author: Sbtarswood, J.

text:
    Burt et al. versus Herron’s Executors.
    1. Mere precatory words will not convert a legatee or devisee of an absolute gift, into a trustee unless it affirmatively appear they were intended to be imperative.
    2. Words expressive of desire, &c. as to the direct disposition of the estate, will constitute a bequest or devise.
    3. All expressions in a will indicative of a testator’s wish or will are commands.
    4. A clause in a will was “I desire that all my just debts, and those of Herron Brothers, be paid as soon as conveniently can be after my dissolution." Held, that this was a direction that the debts of Herron Brothers should be paid out of his estate.
    5. The direction was not an assumption of the debts by which his estate was charged, but a legacy to the creditors of Herron Brothers as a class.
    6. The law courts had jurisdiction to enforce payment of the legacy.
    7. The jurisdiction of the Orphans’ Court is exclusive only when the legacy is charged on land.
    November 5th 1870.
    Before Thompson, C. J., Read, Agnew, Sharswood and Williams, JJ.

      Error to the District Court of Allegheny county: No. 150, to October and November Term 1869.
    This was an action of debt, to November Term 1867, by Charles S. and J. Burt against William A. Herron and others, executors, &c., of John Herron, deceased.
    The declaration was, that the firm of Herron Brothers was indebted, in April and November 1855, to the plaintiffs in the sum of $2201.79 on a dishonored note and money deposited by the plaintiffs with them, and that the deceased, by his will, duly proved, directed that all the debts of Herron Brothers should be paid; which the defendants, as executors, refused. F. J. Herron, W. A. Herron, R. H. Herron, and J. D. Herron, composed the firm of Herron Brothers, and were sons of the testator, and executors of his will. J. D. Herron was dead.
    On the trial before Kirkpatrick, J., July 20th 1869, the plaintiffs offered in evidence the will of John Herron, dated April 9th 1862, and proved May 8th 1863, of which the following is an extract: — •
    “First, I desire that all my just debts and those of Herron, Brothers be paid as soon as conveniently can be after my dissolution. Second, I give, devise and bequeath all my estate, real, personal and mixed, to my beloved wife, Clara, to her and her heirs, for ever.”
    This offer was objected to, rejected, and a bill of exceptions sealed.
    The plaintiffs then made the following offers, all which were rejected, and several bills of exceptions sealed:—
    “ That under their father’s will and by virtue of it, the executors have been paying the debts of Herron Brothers, and as executors promised to pay the debt here sued for.”
    “ That at the time of the making of the father’s will the firm of Herron Brothers was insolvent, and that they wer'Amsolvent at the time of the death of their father.”
    “ That the father intended that the executors should pay the debts of Herron Brothers, and that the clause in the will providing for the payment of the debts of Herron Brothers was inserted for that purpose.”
    “ That the amount claimed in this suit is a valid subsisting debt against Herron Brothers, and unpaid.”
    Judge Kirkpatrick charged :—
    “We instruct you that under the evidence in this case your verdict must be for the defendants, the plaintiffs having in our judgment offered no testimony to entitle them to a verdict. In our opinion, on the construction of the will there is no legal liability upon the part of the estate of John Herron, deceased.”
    Under the charge of the court the verdict was for the defendants. The plaintiffs took a writ of error, and assigned the rejection of their offers and the instruction of the court, for error.

      J. F. White, for plaintiff in error.
    — If the will he doubtful, evidence to show the condition of the testator’s family was pertinent : Marshall’s Appeal, 2 Barr 388 ; Stoner’s Appeal, Id. 428 ; Rewalt v. Ulrich, 11 Harris 388; Earp’s Will, 1 Parsons 457; Jones v. McKee, 3 Barr 496; 2 Phillips on Ev. 637; 1 Redfield on Wills 674, 686. Words of desire, &c., are imperative unless it clearly appears that they are not so used : 1 Jarman on Wills 352; 1 Redfield on Wills 174, 175; 1 Williams on Exrs. 87; 10 Bac. Abr. 539; Coates’ Appeal, 2 Barr 129; Jackson v. Jackson, Id. 212; Pennock’s Estate, 8 Harris 268.

      T. MacConnell (with whom was W. C. Aughinbaugh), for defendants in error.
    — Under the Statute of Frauds, Act of April 26th 1855, § 1, Pamph. L. 308, Purd. 497, pi. 4, the agreement to pay the debt of another must be certain in itself without recourse to parol evidence. The expression in the will is too indefinite to create a legacy: 1 Redfield on Wills 176, 177, 697, 698; 2 Story’s Eq. Jur., § 1069-1073. The plaintiffs as legatees could enforce their claim only in the Orphans’ Court: Ashford v. Ewing, 1 Casey 213; Black v. Black, 10 Id. 354; 2 Redfield on Wills 284.
   The opinion of the court was delivered, January 3d 1871, by

Sbtarswood, J.

— It is undoubtedly true that where a testator makes an absolute devise or bequest, mere precatory words of desire or recommendation annexed will not in general convert the devisee or legatee into a trustee, unless indeed it appear affirmatively that they were intended to be imperative. The authorities, which are somewhat discordant, were fully examined in Pennock’s Estate, 8 Harris 268, and the rule of construction settled upon what seems to be -the most reasonable foundation. But the industry and learning of the able counsel for the defendants in error have not succeeded in finding any case where words expressive of desire, request or recommendation as to the direct disposition of the estate have not been held to be sufficient. Should a testator say merely, “ I desire A. B. to have a thousand dollars,” it would be as effectual a legacy as if he was expressly to direct or will it, or were to add, “out of my estate,” or that it should be paid by his executor. The reason is obvious. A will, in its very nature, is the disposition which the testator desires to have made of his estate after his death. All the expressions in it indicative of his wish or will are commands. It is different when, having made a disposition, he expresses a desire that the legatee or devisee should make a certain use of his bounty. It would have been so had a legacy been left to Herron Brothers, with a desire expressed that they should pay their debts. It would not have constituted them trustees of the fund as to their creditors. They could have paid some, but when the fund was exhausted the rest would have had no claim. None of them would have had any right to come upon it except as the property of their debtors. When the testator in this case declared: “ I desire that all my just debts and those of Herron Brothers be paid as soon as conveniently can be after my dissolution,” it was his will that this should be carried into effect by his executors in the only way in which he could expect it to be done — out of his estate. If it had been intended as the mere expression of a desire that Herron Brothers should pay their own debts, it was singularly out of place and inappropriate, unless accompanied with a bequest to them of the means to do so. The collocation of the words confirms this construction, if it needed any. Certainly he meant to will that his own just debts should be paid out of his estate by his executors as soon as conveniently could be after his dissolution. The debts of Herron Brothers are classed with his own. It is very true that he could not by these, or any other words, put the debts of Herron Brothers on an equality with his own. He could not thus make them his debts. It was not an assumption of them which would make his estate liable for them as debts. There was no consideration to sustain such an assumption. It was a voluntary gift — a legacy to the creditors of Herron Brothers as a class. His own debts were a claim of justice upon his estate paramount to his will. If the estate was not sufficient to pay both, his own debts, of course, must be preferred, and those of Herron Brothers must abate proportionably. There was no uncertainty in the bequest which would render it void on that account. Both the persons of the legatees and the amount to be paid to each were capable of legal ascertainment. Id eertum est quod cerium, reddi potest. Nor was there any difficulty in regard to the jurisdiction of the court. The Act of February 24th 1884, § 50, Pamph. L. 83, gives an action of debt, detinue, account render or an action on the case to any person to whom any bequest of money or other goods and chattels may be made by any last will and testament, and makes special provision for the case of want of assets by a stay of proceedings until an' account can be settled in the Orphans’ Court. It is only when a legacy is charged on real estate that the jurisdiction of the Orphans’ Court has been held to be exclusive under the 59th section of the act, Pamph. L. 84: Downer v. Downer, 9 Watts 60; Craven v. Bleakney, Ibid. 19; Strickler v. Sheaffer, 5 Barr 240. The 4th, 5th and 6th assignments of error are therefore sustained.

Under the construction thus placed upon the will of John Herron, the other assignments of error become immaterial. UndoubtecOy, the fact that the executors had paid other debts of Herron Brothers was inadmissible as any evidence to sustain the action of the plaintiffs; and the construction the executors had put upon the will was immaterial. They could not make the estate liable by their acts or their promise, if in point of law it was not. Even to take the case out of the Statute of Limitations, these would have been unavailable: Fritz v. Thomas, 1 Whart. 66. To charge the executors upon their own promise with proof of assets, the action must have been against them personally, and their promise in writing, by the Act of April 26th 1855, Pamph. L. 308. The fact of the insolvency of Herron Brothers was entirely immaterial, and any parol evidence of the intention of the testator dehors the will clearly inadmissible.

Judgment reversed, and venire de novo awarded.


source: Caselaw Access Project

author: Agnew, J.

license: Public Domain

text:
    McClinton versus The Pittsburg, Fort Wayne and Chicago Railway Co.
    1. If a railroad company enters on land unlawfully without a legal appropriation and assessment of damages, ejectment is the proper remedy and the question is title not charge or encumbrance for the damages.
    2. The right to recover land thus taken, is secured by the 4th section of 7th Article of the Amendments of 1838.
    3. When the Commonwealth exercises the power of eminent domain it must provide the means of payment before taking property; a corporation or individual must pay or secure its price.
    4. A railroad company without appropriation entering upon land, laying their rails, &c., and running their road are not using an easement but are in possession of the land.
    5. Where a railroad company has tortiously entered and taken possession of land, and used it for their road, the owner may proceed in the mode provided by. the Act. of Assembly to assess damages.
    6. Compensation being made, the title of the owner will be vested in the company, leaving them liable for the prior trespass.
    7. The company might proceed to appropriate the land notwithstanding the tortious original entry.
    8. The owner’s right to damages for the trespass is a vested right of which he cannot be deprived.
    9. The petition is not to recover past damages under an unlawful entry, but compensation for a right to be vested in the company.
    10. The compensation assessed is not damages as that which would be recovered for the past trespass, but the price of a purchased privilege.
    11. The Statute of Limitations does not apply to a petition under such circumstances.
    12. The owner may recover judgment in ejectment to entitle him to mesne profits, to which the Statute of Limitations will apply.
    13. The proceeding under the petition is inconsistent with taking possession by execution in the ejectment, and the court may stay execution for possession until the other proceeding be finished and the compensation paid.
    14. Pittsburg p. Scott, 1 Barr 314, Commonwealth v. Wood, 10 Id. 97, Yost’s Report, 5 Harris 524, Harrisburg v. Crangle, 3 W. & S. 464, Delaware, L. & W. Railroad v. Burson, 11 P. F. Smith 369, West Chester v. Hannum, 13 Id. 475, remarked on.
    November 7th 1870.
    Before Thompson, C. J., Bead, Agnew, Sharswood and Williams, JJ.
    Writs of error to the Court of Common Pleas of Allegheny county: No. 151 and 175, to October and November Term 1869.
    On the 14th of April 1868, Robert McClinton presented his petition to the Court of Common Pleas, setting out his ownership of a tract of land; that in 1850 and 1851 the Ohio and Pennsylvania Railroad Company surveyed and built a railroad for about 1900 feet in length over said' tract, and it had been used for a railroad ever since; that some years afterwards the Pittsburg, Fort Wayne and Chicago Railway Company became owners of the railroad, and had continued to use it for railway purposes since; that in 1851 the first-named company appropriated about 25 perches of the petitioner’s land, and by legal proceedings $50 were assessed as his damages which had not been paid; that no legal appropriation had been made for the remainder of his ground used for the railroad. The petition further set out that he had been unable to make any arrangement for his damages, and prayed for viewers to assess the damages, &c.
    The Pittsburg, Fort Wayne and Chicago Company excepted to the petition, “ because it appears therein that the cause of action complained of did not accrue within six years before said petition was filed.” The court, May 5th 1865, quashed the petition for the reasons stated in the exception.
    The petitioner took a writ of error, and assigned for error the quashing of his petition.
    ■ In 1868 McClinton commenced an action of ejectment against the same company for “a strip of land about 1900 feet long and 40 feet wide;” the same land mentioned in the petition.
    The case was tried, June 26th 1869, before Stowe, J. The plaintiff proved his title to the land ; that the road was constructed by the Ohio and Pennsylvania Railroad Company about 1850 for about 1900 feet through his land; that a small portion was by legal proceedings in 1851 appropriated, and damages assessed at $50; the remainder of the land used for the railroad was on the bed of a public road; the public road was afterwards changed by proceedings in the Quarter Sessions, and laid out on the plaintiff’s land, the company agreeing, in writing, to pay him $500, which had not been done.
    The defendants gave evidence of the incorporation in 1848 of the Ohio and Pennsylvania Railroad Company by the states of Ohio and Pennsylvania; and the taking of the ground in disputo for railroad purposes in 1850 and 1851. In September 1852 “ The Ohio and Pennsylvania Railroad Company and other companies were consolidated under the name of The Pittsburg, Port Wayne and Chicago Ráilroad Company.” In January 1857 the new company executed a mortgage on their entire property to secure bonds amounting to $10,000,000. On the 24th October 1861, the railroad was sold under the mortgage to J. Edgar Thomson and others. On the 25th of February 1862 the defendants were organized under authority of a law of Pennsylvania, passed March 31st 1860, and on the 2d of March the purchasers of the road sold it to the defendants. The parties agreed that about 15 perches of the ground described in the writ are not on the bed of the old public road, and that the rest is on the bed of that road.
    The court instructed the jury to find for the plaintiff, reserving the question whether, under all the evidence in the case, he was entitled to recover.
    Judge Stowe directed a judgment for the defendants on the reserved point, non obstante veredicto, saying: “Without undertaking to say that an action of ejectment will not lie in this case, because the plaintiff should be kept to the remedy pointed out by the statute in relation to damages accruing by the taking of land by railroad companies, I think, as more than six years have elapsed, that the Statute of Limitations is a bar to this action.”
    The plaintiff took out a writ of error, and assigned for error: — ■ Entering judgment for the defendants.

      J. F. White, for plaintiff in error,
    cited De Haven v. Bartholomew, 7 P. F. Smith 129; Thoburn v. Schuyl. Nav. Co., 7 S. & R. 411; McKinney v. Monon, Nav. Co., 2 Harris 64; Union Can. Co. v. Woodside, 1 Jones 176; Western Railroad v. Johnston, 9 P. F. Smith 290; The Del. and Lack. Railroad v. Burson, 11 Id. 369; Harrisburg v. Crangle, 3 W. & S. 464. All the actions mentioned in the Act of March 27th 1713, § 1, Sm. L. 76, Purd. 655, pl. 16, are personal actions.

      J. A. Lowrie

    cited Foster v. Cumb. Valley Railroad, 11 Harris 371. He also referred to and commented on the cases cited for the plaintiffs in error.
   The opinion of the court was delivered, January 3d 1871, by

Agnew, J.

— These two cases can be considered together, the parties and the land in controversy being the same. In the ejectment the plaintiff sues for the possession of the road-bed used by the defendants running through his land ; and in the petition for damages, he asks compensation for the right of roadway. The court below decided against the plaintiff in each case, on the ground that his claim was barred by the Statute of Limitations of six years. It is a conceded fact that 15 perches of this land covered by the railroad are not on the bed of the old Beaver road, and are not included in the appropriation proceeding of the Ohio and Pennsylvania Railroad Company, the predecessor of the present railway company. This, therefore, raises a question clearly upon the title of the defendants to so much of the land as was not embraced in the former highway, and not taken by the Ohio and Pennsylvania Railroad Company in due course of law; and how far the title of the plaintiff can be affected by the General Limitation Act of 1718. Both the ejectment and petition were commenced within the two years, contained in the proviso to the Act of 17th April 1860, Pamph. L. 106, and, therefore, that act may be laid out of the case. It is very clear that the title to the possession of land is not barred by the limitation of six years’ adverse possession, but only by twenty-one years under the Act of 1785, and, consequently, the action of ejectment to recover a possession unlawfully taken is not barred by the Act of 1713. How far an ejectment when used as a remedy to enforce a charge on land which is barred by limitation may be defeated thereby, is not the question here. If the company entered unlawfully without a legal appropriation and assessment of damages, the only question which can arise in the ejectment is that of title, not charge or incumbrance. Can a railroad company without a grant, release or legal appropriation, enter on any man’s land nolens volens, and then bar his re-entry by an adverse possession of six years ? The statement of the question refutes the proposition. But the right of the plaintiff stands on higher ground than a mere act of the legislature. The 4th section of the 7th article of the amendments to the Constitution addpted in 1838 provides that “ the legislature shall not invest any corporate body or individual with the privilege of taking private property for public use without requiring such corporation or individual to make compensation to the owners of said property, or give adequate security therefor, before such property shall be taken.” This is a great right of protection not to be frittered away by construction, especially in times like these, when the power of vast railroad corporations has grown so formidable. The 10th section of the 9th article of the Constitution of 1790 provides that no man’s property shall be taken or applied to public use without the consent of his representatives and without just compensation being made. Under this section it was held not to be necessary that the compensation should be actually paid before the property is appropriated, if a sufficient provision for compensation be directed by the legislature. This is said by Rogers, J., in Pittsburg v. Scott, 1 Barr 314-15, a case decided after 1838, but one in which a municipal corporation took property under an act passed in 1836 before the adoption of the amendment. The amendment of 1838 is not referred to or noticed in the argument or the opinion, and the doctrine was announced on the authority of New York cases. The same judge repeated his language in The Commonwealth v. Wood, 10 Barr 97, citing Pittsburg v. Scott, 1 Barr 309. This case was also that of a municipal corporation, and no reference was made to the amendment. I refer to these cases not as standing in the way, but to distinguish them; and because they stand as the types of others. The amendment of 1838 was adopted to remedy a growing evil arising from the exercise of the power of eminent domain by private corporations and individuals, who afterwards became insolvent or unduly refused compensation, putting the owner to the expense of litigation to secure his rights. The difference in the exercise of the power of the state between private and public hands is stated by Lewis, J., in Yost’s Report, 5 Harris 524, who refers to the purpose of the amendment of 1838, and says, quoting the language of Gibson, C. J., in Mon. Nav. v. Coons, 6 W. & S. 114, the difference between the two classes of cases has been held to he that a corporation or an individual must pay or secure the price of the property before it is taken; hut the state must provide the means of payment at the passing of the act. It-was in this spirit in Western Railroad Co. v. Johnston, 9 P. F. Smith 296, when discussing an attempt to reduce the rights of the landowner to the condition of a subordinate lien, we said, the owner who has never parted with his right stands on the higher fundamental right of property; that no one shall take and use it for the public purpose of a railroad without just compensation being made to him, and that this sacred constitutional right shall not be spirited away by refinement. The Ohio and Pennsylvania Railroad Company, a corporation of foreign parentage and hij’th, was adopted into the Pennsylvania family of corporations, with this feature in its charter. The 9th section provided, that it should first deposit with the clerk of the Court of Common Pleas a description of the rights and interests intended to be appropriated, and if unable to agree with the owner touching the damages, legal proceedings should take place to assess them; which being finished, it declares that “ thereupon such corporation shall pay to the said clerk the amount thus assessed or secure the payment to the satisfaction of such court or of the-judge issuing the warrant (to appraise), and on making payment or tender thereof to said clerk or on giving such security as may be required, it shall he lawful to hold the interests in such lands or materials thus appropriated.” It is evident, therefore, from the requirement of the constitution and of the charter, that this corporation took no title to the 15 perches not appropriated by due legal process. Ejectment is the proper remedy in such a case. The owner is not bound to suffer an unlawful intrusion, and afterward fight an unequal battle for compensation. The argument that ejectment will not lie against one using a mere easement does not apply here; because actual possession has been taken by the trespassing company, by building and fastening its structures upon the soil, and by daily and hourly use of them; and also because no easement has ever been acquired : it is simply an unlawful entry upon and taking of the road-bed and using it to the exclusion of the owner. It is not the case of fleeting and occasional footsteps, which print no trace upon the earth. The court below erred therefor in considering the case as to the 15 perches as a mere question of damages, and applying to it the six years’ limitation.

The next thing is the petition for damages of the plaintiff as the owner of the soil. The first observation to be made is that it is evident the proceeding cannot apply to so much of the roadway as had been already appropriated by due course of law. As to that much the former proceeding must govern. But as to so much as never has been legally appropriated there can be no objection to the petition, even though the original entry of the company was tortious. The owner may waive his constitutional right to insist on ousting the trespasser, and proceed for compensation, which, upon being made, will divest his title and vest it in the company, leaving them liable only for the prior trespass. This much was said in the Borough of Harrisburg v. Crangle, 3 W. & S. 464, and there can be no objection to the doctrine, for it is still in the power of the company to proceed to appropriate the land for future use, notwithstanding the tortious character of the original entry, for which it is left to answer. The owner’s right to damages for the trespass is a vested right of which he cannot be deprived, but as to that use which is yet to come, the legal remedy for appropriation and compensation may he exercised by either party. The court erred, therefore, in quashing the petition. The petition, properly used, is not for the recovery of past damages under an unlawful entry, but for compensation for a right to he invested in the company. Though the latter is often denominated damages its subject is essentially different from the former. It is called damages only in the sense of an unliquidated demand, hut in its nature it is the price of a purchased privilege. On the contrary the claim for the tortious entry and illegal user of the land is purely and properly damages. It is obvious, therefore, that the Statute of Limitations is not applicable to the petition, which does not determine, unless by consent of the parties, the former damages for intrusion, but compensation only for the future use; leaving the former damages to be settled in a common-law form, according to Harrisburg v. Crangle, supra. There is nothing, therefore, to prevent the plaintiff from taking judgment in the ejectment to entitle himself to his action for damages as mesne profits, in which the application of the Statute of Limitations to the former damages becomes visible, and the true distinction between the action for the title and the action for the damages is brought to light. But the proceeding under the petition is inconsistent with the taking of possession by execution in the ejectment, and therefore the court would be justified, after judgment therein taken, to secure the plaintiff’s title, and enable him to recover his past damages, in staying execution for possession until the proceeding under the petition shall have been finished, and the compensation paid, which would thereby vest title to the easement in the company, and leave them liable only for the past damages for their unlawful intrusion into possession.

It is proper now to add that we are not unmindful of the decision in Hannum v. Borough of West Chester, 13 P. F. Smith 475, made in Philadelphia at the last session. That was not a case of actual taking, but of consequential damages from the diversion of a stream of water, and was ruled upon the special remedy provided by the legislature. It will be found, on an attentive reading of the opinion there, that, though reasoned differently, the fundamental principles of the opinion are the same as these now enunciated. To prevent misconception, however, the Chief Justice, Justice Williams concurring with him, took occasion to say, in concurring in the judgment, that he did not agree that the statute of limitations of actions is a bar in any case of taking under the right of eminent domain. I was not present at the argument of'that case.

Nor do we overlook the case of The Delaware, &c., Railroad Co. v. Deborah Burson, 11 P. F. Smith 369. The proceeding there was upon a petition for damages. The entry of the company was in 1853 and the .road was not completed until 1856, while the proceeding was instituted in 1861, less than six years after the completion of the road, and it recited and adopted the original entry of the company in 1853. Besides, the entry had been made under the written release of Deborah Burson, but who, being a married woman, and her husband not joining in the writing, though consenting thereto, was seeking by this means a greater compensation than the one dollar stated in the writing. The Statute of Limitations was pleaded as a bar to the entire proceeding by petition, and not merely to cut off the antecedent damages, the company not choosing to make any point as to them. The question arose upon the following point: “ Under the evidence in this case the plaintiff’s entire cause of action accrued and the statute began to run more than six years before the commence-' ment of these proceedings; that before that time the road had been surveyed and located, the right of the plaintiff to sue for damages was complete, and she cannot recover in this proceeding, because more than six years have elapsed from the location of the road and from the death of her husband, James Burson.”

This court held on this point that the special statutory proceeding for damages was not within the general Statute of Limitations. There the plaintiff was willing to waive the trespass and claim her damages under the statutory proceeding, while the defendants, nothing loth to accept this mode of ending the controversy, made no question upon her right to recover damages for the trespass in the statutory mode. Hence, the question of limitation arose wholly upon the proceeding under the statute, and for that reason it was held that the General Limitation Act of 1713 was no bar. But in the present case the plaintiff, though reciting the entry of the railroad company in 1851, did not rest his right of recovery on that ground, but, by his ejectment, contested the lawfulness of the entry by the company, and still insists on his title to the land itself. • The two cases are, therefore, widely different, and the recovery in the ejectment will turn the right of the plaintiff to recover his damages for the unlawful entry and possession into a common-law form of action.

In the action of ejectment the judgment of the court below is reversed, and a venire de novo is awarded; and in the proceeding by petition the order of the court quashing the same.is reversed, the petition reinstated, and a procedendo awarded.


author: Sharswood, J.

text:
    Kincaid’s Appeal.
    1. A preliminary injunction should not be awarded on a bill sworn to, unless there be injunction affidavits.
    2. Ground was conveyed to a congregation, which they appropriated for burial; the congregation increased and was divided into three, the ground was conveyed to them as equal tenants in common, burial lots were sold to individuals and burials made. An act authorized the vacation and sale of the ground by commissioners, the removal of the bodies to other lots to be purchased with the proceeds, and after payment of expenses, the payment of the balance to the lot-holders according to their rights to be ascertained by arbitrators to be appointed by the Quarter Sessions. The congregations should be parties to a bill by the lot-holders to restrain the commissioners from carrying out the Act of Assembly.
    3. The Act of Assembly is constitutional.
    4. The certificate to purchasers of lots “ in the burying-ground of the church” was “ to have and to hold the said lots for the use and purpose, and subject to the conditions and regulations mentioned in the deed of trust to the trustees of said church.” This was not evidence of a grant of any interest in the soil.
    5. The certificate was the grant of a license or privilege to make interments in the lots described, exclusively of others, so long as the ground should remain the “ burying-ground of the church.”
    6. Whenever by lawful authority the ground should cease to be a burying-ground, the lot-holder’s right and property ceased.
    7. When it became necessary to vacate the ground for burial, all the lot-holder could claim, was to have notice and an opportunity of removing the bodies and monuments; on his failure to do so they could be removed by others.
    8. The lot-holder accepted the grant on this condition.

      9. The grant of a pew in perpetuity does not.give an absolute right as the grant of land in fee.
    10. The pew-owner takes only an usufructuary right.
    11. If the building be destroyed by casualty the pew-owner’s right is gone.
    12. If the church has to be rebuilt on the same or a different location the pew-owner has no claim.
    13. The disinterment of a body is a misdemeanor at common law.
    14. The power of disinterment is a police power and can be delegated by the legislature to municipalities.
    15. Every right from an absolute ownership to an easement is held subject to the restriction that it shall so be exercised as to injure others.
    16. Every purchaser is bound to know that, although at the time of his purchase the exercise of his right may be inoffensive, it may become otherwise by residence of many others in the vicinity and must yield to laws for suppressing nuisances.
    17. The owner of a burial lot in which no interment has been made, loses the use of his lot by a law prohibiting interments there, and is not entitled to compensation.
    18. In such case his property has not been taken for public use.
    19. The state has the right’to regulate the use of all" property for the public good.
    20. Where one covenants not to do a lawful thing and the legislature afterwards compels him to do it, the law repeals the covenant.
    November 7th 1870.
    Before Thompson, O. J., Read, Agnew, Sharswood and Williams, JJ.
    Appeal from the decree of the District Court oí Allegheny county: In Equity: No. 152, to October and November Term 1869.
    ¡, This was a bill filed October 1st 1868, by David Boyd and seventy-three other persons against Philip R. Kincaid, Richard Parker and William Yankirk.
    The bill set out that the Methodist Episcopal Church of Pitts-burg, incorporated in January 1884, purchased from John Keating, a lot on the plan of lots on Grant’s Hill, now in the 11th ward, Pittsburg, for a graveyard; that the church laid out the ground in walks, paths, and burial lots, numbering and marking the lots for sale, except a portion reserved for strangers; the lots were sold; the ground had been used for a cemetery since 1834 and ornamented by the lot-holders at a cost of many thousand dollars ; that the plaintiffs had bought or inherited lots in the cemetery ; that there was still room in some of the lots for burial.
    The following was a certificate for a lot to one of the plaintiffs, the same form being always used:—
    “ Pittsburg, April 18th 1835. This is to certify that David Boyd, a subscriber, in consideration of the sum of $10, by him paid to the trustees of the Methodist Episcopal Church of the city of Pittsburg, the receipt whereof is hereby acknowledged, is entitled to two burying-lots in the burying-ground of said church, 8 feet wide by 16 feet long, and numbered in the plan of the same Nos. 31 and 32. To have and to hold the said lots for the use and purpose, and subject to the conditions and regulations mentioned in the deed of trust to the trustees of said church, in testimony whereof I hereby affix the seal of said church.”
    That the defendants, claiming to act under an Act of Assembly, in March, April and May 1868, without the consent of the plaintiffs and against their protest, dug up the greater part of the bodies in the stranger’s portion, and some in the lots, destroyed the shrubbery, monuments, &c., and were proceeding to take up the remainder, when they were stopped by the Board of Health, and that they threatened to continue, &c. The plaintiffs averred, that they, with other lotholders, are owners of nearly all the cemetery, having bought or inherited the same, and that whatever title the corporation held was for their use; that the Act of Assembly was unconstitutional. The hill further alleged that the defendants did not act according to the Act of Assembly; that they committed outrages in the removal, &c.
    The prayer was that the defendants might be perpetually enjoined from digging up and removing the dead, &c., and for general relief.
    The bill was sworn to by three of the plaintiffs.
    The defendants answered that they had removed a number of bodies, and purposed to remove the remainder, acting in so doing under two Acts of Assembly, copies of which they appended to their answer; that they had in all things endeavored in good faith to carry out the provisions of the acts, and had tried to meet the wishes of the friends of the deceased, by removing the bodies to such cemetei’ies as they designated; that they made an agreement with another cemetery to furnish suitable ground and inter some of the bodies; they denied outraging or otherwise improperly acting with the cemetery; that for several years the ground had been abandoned as a burial-place, the churches having charge of it being without income for the purpose, not keeping it in order but suffering the fences to go down; that it was advertised to be sold for municipal claims and would have been sold had not the defendants ' paid them; that it was exposed to daily intrusion and desecration; that its vacation as a burial-ground and sale for other uses was a matter of necessity, and the Act of Assembly was constitutional and proper. The answer averred, the neglect of the lots by the friends of those buried there; that the defendants had made many efforts to arrange the compensation with those interested; they had made reasonable offers but were met with unreasonable demands; that the city where the ground lies had been improving greatly; that part of the ground had been taken for a street, &e., &c.
    There were no injunetisn affidavits.
    The first Act of Assembly was passed April 18th 1867.
    It recited the purchase of the ground for a burial-ground for the church; that at the time of the purchase all the members of the church in Pittsburg belonged to one congregation, which had so increased that they had been organized into three congregations, the Liberty Street, the Smithfield Street and Wesley Chapel, each having its own charter and a separate board of trustees; that by direction of a corporation meeting on the 7th of June 1849 the burial-ground was conveyed to the three congregations to be held by them as equal tenants in common ; and that the interest of Wesley Chapel had since been transferred to the Centenary Board of the Pittsburg Conference of the Methodist Episcopal Church; that by the growth of the city, and the opening of incorporated cemeteries, the ground had ceased to be used for interments, many bodies had already been removed and it was necessary to remove the remainder, and to vacate the ground for burial purposes, &c.
    The 1st section forbade interments in the ground.
    The 2d directed the commissioners appointed by the act to purchase suitable lots in incorporated cemeteries and remove all remaining bodies and have them decently interred, and set up at the new graves the gravestones standing in the burial-ground, notice to be given of the intended removal.
    The 3d authorized the commissioners, after the removal of the bodies, to sell the burial-ground, and declared that the purchasers should be vested with “ a perfect and indefeasible fee-simple title, free and clear from all claims or interests of the same corporations and of all owners of lots in said burial-ground.”
    The 4th directed that the proceeds of sale should be appropriated, 1. to paying for the new lots and the expenses of removal: 2. compensation to lot-owners in the old ground: 3. The residue, after defraying other necessary expenses, should be distributed equally between the Liberty Street and the Smithfield Street congregations and the Centenary Board.
    The 5th provided that if the commissioners could not agree with lot-owners, the commissioners might apply to the Court of Quarter Sessions of Allegheny county, who should appoint arbitrators to examine the claims and report what should be paid to the lot-owners; their report, when approved by the court, should be final.
    The 6th appointed Edward Heazleton of the Centenary Board, and the defendants, Philip R. Kincaid of Liberty Street congretion and Richard Parker of the Smithfield Street congregation, commissioners. Heazleton having declined to act, William Van-kirk, the other defendant, was appointed in his place by Act of February 14th 1868.
    The case was heard before Hampton, P. J., who, in his opinion, after stating the allegations, &c., in the bill and answer, and the Act of Assembly, said:—
    * * * “ Here we have the naked question presented whether or not this act of the legislature is constitutional ? If it is, then the injunction to restrain the defendants from proceeding in a proper manner, under the act, must be refused, but if it is not, then it must be awarded.
    “ By the 4th section of the constitution it is provided that 4 the legislature shall not invest any corporate body or individual with the privilege of taking private property for public use, without requiring such corporation or individual to make compensation to the owners of said property, or give adequate security therefor before such property shall be taken.’
    44 Under this article it has been held by the Supreme Court that it is not necessary that the compensation to the owners should be actually ascertained and paid before the property is appropriated; but it is sufficient if an adequate remedy be provided by which he can obtain compensation, without any unreasonable delay.
    44 The latter clause of the 10th section of the 9th article declares, 4 Nor shall any man’s property be taken or applied to public use without the consent of his representatives, and without just compensation being made.’ And by the 9th section of this article it is declared that a person cannot 4 be deprived of his life, liberty or property unless by the judgment of his peers or the law of the land.’
    44 The words 4 taken’ and 4 deprived,’ in these two sections, hav6 been construed by the Supreme Court to mean one and the same thing. In Sharpless v. The Mayor of Philadelphia, 9 Harris 166, Black, C. J., says, 4 the word 4 take’ is one of the commonest and plainest in the language, and cannot easily be misunderstood by a lawyer or layman. As used in the constitution, it has universally, in this state and elsewhere, been interpreted to mean a taking altogether, a seizure, a direct appropriation, dispossession of the owner.’ In the same opinion he says, 4 the word 4 deprived’ in this section (sec. 9, art. 9) has received the same construction as the word 4 taken’ in section 10, and for reasons equally clear and strong.’
    44 Have these plaintiffs such a 4 property’ in their lots as is contemplated by the constitution ? They purchased and paid for them a great many years ago, took possession, ornamented and improved them, and have had the exclusive and continued possession ever since. Nor is this all. The president of the corporation, from which they purchased, under the seal of said corporation, gave each of them the certificate hereinbefore copied.
    44 It is not necessary that they should have a fee simple or any estate of a fixed and determinate period; nor is it necessary that the 4 property’ mentioned should be in land. It is enough if it be recognised as ‘property’ by the laws. Under the facts in this case, therefore, it cannot be alleged that they had not such property as would entitle them to protection.
    “Nor can it well be denied that, if the provisions of this Act of Assembly are carried out, they will be ‘ deprived’ of that property.
    “ The next question in order to be considered is — whether this Act of Assembly makes adequate provision for compensation to these lot-holders ? The 5th section contains the only provision on the subject. * * *
    “ These commissioners are not required to give bail, nor are they directed, in case of disagreement with the lot-holders, to apply to the court for viewers or arbitrators, before the property is sold, deeds made and money received ; nor is there any authority given to the lot-holders at any time, before or after their property is sold, to apply to the court for viewers; nor does it seem to be obligatory on the commissioners to apply. It says they ‘may,’ but even if that word ‘may’ were construed to mean ‘ must,’ it need not be done until after the purchasers are invested with a title in fee simple, clear of all claims of the lot-holders. Then the right of appeal is not allowed on the question of the value of these lots. Then, again, suppose the property should not sell for enough, after paying the expenses of' removing the dead and purchasing burial-grounds elsewhere, to pay the lot-holders the value awarded to them by the arbitrators, there is no provision for paying the deficiency. The loss must be borne by them, without any means of redress.
    “ These are a few of the reasons, but in my opinion, amply sufficient to show that adequate provision is not made for compensation to the owners of these lots; and for that reason, if for no other, this act of the legislature must be held to be unconstitutional and void.
    “ The only remaining question is — whether this property was taken for public use ?
    “ The only reason assigned by the legislature for the passage of the act is contained in the following clause of the preamble, viz.:—
    “ ‘ And whereas, by the growth of said city, and the opening of several incorporated cemeteries in the vicinity of said city, the said burial-ground has ceased to be used for interments, many of the bodies have already been removed, and it has become proper and necessary' to remove the remaining ones, to vacate the said ground for burial purposes, and to have the same sold and appropriated to other purposes.’
    “ These are the only reasons given. It is not alleged that this burial-ground is in any way injurious to the health of the city, but that persons hav.e ceased to bury there, and that, forsooth, is assigned as a reason for digging up and removing the bones of those who have been interred there. Is the rule to be established in this country that, whenever a graveyard has become full, the remains of the dead must all be removed and the ground sold out for building lots ?
    “ But it is alleged by these defendants that it stands in the way of the growth and progress of the city, and therefore it must be sold out for building lots. What interest has the public in this matter? Whether this sacred depository ■ of the dead shall be permitted to remain as it was, or whether it is to be sold out in lots and covered with dwelling-houses, is certainly a matter of very little moment to the community. If it is to he the settled practice of the state to remove the dead and sell out the cemeteries for private uses, whenever a town or city extends to and beyond the grounds, how long will it be before a similar act, for the same reasons, will be asked for, to sell the Allegheny or any other cemetery, now within the limits of the consolidated city ? Much stronger reasons could be urged for the sale of the Allegheny Cemetery than for this. It is much larger — embracing nearly 200 acres — with beautiful building sites nearly all over it. It presents a much more formidable obstruction to the growth and extension of the city in that direction; and then it would yield a much larger sum of money by selling it out in building lots, to go into the pockets of the corporators.
    “ But it is urged, as a reason for the passage of this act, by the defendants in their answer, that the city of Pittsburg had claims amounting to over $8000 for street improvements, with no means of payment, and that it was about to be sold by the sheriff, when the defendants advanced the money and paid off the debt.
    “ Another reason is assigned, that the city intend to open a street through this ground.
    “ Whether the city councils have or have not authority to do these things, I will not say, for it is unnecessary to decide this question at present. But on the 5th of April 1849 the legislature passed the following act, viz.:—
    “ ‘ Hereafter it shall not be lawful to open any street, lane, alley or public road through' any burial-ground or cemetery,within this Commonwealth, any laws heretofore passed to the contrary notwithstanding.’
    “ Under this act it has been held that a subsequent statute appointing commissioners to survey and lay out such streets within the limits of a borough, as they shall deem necessary, does not empower them to locate a street over any part of a burial-ground.
    “By another Act of the 5th of April 1859 it is provided that ‘ whenever any lot or lots, or the right of sepulture therein, shall be granted to any person or family, by any incorporated cemetery company, or church or religious congregation, within any common enclosure made by such company, church or congregation, as used for the purpose of the perpetual burial of the dead, every and all lots so disposed of or used for burial shall hereafter be free and exempt from all taxation, so long as the same shall be used or held only for the purpose of sepulture.’
    “ Whether the city fathers have obtained any recent legislation on this subject, giving them the power to tax this burial-ground to improve the streets, or to lay out streets through it, I know not, nor is it necessary at present to decide.
    “After the most careful and thorough investigation of this case, I have failed to discover the slightest interest the -public have in the removal of these remains, and the sale and conversion of the property to private purposes.
    “ For these reasons I am clearly of the opinion that the Act of Assembly under which the defendants claim their authority, is unconstitutional, null and void.
    “ Let a preliminary injunction issue, as prayed for, upon the presentation and approval of the proper bond.”
    The defendants appealed to the Supreme Court, and assigned the decree of the District Court for error.

      J F. White and J. J. Kerr, for appellants.
    — The act must be clearly unconstitutional, and allow that which is prohibited by the constitution, the assumption of a power not legislative, or it will be valid: Sharpless v. Mayor, 9 Harris 161; Commonwealth v. Hartman, 5 Id. 119; Commonwealth v. Maxwell, 3 Casey 444; Harney v. Thomas, 10 Watts 63; Commonwealth v. McWilliams, 1 Jones 70. The legislature may prohibit burying in ground covenanted to be for that use: Coates v. Mayor of New York, 7 Cowen 585. They may vacate burial-grounds if public necessity require: Pittsburg v. Scott, 1 Barr 320. The lot-holders had not a right in the land; it is like a pew-right, which will not prevent the sale of the church: Chambers v. Wells, 12 Harris 249; Richards v. N. Western Church, 32 Barb. 42; Price v. M. E. Church, 4 Ham. 515. Private acts authorizing the sale of real estate when the title is defective, or where various interests are involved, are valid: Pittsburg v. Scott, supra; Norris v. Clymer, 2 Barr 284; Fullerton v. McArthur, 1 Grant 232; Custer v. Commonwealth, 1 Casey 375; Mott v. Penna. Railroad, 6 Id. 9; Kneass’s Appeal, 7 Id. 87; Greenawalt’s Appeal, 1 Wright 95.

      R. Woods, for appellee.
   The opinion of the court was delivered, January 3d.1871, by

Sharswood, J.

— This is an appeal from a decree awarding a preliminary injunction. The motion in the court below was upon a bill filed and sworn to, but without any injunction affidavit or affidavits. This is a practice which ought not to be countenanced. The defendant, however, did not take any objection on this account, but put in an answer under oath. Neither bill nor answer is as full as it ought to be; but we may gather from them enough to enable us to decide this appeal.

It appears that in 1884 “ The Methodist Episcopal Church in the City of Pittsburg” purchased a piece of ground for the purpose of a grave-yard, and that it was so dedicated and used. The church was afterwards divided into three separate stations or congregations, and the trustees of the original society conveyed the said lot in 1849 to them as tenants in common. The interest of one of the said congregations has since been assigned and transferred to the Centenary Board of the Pittsburg Conference of the Methodist Episcopal Church. It is not a matter of contention,’ but that subject to whatever rights individuals may have acquired in the graves and burial-lots, the title, legal or equitable, is in these parties. It also appears that in process of time the ground ceased to be used any longer for interments, and many of the bodies had been removed to other cemeteries. The city was growing and becoming closely built around it, and as no income was derived from it by the churches, there were no means of keeping it in proper order, and from its neglected condition it was rapidly becoming a nuisance to the neighborhood. In this state of affairs the legislature passed an Act April 13th 1867, Pamph. L. 1234, entitled “ An Act for the vacation and sale of the Methodist burial-ground in the city of Pittsburg, and for removing the bodies therefrom.” After reciting the facts, it provided “ that from and after the passage of this act it shall be unlawful to make interments in the said burial-ground; and after the removal of the bodies therein, as provided for in this act, the same shall be vacated for burial purposes.” It proceeds to declare that the commissioners to be named in the act should be authorized to purchase one or more suitable lots in some of the cemeteries in the vicinity of the city, and remove thereto all the remaining bodies in the said burial-ground, and have them decently interred; and they shall also remove and set up over the new graves the monuments and tombstones now standing in the said burial-ground over the present graves, with a proviso for the publication of an advertisement of their intention to do so. After the removal, the commissioners are to sell the ground in such manner as they shall deem most advisable and most likely to realize the most money; and the proceeds are to be distributed by them, 1st. To pay the expenses of removal, including the cost of the new lots. 2d. To compensate the lot-holders; and 3d. The balance, after defraying other necessary or incidental expenses, to be divided between the congregations entitled and the Centenary Board. The commissioners are authorized to compromise and settle with the lot-owners, either before or after the removal of the bodies, and if they cannot agree they may apply to the Court of Quarter Sessions, who shall • appoint three disinterested persons as arbitrators to determino how much, if anything, shall be paid to each lot-owner, and their award, when approved by said court, shall be final and conclusive. The defendants are the commissioners appointed by this act and a supplement thereto, passed February 14th 1868, Pamph. L. 167. The congregations interested ultimately, have not been made parties, as it would seem that they ought to have been, but we may assume that the Act of Assembly was passed at their instance. The allegations of the bill, that the defendants are carrying out the act in an improper manner, and not in accordance with its directions, are denied in the answers. So that the only question is, whether as to these ■ complainants the act is constitutional so far as it directs the removal of the bodies and of the tombstones and monuments to some other cemeteries. The learned president of the District Court was of the opinion that this was an unconstitutional infringement upon their rights, and therefore awarded the injunction.

The plaintiffs may be divided into two classes; holders of certificates and holders of interment permits. The certificate set out in the bill states that the subscriber, in consideration of $10 paid by him, is entitled to “ two burying lots in the burying-ground of said church;” “to have and to hold the said lots for the use and purpose and subject to the conditions and regulations mentioned in the deed of trust to the trustees of said church.” This deed of trust is not produced or annexed to the bill. We have printed in the appendix of the paper-book of the appellants the deed of Keating and wife to the Methodist Episcopal Church of the city of Pittsburg; but in this deed no trustees are named. It is a direct grant to the church; expresses no trust — not even the object for which the ground was conveyed. The appellants admit, however, in their paper-book that the deed to the trustees contains no conditions or regulations on the subject. We will assume this to be so. We cannot, however, consider the certificate as evidence of a grant to the lot-holders of any interest or title in the soil; and if this is so of course not the interment permits. Had it been so intended it would surely have contained words of inheritance. Taking it for a grant it is only for the life of the lot-holder, and at the very time it would be needed for his own interment his title would cease. Without any accompanying conditions and regulations it is a very loose paper. We hold that it was the grant of a mere license or privilege to make interments in the lots described, exclusively of others, as long as the ground should remain “the burying-ground of the church.” Whenever by lawful authority it should cease to he a burying-ground his right and property would cease. The lot-holder purchased a license— nothing more — irrevocable as long as the place continued a burying-ground — but giving no title to the soil. Whether it was an incorporeal hereditament descendible to him, or passed on his death to his personal representatives, it is unnecessary to decide. While the license continued he could, perhaps, bring trespass or case for any invasion or disturbance of it, whether by the grantors or by strangers. But if in the course of time it should become nec.essary to vacate the ground as a burying-ground, all that he could claim, either in law or equity, would be that he should have due notice and the opportunity afforded to him of removing the bodies and monuments to some other place of his own selection, or that on his failing to do so such removal should be made by others. He accepted the grant or license subject to this necessary condition. We are not without decisions in our sister states in support of this view. In Windt v. The German Reformed Church, 4 Sandf. Ch. Rep. 471, it was held that the sepulture of friends and relations in a cemetery belonging to a religious society, confers no right or title upon the survivors, and they cannot prevent the sale of such cemetery by the corporation and the removal of the interred remains, when such removal is in other respects conducted according to law; and in that case the Vice-Chancellor remarked: “ the only protection afforded to the remains of the dead interred in a cemetery of this description, is by the public laws prohibiting their removal, except on the prescribed terms, and in a still stronger public opinion. Probably these furnish all the protection which is consistent with the exigencies of a large city, the population of which increases with marvellous rapidity, and whose wants leave but little room for the remains of the dead in the dense and crowded haunts and thoroughfares of the living.” He adds, speaking of such a grant or permit: “ It confers the privilege of sepulture for such body in the mode used and permitted by the corporation, and the right to have the same remain undisturbed so long as the cemetery shall continue to be used as such, and so long also, if its use continues, as such remains shall require for entire decomposition ; and also the right in case the cemetery shall be sold for secular purposes to have such remains removed and properly deposited in a new place of sepulture.” In Richards v. The North-West Protestant Dutch Church, 82 Barb. 42, it was held that the sale of a church vault gave the right of interment in that particular plat of ground so long as that and the contiguous ground continued to be occupied as a church-yard. Every person purchases such privilege with the full knowledge and implied understanding that change of circumstances may in time require a change of location. He cannot, therefore, have an injunction to prevent the disposition of the soil and the removal of the remains. See also Price v. The Methodist Episcopal Church, 4 Ham. 515. The grant of a pew in a church edifice creates a kind of right which appears to he in all respects analogous to that of a burial lot in a grave-yard. In regard to pews there have been many more determinations than in regard to burial lots, and the voice of the authorities is uniform and clear. The grant of a pew in a church edifice in perpetuity does not give to the pew-owner an absolute right of property as in a grant of land in fee. He has a limited usufructuary right only. He must be presumed, from the very nature of the subject-matter, to have taken the grant under, all the conditions and limitations incident to such property. If the edifice becomes useless by dilapidation, or is destroyed by fire or any other casualty, the right of the pewowner is gone. So if from age, decay or other injury the house has to be rebuilt in the same place, or from some necessary cause the location must be changed, the old edifice sold and a- new one erected on another spot, the pewholder has no claim either in law or equity. It is said, indeed, in some of the cases that if the congregation or parish, from mere motives of convenience or ornament, resolve to pull down the old and erect a new church edifice, in such case the pew-owner is entitled to compensation; that is, the parish or church from -whom the grant is derived must not wantonly deprive their grantee of the benefit of the license or privilege without making to him compensation. But where it is an act of necessity, required by the condition of the building or other imperative exigency, h.e has no claim whatever to compensation : Gay v. Baker, 17 Mass. 435; Daniel v. Wood, 1 Pick. 102; Wentworth v. First Parish in Canton, 3 Id. 344; Howard v. First Parish in North Bridgewater, 7 Id. 137; Fassett v. First Parish in Boylstown, 19 Id. 361; Freligh v. Platt, 5 Cow. 494; Voorhees v. Presbyterian Church of Amsterdam, 8 Barb. 135; S. c. 17 Id. 103; Reformed Church in Saugerties, 16 Id. 237; Cooper v. The First Presbyterian Church of Sandy Hill, 32 Id. 222; Brick Presbyterian Church, 3 Edwards Ch. 133,; Baptist Church in Hartford v. Witherell, 3 Paige 296; Kellogg v. Dickinson, 18 Vt. 266; Penia v. Grange, 33 Vt. 101. I do not pretend that this citation exhausts the cases on the subject, but they are the leading ones. This court has followed this train'of decisions in Church v. Wells’s Ex’rs, 12 Harris 249, in which Lowrie, J., said, “ a pew right is not of such a character as to prevent an absolute sale of the church edifice, either by contract or judicial process; by itself it was never known as a subject of taxation; if the edifice burns down the pew right is gone; it does not prevent the society from tearing down and rebuilding the edifice or from altering the whole interior arrangement of it; it does not authorize the pewholder to change and decorate the pew according to his’ fancy, or to cut it down and carry it away; and it gives him no right to the ground on which it stands. It is, therefore, a right that is entirely peculiar.”

Such being the restricted and qualified character of the rights of the plaintiffs, whether as holders of certificates or permits, it remains to inquire whether the ground in question had by lawful authority ceased to be a burying-ground; and the removal of the remains of the bodies, with the monuments, to another place or places in like manner authorized. The disinterment of a dead body is a misdemeanor, and indictable at common law as an offence “highly indecent and contra bonos mores:” King v. Lynn, 2 Term Rep. 733; Commonwealth v. Cooley, 10 Pick. 37; Kanavanis’ Case, 1 Greenl. 226. We cannot doubt that it is competent for the legislature to authorize or to delegate that power to the municipalities. It is a police power necessary to the public health and comfort. As they can authorize the removal of any other thing which they may deem a nuisance, by a summary proceeding, without a jury trial, so they can authorize and direct the removal of dead bodies from any ground, and the consequent vacation of it as a burying-ground. No one can doubt the power of the legislature to prohibit all future interments within the limits of towns or cities. In ancient times, in Greece and Rome, such was the universal rule. It was one, of the laws of the twelve tables “ hominem mortuum in urbe ne sepelite neve vicinitate.” It is much to be regretted that it was not adopted as our policy at an early period. This, is no invasion of any right of property. Every right, from an absolute ownership down to a mere easement, is purchased and held subject to the restriction that it shall be so exercised as not to injure others. Though at the time it may be remote and inoffensive, the purchaser is bound to know at his peril that it may become otherwise, by the residence of many people in its vicinity, and that it must yield to laws for the suppression of nuisances. If conditions or covenants, appropriating land to some particular use, could prevent the legislature from afterwards declaring that use unlawful, legislative powers necessary to the comfort and preservation of populous communities might be frittered away into perfect insignificance. If a man were tojourchase a building upon condition that it should only be used for the storing of gunpowder — though perfectly lawful at the time — if the legislature made it unlawful, his property would become valueless; yet it would hardly be pretended that he would have any right to compensation as for property taken for public use. So the holder of a burial lot, in which as yet ho interments have been made, who has purchased and paid for it under the restriction that it shall be used for no other purpose, by the passage of a law making such interments unlawful, loses all use of the lot. Yet he has no claim for compensation, for it cannot be said in any sense that his property has been taken for public use. The state has the unquestionable right to regulate the Use of all property for the public good. Therefore a statute authorizing the harbor master of New York to regulate and station vessels in the East and North rivers was held to extend to the wharves of private owners, and that it was not unconstitutional as interfering with private property: Vanderbilt v. Adams, 7 Cowen 349. Where the corporation of the city of New York had conveyed to a religious society a piece of ground for burial purposes, with a covenant for quiet enjoyment, and afterwards, in pursuance of authority vested in them, prohibited all future interments, it was held that the covenant no longer existed. When one covenants not to do a thing which it is lawful for him to do, and an act of the legislature comes afterwards and compels him to do it, the act repeals the covenant: Brick Presbyterian Church v. The Mayor, &c., of New York, 5 Cowen 578. It has, accordingly, been always maintained, that such laws and ordinances, as applicable to existing burial-grounds, are constitutional and valid: Coates v. The Mayor, &c., of New York, 7 Cowen 585; City Council of Charlestown v. The Wentworth First Baptist Church, 4 Strob. Law Rep. 306. If upon the principles thus stated, the constitutionality of this exercise of legislative power is unquestionable, ought it to. be doubted for a moment that they can proceed a step further and declare a buryihg-ground to be vacated as such, and authorize and direct the removal of the bodies therefrom ? As to those recently interred, the necessity with a view to public health and comfort of removing them, is as apparent as the prohibition of future interments. With those which have become entirely decomposed, leaving only the bones, that necessity may .not be so urgent, but of that the legislature are the exclusive judges. They may direct the removal in such manner and upon such terms as to them may seem wisest and best — having due regard to that feeling of reverence and attachment which all men ^naturally have to the spot where the ashes of their departed an"cestors and friends repose, and the strong desire that, if possible, they should not be disturbed. Even these feelings, however, must yield to the higher consideration of the public good.

We have come, then, to the conclusion that the Act of Assembly of April 13th 1867 was constitutional and valid, and that the preliminary injunction below'ought not to have been awarded.

Decree reversed, and record remitted for further proceedings.


text:
    Dyer versus Wightman.
    1. Nothing but a surrender,'release or eviction can absolve a tenant from his covenant to pay rent. |
    2. Occupation by a disseisor or the military force of a public enemy, or . destruction by providential disaster or by fire, will not relieve the tenant ‘ from the payment of rent.
    3. Taking by the sovereign by right of eminent domain is not an eviction.
    4. Tenants are such owners as are entitled to compensation from the Commonwealth or her grantee and must look there for compensation.
    5. It seems that when land is appropriated by the sovereign the landlord is entitled only to the present valúe of his reversion subject to the term and the tenant being personally bound, is entitled to the value of his term subject to the rent and so much beside as will indemnify him for the rent payable in futuro,

    6. When a deduction is made from the lessor’s damages under appropriation by the sovereign, for the time the lease has to run and awarded to the lessee, it in equity belongs to the lessor, because by the appropriation he is deprived of recourse to the land for his rent.
    7. The viewers to assess damages ought upon principles of equity to award this to the landlord and not to the tenant.
    8. Such award would release the tenant from his personal obligation.
    9. The fund assessed takes the place of the land, all parties are thrown upon it and the relation of landlord and tenant is extinguished.
    10. N. Penna. R. R. v. Davis, 2 Casey 241, adopted; Mifflin v. Workman, 6 Id. 362, Yoegtly «. Pitts. P. W. C. R. R., 2 Grant 243, Cuthbert v. Kuhn, 3 Whart. 357, distinguished.
    November 7th 1870.
    Before Thompson, C. J., Read, Agnew, Shaeswood and Williams, JJ. •
    Error to the Court of Common Pleas of Allegheny county: No. ‘ 154, to October and November Term 1869.
    This was an action of debt for $80, two years’ rent, brought to September Term 1868, by Samuel Dyer against Hugh Wightman.
    The defence was that the premises had been appropriated by the Western Pennsylvania Railroad Company.
    The case was tried before Mellon, J.
    The defendant gave in evidence a lease dated April 1st 1863, from Martha M. Smith to plaintiff, for a lot of ground in Allegheny City, bounded by the Pennsylvania Canal on the one side .and Washington street on the other, and lying between Federal and Sandusky streets, for five years, at $40 per annum; also, lease dated August 15th 1863, from plaintiff to defendant, for a part of this lot at the east end, until the 1st of April 1868, at the rent of $40 per annum.
    dThe defendant then offered in evidence the record of the proceedings for damages against the Western Railroad Company upon the petition of Mrs. Smith.
    The evidence was objected to by the plaintiff, admitted .by the court and a bill of exceptions sealed.
    The viewers reported that the company, about December 8th 1866, had taken for the use of their road the whole lot leased by Mrs. Smith to the plaintiff, with other property adjoining it, which was under another lease, at a rent of $150, which they mentioned in their report, and which lease they found had been assigned to the company. They did not refer in their report to the lease to the plaintiff. They assessed the damages payable to Mrs. Smith at $10,000, and concluded their report: “ whereupon the absolute title in fee is to be deemed vested in said railroad company, of and for said lot of land,” &e.
    The defendant testified that when the company were about to fence up the lot he notified the plaintiff that the lot would be of no further use; he had paid rent to the time of the possession by the railroad company; all that was useful to him had been taken, the company’s fence shut him out entirely; plaintiff said he would indemnify him.
    The court charged: “ If the railroad company, under their charter, appropriated the demised premises, and fenced up a portion of it without relinquishing the residue, the title and possession to the demised premises were changed thereby. Both the title of Dyer and Wightman, as well as the owner of the fee, was changed; each could recover the value of his or her particular interest or estate in the land from the railroad company ; but the relations of landlord and tenant between the parties was thereby extinguished, and their rights under such relationship ended.”
    The verdict -was for the defendant. The plaintiff took a writ of error and assigned the admission of the evidence and the charge of the court for error.

      L. B. Duff (with whom was W. A. Leggatt), for plaintiff in error.
    — The appropriation by the railroad company was not an eviction : Tiley v. Moyer, 7 Wright 404; Kessler v. McConachy, 1 Rawle 435. Not being an eviction by the landlord, the rent was not extinguished: Reed v. Ward, 10 Harris 144; Linton v. Hart, 1 Casey 193 ; Fisher v. Milliken, 8 Barr 111; Workman v. Mifflin, 6 Casey 362. Warranty of possession is not broken by the entry for the purposes of the road: Dobbins v. Brown, 2 Jones 75; Eolts v. Huntley, 7 Wend. 210. The legislature cannot annul the covenants: Sturges v. Crowninshield, 4 Wheat. 122; Mather v. Bush, 16 Johns. R. 233; Foote v. The City of Cincinnati, 11 Ohio 408; Parks v. Boston, 15 Pick. 198; Schuylkill & D. I. & R. R. Co. v. Schmoele, 7 P. F. Smith 271.

      J. J. Kuhn (with whom was J. S. Ferguson), for defendant in error,
    cited: N. Penna. Railroad Co. v. Davis, 2 Casey 241.
   The opinion of the court was delivered, January 3d 1871, by

Sharswood, J.

— If the court below had been a court of law merely it would not be easy to answer the positions of the plaintiff or to resist the conclusion to which they logically lead. It is incontrovertible that nothing but a surrender, a release or an eviction can, in whole or in part, absolve the tenant from the obligation of his covenant to pay the rent: Fisher v. Milliken, 8 Barr 111. Thus if the premises have been wrongfully entered by a disseisor, and the tenant dispossessed for the entire term or even by the military force of a public enemy, or if they have been destroyed' or rendered untenantable by earthquake, lightning, floods or fire, and thus all enjoyment by the tenant entirely lost, yet his covenant remains: Workman v. Mifflin, 6 Casey 369, and cases there cited. It is also equally well settled that a taking by the sovereign under the right of eminent domain is not an eviction: Frost v. Earnest, 4 Whart. 90; Dobbins v. Brown, 2 Jones 75; Boss v. Dysart, 9 Casey 452; Schuylkill and Dauphin Railroad Co. v. Schmoele, 7 P. F. Smith 271. The tenants are such owners as are entitled to compensation from the state or her grantee, and must look to that quarter for redress for any injury they may have suffered. It is their duty to attend to their rights in due season and to bring them before the legitimate tribunal which is to decide upon them: Frost v. Earnest, 4 Whart. 91; North Pennsylvania Railroad Co. v. Davis, 2 Casey 238 ; Workman v. Mifflin, 6 Casey 371. It may be true in strictness of law, considering the covenant to pay rent as unaffected by the proceedings of the state or her grantee to appropriate the land, that the landlord is only entitled to the present value of his reversion, subject to the term ; and that on the same principle the tenant, remaining personally bound, but the subject of enjoyment having been taken from him, is entitled not merely to the value of his term, subject to the rent, but also to a sum of money which will indemnify him against the , loss-arising from his covenant to pay in futuro. Such appears to have been the determination in Foot v. The City of Cincinnati, 11 Ohio 408; Parks v. The City of Boston, 15 Pick. 198; Folts v. Huntley, 7 Wend. 210. But when this deduction is made from the value of the land in the damages awarded to the lessor for the time the lease has to run, and when the sum thus deducted or what might be considered as its present equivalent, the sum of the rents payable during the entire term, with a discount or rebate for the anticipation, is awarded to the lessee, to whom in equity does the money thus awarded to the tenant belong ? Evidently to the lessor. It is decreed to the tenant for the purpose of enabling him to meet and discharge his personal covenant to pay the rent in futuro according to the stipulation in the lease. Surely equity, considering that by the act of the law the landlord has been deprived of all recourse to the land either by distress or re-entry, and is thrown altogether upon the personal responsibility of the tenant, would not suffer him after having received and pocketed the amount to snap his finger at his landlord and walk off. Not only all courts but all other tribunals in Pennsylvania proceed upon the principles of equity; for equity is a part of our law. It is the same system of justice whether administered through common-law forms or by bill and subpoena. They are bound to consider that as actually done which a chancellor would decree to be done. Thus equitable results are arrived at per saltum, without the circuity of turning the party round to another proceeding upon the equity side of the court. If a chancellor would regard the damages awarded to the tenant to indemnify him against his covenant to pay rent as in equity the money of the landlord, and decree it to be paid to him, a jury of view to assess damages ought at once to award it to him. The inevitable consequence of such award is to release the tenant from his personal obligation. The landlord receives his full loss — the value of the rent and the reversion — what thedand subject to the term would be worth to a purchaser of the reversion, who would of course be entitled to the rent as incident to it. The tenant receives his full loss — the value of his term subject to the rent — what it would be worth to an assignee who would assume the payment of the rent. If the rent is the full value of the premises, he has lost nothing and is entitled to receive nothing. If he has paid a consideration for the term, and has it at a peppercorn or nominal rent, he is entitled to recover whatever such a lease is worth. Thus there is no circuity. All parties at once are compensated for their actual loss by the appropriation of the ground to public use. The fund takes the place oi; the land. They are thrown upon it, and if they have neglected to seek their remedy there the fault is their own. The damages awarded thus taking the place of the land, the relation of landlord and tenant is extinguished, and all covenants growing out of that relation are necessarily at an end. The covenant by the lessee to surrender peaceable possession of the premises at the end of the term would certainly be so. Performance of it would be rendered impossible by the act of the law. Suppose a covenant by the tenant to build. Such a covenant would he a very important element in determining the respective amounts justly payable to the parties, but all claim of the lessor against the lessee for its breach would be gone. We believe the rule for the<*measure of damages, when lessor and lessee have claimed compensation for land taken for public use, has always been in this state that which we have herein propounded. It is so stated as to the lessee by Woodward, J., in The North Pennsylvania Railroad Co. v. Davis, 2 Casey 241. “ The direct injury done to them (the lessees), or in other words the value of the thing taken from them, was to be measured by the worth of the lot at the stipulated rents for the residue of the term.” Nor is it inconsistent with the judgment in Mifflin v. Workman, 6 Casey 862. There the ground landlord, having a rent in fee issuing from ’the premises — a distinct and independent estate — was held not to be such an owner as could claim compensation from the public. The tenant of the land had received its full value in damages, and neither in law nor equity was discharged from his personal covenant to pay the rent. And in Voegtly v. The Pittsburg and Fort Wayne Railroad Co., 2 Grant 248, it is said, “ If part of the ground be taken for public use of a highway, equity will apportion the rent in relief of the tenant, compensating the landlord out of the damages awarded.” In Cuthbert v. Kuhn, 3 Whart. 357, it was held that a ground-rent was in equity apportioned by the opening of a street, and that the rent was reduced in proportion to the amount of the lot taken for public use. But that was where the tenant of the land by a bill in equity offered to pay to the ground landlord the value of his rent out of the damages awarded. That case has never been overruled — certainly not in Mifflin v. Workman, and Voegtly v. The Pittsburg and Fort Wayne Railroad Co. It is rather affirmed as standing on its own peculiar ground of equity. If the principle of Cuthbert ¶. Kuhn be sound it goes far to resolve all the difficulty there is in the case before us. The tenant having received the damages awarded in part as a compensation for his personal liability on his covenant to pay the ground-rent in futuro, could in equity compel his landlord to accept it and release him from his covenant. That shows that in the case of a lease for years those damages ought directly to be awarded to the lessor. Nor are the cases of Frost v. Earnest, 4 Whart. 86, and Dobbins v. Brown, 2 Jones 75, inconsistent with this view. The lessee having the right to compensation for his injury from the public, has no title at law or in equity to sue his landlord for damages either for breach of the covenant of quiet enjoyment or of warranty. At law, as we have seen, it is no eviction. In equity it is a conclusive answer that he has another recourse provided for him which is ample and adequate.

This course of reasoning has brought us to the conclusion that the learned judge below committed no error in admitting the evidence of the proceedings to appropriate the lot and the report of the viewers, and in instructing the jury that the relation of landlord and tenant between the parties was thereby extinguished and their rights under such relationship ended.

Judgment affirmed.