author: Agnew, J. —

text:
    Hays versus Briggs.
    1. Briggs petitioned for a lateral railroad and a landing of 1200 feet on Hays’s land; the viewers allotted 600 feet, Hays appealed; by permission of the court the jury allowed 835 feet. Meld, to be error.
    2. Briggs, if dissatisfied with the extent of .the allotment by the viewers, should have filed exceptions ; on Hays's appeal the jury could have allotted less but not more.
    3. The appeal under the Act of November 17th 1871 is confined to assessment of damages, the necessity for a landing for applicant and necessity of owner to retain the land for his own use.
    4. The “ landing” contemplated is for loading and unloading boats, &c., not for a harbor for them, whether empty or laden.
    5. A lateral railway to a river landing may be constructed over an inter vening railroad.

      6. A landing cannot be allotted to another when tbe owner requires the land and boná fide intends to use it, whether presently or in future.
    7. In assessing damages to the owner for land taken for a lateral railway and landing, the value as ascertained from the selling price in the neighborhood is the general selling price not that of a particular sale.
    8. East Penna. R. R. v. Heister, 4 Wright 53; Horner & Roberts’s Lateral Railroad, 1 Wright 333, followed.
    November 6th 1873.
    Before Read, C. J., Agnew, Sharswood, Williams and Mercur, JJ.
    Error to the District Court of Allegheny county: No. 72, to October and November Term 1873.
    The proceeding in this case commenced August 5th 1871, by the petition of Thomas W. Briggs for leave to construct a lateral railroad through lands of James H. Hays and others, and to acquire a wharf or landing from said Hays’s land, on pool No. 1 of the Monongahela Slack Navigation Company. It was under an Act of Assembly of April 24th 1843 and its supplements. The tenth section of the original act (Pamph. L. 361, 2 Bright. Purd. 1239, pi. 139) is as follows: — -
    “ When the owners of any railroad, constituted under an act of this- Commonwealth, possess the landing at the termination of the said railroad, where it joins any canal or other navigation, and any lateral railroad shall be constructed to connect with said railroad, for the purpose of conveying any mineral or other productions to the said navigation, and the owners of the said landing shall refuse to permit the trade of the said lateral railroads to make use of the said landing, upon payment of a suitable compensation, it shall be the duty of the Court of Common Pleas of the proper county, upon application of the party aggrieved, to direct the sheriff to summon a jury, * * * who shall examine the premises. And if they shall find that the landings are of sufficient capacity to accommodate the trade of the lateral railroad, in addition to the trade of the main railroad, they shall mark off a portion of the land to be allotted thereto, and fix upon a compensation suitable therefor, either in fee simple or as an annual rent, or a price per ton for the use of the same, and shall make return thereof to the court, who shall thereupon, if the report be approved by them, direct the said landing to be opened to the use of the public, upon the payment of the price assessed by the said jury; an appeal to the superior (court) being allowed, as in other cases.”
    The Act of January 6th 1848, sect. 3, Pamph. L. 1, 2 Bright. Purd. 1240, pi. 140, provides that
    “ The rights and privileges as to the acquisition of landings and wharves, conferred by the tenth section of the act entitled ‘ An Act, &c., * * * shall be extended to all persons proceeding to procure the right to make a lateral railroad under the authority of the act to which this is a supplement, so that they shall be enabled to procure landings or wharves, for a compensation of the owner or owners of land, whether said owner or owners of land have any interest in any railroad or not; and the powers and duties conferred upon the jury authorized by the said tenth section, are hereby .conferred upon the viewers who may be appointed under the authority of the said act to whigh this is a supplement: Provided, That no landing, wharf, privilege or franchise shall be taken from the owner thereof, if, in the opinion of the viewers aforesaid, such landing, wharf, privilege or franchise is necessary to the use and enjoyment of the.owner of any mill, quarry, limekiln, coal-mine or other real estate adjoining any navigable stream or slackwater navigation.” . '
    The Act of February 17th, 1871, sect. 1, Pamph. L. 56,2 Bright. Purd. 1241, pi. 147, provides that
    “ In all proceedings now pending, or which may hereafter be instituted, to procure the right to construct lateral railroads, or for the acquisition of wharves or landings, or for either of said purposes, the appeal to court from the report of the viewers shall extend not only to the assessment of damages, but to the question of the necessity of the proposed lateral railroad, wharf or landing, and shall also extend to the question whether such landing or wharf is necessary to the owner thereof, for his own uses or purposes ; and if the jury shall so find,- the same shall not be taken from him.”
    The petition set out that the applicant owned about 230 acres of land in Baldwin township, Allegheny county, “underlaid by a stratum of good black merchantable coal;” the land and coal were not more than six miles from the Monongahela Slackwater Navigation ; that a lateral railroad was necessary for public and private purposes to connect the coal and the navigation, and that there was necessity also for a wharf or landing at the river terminus of such road; that he desired to make a lateral railroad for the purpose of such connection through the intervening land, partly underground and partly on the surface, and have allotted to him at its terminus at the Monongahela river a wharf or landing sufficient to accommodate the trade of the .road; that he had “ surveyed and marked upon the ground, and adopted a route upon which he desires to construct said railroad; and he had also surveyed and marked off a piece of ground for a landing or wharf, which he desires to procure as aforesaid;” that he had given due notice to James H. Hays and a large number .of other persons (naming them) of his intention to file the petition; and that Hays was the owner in fee simple of the land marked off for the landing. The petition then set out the courses and distances of the proposed road, and the names of landholders through whose lands it would pass. It described also the ground surveyed for the landing, viz.: beginning on the Monongahela river, thence westwardly 80 feet, thence southwardly about 1200 feet, eastwardly 80 feet, northwardly 400 feet to the terminus of the railroad, and along the river and over Hays’s land, northwardly 800 feet to the beginning.
    The prayer was for viewers to view the route for the railroad, and also the premises described for the wharf and landing, and make report of their proceedings, &c. Viewers were accordingly appointed.
    The viewers reported that the “ railway is necessary and useful to the said Thomas W. Briggs for public and private purposes,” and assessed damages for the several landholders, amongst others to James H. Hays for the construction, &c., of the road through his land at $5182.68. The viewers reported that they had “marked off a wharf of sufficient capacity to accommodate the trade of said railroad,” viz.: beginning at the river, thence down the same northwardly 600 feet, thence westwardly 80 feet, thence southwardly 600 feet, thence eastwardly 80'feet to the beginning, the same having a front of 600 feet on said Monongahela river, and extending back, preserving the same width from same river 80 feet, being the upper half of lot of land marked on the map, &c., of 1200 feet by 80 feet.” They assessed the damages to be paid to Hays for this land at $30,750. They further reported that no part of this land was necessary for- the use of Hays, &c.
    Hays appealed from the report of the viewers.
    Briggs filed no exceptions, nor did he appeal from the report of the viewers.
    Upon this appeal othe court directed an issue, in which Hays should-be plaintiff and Briggs defendant. In the issue the plaintiff made the following averments:—
    1. That his damage by the railroad would be $20,000.
    2. And by taking the wharf $150,000.
    3. That plaintiff and not the defendant had the exclusive right to the location for a railroad described in said petition, because he, the said plaintiff, says, that being the owner of lands containing coal, lime-stone, &c., situate within three miles of the Monongahela river, he surveyed, defined on the ground and adopted finally, the said location for the route of a railroad which he intended, and still intends, to construct from his said coal-lands to the said river, for the purpose of transporting over the same his said coal; and that said location was made by him in manner aforesaid, and for the purpose aforesaid, before said defendant had surveyed, marked and adopted finally said location as the .route of the proposed road, wherefore said plaintiff says that he, the said defendant, ought not to have or maintain the said proceeding for a lateral railroad as aforesaid.
    4. That said land of plaintiff lying between the Pittsburg, Virginia and Charleston Railroad and the river aforesaid, is not the subject of appropriation by a stranger to the purpose of a lateral railroad under the several Acts of Assembly, because he says said acts do not authorize the construction of such a railroad across any one of the series of public highways mentioned therein, in order to reach a more distant terminus, wherefore said plaintiff says said defendant is not entitled to construct said proposed railroad over said area of ground, or to have or maintain his said proceeding to that end.
    5. That said viewers marked off and allowed to said defendant for a wharf or landing, a larger area than is necessary for that purpose, and more extensive than the Act of Assembly authorized.
    6. That the said wharf or landing as aforesaid is necessary to the plaintiff for his own uses or purposes.
    7. That the said wharf or landing as aforesaid is not necessary and useful to the defendant for public or private purposes.
    8. That the lateral railroad mentioned and set forth in said petition is not necessary and useful for-public or private purposes.
    9. That the petitioner, Thos. W.- Briggs, is not the owner of the coal and coal-mines mentioned and set forth as belonging to him in his aforesaid petition.
    The defendant denied that the land mentioned in the first paragraph of the issue was of the value of $20,000. He denied all the -averments in the paragraphs from 2 to 8 inclusive.
    He averred that he was the owner of the property set forth in the 9th paragraph.
    ■ The issue was tried March 12th 1873, before Kirkpatrick, J. On the trial Briggs, the defendant, by leave of the court, and under objection and exception, amended his petition as to the extent of the landing on the Monongahela river as follow's :—
    “ He disclaims any desire to take or appropriate, in this case, the following described portion of the landing or wharf mentioned or set out in his said petition, namely, beginning on the said river at the western or lower end of said, landing, as in his said petition named and marked on his plan attached thereto; thence running, &c., * * * and thence down said river 367 feet to the place of beginning. But as to the residue of said wharf or landing (excluding the portion last described, viz.: 367 feet in length and 80 feet in width), he claims in this case to take and appropriate the same for the uses and purposes of his said proposed lateral railroad.”
    The testimony in the cáse was very, voluminous, the great proportion of it bearing on the necessity for the road and landing— and the necessity of Hays for the landing “for his own uses and purposes.”
    On the question as to the amount of damages, Briggs, the defendant, offered to prove by A. D. Smith, “ that in 1859 he sold to James H. Hays a portion of river-landing on the south side of the Monongahela, on Pool No. 1, close to the landing or wharf proposed to be acquired by said Briggs, the price at which it was sold, and that since said sale the said landing, so sold to Hays has increased in value from that time until the time of filing the petition in this case, the rate of increase in value, from year to year, of said landing, what the cash value of the proposed landing was at the time of the filing of said petition, to be followed by evidence as to the increase generally of landings on Pool No. 1, for some years prior to the filing of said petition, to show the value of the proposed landing at the time said .Briggs sought to acquire it by the filing of his petition.”
    The evidence was objected to by the plaintiff, admitted by the court and a bill of exceptions was sealed.
    The witness testified as to the matters inquired of in the question.
    The defendant called Alexander Love, and, after preliminary inquiries, proposed to ask him: “ whether he has a landing in Pool No. 2, on the Monongahela river, one-half mile below Elizabeth, when he obtained the same, and the price paid for it; and, further, what the landing proposed to be taken by Thomas W. Briggs is fairly worth in the market, as compared with that of the witness.”
    The plaintiff objected to the offer, it was admitted by the court and a bill of exceptions sealed.
    The witness testified that he had a right of way granted for a lateral railroad, and stated also the amount of damages he had to pay under an assessment by viewers. The landing ;was about fifteen miles from the landing claimed by Briggs.
    The defendant called Joseph Walton, who owned the uppermost coal works on Pool No. 2, about seventeen miles above the landing in controversy, and proposed to ask him, “ what he paid for the 1800 feet of landing alluded to in his evidence, at the head of Pool No. 2, and relatively what the fair market value of the river-landing proposed to be taken by said Briggs is worth as compared with it and other river landings near said Briggs’s proposed landing.”
    The plaintiff objected to the offer, it was admitted by the court and a bill of exceptions sealed.
    The witness testified as to the matters inquired of in the offer.
    The plaintiff called P. C. Devlin, who, having testified much at large as to the questions raised by the issues, was asked by plaintiff “ what the 300 acres of coal he has just spoken of belonging to James H. Hays, which should be taken out by his railroad down Beck’s run, are worth, in connection with the landing which the defendant proposes to appropriate, and what they would be worth if the landing was taken from Hays.”
    The offer was objected to by the defendant, rejected by the court and a bill of exceptions sealed.

      Plaintiff offered “the report of tbe .viewers, so far as tbe same relates to the area of ground allotted to said Briggs as a wharf or landing, at the terminus of his proposed road in connection therewith, for the purpose of showing how much ground was actually allotted by the viewers for the purpose aforesaid.”
    The defendant objected to the offer, it was rejected by the court and a bill of exceptions sealed.
    The following are points of the plaintiff with their answers:—
    2. Inasmuch as the uncontradicted evidence in the cause shows that the proposed lateral railroad is intersected between the terminal points thereof, where it traverses the land of said Hays, a few hundred yards from the Monongahela river, by the Pittsburg, Virginia and Charleston Railway; that said railway was located finally over said land in the fall of 1869, the lettings made, and the work of construction begun in June 1871, and is now and has been for six months past in active running operation from its terminus on the Pan Handle road eastwardly along the valley of the Monongahela for the distance of ten miles, the said Briggs has no authority under the lateral railroad law, to construct or operate said proposed road over the land of said Hays intermediate said public railway and said river, or to appropriate any portion thereof for a wharf or landing.
    Answer: “ This point is declined. The mere fact of the intersection of the proposed lateral railroad by the Pittsburg, Virginia and Charleston Railway, as suggested by the point, would not of itself take away the authority of the petitioner to construct his lateral railroad over the lands of J. H. Hays, between the said Pittsburg, Virginia and Charleston Railway and the Monongahela river, nor would it of itself prevent his appropriation of a portion of the same for a wharf or landing providing he has the authority otherwise so to do.”
    3. The proposed lateral road being intersected or cut in manner aforesaid, between its terminal points, the continuity of it is thereby destroyed, and the said petitioner has failed in his case, both in resp.ect to road and landing.
    4. The viewers alone, and not the court and jury, have the' power to mark off a wharf or landing to be allotted to a petitioner for a lateral railroad; and the report of the viewers marking off a wharf or landing in this case, not having been put in evidence, the subject of a wharf or landing is not before the jury, and they havé no power to render a verdict in relation to it.
    These points were declined.
    5. The Acts of Assembly relating to the acquisition of wharves or landings, do not authorize the taking of private prbperty for harbors, either in connection with, or independently of a lateral railroad; and if the said Acts of Assembly do authorize such appropriation of private property, they- are, both in the view of the Constitution of the United States, and of the state of Pennsylvania, void and of none effect.
    Answer: “ Affirmed with the qualification to the 6th point.”
    6. All the ground the Acts of Assembly authorized to be taken for a wharf or landing is just so much as shall be reasonably necessary for loading or unloading such craft as usually navigate the water on which the lateral railroad terminates, and no more: they do not authorize the taking of ground for harbors for either empty or loaded craft.
    Answer : “ We cannot say that we are prepared to affirm, and so must decline this point as it is presented. We consider it too broad. We are however of opinion, and so instruct you, that the amount of ground which may be taken for a wharf or landing, under the provisions of the Act of Assembly, is such and so much as will be of sufficient capacity to accommodate the trade of the lateral railroad, so much and no more than is reasonably necessary to a proper, fair and legitimate use, occupation and exercise of the privileges and benefits of the road so created. Less than this we think would defeat the clearest purposes and intention of the statute, and more especially that portion of its provisions which the wharf and landing feature of the act was intended to subserve; whilst a greater allowance would be a clear infringement of the right of private property and in manifest derogation of a fair add proper interpretation of the letter and spirit of the law, and should receive no encouragement by the verdict of the jury. These limitations we beg the jury to apply to our affirmation of the last or fifth point.”
    7. The burden of showing the necessity for said proposed road is on the petitioner, and as there is no evidence in the cause showing any necessity, general or special, for extending the same over and beyond the Pittsburg, Virginia and Charleston Railway to said river, the case has failed in respect to that portion of said road, and also in respect to the wharf or landing, and the court will so instruct the jury.
    Answer: “We have already in our general charge affirmed the proposition of law claimed in this point, and do so now that the' burden of showing the necessity for the proposed road is on the petitioner. This proposition and this portion of the point cannot be gainsaid. But we decline, as further requested, to instruct you that there is no evidence in the cause showing any necessity general or special for extending the proposed lateral railroad over and beyond the Pittsburg, Virginia and Charleston Railway to the Monongahela river. This we leave as a question of fact exclusively to the jury to be by them determined from all the evidence in the cause, again repeating that the burden of showing this fact, as also the fact of the necessity of the road, rests with and is by the law wholly put upon the petitioner.”

      17. The páper filed by Thomas W. Briggs, purporting to be a disclaimer of his right to take the lower portion of said proposed landing, is in legal effect a discontinuance of the entire proceedings'as respects both road and landing, and if not of both, of the landing at least.
    Answer: “ This point is declined.”
    The court in the charge, amongst other things, said:—
    * .* * “ [It will be observed the words of the statute are ‘ uses and purposesthus, as it would seem to me, suggesting a something in the present and also in the future. A use of a thing-signifies and means the acting, handling or employing in any manner, and for any purpose, but especially for a profitable purpose, thus implying the immediate or present occupation or enjoyment of anything. A purpose means and implies intention, design; that which a person sets before himself as an object to be reached or accomplished, the end or aim to 'tfhich the view is directed in any plan, measure or exertion. Thus implying something contemplated or to be done in the future. Now has the owner of this wharf or landing satisfied you that it is so necessary for him, for his own fair, proper and legitimate uses and purposes ? that is, not only for his present or immediate uses, but also for his future designs, plans or purposes ? We are of the opinion, and so instruct you, that he is entitled under the statute to the benefit of both of these terms in their largest and most comprehensive sense. We think the statute so intended.] If he has, as we have already told you, this ends all other or future„controversy about the wharf or landing, and it has no other or further part nor lot in your deliberations in regard to it. We express no opinion, but leave it wholly to the jury, by whom, and by whom only, it is to be determined. But it may be, as claimed by the petitioner Briggs, that the owner has wholly failed in so satisfying you. If he has, then other and important questions present themselves. [The first question naturally to be considered by you,- then, will be (assuming that you have found that the land is not necessary to the owner, and that the petitioner Briggs is entitled-to one), how much of a landing shall be allotted to him ? ShalHt be the whole, as claimed —that is twelve hundred feet, less the three hundred and sixty-seven feet disclaimed by him in front of Williamsburg, which would leave eight hundred and thirty-three feet — or shall it be any other distance less than this, and if so, how much less. This also is a question wholly for the jury, in the light of all the evidence bearing upon it. They are not limited, and may allot such and so much as they may deem just and right to a proper and reasonable use, occupation and enjoyment of the lateral railroad, in and of which, and to the fair, reasonable and proper enjoyment and use of which the wharf or landing was and is intended. This we have said in answer to one of defendant’s points, and so say here and now as our instructions to you in this regard, should be the rule and measure by which you should allot and set apart the wharf or landing to the petitioner, in case you come to the conclusion from all the evidence that he is fairly and justly entitled to one.]” * * *
    The jury found a special verdict, answering the several issues categorically, viz.:
    1 and 2. They found that Hays, the plaintiff, owned the land proposed to be taken for the railroad and for the wharf.
    3. They found for Briggs.
    4. So far as there were facts to be found in this issue, they found for Briggs.
    *******
    6 and 7. They found that the wharf or landing described in the petition of Thos. W. Briggs in this case, less the amount thereof which said Briggs on the trial of this case by writing filed of record, disclaimed any right to take and appropriate, viz.: 367 feet in length by 80 feet in width, from the western end of said landing, is not necessary to said Jas. H. Hays for his own uses or purposes; and that said wharf or landing in said petition mentioned, less the amount thereof, viz.: 367 feet in length by 80 feet in width, disclaimed as aforesaid, is necessary and useful to Thos. W. Briggs for public and private purposes.
    8 and 9. They found that the lateral railroad mentioned and set forth in said petition, is necessary for public and private purposes; and that the said Thos. W. Briggs is the owner of the coal and coal-mines mentioned and set forth as belonging to him in his aforesaid petition.
    “And we further find and mark off from the wharf and landing proposed in the petition, a wharf of sufficient capacity to accommodate the trade of the said railroad, which we find to be as follows, viz.: Beginning at the low-water line of the Monongahela river where the line of the lateral railroad strikes the river; thence up the said river, &c. (by several courses and distances), to place of beginning, being a strip of ground extending back 80 feet from low-water mark, and extending from said lateral railroad up the river 400 feet, and from the said lateral railroad down the river 435.79 feet to the line of the village of Williamsburg, making 835.79 feet front on said river .by 80 feet back from the same: The said wharf or landing nowmarked off for said Thomas IT. Briggs being the residue of the wharf or landing mentioned and described in said petition, after striking off the portion thereof which said Thomas W. Briggs, by writing filed of record in this case, disclaims any right to take. And we do further find that the said landing, so found and marked off, is not necessary to the owner thereof, James H. Hays, for his own uses and purposes, and we find and fix upon the sum of $28,668.90 to be a compensation just and suitable to be paid to James H. Hays for the use of said piece of ground owned by him, and included in the last aforesaid description.”
    Judgment having been entered on the verdict, the plaintiff Hays removed the record to the Supreme Court by writ of error.
    He assigned the following errors : — ■
    2. Admitting the report of the viewers in evidence.
    3. Refusing the plaintiff’s 4th point.
    4 and 8. Charging as in the part of the charge secondly enclosed in brackets. '
    6 and 7. The answers to the plaintiff’s 5th and 6th points.
    9 and 10. The answer to the plaintiff’s 2d and 3d points.
    •11. The answer to the plaintiff’s 7th point.
    12. Charging as in the part of the charge first enclosed in brackets.
    14, 15, 16. Admitting the testimony of A. D. Smith, A. Love and J. Walton on the subject of damages.
    17. Rejecting the testimony of P. C. Devlin on the same.subject.
    19. Allowing the defendant, Briggs, to amend his petition.
    20. 'Denying the plaintiff’s 17th point.

      M. W. Aeheson and Cf. P. Hamilton (with whom was T. M. Marshall), for plaintiff in error. —
    The power of locating the road is with petitioner alone: Act of May 5th 1832, Pamph. L. 501, 2 Br. Purd. 1235, pi. 121, et seq. Neither the viewers nor the traverse jury have any power over the road as located by the petitioner: Hays v. Risher, 8 Casey 169; Brown v. Peterson, 4 Wright 373; Acts of 24th April 1843, sect. 10, Pamph. L. 361; 6th January 1848, sect. 3, Pamph. L. 1, 2 Br. Purd. 1239,1240, pi. 139, 140; Horner and Roberts’s Lateral Road, 1 Wright 333. The market value of the land at the time of filing the petition is the standard of damages: Railroad Co. v. Hottenstine, 11 Wright 28. The market value should be the selling price in the neighborhood : East Penna. R. R. v. Heister, 4 Id. 53; Worthen v. Wilmot, 30 Vt. (1 Shaw) 553.

      J. H. Hampton and M Woods (with whom were S. Woods and J. Balzell), for defendant in error.
    The Act of 1871 is a remedial statute. It enlarges the matters to be submitted to the jury, and is to be liberally construed : Dwarris on Stat. 73, 231, 236; Johns v. Johns, 3 Dow. 15; People v. Runkle, 9 Johns. Rep. 147; Pearson v. Lovejoy, 53 Barb. 407; Kerlin v. Bull, 1 Dallas 178. Landings and wharves as such have no market value, and therefore damages for them cannot be assessed by the ordinary rule, but there must be a resort to facts in individual cases : White Deer Creek Co. v. Sassaman, 17 P. F. Smith 421. An opinion of the aggregate loss is evidence : Forbes v. Caruthers, 3 Yeates 527; Kellogg v. Krauser, 14 S. & R. 137
   The opinion of the court was delivered, January 5th 1874, by

Agnew, J. —

Without following the assignments of error seriatim we shall notice the important questions raised in this case. The viewers allowed Mr. Briggs a strip of ground on the margin of the Monongahela river, six hundred feet long by eighty feet wide, for a wharf or landing. To this allowance Briggs filed no exceptions involving the extent of the area, so far as we have discovered. Hays, however, took an appeal principally on the ground disclosed by the issue formed upon his appeal, that the viewers laid off too large an area, that he himself needed the ground for his own uses and purposes, and that it was not necessary to Briggs for public or private purposes. In his petition Briggs had claimed twelve hundred feet on the river, and on the trial asked to amend by disclaiming three hundred and sixty-seven feet in length, and claiming to appropriate the remainder, eight hundred and thirty-three feet. On the trial the court permitted Briggs to claim, and the jury to find, this remainder, the verdict returning it as eight hundred and thirty-five feet and 29-100 front on the river, and eighty feet back from the same. In this there was error. The appeal under the Act of 17th November 1871, 2 Bright. Dig. 1241, pi. 148, was confined to the assessment of damages, the necessity of the wharf or landing to the applicant, and the necessity of the owner of the ground to retain it for his own uses and purposes; and if the last be found the wharf or landing shall not be taken from him. The viewers, under the Act of 24th April 1843, 2 Bright. Dig. 1239, pi. 139, must go upon the ground, view it and mark off the portion of land to be allotted as a wharf or landing, and'fiK the compensation to the owner. The case of Horner v. Roberts’s Lateral Railroad, 1 Wright 333, held, that the appeal extended to the question of compensation only, and not to location, or necessity. This defect in the law was remedied by the Act of 1871, so far as to extend the appeal to the questions of necessity to the applicant and necessity to the owner; but not to, embrace that of location, which was left where it stood before, under the Act of 1843. The argument that this leaves the petitioner without remedy when the viewers allow him too little or no ground for his wharf or landing, is unfounded. The report of the viewers is subjected to the approval of the court, and this confers the right of exception upon either party. It is on this right of exception Judge Strong relies in basing the right of appeal in Horner v. Roberts’s Road, a right given beyond the privilege of exception, as the means of having the question of compensation tried by a jury. If Mr. Briggs thought the six hundred feet laid off to him by the viewers were too little for his necessity, he could have filed exceptions, and if successful the court would have awardéd a new view. Possibly he also might have appealed, but as to this we give no opinion. But when Hays appealed on the ground that the viewers had allowed more ground to Briggs than his necessity required for his actual railroad, the issue was confined to the six hundred feet laid off. This issue involved the necessity of the whole and every part of it, and the jury might have allowed him less, but could not allow him more, upon this issue. What might have been proper in case both parties had appealed, we do not say.

The question of a harbor for boats, is also important. The plaintiff’s fifth and sixth points asked a direct instruction against the right to take ground for a harbor, distinct from the land necessary for the wharf or landing. To this request no answer in distinct terms was given, but the court declined the points as too broad. The latter part of the fifth point presented only an alternative in case the answer was adverse to the former point. The sixth point presented the question squarely that the petitioner was not entitled to take ground for a harbor for either empty or loaded craft. The purpose of a wharf or landing for loading and unloading boats engaged in the coal trade, is different from that of a harbor or place to lay up boats empty or laden. This is especially true of the coal business on the Monongahela, in view of the magnitude of the barges used and the length of time often required to keep them in harbor before a boating stage of water arrives to take them out, and to carry them down the Ohio. It appears that often before such a stage or .flood occurs, these coal-barges and coal-boats are collected in large fleets and lie moored along the shore or in the river. Now, clearly the privilege of a wharf or landing to load these boats with coal from the mines was not intended to confer a right to harbor them all along the lands of others, to wait the coming freshets. The error of the court was not so much in what was said, as in what was left unsaid, when specially called to state to the; jury the difference between a right to take land for wharfage or landing, and land for harborage.

The position of Mr. Hays’s counsel that the lateral railroad could not pass over the Virginia and Charleston Railway to reach the slackwater navigation of the Monongahela cannot be sustained. There is nothing in the language of the law necessarily requiring such an interpretation, and certainly nothing in the reason of the thing to'demand it. In going to the slackwater navigation the very words of the law are fulfilled, while the nature of the coal trade, its great magnitude and its market all demand a water transportation, and these require a reasonable interpretation of the law to make it beneficial and to accomplish its true intent in aid of trade. The question of crossing at grade, or how the crossing shall be effected, concerns different parties. The point we decide is that the lateral railroad may pass beyond a carrying railroad to reach a canal or slackwater navigation.

We discover no real error in the definition the court gave to the words in the act — “ his own uses and purposes.” The intention of the Act of 1871 was to protect the owner of the ground in the enjoyment of it, when he himself needed it. It is only when his uses and purposes do not require it to be retained, that another is permitted to divert it to his use. The owner of ground on the margin of a river, necessary for the loading of coal from his own immediately adjacent coal-lands, ought not to be deprived of its use, merely because he has not yet constructed his wharves and his railroad to them; if it be manifest that this is the very purpose for which he seeks to retain it. If it be necessary to bring his own products to market when he opens his mines, clearly he should not be deprived of his right to the enjoyment of his own property in a reasonable time and manner. He may not, perhaps, like the dog in the manger, keep others at bay, and yet intend to make no use of the thing itself. But if it be a bond fide intended use, the law should not be so construed as to trench upon his right to enjoy his own reasonably in his own way and at his own time. The want of capital, encumbrances and many other circumstances may compel him to defer present improvement.

In regard to the exceptions to the offers of evidence relating to the damages, we think in. some of them the court opened the door to a wider range than the law permits. The rule laid down in East Penn. R. R. v. Heister, 4 Wright 53, and followed in Pittsburg, Virginia and Charleston Railroad Co. v. Rose, at this term, antea 362, is the value as estimated by witnesses in view of its location, productiveness or other uses not speculative, or as denoted by the market value or selling price of lands in the neighborhood ; and this selling price I understand to be the general selling price, and not that of a particular sale. It will not do to fix the market value by special, and it may be exceptional cases. Of such a test Thompson, J., said in Heister’s case, it will not do, for, if allowed, such special instance adduced on one side must be permitted to be assailed, and its merits investigated on the other ; and thus, there would be as many branching issues as instances, which, if numerous, would prolong the contest interminably. Such testimony does not disclose the public and general estimate. The offer to prove, by A. D. Smith, a sale in 1859, was incompetent, not only because of its repugnance to the rule as to special instances, but by reason of its long antecedent time, and the necessity of filling up the gap in time, by evidence to bring it down to the proper date. The proposed testimony of Alexander Love was objectionable as evidence of a special instance, and also because it was the case of an appraisement by viewers involving all the circumstances of that case, and the benefits to be set off. The testimony of Joseph Walton was incompetent for similar reasons. The testimony of P. L. Devlin, so far as it bore on the question of the value of the three hundred acres as a measure of damages, was not competent; but as it had also a' bearing on the question of the necessity of James II. Hays to retain the landing for the benefit of his adjacent three hundred acres, it may have had some relevancy. In regard to the distances of the different landings from the locus in quo, we do not say they were too far off to assist the witnesses in forming their judgment of the general market value of grounds in the neighborhood for such uses. Wharves' and landings are confined to the river shore, and the business along the Monongahela is similar to that of Mr. Briggs. A witness estimating the general market value of such lands in the neighborhood may be permitted to range further from the lands in question than in a ease of ordinary neighborhood value of farms or lots. But his range of thought in estimating a general market value is a very different thing from his being permitted to testify to special instances of sales at any distance, near or remote.

Judgment reversed, and a venire facias de novo awarded.


source: Caselaw Access Project

author: Mercur, J. —

license: Public Domain

text:
    Karns et al. versus McKinney.
    1. As a general rule the goods of a stranger on leased premises are liable to distress for rent.
    2. ' When the tenant in the course of his business necessarily has the goods of those with whom he deals or who employ him, the goods are not liable to distress for rent due by the tenant.
    3. Goods of a stranger on the premises were distrained for rent due by a tenant. In replevin by the owner, evidence that the distress was excessive was inadmissible.
    4. Brpwn v. Sims, 17 S. & R. 138 ; McKinney v. Reader, 6 Watts 41; Riddle v. Welden, 5 Wharton 9, recognised. -
    November 10th 1873.
    Before Read, C. J., Agnew, Sharswood, Williams and Mercur, JJ.
    Error to the District Court of Allegheny county: No. 57, to October and November Term 1873.
    This was an action of replevin, brought to July Term 1868 of the court below, by J. B. McKinney against John Karns and J. F. Noel. .
    The declaration was that the defendants took of the goods of the,plaintiff, one coal barge, a lot of barge timber and divers lots of plank, a lot of oak streamers, two lots of iron, three kegs of spikes,- a lot of bolts, four bales of oakum — of the value of $1500.
    The defendants pleaded “ Rent in arrear, warrant of distraint, ”&c.

      The replication was that the plaintiff did not hold the premises, when the distress was made, as tenant of the defendants or either of them; that no part of the rent for which the distress was made was in arrear from the plaintiff to the defendants or either of them, and that the goods were not liable for distress for rent, if any rent were due.
    The case was tried December 12th 1871, before Kirkpatrick, J. On the 21st of May 1867, Earns, one of the defendants, leased to C. W. Porterfield a lot of land in the borough of Tarentum, containing twelve acres, on which was a steam saw-mill, with fixtures ; also a dwelling-house, blacksmith-shop, boat-yard, stable, &c., for 'five years, at an annual rent of $500, payable quarterly, except for the first year, when it was to be paid at the end of the year. The goods were taken on the leased premises.
    Porterfield took possession of the premises. The warrant was issued by John Earns, and the articles distrained were on the premises at the time of the distress, May 2d 1868.
    Earns gave evidence that the mill was on a lot of two acres, bought by him after he owned the other part of the property. The lumber-yard was on the other side o-f a creek from the mill.
    J. R. Wylie testified for McKinney that he had worked “ at this mill of Porterfield’s” as head sawyer; he, George Agnew and John Porter harl purchased some rafts and barge stuff, which they sawed in the mill; they were running the mill for Porterfield; this lumber was sold to McKinney about three weeks before the distress; it was lying across the creek by itself. “We worked the mill, and when we had a chance to saw a log of our own, we did so, and delivered it over the creek just as any other customer; there was no timber on the other side the creek but our own; it was over the creek when sold to McKinney; it remained where it was.”
    McKinney testified as to purchasing the timber from Wylie; after the purchase he sent his men, who went on and built the barges; one was built at the time of the distress; he sent iron, oakum, spikes, &c., there for the erection of the barges; the property was on the leased premises, and at the time he purchased, Wylie, Porter and Agnew told him they were running the mill for Porterfield, and that the lumber was their own; they gave him liberty to build the barges there in the barge-yard, alongside of the creek.
    ' McKinney offered in evidence the notice of distress delivered to him by J. E. Noell, the constable, for the purpose of showing that he, Noell, distrained for a greater amount of rent than was due, and for more than he, Noell, the bailiff of Earns, was authorized to distrain for; and also for the purpose of showing that other goods and chattels were distrained upon said premises for the same rent, not replevied and sufficient to satisfy the said rent, or a large portion thereof; and also for the purpose of showing that said bailiff was proceeding to collect, by sale of plaintiff’s goods (replevied in this case), the sum of $725, being a much larger sum than was due to. or claimed by Karns.
    The evidence was objected to by Karns, admitted by the court and a bill of exceptions sealed.
    Karns submitted a 'number of points; the third, which was refused, is as follows :—
    “ The court is requested to charge the jury that even if they believe all plaintiff’s evidence, and find therefrom that plaintiff did, at time of distraint, own the' property replevied, yet, under all the evidence, said property is liable to distress of defendant, Karns.”
    The verdict was for McKinney, plaintiff below, for $78.
    Karns took out a writ of errer, and, amongst others, assigned for error—
    3. The refusal of his third point.
    8. The admission of the evidence objected to.

      T. 3. B. Patterson and T. M. Marshall, for plaintiff in error.
    —As. a general rule, goods found on demised premises are liable to distress for rent. There-is nothing to take this case out of the rule: Kessler v. McConachy, 1 Rawle 440; O’Donnel v. Seybert, 13 S. & R. 57; Weidel v. Roseberry, Id. 180.
    J[. jS. Lambie and A. M. Brown, for defendant in error.—
    Goods of a third person, placed in the way of trade on storage in a warehouse, are not liable to distress for rent for such warehouse: Brown v. Sims, 17 S. & R. 138; Briggs v. Large, 6 Casey 287; Cadwalader v. Tindall, 8 Harris 422; Riddle v. Welden, 5 Whart. 9; Connah v. Hale, 23 Wend. 462; Matthias v. Mesnard, 3 Carr. & Payne 353.
   The opinion of the court was delivered, January 5th 1874, by

Mercur, J. —

That the goods of a stranger found on the demised premises are liable to distress’ for rent, is a well-settled principle of the common law. To this general rule there are many exceptions in fact, but few in principle. The goods of a third person placed in the way of trade on storage, in the warehouse of one who received goods on storage, are not liable to distress for rent for such warehouse, although found on the premises : Brown et al. v. Sims et al., 17 S. & R. 138; Briggs et al. v. Large et al., 6 Casey 287; nor are the goods of a guest’ for rent due by the innkeeper, nor those of a boarder for rent due by the keeper of the boardinghouse : Riddle v. Welden, 5 Whart. 9; nor grain sent to a mill, nor cloth in a tailor shop, nor goods on a wharf, nor goods of the principal in the hands of a factor for rent due from the one temporarily having the possession of the goods. Nor are goods in the custody of tlie law liable: Pierce v. Scott, 4 W. & S. 344; nor property of a tenant bolding by a renewed lease, for the payment of arrears of rent due from a previous tenant: Clifford v. Beems, 3 Watts 246; Beltzhoover v. Whitman, 1 W. & S. 416.

The principle covering these cases during the tenancy, except when the goods are in the custody of the law, is this: where the tenant, in the course of his business, is necessarily put in possession of the property of those with whom he deals, or of those who employ him, such property, although on the demised premises, is not liable to distress for rent due thereon from the tenant: Brown et al. v. Sims et al., supra.

If the property of the defendant was not liable to distress, it was saved therefrom by the protection of this rule only. What are the facts? The demised premises contained about twelve ac.vs. There was a steam saw-mill, a brick and frame dwelling-house, blacksmith shop, boat-yard, stable, &c., thereon. The property in question was upon the demised premises when it was distrained. It consisted of one coal-barge and lot of barge timber, and plank sufficient for another barge upon the boat-yard; a quantity of iron, spikes, bolts and oakum in the blacksmith shop; and a lot of oak streamers, pine scantling, boards, plank and timber at the sawmill. All the lumber had been manufactured at this saw-mill, by Porter, Wylie & Agnew, while they were in the^ employ of Porter-field, and under an arrangement with him. The evidence wholly fails to show in what manner Porterfield used the boat-yard, whether in building boats himself upon it or permitting others to build; or whether he or they furnished the materials. It also fails to show that the defendant’s possession of the boat was with the permission or even knowledge of Porterfield. It appears that Porter, Wylie & Agnew gave the defendant permission to build the barges upon the boat-yard, but their authority so to do is not shown. Whether the defendant was a tenant or a trespasser, he was in actual possession of the yard. He sent his employees there to build the barges. He also procured and sent there the iron, spikes, bolts and oakum necessary to be used in building the barges. The boat-yard was separated from the mill by a creek. The defendant had taken possession of all this lumber lying in that yard. He set about working it up, he mingled it with the other materials which he brought upon the ground. Those materials had never been in the possession of the plaintiff. The defendant had progressed so far with the work as to have completed one barge before the property was distrained. At this time Porterfield had no possession of this property. It was in the exclusive possession of the defendant. He established a business there in which it is not shown that Porterfield was engaged. With what propriety, then, can the defendant invoke the rule which exempts from distress the property of a third person, while it is necessarily in the possession of the tenant in the course of his business ? He had established upon the boat-yard an independent business; a business in which the tenant Porterfield is not shown to have had any interest, or over which he had any control. The possession and exclusive control had been maintained by the defendant for several weeks prior to the distress. Neither Porterfield nor the persons from whom the. defendant purchased the lumber set up any claim to possession. The defendant held the property and the possession by his independent right. The situation of the property, then, did not admit of the application of the rule which the defendant invokes. That portion of the property of which the defendant thus had the possession was liable to distress, and thus qualified, the third assignment is sustained.

■We think the learned judge erred in admitting the evidence covered by the eighth assignment. Whether the distress was excessive or whether other property not replevied was “sufficient to satisfy the said rent or a large portion thereof,” was irrelevant in the issue being tried. The pleas were “ rent in arrear, warrant for distraint, &c.” The replication interposed three obstacles to the distress, to wit: First, a denial of tenancy. Secondly, an averment that no rent was in arrear; and thirdly, that the goods in question were not liable to distress.

If any rent was in arrear, it mattered not how much, in this action, the right to distrain existed. If there was none, this evidence could not aid the defendant. If any rent was due the landlord had the right to enter and to distrain. The entry and distress then being lawful in Tact, the plaintiffs were not liable as trespassers for an excessive' distress. The proper remedy in such case is by action on the case founded on the Statute of Marlbridge: McKinney v. Reader, 6 Watts 41. The other assignments of error are not sustained.

Judgment reversed, and a venire facias de novo awarded.


author: Sharswood, J. —

text:
    Foster’s Appeal.
    1. A firm owned real estate purchased with firm funds and held as partnership property, one of the partners died; by arrangement with the survivor, and by order of the Orphans’ Court, the real estate was sold to him for 825,500, at private sale by the administratrix ; he to pay all the firm debts, the indebtedness of the decedent" to the firm and his individual debts for which the firm was liable ; 85500 of the purchase-money to be appropriated to his other debts. Held, that the remainder was to be distributed as real estate.
    2. The general rule is that personal estate is to be first applied to pay a decedent’s debts, even those with which his real estate is charged.
    3. Where land is partnership stock, it never becomes personalty, even during the continuance of the firm so as to give one partner power to dispose of the firm interest in it.
    4. Land is not subject to the rule that each partner is agent of the firm.
    5. Conversion is a doctrine of equity only and is admitted to produce equitable results.
    6. Conversion is at an end when the purpose of the conversion is attained; the land becomes realty, although the proceeds are distributed as personalty.
    7. Firm real estate is personalty for the purpose of paying firm debts and the advances of the partners before any goes to the partners or their separate creditors.
    8. The time of reconversion is the moment the partnership is wound up and it is determined to be no longer partnership stock nor required for its purposes.
    9. Meily v. Wood, 21 P. F. Smith 488, remarked on.
    November 10th 1873.
    Before Read, C. J., Agnew, Sharswood, Williams and Mercur, JJ.
    Appeal from the Orphans’ Court of AllegheMy county: No. 165, to October and November Term 1872.
    John Foster, of the county of Allegheny, died intestate in August 1871, leaving a widow, Belle I). Foster, and five minor children, of whom W. W. Young was appointed guardian ; administration of his estate was granted to the widow. At the time of his death he was an equal partner with Samuel M. Kier, in mining and selling coal.
    In September 1872, the administratrix and guardian joined in a petition to the Orphans’ Court, setting forth, amongst other things:—
    5. That while in many instances the real estate belonging to the firm was conveyed to them as tenants in common, yet it was purchased with the money of the firm and held as partnership property.
    6. The property consisted of forty-three different parcels, which were minutely set out in the petition by their description, source of title, mode of conveyance, &c.
    7. That the said firm of Kier & Foster were at the time of the death of said John Foster, and are now, largely indebted for purchase of coal-lands and for other liabilities, requiring, to prevent loss, an immediate sale of the interest of said Foster in the said firm property, and thaft your petitioners have made great personal efforts to effect a sale thereof, but have hitherto been unable to do so.
    8. That the said Samuel M. Kier has proposed to purchase the interest in said firm and in the property of said firm, real and personal, of the said John Foster, his late copartner, for the sum of $25,508.30, he, the said Samuel M. Kier, assuming to pay all the said John Foster’s share of the indebtedness of the firm of Kier & Foster, and of unpaid purchase-money and liens upon said property, and of debts due to the said firm by the said Foster, including said Foster’s individual notes endorsed with the firm name, said purchase to be made as of the 1st day of May, A. d. 1872, tie the said Kier to fulfil all the contracts of the said firm for sales of lots to miners and others, and all other firm contracts, the said Kier to- have advantage of the time which any of the debts of the said firm may be entitled to, and the right for nine months from the acceptance of his said offer, to use the firm name in the liquidation of the floating debt, the said sum of $25,508.30 to be paid and secured as follows, viz.: The sum of $5500 in cash upon the delivery of the deed, the balance to be paid, one-fourth in three years, one-fourth in four years, one-fourth in five years, and one-fourth in six years, with interest payable semi-annually from May 1st 1872, the said deferred payments to be secured by mortgage of the entire coal land owned by said Foster and by said Kier.
    9. That owing to the fact that the said interest of the said Foster is undivided, and its liability for the debts of the said firm, your petitioners believe and represent, that it would be greatly to the advantage of all interested- that the same should be sold at private, instead of public sale, and the proposition of the said Kier should be accepted, the price offered being, in the opinion of your petitioners, a better price than could be obtained at public sale; that the price offered is the actual value of the interest of said John Foster, upon the following valuations of'the property and assets of the firm, deducting therefrom the liabilities thereof, viz.': (Setting out a statement of assets and liabilities of the firm and liabilities of the decedent, showing the value of his interest to .be $25,508.30.)
    The petition further represented that there yet remained debts not of record of the estate of the said John Foster to be paid, which would require a portion of the purchase-money of this sale, if it be permitted by the court.
    10. That they unite in this petition and in the prayer thereof for the purpose of removing any question which may arise from the fact that several of the said properties have been conveyed to the said John Foster and Samuel M. Kier as tenants in common and not expressly as partners. They further represent that, in addition to the fact that the same were purchased with partnership funds, it would be greatly to the disadvantage of the said John Foster’s estate were any of the said properties to be severed from the partnership property, as the heavy expenditures made for cars and car-tracks could not be profitably employed upon a less body of coal than is included in the foregoing property, and such severance would result in the depreciation in value of such cars, tracks, &c.
    The prayer was for a decree: “That your petitioners shall make the sale of the said interest of John Foster as aforesaid to-the said Samuel M. Kier, upon the terms aforesaid, of all the interest of the said John Foster of and to all the property of the said Samuel M. Kier and John Foster, hereinbefore described, real and personal, and in all the assets of the said firm, and that they jointly execute deeds of conveyance therefor, whether the same be held as partners or as tenants in common, and that they execute and deliver deeds, in fee simple, clear of dower interest therefor, to the said Samuel M. Kier ; she the said Belle D. Foster being willing to join in said deed for the conveyance of her interest therein as widow of the said John Foster,” &c.
    On the 14th of September 1872, the court decreed that the administrator should make a private sale of the land to Samuel M. Kier, “of all the interest late of the said John Foster, deceased, of, in and to all the property, real and personal, in said petition mentioned and described, and in and to all the assets of the late firm of Kier & Foster, and that they jointly execute a deed of conveyance in fee simple unto the said purchaser for the same, convoying unto him as well the interest of said decedent, as the interest of the widow and minor children of decedent for the price or sum of $25,508.30, subject to the assumption and payment by said Samuel M. Kier of all the debts of said firm, and all the said John Foster’s indebtedness to said firm, including said Foster’s individual notes endorsed with the firm name, as they respectively mature; said Kier also individually to assume and discharge all contracts of the said firm for sales of lots to miners and others, and of all other firm contracts, to be paid as follows, viz.: $5500 in cash upon delivery of the deed, and the remainder in four annual payments of one-fourth each.
    “ And it appearing that the said sum of $5500, the cash payment, is required for the payment of the debts of said decedent, the court order same to be paid to the said Belle D. Foster, administratrix, upon her giving security, &c.; and that for the residue of the purchase-money aforesaid, the Samuel M. Kier execute his bond and mortgage as aforesaid to the said W. W. Young, in trust for the widow and children of the said decedent, in the proportions in which they may be respectively interested therein.”
    The court further decreed: “ As to the respective interests of said widow and heirs in the aforesaid purchase-money, the court do adjudge and decree that the same, as between said, widow and heirs, shall be considered and treated as the proceeds of real estate, and it is ordered, adjudged and decreed that the said Wm. W. Young shall pay over to the said Belle I). Foster, widow of John Foster, deceased, during her natural life, the interest on the sum of $6669.46, and that he keep the principal sum of $6669.46, during the life of said widow, invested in real estate security, and at her death.pay the said principal to the children of the said John Foster, deceased.”
    Mrs. Foster appealed to the Supreme Court, and assigned for error the part of the decreé making distribution.

      M. W. Aeheson, for appellant. —
    As between the partners themselves, land bought for partnership purposes and paid for out of partnership funds, is partnership property, though conveyed to the partners as tenants in common-: Abbott’s Appeal, 14 Wright 234; Meason v. Kaine, 13 P. F. Smith 335; Kramer v. Arthurs, 7 Barr 165; Overholt’s Appeal, 2 Jones 222; Hoxie v. Carr, 1 Sumn. 172. The property of a partner in partnership land is personal estate and distributable as such upon his decease: Ripley v. Waterworth, 7 Ves. 425; Phillips v. Phillips, 1 Myl. & K. 649; Broom v. Broom, 3 Id. 443; Morris v. Kearsley, 2 You. & C. (Ex.) 139; Houghton v. Houghton, 11 Sim. 491; Darby v. Darby, 3 Drew. 495; Essex v. Essex, 20 Beav. 442; Collyer on Partnership, sects. 148, 151; Bisset on Partnership 55, 56; Bindley on Partnership 566. In equity partnership real estate is treated as personalty: Story Eq. Jur., sect. 674; 3 Kent’s Comm. 37, 38; Kramer v. Arthurs, 7 Barr 165; Lancaster Bank v. Myley, 1 Harris 544; Meily v. Wood, 21 P. F. Smith 488; Story on Part., sect. 93 and notes.

      T. Ewing, for appellee,
    cited in support of the doctrine of the decree, Story on Part., sect. 94, and notes; Buchan v. Sumner, 2 Barb. Chan. Rep. 165; Parsons on Part., 383 et seq.; Shearer v. Shearer, 98 Mass. Rep. 107.
   The opinion of the court was delivered, January 5th 1874, hy

Sharswood, J. —

The question raised upon this record may be thus concisely stated: When real estate has been held as partnership stock — the firm dissolved by the death of one of the members —-a settlement and balance ascertained to be due by the surviving partner to the estate of the deceased, is such balance as far as derived from the sale of the realty to he distributed as real or personal estate ? The appellant, who is the widow of John Foster, deceased, who was a copartner of Samuel M. Kier in the firm of Kier & Foster, claims that she is entitled to one-third of the'interest of the said Foster, as ascertained by the settlement, absolutely as personal estate; the decree of the court below awards it to her for life only as realty. The firm property at the time of Foster’s death was composed both of lands and movables. They were engaged in the mining and selling of coal. The appellant, as administratrix, and William W. Young, as guardian of the minor children of John Foster, presented a petition to the Orphans’ Court of Allegheny county, setting forth 1£ that at the time of his death, the said John Foster was an equal partner with Samuel M. Kier, in the firm of Kier & Foster, engaged in the mining and selling of coal, the property of the said firm being situated in the county of Allegheny; that while in many instances the real estate belonging to the said firm was conveyed to them as tenants in common, yet the same was really held by and purchased with the money of the firm as partnership property ; that the said firm of Kier & Foster were largely indebted; that Kier, the surviving partner, had proposed to purchase the interest of Foster for the sum of twenty-five thousand five hundred and eight dollars and thirty cents, he, the said Kier, assuming all the debts and liabilities of the firm; that it would be greatly to the advantage of all interested that the interest of Foster should be sold at private instead of public sale, and the proposition of Kier accepted; that they unite in the petition for the purpose of removing any question which may arise from the fact that several of the said properties have been conveyed to the said John Foster and Samuel M. Kier as tenants in common, and not expressly as partners.” Upon this petition the Orphans’ Court decreed a private sale to Samuel M. Kier, for the sum named, and that the proceeds of sale be treated and considered as the proceeds of real estate, and accordingly distributing and applying the purchase-money between the widow and heirs of decedent. It is from this latter part of the decree that this appeal is taken.

It has not been and cannot be denied, upon the appraisement and settlement of the partnership debts and assets which accompanies the petition, that after discharging all the liabilities of the firm, the interest of Foster in the lands and real estate which formed the most considerable portion of the stock was fairly represented by the sum agreed to be paid for his entire interest. It is the well-settled rule in marshalling the assets of a decedent, that the personal property is to be first applied in the payment of debts. The general principle is that the personal estate is the proper fund for that purpose, and shall be first applied even to the payment of debts with which the real estate is charged: Keysey’s Case, 9 S. & R. 71; Walker’s Estate, 3 Rawle 237; Cadbury v. Duval, 10 Barr 273. This is indeed the unbending rule of our statute law, for no order can be made by the Orphans’ Court authorizing an executor or administrator to make sale of real estate for the payment of debts unless it shall appear that the personal assets are insufficient for the purpose : Act of February 4th 1834, sect. 20, Pamph. L. 80; Act of March 29th 1832, sect. 31, Pamph. L. 198. It is true that it may often happen that where personal property is used in connection with a colliery or manufacturing establishment, it is very much for the interest of all parties that it should be sold together. That is a difficulty which seems inherent in the subject ■ — equally applicable to the property of any decedent — not peculiar to one whose property is an interest in partnership stock. It seems to be considered as well settled, that where land is a part of partnership stock, it at no time — not even during the continuance of the partnership — becomes personalty in such an unqualified sense as to give one partner an implied power to dispose of the whole partnership interest in it. As regards the power of disposition, land held as partnership stock is not subject to the rule which makes each partner the agent of the firm. Neither can sell more than his own undivided interest, unless he have from the other a sufficient special authority for the purpose. This seems to be the inevitable result of the Statute of Frauds, both as to legal and equitable interests or estates: Murphy v. Hubert, 7 Barr 423; Anderson v. Tompkins, 1 Brock. 457; Tapley v. Butterfield, 1 Metc. 515. It follows that the surviving partner could not sell the real estate in conjunction with the personalty. When such a difficulty presents itself, it must be met either by a separate sale of the personalty, or in the mode resorted to in this case. Here we have practically no difficulty growing out of the necessary intermixture of realty and personalty.

For all the purposes of the question before us, this case must thbrefore be considered the same as if after dissolution by the death of one partner, and payment of all partnership debts, and any balance due the surviving partner, there had remained in specie, unconverted, land, the interest of the deceased partner in which is ascertained to be worth $25,508.30. Is the land thus remaining unconverted and in specie to be regarded for the purposes of distribution under the intestate laws, as real or personal ?

This is an entirely new question in this state. It was supposed to arise in Meily v. Wood, 21 P. F. Smith 488, but this court thought otherwise, and distinctly declined to express any opinion upon it. A careful examination of all our determinations has failed to discover either decision or even dictum bearing upon the point. Even Abbott’s Appeal, 14 Wright 234, which has been pressed upon us as an authority, is inapplicable. In that case, although the balance of a fund in court arising from the sale of partnership real estate on an execution against the firm, was awarded to the surviving partners as against the claim of one of them in his own right, and as the executor of a deceased partner, to aliquot shares ; yet as stated in the decree, these surviving partners were “settling the business of the firm,” and it is said in the opinion by Mr. Justice Read, that “ the business of the firm, dissolved by the death of Greorge Abbott, has never been finally settled, and it is alleged by the appellees that the firm is still largely indebted.” We approach the determination of the question, therefore, untrammelled by any authority. Nor will it be necessary to pass in review the fluctuating and discordant opinions in England and our sister states. We are saved this labor by the learned and exhaustive opinion of Chancellor Walworth, in Buchan v. Sumner, 2 Barb. Ch. 165. We are at entire liberty to resolve this important and interesting problem on principle and reason.

Conversion is altogether a doctrine of equity. In law it has no being. It is admitted only for the accomplishment of equitable results. It may be termed an equitable fiction, and the legal maxim in fictione juris semper sulsistit equitas has redoubled force in application to it. It follows of necessity, that it is limited to its end. Lord Eldon advanced this idea while his mind was evidently laboring and in suspense on the general subject. In Ripley v. Waterworth, 7 Ves. 425, he said: “There is an obvious difference from all the cases, which establish this general principle, that where a person dealing upon his own property only, has directed a conversion for a particular special purpose, or out and out, but the produce to be applied to a particular purpose, when the purpose fails, the intention fails; and this court regards him as not having directed the conversion.” There must be some purpose recognised as lawful to be accomplished by a conversion before equity will permit it to have place. Surely it will not be pretended that a man could by a mere declaration of record convert his land into personalty, so as to defeat the lien of mortgages, judgments and other encumbrances, elude the provisions of the Statute of Frauds, and change the course of distribution in case of intestacy. If, however, a trust is created, either by deed or will, with an absolute direction to sell and distribute the proceeds either among creditors or others,- equity considers that as actually done which has been directed to be done, in order to accomplish the lawful intent of the grantor or testator. If it continued land, subject as such to sale, mortgage and encumbrance by the eventual distributees — the present cestuis que trust — the result aimed at might be defeated, and the intention frustrated. So where land is, by the agreement of the partners, made partnership stock, it is. an out-and-out conversion only, because otherwise the objects of the partnership would be defeated, if the sale, mortgage or encumbrance of his separate interest by one partner could prevent the equity of the other partners to have the partnership property applied to the payment of the partnership debts, and the balances which might be due to them respectively. When the purpose of conversion is attained, conversion ends, or more accurately, re-conversion takes place. Thus when the sale under the trust is made, the character of personalty does not follow the land into the hands of the purchaser. The proceeds are personalty and are distributed as such among the cestuis que trust, because that was the very object of the conversion. So with land in partnership when sold by the firm, the land becomes land again in the hands of the. purchaser, and the proceeds personalty, but personalty to what extent ? Only to the extent of accomplishing the purposes of the conversion, namely, the equity of the partners to have the joint debts and their own advances paid before any part goes to the other partners or their separate creditors. In Dyer v. Cornell, 4 Barr 359, where, by order of the Orphans’ 'Court, the land of minors was sold for their maintenance and education, it was held that the proceeds, supposing them to retain the'character of land, lose that and become personalty on the first transmission, though to an infant. The administrator of the minor was decided to be entitled to the money as money. The court, indeed, were of opinion that the sale ipso facto worked a transmutation, but they added, by Coulter, J., “But even admitting that the money in this case bore the impress of real estate, and the inheritable qualities peculiar to lands and houses, in analogy to the case of Lloyd v. Hart, 2 Barr 473, for how many generations or descents shall it wear that complexion ? It must cease as it mingles with other moneys of the distributee, otherwise uncertainty, confusion and litigation will indelibly mark its character. This court is of opinion that it cannot be carried further than the first descent in any case.” The same question is pertinent in regard to the land in the present case. If land, remaining in specie after the partnership is dissolved and wound up, and all the purposes of its conversion answered, is still personal estate, how long is it to remain so ? Certainly all the forms of the law as to realty must be observed in its transmission from hand to hand, and shall it not be subject to the lien of judgments in the lifetime, and debts upon the decease of its owner ? If not, uncertainty, confusion ajid litigation will indelibly mark its character. But it may be asked, when is the precise moment of its reconversion ? The answer is, the moment the partnership is wound up, either by decree, judgment or agreement, and it is determined that it no longer forms a part of the partnership stock, and is not required for its purposes. In Burr v. Sim, 1 Whart. 252, where land was ordered to be converted by will, and the proceeds to be paid to a legatee, it was held that the election by the legatee before any sale, to take the land as land, operated as a new acquisition. It was a purchase of it as land by a surrender of the right which he undoubtedly had to consider it as money. Where, then, a partnership is dissolved, wound up, and completely ended, what can it be but an election of- the land as land, and the reconversion of it ?

It must be remarked, also, that without the order of the Orphans’ Court in this case, the legal title of John Foster to an undivided moiety of the lands could1 not have been conveyed to Samuel M. Kier. We have seen that this is a well-settled point. If it were not so, the appellant as administratrix might have assigned it. She joined in the application to the court with the guardian. The decree for the private 'sale was under the provision of the Act of April 18th 1853, sect. 4, Pamph. L. 505; and the fifth section of that act has declared that, in all cases of sale according to its provisions, “The purchase-money * * * shall in all respects be substituted for the real estate sold * * as regards the enjoyment and ownership-thereof, after the payment of liens, and shall be held for or applied to the use and benefit of the same persons, and for the same estate and interest * * * as the real estate sold had been held.” Under the express provision of the statute, the proceeds of the real estate sold under this order must be considered as of the same character as the land remaining in specie after discharging its liabilities as partnership stock. -On the whole, then, we are of the opinion that the appellant was only-entitled to an interest for her life, and that the decree of the court below was right.

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


text:
    Pittsburg versus Coursin.
    1. An act required that the “ Regulator” should give notice of assessments on lot owners for grading, &e., “ by publication for ten days in two daily papers of (Pittsburg) — “ that the parties may have an opportunity of having mistakes or errors corrected.” Held, to be directory onlyand that the owner might show “ errors or mistakes” in the trial of the suit on a claim for grading, &c.
    2. When words are affirmative and relate to the manner in which power or jurisdiction in a public officer or body is to he exercised and not the limits of the power, they are in general directory.
    8. Kensington v. Keith, 2 Barr 218 ; Pittsburg v. Walter, 19 P. F. Smith 365, distinguished.
    November 11th 1873.
    Before Read, C. J., Agnew, Sharswood, Williams and Mbrour, JJ.
    Error to the District Court of Allegheny county: No. 163, to October and November Term 1873.
    This was a scire facias issued March 16th 1871, by the City of Pittsburg against Benjamin Coursin on a municipal lien filed March 13th 1871, against the defendant. The claim was for $474.30 with interest, expenses, &c., on a lot on Cassatt street, Pittsburg.
    By Act of June 6th 1864, Pamph. L. 1133, the councils of Pittsburg were authorized to grade, pave, &c., any street in the city, and collect the cost, &c., from the owners of property bounding on such street, by an assessment on the feet front of such property.
    The 16th section of the act provided, that when a street, &c., should be graded, &c., it should be the duty of the “recording regulator to make an assessment of the cost and expense, and to give notice by publication for ten days in two daily papers of said city, that the assessment has been made, and may be seen at .his office, and that the parties may have an opportunity of having ^any errors or mistakes corrected.” After such correction the regulator is to hand to the city treasurer the assessment with a plan of each lot, the amount assessed on it, and the name of the owner. Subsequent sections of the Act provided for filing the lien and collecting the amount assessed. On the trial, January 15th 1872, before Hampton, P. J., the record of lien, &c., was given in evidence, hut_there .was no evidence that the notice of the ^assessment was published, as required by the Act of Assembly.
    "“ On motion of the defendant the court entered a non-suit, because the notice was not published according to law.
    The plaintiff removed the record to the Supreme Court by writ of error, and assigned for error the entering judgment of non-suit.

      T. S. Bigelow and I). T. Watson, for plaintiff in error. —
    The provision for notice is directory only: Bladen v. Philadelphia, 10 P. F. Smith 466; Kensington v. Keith, 2 Barr 218; Pittsburg v. Walters, 19 P. F. Smith 365; Magee v. Commonwealth, 10 Wright 388.

      Q-. F. Otilmore and J. M. Kennedy, for defendant in error. —
    The notice was necessary, because there is no appeal from the regulator’s decision, and, therefore, the court could not correct the errors on the scire facias: Stewart v. Maple, 20 P. F. Smith 221; Clinton School District’s Appeal, 16 Id. 315; Commonwealth v. Woods, 8 Wright 113; Hutchinson v. Pittsburg, 22 P. F. Smith 320; Pittsburg v. Walters, Commissioners v. Keith, supra.

   The opinion of the court was delivered, November 21st 1873, by

Sharswood, J. —

The provision of the sixteenth section of the Act of Assembly of January 6th 1864, Pamph. L. 1133, requiring the recording regulator of the city of Pittsburg “ to give notice, by publication for ten days in two daily papers of the said city,” of assessments for grading and curbing streets, “that the parties interested may have an opportunity of having any errors or mistakes corrected,” is in our opinion directory merely. Where the words are affirmative, and relate to the manner in which power qt jurisdiction vested in a public officer or body is to be exercised, and not to the limits of the power or jurisdiction itself, they will in general be so construed: Bladen v. Philadelphia, 10 P. F. Smith 466. In Magee v. The Commonwealth, 10 Wright 388, it was accordingly held that the provision of the Act of May 16th 1857, that assessments made by the appraisers, as directed by that Act, should be filed in the office of the prothonotary by the city solicitor within twenty days after they were made, was not so mandatory as to invalidate the assessments if it was not complied with. It was decided to be merely directory. This is not the case of a proviso limiting an authority before given, as in Kensington v. Keith, 2 Barr 218. Nor is it a pre-requisite to the vesting of jurisdiction, as in Pittsburg v. Walters, 19 P. F. Smith 865, where the law gave authority to grade only on the application of a majority of the lot holders on the street. It is true that we ruled in Hutchinson v. Pittsburg, that where due notice has been given, the assessment is conclusive upon the party, but it does not follow that if not given the assessment is thereby wholly invalidated, but only that it is not conclusive. The party may show errors and mistakes, and have them corrected on the trial of the scire facias upon the claim.

Judgment reversed, and procedendo awarded.


text:
    Peters et ux. versus Ulmer et ux.

    1. In an action of slander the defendant may plead both “ not guilty” and “justification.”
    2. Pleas that are inconsistent may be pleaded together.
    3. The discretion vested in the court by stat. of Anne c. 16, sect. 4, to refuse leave to put in more than one plea, is a legal discretion to be exercised only when good reason exists.
    4. Smith v. Kessler, 8 Wright 142, recognised.
    November 12th 1873.
    Before Bead, 0. J., Agnew, Sharswood Williams and Mercur, JJ.
    Error to the District Court of Allegheny county: No. 125, to October and November Term 1873.
    This was an action on the case for slander brought to the November Term 1872, of the court below, by Frederick Ulmer and Sophia his wife against John Peters and Margaret his wife.
    The declaration was that Mrs. Peters had uttered words imputing adultery to Mrs. Ulmer. The defendants pleaded “ Not Guilty.”
    On the trial April 8th 1873, before Hampton, P. J., the plaintiff had leave to add the plea of justification, and by order of the (court, the plea of “ Not Guilty’’ was withdrawn. The defendants ■excepted to this order of the court and a bill of exceptions‘was sealed.
    The plaintiffs having given their evidence, the defendants moved ■the court to order a nonsuit, which was refused.
    The defendants then offered evidence, that Mrs. Ulmer had frequently made charges against Mrs. Peters, similar to those charged in the declaration as having been made against Mrs. Ulmer, and that the words alleged to have been uttered were spoken in anger; this for the purpose of mitigating damages.
    The .plaintiffs objected to the evidence as incompetent under the state of the pleadings.

      The evidence was rejected anda bill of exceptions sealed : Judge Hampton saying:—
    “The plea of not guilty was withdrawn by defendant’s counsel before the jury was sworn, and the plea of justification put in. Under this, the only plea in the -case, the evidence is not admissible.”
    The court charged as stated in the 4th assignment of error.
    The verdict was for the plaintiffs for $1400 damages.
    The 98th rule of the District Court is :—
    “ It has long been a rule of this court that in actions of slander and libel a justification must be pleaded — the old practice of pleading not guilty with have to justify having been abolished.”
    The defendants took a writ of error; they assigned for error,
    1. Ordering the defendants upon their pleading “justification,” to withdraw the plea of “Not Guilty.”
    2. Rejecting the defendants’offer of evidence. ■ v
    3. Refusing a nonsuit.
    4. Charging : “ The charge was that of adultery committed at different times with a number of men. The defendants plead justification, that is, that the charges were not only made, but that they are true. Under this plea, the defendants were bound to prove the truth of these charges to the satisfaction of the jury.”

      W. B. Moore, for plaintiffs in error. —
    Double pleading is allowed in slander: Steinman v. McWilliams, 6 Barr 174; Minesinger v. Kerr, 9 Id. 313; Kay v. Fredrigal, 3 Id. 221; Petrie v. Rose, 5 W. & S. 364.

      J. Barton, for defendants in error,
    cited: Smith v. Smith, 3 Wright 442; Steinman v. McWilliams, 6 Barr 174.
   The opinion of the court was delivered, November 21st 1873, by

Sharswood, J. —

The first assignment of error is, that the court below refused to allow the defendant to plead “ not guilty” as well as justification, and in ordering the defendant to withdraw the plea of “ not guilty.” The ground upon which this order was made appears to have been that the pleas were inconsistent. Under the statute of 4 Anne, c. 16, sec. 4, Roberts’s Digest 42, which first permitted a defendant, with the leave of the court, to plead as many several matters as he should think necessary for his defence — it was the practice at first for the court to refuse leave when the proposed pleas were inconsistent, but in modern practice such pleas, notwithstanding the apparent repugnancy betAveen them, are permitted: 1 Troubat & Halv, part 1, p. 470. Thus, to go no further, what seems to be more inconsistent than to an action upon a bond to plead non est factum and payment — to deny the execution of the bond by the defendant, and yet to allege that he had paid it ? The onlyfexception which appears to be recognised is the general issue and tender, and there is a good reason, perhaps, for not allowing these to be pleaded together; for if a verdict were found for the defendant on the general issue, this incongruity would appear upon the record, that nothing was due, though the defendant had admitted on the record, by pleading the tender, that something was due: Maclellan v. Howard, 4 Term Reports 194. In Kerlin v. Heacock, 3 Binn. 215, the short entry of “not guilty, with leave to justify,” was considered, as in fact several pleas of not guilty and a justification, and no remark was made by the court as to their inconsistency. In truth they are not inconsistent. The defendant in slander may believe and allege that he never used the words imputed to him, but as human testimony is fallible and uncertain, he may well fortify himself by adding, if the plaintiff succeeds in proving that I did say the words, they were true. Against an unscrupulous plaintiff of bad character — especially since the Act of Assembly allowing him to be a witness in his own behalf — it may be the only safe line of defence. The discretion vested in the court by the statute of Anne to refuse leave to put in more than one plea, is clearly a legal discretion, not to be exercised unless good reason exists. Where, as here, it was refused to allow an amendment of the pleadings, it was error, under the Act of March 21st 1806, sect. 3,4 Smith’s L. 329. In Smith’s Administrator v. Kessler, 8 Wright 142, where, after a plea of payment, the defendant was refused leave to put in a plea of non assumpsit, this court reversed the judgment.

Nor can we see that the case is helped by the rule of the court below, relied on by the defendant in error. That rule was evidently intended to abolish the loose mode of pleading “ not guilty, with leave to justify,” which had been condemned by this court in Kerlin v. Heacock, and to compel a defendant to set out in a formal plea of justification what matter he intended to rely on as such. That, indeed, was an action of trespass de bonis asportatis ; but the same reason applies in libel and slander. The defendant is entitled to have the matter formally spread upon the record— the accusation which he may be called on to meet, if it be of an indictable offence.

Upon the state of the pleadings, after the withdrawal of the plea of not guilty, the second and fourth assignments cannot be sustained. The third assignment is to the refusal of the court to award a peremptory nonsuit. If it was an error it is clearly not lv viewable here.

Judgment reversed, and venire facias de novo awarded.