen the land differed from those who had not, the latter need pay no attention to what was said by the former, but might find the facts from the evidence. Reid, that this was not error.
    February 20th 1882.
    Before Sharswood, C. J., Merour, Gordon, Paxson, Sterbett and Green, JJ. Trunkey, J., absent.
    Error to the Court of Common Pleas of Lackawa/nna county: Of January Term 1882, No. 57.
    This was an appeal by the Providence Gas and Water Company, from a report of viewers, assessing damages for the taking of certain land and springs, belonging to one Michael Finn, by the said company, for the construction of a reservoir.
    The facts of the case were as follows: — The Providence Gas and Water Company was incorporated by an Act of Assembly of February 23d 1867, Pamph. L. 249. It was by the said Act vested with all the immunities, franchises, rights and privileges granted to Gas and Water Companies, by the Act of March 11th 1857, Pamph. L. 82, and its supplements, and was subjected to all the liabilities, duties and restrictions therein mentioned; it was further specially empowered to enter upon any lands and to take the water from any rivulet, creek or stream for the purposes contemplated by the Act, provided that compensation for damage done should be made in the manner prescribed by the Act of 1857 aforesaid.
    In pursuance of its corporate powers, the company built a dam across the outlet of a certain pond known as “Mud pond” and constructed a storing reservoir, covering nearly sixty acres of land, including at the upper end about twelve and a half acres of a farm belonging to one Michael Finn, together with the buildings and other improvements thereon, including a dwelling-house and also several springs by which the pond was in part supplied. Being unable to agree with Finn as to the compensation, the company filed a bond and took possession of the land. Viewers were appointed, and from their award the company took the present appeal.
    The case being upon the trial list, the parties attended at the prothonotary’s office to strike the jury. Sixteen names were stricken from the panel alternately by the plaintiff and defendant. Among the names thus stricken off was that of E. M. Peck. A special writ of venire then issued at the instance of defendant, containing the names of the jury as struck, and commanding the sheriff to cause the said jurors or six of the first twelve or more of them to view the land in controversy.
    The sheriff selected six from the first twelve in the panel as struck, and took them upon the land. He subsequently made return, that he had caused said six jurors to view the premises iu question.
    When the case was called for trial before Handley, P. <!., the six jurors who had viewed the land were called to the jury box. In order to make up the full number of the jury, six other jurors were called from the panel. Among them was E. M. Peck. Plaintiff objected to the selection of said Peck as a juror, on the ground that he had been challenged at the prothonotary’s office at the time the jury was struck to view the promises. The court, however, overruled the objection. Exception. (First assignment of error.) The plaintiff afterwards, as the record showed, challenged peremptorily the said E. M. Peck, and one other juror. A. Frothingham, a juror whose name had been stricken off, was also called to the box. The record disclosed no objections to his capacity.
    After the jury had been empanelled, the plaintiff adduced evidence to show the value of the'land taken, and among other things called witnesses to prove, that there were no living springs on his farm outside of the line of the land taken by the defendant. The defendant then called a number of witnesses to show the existence of two such springs : one at a place where an an old log house formerly stood upon the farm, and the other in a field somewhat higher up. Plaintiff in rebuttal offered to prove that there never had been springs at those points. Defendant objected to the offer, on the ground that it was not rebuttal, as it was part of plaintiff’s, case in chief, that there no springs upon his land outside the lines taken by defendant, and all the evidence on that head given by defendant was in contradiction of the plaintiff. Objection sustained. Evidence excluded. Exception. (Second assignment of error.)
    The plaintiff requested the court to charge, inter alia, as follows:
    2. “ That the defendants have the right, if nesessary for the purposes of their charter, to enclose the pond or reservoir in question, and to prohibit the plaintiff from using any of the water of said reservoir or of said springs.” Answer. “ This point we cannot affirm, but say to you, that this company may enter upon the pond and may protect their rights from time to time by the construction of a fence or other matter to prevent the fouling of this water; but they cannot prevent, so long as Michael Finn remains the owner in fee of this property, from approaching the water and using the same as a riparian owner.” (Sixth assignment of error.)
    The defendant requested the court to charge, inter alia, as follows:
    2. “ The question in dispute in this case should be considered without reference to the person of the owner or the actual state of his business.” Answer. “This point we affirm.” (Third assignment of error.)
    3. “In estimating the damages, consequential or speculative damages are to be rejected.” Answer. “ This point we affirm.” (Fourth assignment of error.)
    8. “ The damage to the house of plaintiff would only be what it would be fairly worth to remove the same to some near convenient place outside the land flowed by the defendant.” Answer. “ This point we affirm, with this qualification or addition ; the cost ought to include the cost of putting this house in as good order and repair as it was before the removal of the same.” (Fifth assignment of error.)
    10. “ That the six jurors who went upon and viewed the premises of the plaintiff have the right in making up their verdict to take into consideration, and also to inform the other jurors who did not view the premises, all that they saw upon the ground; of the manner and extent of the occupancy of the land of the plaintiff by the defendants, and their judgment of the effect thereof.” Answer. “ This point we affirm, with this qualification ; if upon any vital point — such as the number of wells upon the land, or the muck, the amount and its value— these six men who went upon the premises and viewed the property should disagree, then the other jurors need pay no attention whatever to what they say, but may find from the evidence, as presented on the one side and the other, the facts in the case.” (Eighth assignment of error.)
    11. “ That under the pleadings and evidence in this case the plaintiff has a right to use the water in the reservoir on his land, and all other rights to the water, as a riparian owner.” Answer. “This point we affirm. Now a riparian owner may use water passing by his land from day to day, but he may not use it so as to foul it or destroy the water when it passes his land to his neighbor below. In this case, so long as Michael Finn remains upon this property, and if he should continue there for the period of twenty-one years and over, then those who succeed him, may continue to use this water as a riparian owner, but may not to foul or destroy it.” (Seventh assignment of error.)
    Verdict for the plaintiff in the sum of $2,293.50, and judgment thereon. Plaintiff thereupon took this writ, assigning for error the ruling of the court in regard to the juror Peck, the rejection of the plaintiff’s offers of evidence, and the answers to the points of plaintiff and defendant above cited.

      W. 11. Stanton (with whom were Gunster and Wells), for the plaintiff in error. —
    It was clearly error to admit Peck as a juror, his name having been struck from the panel. In order to exclude him plaintiff had to make use of one of his peremptory challenges. Subsequently, he peremptorily challenged three other jurors. A. Frothingham, another juror stricken from the panel, was then called. Plaintiff, having exhausted his peremptory challenges, could not exclude Frothingham. He was clearly, therefore, injured.
    Plaintiff’s offer of evidence was strictly in rebuttal: Roberts v. Young, 6 Wright 439; Gaines v. Common wealth, 14 Wright 319.
    The plaintiff in chief showed a negative generally, the defense produced evidence from which they asked the jury to infer the existence of springs at specific places ; the plaintiff then offered evidence in rebuttal as to these specific places : Silverman v. Forman, 3 E. D. Smith 322; Eeed v. Kneass, Bright El. Cas. 416; Stetson v. Oroskey, 2 P. F. Smith 230. As a matter of justice, it should have been allowed. “It must be a strong case which will allow a court to reject evidence because not offered at the right time, which may be decisive of the merits of the caseDevall v. Burbridge, 6 Watts & S. 529.
    It was error to instruct the jury that consequential damages were not recoverable: -Pusey v. City of Allegheny, 10 W. N. C. 561.
    The company could,not compel the plaintiff to remove his house elsewhere, and then only compensate him for the removal. When it took the land on which the house was standing it took the house also, and must compensate the plaintiff for his entire loss: Brocket v. Ohio & Penna. E. E. Co., 2 Harris 241; Cleveland & Pittsburgh E. E. Co. v. Speer, 6 P. F. Smith 325,; Ferree v. Sixth Ward School District of Allegheny, 26 P. F. Smith 376; Sehuehardt v. Mayor of New York, 53 N. Y. 202. The provisions of the Act incorporating the water company defendant are in part supplied by the Act of April 24th 1869, Parnph. L. 93. Under the terms of this Act, the land entered upon and occupied by the company, the springs thereon, the reservoir constructed thereon, and the body of water stored in the pond or reservoir are in the possession of company and so far as the same is, or at any time may be necessary for the purposes of the charter of the company, such possession is exclusive : Bailroad Company v. Skinner, 7 Harris 298; North Penna. E. E. Co. v. Behman, 5 Am. Law Eeg. 49; Connecticut Pass. E. E. Co. v. Holton, 32 Yt. 43; Troy & Boston E. E. Co. v. Potter, 42 Yt. 265; Clarke v. Bridge Co., 5 Wright 147; Junction E. E. Co. v. Boyd, 8 Phila. 224; Boston Gaslight Co. v. Old Colony & N. E. Co., 14 Allen 444; Jordan v. Woodward, 40 Me. 317; Cummings v. Barrett, 10 Cush. 186.
    The water which the company gathers and stores up belongs to the company. Plaintiff had no rights thereto. He could not abstract or make any use of any part thereof : Eochdale Canal Co. v. King, 68 Eng. C. L. 122; Eochdale Canal Co. v. Badcliffe, 83 Eng. C. L. 287 ; Medway Navigation Co. v. Bomney, 99 Eng. C. L. 575; Mitchell v. Parks, 26 Ind. 354; Waterworks v. Burkhart, 41, Ind. 364.
    The provisions of the Act of March 11th 1857, §§ 14, 15, Pamph. L. 82, expressly prohibit the plaintiff from interfering in any way with the reservoir or the water therein.
    Plaintiff is not a riparian owner and has no rights as such: Bardwell v. Ames, 22 Pick. 333; Johnson v. Jordan, 2 Mete. 234; M'errifield v. Lombard, 13 Allen 16; Western Penna. It. 11. v. Johnston, 9 P. F. Smith 290.
    The company have the right to inclose the reservoir to keep cattle out of the water, and unless they do inclose it they cannot recover damages for the incursions of roving cattle or the injury done by them : Gregg v. Gregg, 5 P. F. Smith 227.
    If Mr. Finn has any right to use the water at all, it is a right to use only the surplus, and this must be done in such a manner as not to interfere with the public easement: Kane v. Mayor of Baltimore, 15 Md. 240.
    The jurors who had seen the land should not bo permitted to give evidence to their fellows in the jury room. If it was desired that they should give their evidence as witnesses they were competent and should have boon called for that purpose : Ilauser v. Commonwealth, 5 Am. L. Beg. 668; Plank Boad Co. v. Thomas, 8 Harris 91.
    IF. II. Jessup (with whom was 1. J. Post), for the defendant in error.- —
    The record shows that E. M. Peck was challenged by the plaintiff, and did not serve on the jury. The plaintiff had four peremptory challenges; he challenged but two, of whom Peck was one, so he was not injured. No objection or exception was taken to any other juryman. The jury in this case was a jury of view and not a struck jury, and it has always been the practice in this part of the state to first call, as was done in this case, the jurors who viewed, and the balance are called from the general panel. The jurors in such cases are struck for viewing, and not a special jury struck to try the case where no view is required.
    The evidence offered by plaintiff was clearly not in rebuttal: Jessup v. Loucks, 5 P. F. Smith 363. Its admission or rejection was within the discretion of the court, and cannot be assigned for error: Gaines v. Commonwealth, 14 Wright 329; Levers v. V an Buskirk, 4 Barr 309.
    It was clearly proper to consider the case without reference to the person of the plaintiff or the actual state of his business. Schuylkill Nav. Co. v. Thoburn, 7 S. & B. 421.
    The instructions in reference to consequential damages, coupled with the remaining instructions of the court, were not error: Hornstein v. Atlantic & Gt. Western B. B. Co., 1 P. F. Smith 90; City of Allegheny v. Beach, Pitts Leg. J. 187; Shenango & Allegheny B. B. Co. v. Brahain, 29 P. F. Smith 447; Brown v. Corey, 7 Wright 495; Delaware, Lack. & W. B. B. Co. v. Burson, 11 P. F. Smith 369; Penna. & N. Y. C. Go. v. Bunnell, 31 P. F. Smith 414 ; Danville, H. & W. B. R. Co. v. Gearhart, 32 P. F. Smith 263; Pittsburg & Lake Erie R. R. Co. v. Robinson, 38 Leg. Int. 22.
    Defendant did not acquire an exclusive right of possession of plaintiff’s land, but an easement therein merely : Jerome v. Ross, 7 Johns. Oh. 315; Zack v. Penna. R. R. Co., 1 Casey 396 ; Lance’s Appeal, 5 P. F. Smith 16.
    It was proper for the six jurors who had seen the land to communicate the result of their observation to their colleagues, and this might be considered by the jury in agreeing upon a verdict.
   Mr. Justice Sterrett

delivered the opinion of the court, October 2d 1882.

The second section of the Act of 1867, incorporating the defendant company, invests it with all the immunities, franchises, rights and privileges authorized and granted to both gas and water companies by the Act of March lltli 1857, entitled “An Act to provide for the incorporation of gas and water companies,” subject to all liabilities, duties and restrictions therein mentioned. For the purposes contemplated by the Act, the company is specially empowered by the third section thereof, “to enter upon any lands, roads, streets, lanes or inclosures, .... and to take the water from any rivulet, creek or stream. Provided, that compensation for damages done shall be made in the manner prescribed by the Act aforesaid P. L. (1867) 249.

In the exercise of its corporate powers, the company built a dam across the outlet of “ Mud pond,” and constructed a storing reservoir covering nearly sixty acres of land, including, at the upper or westerly end thereof, about twelve and a half acres of plaintiff’s farm, together with buildings and improvements, orchard and several springs thereon, by which the pond was in part supplied. Failing to agree with him as to the amount of damages to which he was entitled, the company filed a bond and took possession of the land. Yiewers were appointed, from whose award an appeal was taken, and on trial of the issue framed for the purpose of determining the amount of damages done and likely to be done to plaintiff by reason of taking and overflowing his land, the • several questions presented by the specifications of error arose.

The first is, in overruling plaintiff’s objection to one of the jurors, who had been struck from the panel when the jury of view was selected. It is contended he was entitled to four peremptory challenges in addition to those previously struck from the list in the prothonotary’s office, and that in empanel-ling the jury for trial, none of those who had been struck should have been called. The Act of 1834 provides that whenever a view shall be allowed in any case, and a jury shall be struck from the list of persons drawn for the ensuing court, the prothonotary, upon the precept of either party, shall issue a special venire, containing the names of such jury, with a clause commanding the sheriff to cause the said jurors, or six of the first twelve of them, to view the premises at some convenient time before the trial, etc.: Purdon 837, pl. 76. It also directs that, at the calling of the jury to try a cause in which a view shall have been had, those of the viewers who shall appear, shall first be sworn, and so many jurors shall be drawn and added to said viewers, as shall, after default and challenges allowed, make up the number twelve, to be sworn for the trial of the cause: Id. pi. 78. We are clearly of opinion that the additional number of jurors thus to be called, should be drawn from the names attached to the special venire which the prothonotary is directed to issue. This necessarily excludes those who have been previously struck by the parties from the general list: 1 Troub. & II. Prac. 560. But the plaintiff has no reason to complain of what was done, unless he was thereby deprived of one of his four peremptory challenges ; and the record fails to show that he was. The error was, therefore, harmless.

There was no error in excluding the testimony complained of in the second assignment. The evidence offered was properly a part of the plaintiff’s case in chief; and, while, in the discretion of the court, it might have been received, its rejection is not ground of reversal.

We think the court erred in affirming defendant’s third point, whereby the jury was instructed that “ in estimating the damages, consequential or speculative damages are to be rejected.” The company, as wo have seen, is required by its charter to make compensation for damages done. This includes consequential as well as direct damages ; compensation not only for the land actually taken, but also for the injury, if any, resulting therefrom to the residue of his farm. It 'is true the learned judge, in affirming defendant’s first point, said to the jury that “the only safe rule in estimating the injury to the property, if there is any, is to inquire what the farm,' unaffected by the building of the dam, would have sold for at the time the injury was committed, and what it would sell for as affected by the injury, and the difference is the true measure of compensation.” This was followed, however, by the specific instruction complained of, that. consequential damages should be rejected ; and thus the measure of damages previously stated, was qualified in a way calculated to mislead the jury. The fourth assignment is sustained.

In answering defendant’s eighth point, a rule of damages, applicable solely to the dwelling-house on the land taken, was given to the jury. They were told, in substance, that the damage to the house was what it was fairly worth to remove the same to some convenient place outside the land covered by the reservoir, including the cost of putting it in as good order as before. This is justly the subject of complaint in the fifth assignment. The house on the land taken was part of the realty, and could not be considered except in connection therewith. The plaintiff was not required, nor had he a right to remove any of the buildings or improvements on the land appropriated by the company, and hence an inquiry as to the cost of such removal was entirely foreign to the question before the jury.

The subject of complaint in the sixth assignment is the refusal of the court to affirm plaintiff’s second point. The company undoubtedly has the right, in its discretion, to enclose the reservoir, and prohibit the plaintiff from using, either the water therein, or the springs on the land appropriated by it for corporate purposes. The point should have been affirmed.

The seventh assignment involves a similar error. What the learned judge said as to the right of a riparian owner to use water, etc., may be all very true, but it was inapplicable to this case, and was well calculated to mislead the jury to the prejudice of the plaintiff. If the company deems it necessary, it has an undoubted right to enclose its reservoir, and prohibit access to it by the plaintiff and everybody else. The plaintiff, as owner of the land adjoining that taken by the company for the purpose of constructing its reservoir, is in no proper sense of the term a riparian owner.

None of the remaining assignments require special notice. They are not sustained.

Judgment reversed, and a venire facias de novo awarded.